Telecommunications (Interception Capability and Security) Bill — In CommitteeText is incorporated into the Bound VolumeTelecommunications (Interception Capability and Security) Bill — In Committee[Sitting date: 16 October 2013. Volume:694;Page:13946. Text is incorporated into the Bound Volume.]Telecommunications (Interception Capability and Security) BillIn CommitteePart 1 Preliminary provisionsCLARE CURRAN (Labour—Dunedin South): I want to give a bit of an introduction to Part 1 of the Telecommunications (Interception Capability and Security) Bill to the bill in general and to where Labour stands on this which is strongly opposed to this bill in its entirety but certainly starting off with our reasons for opposition to Part 1. This bill as we know replaces the Telecommunications (Interception Capability) Act of 2004. It is certainly needed and there is justification for an updating and a modernisation of this legislation. One of the things this bill does is it adds a new component to this piece of legislation. It is called “security”.This bill is problematic for numerous reasons. It is the companion bill to or the facilitating bill of the changes that this Government pushed through under the Government Communications Security Bureau Act. That bill failed to provide enough protections for New Zealand citizens’ privacy. We contend that this bill certainly reinforces that but also fails to take into account economic issues the costs to New Zealand telecommunications and technology companies and also the issues of data security and the rights of those companies.This is a very one-sided bill. It involves a major expansion of Government powers over network providers through the Government Communications Security Bureau (GCSB) and through providing extensive and unprecedented powers to Ministers in different parts of this bill. It gives Ministers extraordinary powers in some cases without precedent in New Zealand. We will certainly have more to say on that as we go through the different parts of this bill. It creates broad sweeping powers. It increases the role of the GCSB overall—its role in the decisions by network operators and the information that must be provided to them.This bill we contend was not well drafted. We say that in all seriousness. We say that knowing that in general much of the legislation that comes before this House has been well drafted and a lot of thought and attention has gone into it. Our contention is that the concerns of submitters the concerns of industry and the concerns of civil society have been ignored pretty much during the course of the bill going through the Law and Order Committee. We think that there are serious issues in definitions. Certainly in Part 1 we are addressing that.Today we have tabled in the Chamber Supplementary Order Paper 370 which contains 10 amendments to this bill. Four of those relate to Part 1 and we will be addressing them as we go through the discussion today. The Law and Order Committee did make some changes to limit and clarify powers and processes but we believe that they were not enough. There was a last-minute Supplementary Order Paper 366 from the Minister for Communications and Information Technology which has left manymany questions around what the implications of that are. There has been an inability to discuss that and seek advice on those matters in the select committee. There was an attempt to refer this bill back to the select committee yesterday which naturally failed but as a result we therefore do not know what the impact of the Minister’s last-minute Supplementary Order Paper actually is.Part 1 includes the interpretation clause which several of Labour’s Supplementary Order Paper amendments relate to. I will quickly run through what they are. They deal with and relate to clause 3 in Part 1 firstly deleting the definition of “national security”. This is important. There were many submissions and there has been much discussion around this part of the bill because this definition of national security includes a concept called “economic well-being”. As I said earlier there are a number of things that are unprecedented in this bill and this concept of economic well-being is one of them which has not been anywhere in this bill spelt out as to how it relates to national security what that means what factors are taken into account when those decisions are being made—that national security is important—and how economic well-being fits in with all of that. Our remedy for this is to delete this clause altogether because it is essentially meaningless and it creates more questions than it answers. So we have put a Supplementary Order Paper forward to delete that particular definition which is on page 10 of the version of the bill that I have in front of me. By removing the term “economic well-being” if we attempted to do it that way it would make the clause redundant so we believe that the best remedy is to actually delete the whole of that sentence altogether.The second amendment that we are proposing is to amend the definition of “network operator”. There is going to be a lot of discussion about that particular issue as we traverse this bill today because of the enormous wide definition of “network operator” and the potential for encompassing so many different organisations and entities in New Zealand particularly. There are two issues there and two clauses here that we are going to amend. One is the definition of “network operator” and the other is the definition of “service provider”. Both again create more problems than they solve in attempting to deal with the intent of this bill. It is our contention that they must be amended. During the select committee process we ended up with a wider version of “service provider” and it has made the issue much more complex.In our amending of “network operator” we say that the bill as drafted places onerous obligations on network operators and may capture many who were not be intended to be caught. This is the same with the definition of “service provider”. Our contention is that we should return the clause to the one that was originally introduced into the select committee. As has been discussed in recent days the revised definition of “service provider” now potentially includes anyone outside New Zealand who makes a telecommunications service available in New Zealand. On the one hand you have got a definition of “network operator” that could potentially apply to every website operating in New Zealand that has a communication with members of the public. The definition of “service provider” could capture anyone outside New Zealand who makes a telecommunications service available in New Zealand. It is our belief that this was not and should not be the intent of the bill and therefore we say that that should be amended.Finally we are inserting a new definition of “surveillance agency” which clarifies that this term applies only to New Zealand agencies. Again the discussion in the select committee was very unclear on this matter. It is our fear that it was meant to be wider than that. I would like to hear from the Minister her view during the course of this discussion on whether that was her intention. Was it meant that the definition of“surveillance agency” was to include only New Zealand - based agencies or was it meant to be a much broader definition?We have 10 different amendments to discuss during the course of this bill. These particular four relate to Part 1. They are core to the whole bill because everywhere that those terms are used—GRANT ROBERTSON (Labour—Wellington Central): I was momentarily distracted by some news about one of our parliamentary colleagues Mr Banks that I am sure another colleague will confirm shortly but it seems he may have seen the light for once. I want to speak on Part 1 of the Telecommunications (Interception Capability and Security) Bill.Hon Trevor Mallard: He’s got the message unlike John Key.GRANT ROBERTSON: Yes that is right Mr Mallard. I want to carry on from where my colleague Clare Curran left off and talk particularly about a variety of matters within the interpretation clause which is clause 3 of the bill. But before I do that I want to set the context for those interpretations. That is provided by the purpose clause which is clause 5 of the bill. The purpose of the bill in relation to interception capability is to “ensure that surveillance agencies are able to effectively carry out the lawful interception of telecommunications under an interception warrant or any other lawful interception authority;”. That is the first purpose of this bill.That may sound innocuous to people listening to the House today but the reality is—Hon Amy Adams: It is.GRANT ROBERTSON: The Minister for Communications and Information Technology says quietly under her breath that it is innocuous except it is not. It is not innocuous because of legislation that has previously been passed in this House and that is the Government Communications Security Bureau (GCSB) legislation. It is worth in the context of Part 1 traversing the fact that the surveillance agencies that have been referred to—just for the benefit of the Committee John Banks has resigned as a Minister but he is still the MP for Epsom. So I am sure the people of Epsom are very grateful for that.The purpose of the bill it says in clause 5(a) is to ensure that surveillance agencies such as the GCSB can carry out the interception that they are entitled to do under law. That right of the GCSB was vastly expanded under the GCSB legislation. It is not right to simply say that this is an innocuous provision as the Minister has tried to claim when in reality