Robertson Grant: Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeRobertson Grant: Telecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13985. Text is incorporated into the Bound Volume.]GRANT ROBERTSON (Labour—Wellington Central): Before I get into a substantive contribution on Part 3 I want to respond to what I guess I take to be the tone of the comments that the Minister for Communications and Information Technology has just made. It was essentially that it is all or nothing. You either believe that because there are potentially security threats involving network providers in New Zealand and therefore you have to accept anything in terms of security arrangements. That is essentially what the Minister has just told us and that if anyone does not do this they are somehow traitorous and acting against the interests of New Zealanders.It is not that simple Minister. Of course there need to be provisions in place to protect our security and to protect the security of New Zealand citizens. But those must always be balanced against the rights and freedoms of New Zealanders and the ability of companies to operate in New Zealand to provide the very services that New Zealanders want. So operating on this “take it or leave it” approach as the Minister is doing is actually disingenuous.If we are trying to create law that is robust and that upholds New Zealanders’ values then we do that on the basis of a balance. We do not do that on the basis of the Minister coming to the House and saying “Take it or leave it. Here are these expanded powers.”—and she admits these are brand new. These powers invest a great deal of influence in the Government Communications Security Bureau (GCSB) and in the Minister and we just have to accept that because the Minister says that is what is required. Well that is not right. As Clare Curran said in her earlier contribution the Law and Order Committee was prevented from talking to the GCSB about this Telecommunications (Interception Capability and Security) Bill.This Part 3 is the part of the bill in which our dear friends at the GCSB reappear. They have been quite the stars of Parliament over the last couple of years and inparticular their Director Mr Ian Fletcher the childhood friend of the Prime Minister. TheGCSB’s role here in network security is significant. The Director of the GCSB as the Minister herself has just said sits at the centre of the process by which decisions will be made around whether there are national security issues and whether or not there are areas of specified security interests that need to be dealt with.Well let us take a look at the record of the GCSB and whether or not we believe that giving such wide-ranging powers is appropriate. We are talking about an agency that has been involved in up to 88 cases of illegal spying. We are talking about an agency that has changed its story time and time again about its role in the Kim Dotcom affair. The Minister says that it is all fine because the Director of the GCSB then goes to the Minister. Well we saw what happened with the role of the Minister who was looking after the GCSB in terms of John Key.I do not feel reassured by that at all—that the Minister is doing that. In fact all the evidence we have seen is that we should be very concerned about giving increased powers to the GCSB in this way. We should be very concerned about the Minister then having the ability once that recommendation has been made by the Director of the GCSB to go off and decide to put in place the security measures that she is able to under this part of the bill. TheGCSB’s role as we know from the earlier legislation that was passed has now been greatly expanded. Its powers are greatly expanded. I stand here today in front of a bill with brand new material it has never been put forward before and the Law and Order Committee did not even get to talk to the GCSB about its role in doing this. I have absolutely no confidence I have to tell you that giving these powers to the GCSB without the Law and Order Committee being able to scrutinise them and to ask questions of them about how they will go about this work is appropriate. We should not be passing Part 3 of the bill with that in place.I want to reflect on what some of the submitters have said about the question of this part of the bill. In particular I want to refer to the submission from the New Zealand Telecommunications Forum. What they said was that their key concerns relating to Part 3 were that these new obligations had insufficient protection transparency and appeal rights and that they imposed additional obligations for which there was no compensation for any additional costs. That essentially draws out two of the key elements of this bill that—I hope I have not pushed the Minister to tears or anything like that. No. No that is good seeing the tissues coming out. This highlights the two main bits of the bill that we have concerns about—the fact that there is insufficient transparency around these issues—because under this part of the bill the transparency is provided according to the Minister by the fact that she has included through Supplementary Order Paper 366 a role for the Commissioner of Security Warrants.Our problem starts at the beginning of the process the transparency at the beginning of the process involving the GCSB because consistently under this Government the GCSB has operated outside the law and then when it has been drawn back inside the law we have not been able to question the GCSB. We were not able to question the GCSB when its own legislation—Hon Trevor Mallard: They changed the law from the inside.GRANT ROBERTSON: Exactly. Well they did. That is right. They made their unlawful actions lawful by changing the law. But then we were not even able to question the GCSB properly about its own law. Then the Law and Order Committee was not able to question the GCSB about this law that the Government has to put into place. So I can only agree with the Telecommunications Forum that this bill does that.It is also the question about the additional costs that have been put in place. Nowhere in this has the Minister been able to accurately answer in the debate that I have heardhow that is going to be mitigated and how the so-called chilling effect on the industry in New Zealand will be able to be dealt with.Part 3 of the bill in our opinion is a significant departure from the law that we have had in New Zealand before. I simply do not agree with the Minister that there was no way to deal with significant security breaches under current New Zealand law. That simply cannot possibly be true. The Minister has got up and put that up as a straw man to try to say again: “It is all or nothing. If you do not have this there is absolutely nothing that is available to New Zealand to protect our national security.” That is absolutely patently wrong and ridiculous and the kind of straw man argument that has typified everything that happens throughout this.We have on this clause as on others Supplementary Order Paper 370 in the name of Clare Curran to try to mitigate some of the worst aspects of this bill—in particular in clauses 46 47 and 48 of this bill. We would urge members of the Committee to support those amendments. What they attempt to do is at least give some more certainty to network operators about who is captured by this bill. We believe that currently the provisions are extremely wide on this and we need to make sure that there is a far better provision in the law.We also do not believe that the appropriate method of granting exemptions here under clause 48 should come through the GCSB. Unfortunately the Government voted down the provision on the technical advisory board which would also have had a role in monitoring these issues and ensuring that there was some independence. That technical advisory board would have had a significant role in this area and again was asked for by members of the Telecommunications Forum.I will finish this contribution now on Part 3 by saying to the Committee that what we have here is a part of the bill that is brand new untested law being rammed through Parliament with Government members taking closure motions to prevent Opposition members from raising concerns and with very limited substantive contributions from the Government. That is not on with such significant changes. We do not believe that New Zealanders’ rights to be protected are being balanced with their freedoms to use and have access to services. This bill fundamentally fails the test of good law and Part 3 should not be supported.