the very surveillance agencies that are covered by this legislation have had their powers expanded. The way in which those powers have been expanded primarily relates to their ability to spy on New Zealanders. The GCSB legislation also expanded the ways in which that surveillance could take place.But it is essential to note that one of the main reasons that the Labour Party has a problem with this legislation is that it is legislation that operationalises the GCSB legislation. The widened powers the ability to spy on New Zealanders are given life in this bill. We believe that that legislation that was passed by this Parliament is deeply flawed and fails to strike the correct balance between protecting the security interests of New Zealand and giving New Zealanders the freedom to operate. That balance has been lost. It has now been totally lost from the intelligence agencies in New Zealand and here we have a bill that puts that into practice. That is why the purpose of this bill as stated in clause 5 is wrong.The purpose clause then goes on to talk about network operators and service providers having the “freedom to choose system design features and specifications that are appropriate for their own purposes.” Let us just read that again: “network operators and service providers have the freedom to choose system design features and specifications that are appropriate for their own purposes.” Well I am sorry to say thatthe bill does not achieve that purpose. All of the network operators and service providers who came to the Law and Order Committee said that that is the very thing they now will not be able to do because the Government is now going to be involved in the design of their networks. The Government is going to be able to have a say in how those networks operate. The Government is going to be able to monitor those networks. So clause 5(c) in Part 1 is completely impossible under the rest of this bill.It is not just Opposition politicians who are saying this. Members of Parliament have all received an open letter from theNZRise group. In that open letter the group is pleading with the Government: “Don’t rush this legislation through.” The Government has not thought it through properly. The service providers and the network operators whom this law affects are saying that they are not clear what it means. The lawyers whom those people have consulted are not clear what it means. The Minister keeps saying “Well we know what it means.” but the very people whom it affects are not able to interpret this law clearly.Those people are calling on the Government to say that this law does not reflect the purpose in clause 5. If the purpose is to allow network operators to have the freedom to choose system design features then that is exactly what the rest of the law should do but it does not. The purpose clause sounds good when you read it on a superficial level but in terms of clause 5(a) around surveillance agencies and clause 5(c) around network operators the rest of the bill fails to allow those purpose subclauses to come into action.I then want to refer back to the questions of who is a network operator and who is a service provider and that is dealt with for us in clause 3 of the bill. As my colleague Clare Curran has already made clear the definition of “network operator” is now potentially so broad as to include just about anybody. It could include your local school. I was down in the press gallery just a few minutes ago discussing the matter of John Banks and his political life. I looked around the Fairfax office—Hon Trevor Mallard: The life and death of John Banks.GRANT ROBERTSON: That is right—the very short political life remaining for John Banks. I looked around the Fairfax office and I said: “Well you’re a network operator I think. I’ve just had a look at the bill and you’re a network operator.”Hon Trevor Mallard: They get bugged anyway.GRANT ROBERTSON: That is true—that is true. In deference to some of the staff members in the Fairfax office they have already experienced what this bill is going to allow.Iain Lees-Galloway: Isn’t that how they lost the last Minister?GRANT ROBERTSON: It is how they lost Peter Dunne as well. In all seriousness they are potentially under the definition here a network operator. It is a farcical situation for a piece of legislation to come to this Committee with a definition of “network operator” that could take into account schools that could take into account offices. It is the kind of loose legislation that this Government unfortunately is renowned for and it should not be going through this Parliament.I refer again to the open letter fromNZRise. It has made I think a very interesting statement here. It said: “The Bill places onerous obligations upon network operators. That term is defined through a tangled web of definitions drawn from the Telecommunications Act and then amended.” I could not agree more with that statement. The letter goes on to say the “definition’s second limb specifies that a network operator is a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service.” If you then add in all of the other definitions it is essentially anybody who is supplying another person with the capability to provide goods services and equipment that enable or facilitate“the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign”. Just pausing there at that point—Hon Trevor Mallard: Well I am because my kids use the thing at home.GRANT ROBERTSON: Trevor Mallard is a network operator. That is a frightening thought for all of us. Trevor Mallard is a network operator. Under this bill we are potentially all network operators because of the “conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign”. If we enable that when a parent sets up a network inside their home for their children to be a part of they are now captured by this definition of “network operator” that is here. It is a farcical situation to have a definition like that.I am not suggesting necessarily that the Minister’s intention is to capture a family’s network at home but the bill is clearly poorly drafted in that regard. Or if it is not and it is the Minister’s intention then all of the fears that New Zealanders have about the expansion of powers of surveillance agencies have come to pass.So that is why we have Supplementary Order Paper 370 to revise the definition around “network operator”. We need to ensure that New Zealanders have the freedom to communicate with one another in the way that we do in the modern world. That means law that is appropriate and that balances the need for security and the freedoms and rights of New Zealanders. The definition of “network operator” that is contained within clause 3 of this bill is woefully inadequate it is far too broad it captures far too many New Zealanders it creates enormous uncertainty among the public and among the telecommunications industry and the Minister must change that definition.The other definitions that we have got particular concerns about within clause 3 include that of a “service provider”. There was in fact an addition in the Law and Order Committee to say that a service provider meant anyone from within or outside New Zealand providing or making available in New Zealand a telecommunications service. This is an enormously wide definition of what a service provider is taking in people not only in New Zealand but outside New Zealand. I am not even sure that the law can do this and I think that that clause should also be altered.TRACEY MARTIN (NZ First): Kia ora Mr Chair. On behalf of New Zealand First I stand to oppose this Telecommunications (Interception Capability and Security) Bill. Originally at first reading New Zealand First reserved its judgment predominantly to make sure that we heard the arguments at the Law and Order Committee and so we supported the bill through its first reading. Since then it has become incredibly obvious that this is predominantly a bill that says: “Trust us. Trust us New Zealand. Give us all these powers. We won’t necessarily use them but trust us.” I think we have seen even just today that there are some standards that this Government has that need to be questioned so “trust us” is not good enough unfortunately for New Zealand First.We recognise that the bill basically is in two parts. One is around interception and the other is around network security. The network security aspects of the bill are largely technical in nature and deal with how the telecommunications sector and companies operating inside that sector will operate in relation to interception warrants. These technical aspects relate to the operation of networks—and we have just heard how wide that description is currently—and the examination and collection of information and data both through and from various network devices.These areas are areas that are particularly subject to rapid technological change. The nature of individual and commercial use of networks and of network devices is also changing at an incredibly rapid pace and it is through this usage by the very nature of its usefulness that makes companies as well as Government agencies vulnerable to exploitation. Essential services both public and private may be subject to eavesdropping and cyber-attacks with the potential for intellectual property to beusurped and the possibility that essential services to individuals and companies may be compromised.New Zealanders deserve and expect to be protected from such potential threats and as such it is necessary to have legislation governing the interception of electronic communications and it is necessary to update them as required as the cyber-environment evolves. But New Zealanders also deserve and expect that their Government will appropriately balance these protections of security with protections around their rights their freedoms and their civil liberties. Having recently just come back from a democracy that is only 2½ years old and over a 20-year period prior to that lost all its citizens’ abilities to keep their freedoms and their rights I say that we need to not take this flippantly. New Zealanders do need to continue to maintain vigilance around legislation such as this where a Government just says “trust us”.We are in a good place. We are a good people and a good democracy—150 years of unbroken democracy in this country; we do it well. But we still must be aware of what I refer to as “the invisible man theory” and that is when there is not enough oversight. When there is nobody watching the watchers when there is nobody checking on the warrants and those who have the powers are at arm’s length and removed from the powers that be then there is the possibility that things will not go well in the future and herein lies New Zealand First’s problem which is why we will oppose the bill.We will support Clare Curran’s Supplementary Order Paper 370 because we see there particularly the new insertion into clause 2 around an independent review of New Zealand security agencies. We hope that this in itself would make sure that the New Zealand public and therefore the New Zealand First Party could have confidence that their overview is appropriately there—that the independent overview is there. A change of Government given the same powers may not be the lovely nice people who currently sit on the Government benches. They may be people who use these powers in another way that is not to the benefit of the people. It is necessary therefore for the New Zealand people to constantly have the ability to be confident that there is an oversight and that their Government is looking out for their welfare.It is also of interest to us that four of the largest internet providers of content and email Google Yahoo! Microsoft and Facebook gave advice to the Law and Order Committee that this legislation would create legal conflicts with other countries and that the law is out of alignment with approaches taken by the UK Canada the United States and Australia—the “Five Eyes” arrangement that we are part of. The Minister for Communications and Information Technology rejected those comments. The Minister—Hon TREVOR MALLARD (Labour—Hutt South): The first point I want to make is that I hung back a little bit from making the first of my four contributions on this part of the Telecommunications (Interception Capability and Security) Bill because I anticipated given the long list of questions that the Minister for Communications and Information Technology had been given that she would get on her hind legs and attempt to respond to them. But I am afraid that what I was thinking of was the old promising Amy Adams—the Minister who was on the way up. Well what we have now is a Minister in charge of this shambles a Minister in charge of the Chorus network shambles and the Commerce Commission override shambles and the Minister in charge of losing Peter Dunne on environmental legislation. What we see is a Minister in charge of this bill who is clearly someone for whom all of her potential is behind her. In the old days when it was in front of her she would have got up on her hind legs and she would have responded to some of the questions but not today.There is a particular case to do with the definitions that I want to put to the Minister. I think that she is aware of the school in west Auckland that is currently running a network with the help of one of the IT entrepreneurs whom I know she knows relativelywell and Mr Joyce knows as well. He is doing it pro bono and they are working through that school in order to provide to the parents in the immediate area a wireless service of high quality a lot of bandwidth and a reseller-type arrangement but at almost no cost to the parents. In fact with the very small amount of money that comes in the school is making some money out of it because of the way it is configured. In fact in the future the school might even make some money out of franchising the arrangements so that other schools can do them and so that parents in similar communities can get very very cheap internet through the bulk buying arrangements that are available.The question that I want to ask the Minister is whether that school is a network operator. Sorry I am afraid that at the moment the Minister does not appear to be focusing. Is that school a network operator under the definition in this bill? Does it have to register with a person appointed by the Commissioner of Police or not? They do not. The Minister says that they do not. Well how can you tell from reading this? You cannot tell from this because according to the definition the school has customers because “customer” is defined as “ … a person who receives telecommunications services from and has an account or billing relationship with a network operator”. These people—these parents who live in the community—get billed by the school. They pay through the school. The service is provided through the school. What is a school if it is not a network operator? It is clearly a network operator.I want to refer to another one. I know this might go to the point of being nit-picking or looking into the fine print but I think that is our job. As part of the Committee stage we must go through the bill line by line by line. Since when has an email address been a number? This bill purports to tell us that an email address is a number. Well you know I am probably one of the least technologically aware people in this Parliament but I know that an email address is not a number. Why should this Parliament mislead the people of New Zealand through its legislation and tell them that an email address is a number? Because it is not. My email address is trevor.mallard@parliament.govt.nz. I know that is not a number. I have got the Minister’s number and I know that that is not a number. And so—Chris Hipkins: What about the dots?Hon TREVOR MALLARD: Sorry?Chris Hipkins: What about the dots?Hon TREVOR MALLARD: Are the dots numbers? I do not think dots are numbers.Chris Hipkins: Decimal points?Hon TREVOR MALLARD: Well it is an interesting point and I look forward to the Minister’s particular comments on that.Could we go to the question of a “telecommunication device”. It says this means “ … any terminal device capable of being used for transmitting or receiving a telecommunication over a network;” and it includes a telephone. Well for people of my generation back in the day you would wind it round and hear someone say “Working working.” You used to have party lines inWainuiōmata back in the old days. In fact we thought it was enormous progress when we got numbers that had four digits. In fact now they have the numbers “564” in front of them to indicateWainuiōmata. The point that I am trying to make is that there are a number of devices where it is not clear whether they are terminal or not. I have had a number of cellphones that have been terminal—generally when I have dropped them or put them in a puddle—but is a device that forwards a message terminal or not? Well I would tend to say it is not a terminal device but I would also tend to say that the Minister is trying to capture it under this definition. Is a device that is capable of forwarding a message terminal or not? It is notthe end of the line because the message keeps on going. So that is another point that I would like to ask the Minister.The next question I want to ask goes to the question of the registrar. The registrar is a person who is appointed by the Commissioner of Police—I will just get the exact words because “appointed” is not quite the right word. Oh no—“appointed … under section 68”. I will not go into clause 68 but the person who does the appointing or the indicating of the individual officer is the Commissioner of Police. The question that I want to ask the Minister is whether we are satisfied with that. Are we satisfied that any old constable could be the registrar? Are we satisfied that a civilian employee of the police could be the registrar for these purposes? The registrar for these purposes is something that is a very very serious job. It is a job with enormous powers. A rejection by the registrar could close down Vodafone in New Zealand tomorrow or Chorus or Telecom or any one of a number of companies and 3degrees—I mean 2degrees; it was 3G that I was thinking about. Do the members know that I was part of the first trial of 3G in New Zealand? The phone that I used as part of that trial—Phil Twyford: It’s in Te Papa.Hon TREVOR MALLARD: —when I was Acting Minister for Paul Swain—no it would not fit in Te Papa it was so big. It needed its own massive van to move this particular—I presume it was a terminal device although—Moana Mackey: How old are you?Hon TREVOR MALLARD: At least twice the member’s age.The other point that I will make while we are on the subject of devices is that the first cellphone that I owned had a handset a big black one and it had a dial. It had a strap that went over my shoulder and it was a man bag. It was about that long and about that high and about that wide.Hon Clayton Cosgrove: Did it have a crank?Hon TREVOR MALLARD: No the home phone had a crank. But the point that I am making [Interruption]—Well it was not a party when Helen was on the line.The CHAIRPERSON (Lindsay Tisch): Before we move on I remind members that we are on Part 1. Although there is some [Interruption]—I will comment on this. Although it is always a little bit interesting to bring some humour in we are on Part 1 and we will concentrate our efforts on Part 1.Hon TREVOR MALLARD (Labour—Hutt South): I raise a point of order Mr Chairperson. I feel like you might be admonishing me for the comments I made in my speech. I was asking the Minister whether these devices—The CHAIRPERSON (Lindsay Tisch): The member will sit. I am giving a general view of how over the next period of time this is a very narrow debate on terms. We are on Part 1 and we will concentrate on Part 1.CHRIS HIPKINS (Labour—Rimutaka): I am very happy to follow on from my colleague Trevor Mallard who amongst other things in his very useful contribution established for the Committee that he is very very old. I want to thank him for that. Of course as we debate Part 1 which includes the interpretation clause of the Telecommunications (Interception Capability and Security) Bill—and I have got a number of points that I want to raise on the definitions—it is of course useful to remember why we are here and how this whole debate came about. It came about because the Government Communications Security Bureau (GCSB) one of the agencies whose powers are significantly increased under this bill was unable to read its own Act and to interpret the law as it stood. It was unable to do that and this bill expands its powers. It was not able to stick within the law as it was so the Government’s solution to the GCSB being unable to follow the law as it was is to increase the scope of theGCSB’s powers under the law. There are a number of reasons why the interpretation clause in this bill creates some huge concerns in that regard.Of course there is a little irony in all of this in that the catalyst for this the best example of the GCSB being unable to follow its own law was the Kim Dotcom case. Of course who was Kim Dotcom? He was John Banks’ big donor—Hon Clayton Cosgrove: Brown bag.CHRIS HIPKINS: —and of course John Banks lost his job today because of those brown bag anonymous donations.The CHAIRPERSON (Lindsay Tisch): Order! Order!CHRIS HIPKINS: Well it is absolutely relevant Mr Chair—The CHAIRPERSON (Lindsay Tisch): Come back come back. That has got nothing to do with it.CHRIS HIPKINS: —and I am intending to come back to it because I am going to come to the definition of “national security” because it is directly relevant to the Kim Dotcom case. It is absolutely relevant to the Kim Dotcom case. “National security”—according to this legislation—“in relation to New Zealand includes its economic well-being”. How much broader could a definition of “national security” get than simply being economic well-being? This bill gives the Minister enormous powers simply on the basis of the country’s economic well-being. It does not necessarily need to suggest that anyone has broken a law or that any operator has broken a law but simply that a Minister deems it to be in the interests of national security.So in the Kim Dotcom case Kim Dotcom andMegaupload may not have even been deemed to have broken any laws. It simply could have been the case that the Minister decided that it was not in the country’s economic well-being for theMegaupload operation to continue to operate. This is my understanding of how this bill operates and I am sure my colleague Clare Curran will correct me if I am wrong. My understanding of it is that under this definition of “national security” which is purely economic well-being the Minister could effectively shut downMegaupload if she deemed it to be not to do with the country’s economic well-being. It is nothing to do with whether any laws have been broken but it simply applies an economic well-being test. That is so so utterly broad.Amy Adams the Minister in the chair is shaking her head so I am hoping that she will address this issue when she makes her contribution in this part of the debate because I have never seen anything that defines national security and extends national security powers so broadly yet has such a broad definition of what national security actually is. I think that that is incredibly concerning and I am looking forward to the Minister’s contribution on that.Coming back to network operators and the definition of “network operator” another question that I have for the Minister is whether the Government’s Network for Learning which is being extended to all schools in the country and being made available to all schools would come under the definition of a “network operator”. Clare Curran has just passed me some further information about the Network for Learning although I am relatively familiar with it. We have got 21 schools according to Nikki Kaye being connected to the Network for Learning by the end of this year. I would actually quite like to hear from the Associate Minister of Education Nikki Kaye who is overseeing the implementation of the Network for Learning. She is on the phone so I am assuming that means that she is getting some advice on this matter so that she can participate fully in this debate.I would like to know what the implications of this bill are for the Network for Learning. It is going to be rolled out from what we understand to all schools in the country over time. It is a significant network so let us look at what the network operatordefinition in the bill states. It states that a “network operator means a person who owns controls or operates a public telecommunications network;”. The Network for Learning surely must come under the definition of that so what are the implications? This is a managed network for schools that is going to connect schools together via a secure data network offering high levels of service quality and support so the Government therefore becomes a network operator under the definitions in this bill. So what are the implications for the Network for Learning and for interactions with kids who might be using the Network for Learning as a result of this? Is the GCSB now going to be snooping on kids and teachers throughout the country as a result of this legislation? Because under the definition of a “network operator” the Network for Learning could well come within that definition.Let us look at a “network security risk”. A “network security risk means any actual or potential security risk arising from the design build or operation of a public telecommunications network; or any interconnection to or between public telecommunications networks in New Zealand or with telecommunications networks overseas”. Again it is a very very broad definition—any actual or potential security risk arising from those things. So could kids working in schools be deemed to be a potential security risk and on the basis of that could we have the GCSB snooping in on the activities of schools and kids as a result of this legislation? I think we do want to have some clarity.One of the problems with this bill is that the definitions are simply so broad. I am completely willing to admit that I was not part of the select committee process for this bill. I picked up this bill for the first time this afternoon and tried to make head or tail of it. I have to say that it is incredibly complex and incredibly difficult but I have been alarmed in reading the definitions at just how broad they are and when we get into Part 2 in particular at just how sweeping are the powers under Part 2. The reason that of course the Part 2 powers are relevant to the debate on Part 1 is that the Part 2 powers all rely on the definitions that are established here in Part 1—those very very broad definitions.Let us look at the “other lawful interception authority”. That “means an authority to access an information infrastructure (within the meaning of the Government Communications Security Bureau Act 2003)” and “includes an authority to intercept a private communication (whether in an emergency situation or otherwise) that is granted to any member of a surveillance agency under any other enactment”. Authority to access an information infrastructure—so what is an information infrastructure? Let us go back and see what the definition of an information infrastructure is under this piece of legislation here. An information—oh it is not defined. An information infrastructure is not defined. So basically we have got here unless I might have missed it but no I did not. No I cannot see it here. So we have got it here that—Dr David Clark: The Minister will correct you if you’re wrong.CHRIS HIPKINS: —I am sure she will—it “means an authority to access an information infrastructure”. Well what is an information infrastructure? How can we be having a definition with another definition contained within in it that is not then defined? It actually just makes a mockery of the whole thing. This bill is so poorly worded and gives such broad powers that it is almost certainly going to result in significant legal challenges to the Government and the reason all of the New Zealand public should be concerned about that is that it deals with such a sensitive delicate issue. It deals with the privacy of New Zealanders’ information and their interactions online and use of other forms of telecommunications.I said in earlier debates on this matter that I think the issues around privacy and around what New Zealanders can expect when they are using information andcommunications technology is one of the biggest and most challenging issues that this Parliament is going to deal with over the next few years. What we have seen from this Government is that it deals with this debate in an ad hoc piecemeal fashion without a real proper thorough examination of the principles that should guide it and that is why we end up with bad legislation like this.For example if we turn to the principles clauses in Part 1 here—I will get to the principles clauses as I was reading them a moment ago. In clause 5 here as part of “Purposes and principles” we have got principles relating to an interception capability and we have got principles relating to network security but there are no principles relating to privacy and no principles relating to the actual New Zealand citizen’s rights under this legislation. So surely in a principles clause—and Part 1 sets out the principles behind the bill—we should set out the principles under which the powers being granted by this bill should be allowed to be used. One of those principles has to be a balancing principle that protects the privacy of New Zealanders and yet that is not in here. Fundamentally when we debate this legislation—Clare Curran has mentioned this and the Committee will find references to it in the Labour Party’s minority report—we have to get the balance between privacy and security right because a democratic system relies on both of those things.This bill basically says that the Government can ride roughshod over individual rights and freedoms in the name of security adopting an incredibly broad definition of security. It is massively expanding powers and it is not democratic it is not fair and it is not right.STEFFAN BROWNING (Green): I rise to speak to Part 1 of the Telecommunications (Interception Capability and Security) Bill. Just looking at some of the interpretations I will jump through to the infrastructure aspect. The “infrastructure-level service” means “any service that provides the physical medium over which telecommunications are transmitted …” and it talks about the optical fibre. So in other words it talks about the hardware—not the hardware of the phone itself but the wires and the like. I remember in the Marlborough Sounds where we ran a telephone wire down to a neighbour’s—a sort of outrigger from our home. I realised that that wire between the baches or homes in the sounds would fit within that and obviously that is something else that can be intercepted.Something that concerns me more in terms of the interpretation is the definition of “Minister”. No disrespect to the Minister sitting in the chair the Minister for Communications and Information Technology but in clause 3 of the bill “Minister means the Minister of the Crown who under the authority of any warrant or with the authority of the Prime Minister is for the time being responsible for the administration of this Act …”. Now at the moment it is the Minister for Communications and Information Technology and I think there is a real role for a Minister who deals with the business end of communications. But this bill is really also about the spying part. One thing is that it is about network security but the fact is that it is about snooping it is about spying and that Minister can change—the bill says—“with the authority of the Prime Minister”.That is the part that really concerns me because we have already got a problem with the Minister responsible for the GCSB and the Minister in charge of the NZ Security Intelligence Service and his selection of his director of the Government Communications Security Bureau (GCSB). He has got strong strong powers in this. There is nothing in this bill that would stop the Prime Minister making himself or in future maybe herself the Minister of this legislation and the Minister of the GCSB and the SIS and other aspects of that. When we have got the history of the illegal spying and when we know that these bills do not even cover the large-volume spying that ishappening within the range of activity that that Minister covers then if that Minister were to have control of this as well—full individual control of whom he seeks to employ and did in terms of the Director of the GCSB Ian Fletcher—it actually gets into the realm of sinister.Maybe the Minister for Communications and Information Technology could address that and make the interpretation a little bit more specific in regard to the range of ministerial responsibility. Maybe she can preclude that the Minister responsible for the GCSB and the Minister in charge of the NZ Security Intelligence Service can be the one and same Minister who operates this just so we can do a little bit of separation. I think it would be a good idea and it is good to see the Minister there with that capacity. I also say to the Minister in the chair thanks for the letter to the Green Party. There was an expression that we could meet but I actually find that a little bit farcical. It is probably a bit rich seeing you are sitting there and we are face to face. It is not very practical in terms of the speed that this bill is going through. It is going to be after the event I expect. So the dialogue is probably here and now.I am always concerned when I see the interpretation of “national security” including economic well-being. Well of course we want New Zealand and “New Zealand Inc.” to be in a very good economic fitting. We do not want somebody to come in and muck that around particularly. It is always a concern as to what that definition actually is. What is in that definition? Whose version of economic well-being is it? How far out is it? How sustainable is the well-being we are talking of? Is it intensive dairying and we must protect that at all costs when we know it has got a big externality? We need to look after some of the MPs in this House and their interests around farming maybe. And we do—we must look after the family farmers but we must not have economic well-being measured by something that is temporal and not sustainable at any time.The interpretation of “network operator” has been brought up already but that is also quite concerning when we think about what a network operator is. There are some definitions in the bill but they are very broad. They do need to be toned down and made more specific and someone’s Supplementary Order Paper may address that. But what we have got operating through Parliament the networks there—I would look to some of my NGO friends and wonder whetherGreenpeace’s network within their offices is going to get intercepted. AreFonterra’s big office and the networks within that and elsewhere part of the same sort of equation? That could be tidied up as well. It was interesting to hear the debate on the issue around the terminal. Is this telephone a terminal device or does the fact that I can tweet on something that has been said to me make me part of the network? I suppose it is intended to be.There is a concern as well in this part. There has been some criticism of the Minister’s Supplementary Order Paper 366 and we will probably revisit that. We have got some comment from outside—telecommunications and IT people—about the definitions. One of them is from CatalystIT’s director Don Christie whose concern is that the definition of “network operator” is so broad as to essentially capture anyone in the sector. He said that the bill “creates huge uncertainty and therefore business and investment risk for anyone in the New Zealand ICT industry or considering entering it.” So I am hoping that through the Supplementary Order Papers the Minister sitting there might be able to fine-tune this somewhat.The Greens of course are opposing this bill because of its breadth because of the purposes and principles here—they are not being addressed properly before we have a full investigation into the surveillance issues or security issues of New Zealand. We have had so many things that have gone wrong—the illegal activities—that we must have a genuinely independent investigation and then come back and address this bill. I am looking forward to that sometime in the future. We have in clause 5 of the bill thepurposes relating to interception capability to ensure that the “agencies are able to effectively carry out the lawful interception …”. Well that is about the lawful part and it does concern me that it may actually need to be spelt out a little for this Government and the GCSB as to what certain activities are not lawful because we have got other parts around the world other countries like Brazil which are just setting up their own new networks new systems to find a way to actually avoid the likes of Waihopai and the National Security Agency of the United States which was actually spying on it. Brazil found that it was being spied on. It is not impressed.The CHAIRPERSON (Lindsay Tisch): Order! No you can carry on but we are on Part 1.STEFFAN BROWNING: This is around the purposes of the legislation relating to interception capability. I think that New Zealand with a full investigation into the purposes and the principles relating to interception capability might want to follow what Brazil has done in terms of doing something that is absolutely independent and looking at network security for itself that will stop the likes of what we appear to be allowing to be set up through this bill. I will speak to this a little bit further as we go through the rest of the parts. Thank you.IAN McKELVIE (National—Rangitīkei): I moveThat the question be now put.Dr DAVID CLARK (Labour—Dunedin North): Part 1 of the Telecommunications (Interception Capability and Security) Bill really covers such a wide range of things because it speaks to the purposes and principles of the bill. As we have heard in the debate so far there have been many many different aspects of it that have been called into question. It is a piece of sloppy permissive legislation that allows surveillance seemingly endlessly and without clear definition across many aspects of our society. I think that that is what many of the objections so far have pertained to.I want to spend some time speaking about Supplementary Order Paper 370 which Clare Curran has lodged because I think it speaks directly to some of these problems. In that Supplementary Order Paper the suggestion is that we delete the definition of “national security” as it appears in clause 3 of the bill. That is a sensible thing to do because the definition as it stands refers only to economic well-being. Economic well-being itself is not defined in clause 3. We learnt from those members who were on the Law and Order Committee that in fact in the select committee no real effort was made to take into consideration what economic impact this bill will have. There were supplementary submissions to the select committee by several network operators that outlined potential significant annual operating costs and potential capital expenditure costs associated with implementing this bill.Clare Curran: $50 million.Dr DAVID CLARK: One estimate was $50 million I am told by Clare Curran who sat on that committee and who has made important contributions on this bill so far. The fact that the committee did not seek advice on these supplementary submissions suggests that we do not have a mature view as to what the economic impact is that we are taking into account. I think that that is something that this Committee might like to reflect on seriously.I would be interested in the Minister for Communications and Information Technology’s thoughts on what that economic impact would be intended to be and I think other members of this Committee would be too because we have a serious problem here. If the only definition of national security that we have in the bill is that it takes economic well-being into account—and we do not know what that economic well-being is and nor have we have defined it particularly well in the debates in this House—that opens up the Government to litigation. I think that that is not good lawmaking. I think that that needs further clarification or as Clare Curran suggests thatterm—the definition of what national security is—should be removed from the whole clause. Currently it is redundant it is confusing and it is perhaps misleading at best. In the legislation it tends to suggest that there is an economic impact to be taken into account but we have no definition of what that might be.Amending the definition of “network provider” is also a provision that Clare Curran has in her Supplementary Order Paper. The bill as drafted places onerous obligations on the network operators. We have heard a number of members of the Committee comment on those who might be captured by it such as TradeMe. Trevor Mallard was wondering whether his mobile telephone would be captured in that definition whether it is a terminal device when it can forward on information and whether indeed it is part of a network. We heard questions about whether schools are parts of networks and whether they are then open to surveillance when they set up internal networks and about newspaper websites TradeMe and the like. In Clare Curran’s Supplementary Order Paper she suggests that clause 3 should be amended to make it clear that such things are not captured and as best as you can not captured in the legislation. I think that that is a very sensible step.Amending the definition of “service provider” is another amendment put forward in the Supplementary Order Paper that Clare Curran has put before the Committee. It tries to make sure that this bill will be applicable in international law. We have a serious problem with this bill where it is not clear that the efforts made in it to define things can in fact be implemented internationally. It is not a good thing for the Parliament of New Zealand if we are in a position of passing legislation that is going to open us up to international ridicule and to scuffles and fights in the international sphere.Moana Mackey: It already has.Dr DAVID CLARK: My colleague makes it clear that in fact it already is opening us up to some level of ridicule but I think it would be far more serious if we were to pass legislation that put into law this kind of anomaly this lack of clarity and in fact the definitions that we currently have.The next part in clause 3 that calls for amendment is inserting a new definition of “surveillance agency”. It is clear that—JACINDA ARDERN (Labour): I appreciate the opportunity to take a short call. My colleagues will be pleased to know that; I know they are all eager to speak on the Telecommunications (Interception Capability and Security) Bill.I was interested in talking about some of the definition issues that have not been touched on yet. I think it is fair to say that this does deserve rigorous debate because although there was an enormous amount of attention on the Government Communications Security Bureau (GCSB) bill this is in fact the bill that then facilitates what was broadly set out in the GCSB bill which did of course cause great upset amongst the wider New Zealand public over whether or not it had got the right balance between privacy and security. We would contend that certainly this bill in this form has still not struck that balance.I want first of all to come to the definition around “law enforcement agency”. That is set out in clause 3 of Part 1. This is obviously something that the Law and Order Committee took an interest in. As I understand it the clause originally had a definition that specifically set out that “law enforcement agency” meant “(a) the New Zealand Police; or (b) any government department declared by the Governor-General by Order in Council to be a law enforcement agency for the purposes of this Act”. So the bill basically said that everything that applied here would be handed over to the Minister to decide what the law enforcement agencies would be.That was then changed. We now have a clause that states “a specified law enforcement agency within the meaning of section 50 of the Search and SurveillanceAct 2012 that is approved by an Order in Council under that section to use interception devices”. I do accept that that therefore adds extra criteria. So instead of just saying that the Governor-General through an Order in Council sets up what a law enforcement agency is it says we will use the provisions of the Search and Surveillance Act to determine the criteria for what will be deemed a law enforcement agency.I want to look just for a moment if I may at what is set out in section 50 of the Search and Surveillance Act 2012. It basically says: “Look other than the police when we are applying trespass surveillance and the use of interception devices how are we determining what that is going to be?”. It essentially says that the Minister of Justice may recommend the making of an Order in Council. So just to clarify I am assuming that—was that changing which Minister would therefore be making that recommendation from the Minister in the chair to the Minister of Justice? That is just a point of clarification. Excuse me; I was not a member of the select committee and that may be something that the committee debated. But the Minister of Justice would therefore be making the recommendation of an Order in Council “following consultation with the Minister of Police if he or she is satisfied that it is appropriate for the agency to use interception devices and that the agency has—(a) the technical capability to intercept private communications in a manner that ensures the reliability of any information obtained through the use of an interception device;”. So basically can the agency do the job and can we be assured that when it gets that information that is going to be credible?The Act then says: “(b) policies and procedures in place to ensure that the integrity of any information obtained through the use of an interception device is preserved;”. So write up some policies and make sure you have got some good kit—that is basically what that bit says. The Act then says: “and (c) the expertise—(i) to extract evidential material from information obtained through the use of an interception device in a form that can be used in a criminal proceeding; and (ii) to ensure that any evidential material obtained through the use of an interception device is presented to the court in an appropriate manner”.So basically that is about setting the bar for the quality of the way that the material is gathered and the way it is therefore presented and about making sure you have got policies and procedures around that. Granted that is criteria that in and of itself did not necessarily exist in the first definition of “law enforcement agency” that might be recommended via Order in Council. The question is whether that is a hard test. Basically if you have got the kit if you write some policy around it and if you make sure that you use the kit credibly then you are passing the threshold and as long as the Minister of Justice and the Minister of Police have a chat together and decide that they think that it is kosher then we have potentially got a new law enforcement agency on the books.You might question who would be interested in using these powers as a law enforcement agency. An interesting and very important discussion was had in fact at the Justice and Electoral Committee—I was on the select committee for the Search and Surveillance Bill a very technical bill. There were essentially two sets of agencies there that could exercise powers.KRIS FAAFOI (Labour—Mana): Thank you very much Mr Chair for the chance to have a contribution to the debate on Part 1 of the Telecommunications (Interception Capability and Security) Bill. In an effort to try to garner some kind of favour with you to get a second call I am just going to outline what I intend to talk about. I know that my colleagues have spoken about the “network operator” and the definition of that. I certainly will try to touch on that and also something that Dr David Clark mentioned—Hon Clayton Cosgrove: A great man.KRIS FAAFOI: —a very good man—and that is the definition of “surveillance agency”.I did want to start with the definition of “network operator”. A number of my colleagues have spoken about the very broad nature of the definition as it stands within the bill. For the benefit of those who are listening or watching at home a network operator under this bill is “(a) a person who owns controls or operates a public telecommunications network; or (b) a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service”. A little bit further on in Part 1 it does go on to define “telecommunications service” as having the meaning given to it under section 5 of the Telecommunications Act.Mr Chair I want to—because I want to stay very much on the bill and not be sidetracked by other issues—read to you what a telecommunication under the Telecommunications Act 2001 is defined as. The term “telecommunication” means “the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign signal impulse writing image sound instruction information or intelligence of any nature whether for the information of any person using the device or not;”. Essentially that puts within the legislation anything you do with any electronic device—it comes under this legislation. So if you run an internet website at all you will be included within this bill the Telecommunications (Interception Capability and Security) Bill.A number of my colleagues have mentioned whether or not the likes of Stuff or theNew Zealand Herald website would be considered a network operator. Within the definition of “telecommunication” within the 2001 Act that certainly seems the case. Trevor Mallard—he is absent; sorry he is not with us at the moment—mentioned the instance of a school in Auckland and whether it would be considered a network operator. But we on this side of the Chamber put forward that anyone running any kind of internet service—whether it be the likes of Stuff or theNew Zealand Herald website or whether it be Facebook or whether it beSkype—any communication and any type of electronic communication that any Kiwi makes can now be intercepted by this bill. That goes to the very heart of the major concern you saw on the streets of New Zealand about 2 months ago when thousands if not tens of thousands of Kiwis who were very concerned about the likes of the definition of a network operator within this bill the Telecommunications (Interception Capability and Security) Bill and the Government Communications Security Bureau (GCSB) legislation which is the cousin or very close cousin—Moana Mackey: Companion.KRIS FAAFOI: —the companion bill—to this piece of legislation and what this meant for their everyday communication. I want to go back to the definition of “telecommunication” within the 2001 Act. It says “the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign signal impulse writing image sound instruction information or intelligence of any nature”. So that means anything whether it be a text message or whether youSkype someone on the other side of the world. This legislation gives the ability to the GCSB or pretty much any other surveillance agency—Clare Curran: Without checks or balances.KRIS FAAFOI: —with no checks or balances—to intercept them. Anything that they want to do with any electronic communications can be intercepted. We have major concerns about that and we do not think that the balance is right especially around some of the New Zealand Bill of Rights Act applications around this bill and the GCSB legislation.Can I move on to another piece of Part 1 and that is around the definition of “surveillance agency”. As it stands in this piece of legislation at the moment “surveillance agency” means “(a) a law enforcement agency; or (b) an intelligence and security agency”. There were major concerns on this side of the House around this at the Law and Order Committee so my colleague Clare Curran has helpfully put forward Supplementary Order Paper 370 which will look to replace the definition of “surveillance agency” as it stands now.MARK MITCHELL (National—Rodney): I moveThat the question be now put.BRENDAN HORAN (Independent): In taking a first call on Part 1 of the Telecommunications (Interception Capability and Security) Bill I want to look at clauses 3 to 8 of the bill. I understand that the debate is quite tight and that we are looking at the definitions in clause 3 the purpose and principles relating to network security and interception capability in clauses 5 to 8. I have to say that I am unable to support the bill and unable to support Part 1 for the reasons that I will outline.I will start with clause 4. The heading of four words says “Act binds the Crown”. The clause itself adds only one word—“this”—to read “This Act binds the Crown.” Surely the purpose and principles of this bill cannot be for John Key to have his own private fiefdom effectively with New Zealand spies subject to no oversight no constraint and no law.In clauses 5 and 6 which relate to the purpose of the Act in relation to interception capability and the principles that must be applied in relation to capability it is apparent that the spy agency must be allowed to intercept anything anywhere at any time. That is a clear threat to New Zealand’s economic well-being and our future opportunities. The very legislation that members opposite would have us believe would protect our law-abiding citizens is in fact entirely the opposite.Prior to the release of this bill there was a salivating opportunity for New Zealand to take advantage of our position to take advantage of our isolation and in fact possibly to become the information-holding capital of the world. We could have held and reinvented economic systems. Take accounting systems which are currently all designed in analogue. With the relevancy the intimacy the convenience and the transparency that big data and the cloud represent the future was indeed looking bright. Thousands—in fact tens of thousands—of jobs were possible but not given the way that clauses 5 and 6 are written. According to the Ministry of Business Innovation and Employment the New Zealand information technology and services sector employs just over 22000 people and has a growth rate of 8.7 percent annually. Salaries are double the national average and research and development investment is triple the New Zealand average.With clauses 5 and 6 in this bill this National Government threatens jobs innovation and the future of the cloud in New Zealand. We are moving into an era where we will soon all have our own personal cloud. How do we protect intellectual property from the spy agencies that will have unlimited interception capabilities under clauses 5 and 6? Who will be communicating cooperating and collaborating with significant others across the world on matters of innovation when that information can be stripped by the Government Communications Security Bureau and immediately shared with agencies from other countries? How can it be that New Zealand companies will now have to design networks and systems for the convenience of the Government’s spy agency? How can we compete with the rest of the world when this Government is imposing that sort of Cold War Russian-style oppressive legislation? Who oversees it? What people and what businesses would want to dock deliver or deploy innovative information to a New Zealander under the degree of surveillance that this bill allows?This bill is madness and the sad thing is that it all could have been avoided if the Government had consulted with the broad sector of New Zealand information technology businesses the sector that could deliver our economic future rather than with just the one-dimensional telecommunications companies. The purpose and principles of this bill should have been inspiring but instead given the increasing reliance of businesses on software and services this bill will have a disastrous effect on New Zealand companies that provide internet-enabled technologies and services.So to this Government on behalf of all New Zealanders I plead: please do not rush to pass this legislation which casts a dark cloud over our digital sector’s future. Instead provide New Zealand with a bill that inspires confidence and investment. The job of this Government—MOANA MACKEY (Labour): I want to pick up on the issue that my colleague Kris Faafoi was talking about at the end of his call which is the definition of “surveillance agency”. I would very much like it if the Minister in the chair the Minister for Communications and Information Technology would take a call because Part 1 is incredibly important. These are the definitions that define who is covered by the Telecommunications (Interception Capability and Security) Bill when they are covered by it how they are covered by it and when they are not covered by it. So if we do not get the definitions right then the rest of the bill is not going to be much use. Given that the whole reason we are here debating Part 1 of the bill is that our surveillance and security agencies could not interpret the previous legislation according to the law I think it is even more important that we are very clear around the definitions that we are putting in place in Part 1 of this piece of legislation. What has become clear from the debate here in the Chamber today is that there is no clarity around these definitions. That echoes what submitters said at the Law and Order Committee.So what we would like is for the Minister to do her job which is to provide that clarity. She is sitting there like a dried arrangement. I do not know whether she is giving us her impersonation of a terminal device—all the data just stops with her and no more information is passed on whatsoever—but she should get on her feet and provide the kind of certainty that we are asking for. These are not unreasonable questions that members on this side of the Chamber are requesting of her especially when we consider how far-reaching the implications of this bill are. The balance between privacy and security is one of the most sensitive issues we will ever cover off. So any clarity the Minister can provide around the definitions of “network operator” and “surveillance agency” can only be good for this legislation.I am not quite sure why she is not taking a call. She has got an army of advisers behind her to provide her with that clarity—unless she wants this to be uncertain unless she wants this to actually be far broader in its interpretation than New Zealanders are comfortable with and than we were led to believe this legislation would be unless she is happy with that uncertainty because that allows the broad powers in this bill to be extended even further. If she refuses to take a call and provide us with that certainty then that is really all that we can assume unfortunately.My question to the Minister is whether this definition of “surveillance agency” which is “(a) a law enforcement agency; or (b) an intelligence and security agency” applies only to New Zealand agencies or whether it applies to any agency internationally—to any law enforcement agency or intelligence and security agency. Minister are the people who can access this data restricted only to New Zealand law enforcement agencies and New Zealand intelligence and security agencies or could they be any law enforcement agency or intelligence and security agency internationally? Is it just New Zealand?It really really worries me that she has acknowledged my question but has not given me an answer. That is really serious. Because if it applies just to New Zealand I think people would like to hear the Minister say that so that we can limit this bill to New Zealand law enforcement agencies and New Zealand intelligence and security agencies.Clare Curran: I think we know the answer.MOANA MACKEY: I think we know the answer which is that this opens us up—the privacy around the information of New Zealand citizens is opened up to any law enforcement agency or any intelligence and security agency around the world. I am looking at the National MPs over here. Are you really comfortable with that? Are they really comfortable?Clare Curran: They didn’t know.MOANA MACKEY: Did they even know that this goes international in its broad-ranging powers? [Interruption] The Minister says it is rubbish. She should stand up and provide some certainty. Does she not think this is an important enough issue to stand up and provide some certainty over it?This is going to form the basis of a lot of the rest of the debate on the protections around that and the limitations around that. She might think it is funny but actually it is deadly deadly serious—it is deadly deadly serious. Given how we got into this mess in the first place given that this is around one of the most sensitive issues and given that New Zealanders feel incredibly strongly about this I think we deserve to know whether the broad powers being given to the intelligence and security agencies now actually apply to every law enforcement and intelligence and security agency around the world not just those based here in New Zealand. I look forward to the Minister taking a call on that. I think that is actually a really critical point. She can chip away at me from the chair but she should stand up and actually take a call. That is what she is paid to do. That is actually what the Committee of the whole House stage is meant for.I want to come back to Supplementary Order Paper 370 in the name of my colleague Clare Curran. This is in relation to the commencement clause of the bill which is clause 2 of the bill. [Bell rung]The CHAIRPERSON (Lindsay Tisch): I am calling Moana Mackey.Iain Lees-Galloway: Asleep at the wheel Nicky.MOANA MACKEY: It is because they are so worried about the definition of “surveillance agency”. They were pondering it. They want to know as well. They were hoping that the Minister was going to take a call and reassure her own colleagues that she is not selling away New Zealanders’ right to privacy to every law enforcement agency and intelligence and security agency around the world and they are right to be concerned.I come back to the commencement clause and the Supplementary Order Paper in the name of my colleague Clare Curran. It makes two changes. The first change is that it inserts a requirement that the bill may not be assented to without first holding an independent review of New Zealand’s security agencies and incorporating those recommendations into the bill prior to the third reading. This is sensible. This is sensible given the process we have gone through with this bill and given the fact that we have a Minister who refuses to provide any answers to the very very serious questions we are posing to her. The only way we are going to be able to provide any kind of comfort to the hundreds of thousands of New Zealanders who are deeply deeply concerned about this piece of legislation is to actually do a proper review of our intelligence and security agencies and find out what the issues actually are. What a novel idea—that when we try to fix a problem we might work out what the problem actually is before we do that.I know from the conversations that I have had with people that they saw an intelligence and security agency that went far outside its mandate under the law broke the law and acted illegally. Most New Zealanders would say that if you were going to have a knee-jerk reaction to that it would be to restrict their powers. Lo and behold we ended up with two pieces of legislation that broadly expand their powers to the point where the Minister in the chair will not even guarantee—actually she pretty much told us—that these powers do now go offshore and that every surveillance agency and law enforcement agency around the world is now able to have access to the private data of New Zealand citizens. That is serious stuff. That is not the kind of response I think New Zealanders expected following the illegal activities of the Government Communications Security Bureau.So how about we pass the recommendation in the Supplementary Order Paper from Clare Curran have that inquiry and find out what actually went wrong find out what actually needs to change in law and find out how we can get that very critical balance between privacy and security right? In the telecommunications age when we are dealing with streams of information that we have never had to consider before when we originally had legislation around these issues how about we actually do it properly? What a novel idea. That is what the Supplementary Order Paper in the name of my colleague Clare Curran says that we should do—that there will not be any Royal assent to this bill until we have that inquiry and the changes recommended through that inquiry are then incorporated into this piece of legislation.The second suggestion or amendment that Clare Curran is putting up to the commencement clause is requiring that the bill be reconsidered by a select committee and found to be consistent with the New Zealand Bill of Rights Act 1990 before it can be submitted for Royal assent. This is a bill that was substantially changed at the Law and Order Committee. The Minister herself is introducing the extensive Supplementary Order Paper 366. Once again we have a regulatory impact statement that is hugely redacted. Did anyone even really use that word “redacted” before the National Government? I do not think so. I think most people had never—Grant Robertson: It’s like liquefaction; it’s a new word.MOANA MACKEY: It is a new word. Thanks to this Government “redacted” is so commonly used now because in the regulatory impact statements that are meant to inform—Dr David Clark: Have a look at this page. See what you can find on there.MOANA MACKEY: This is great. This is the kind of information that the National Government is asking this Parliament to make its decisions on. This is a regulatory impact statement on this piece of legislation which we are very interested in and this is what the National Government is allowing the Parliament to consider when it passes this bill. It is a completely redacted page just like many of the other regulatory impact statements we have had from the Government. We are used to it from the National Government but when you are considering the implications of this bill it is not appropriate at all that we are not given the relevant information to make those decisions.So Supplementary Order Paper 370 in the name of my colleague Clare Curran amends clause 2 to say that this should go back to a select committee we should have that discussion and we should get clarification that we are not breaching the New Zealand Bill of Rights Act and only then can it come back and be submitted for the Royal assent. That is just practical. That is good common-sense lawmaking. I know that the National Party does not really give due regard to the New Zealand Bill of Rights Act or clearly the right of New Zealand citizens to privacy but on this side of the Chamber we actually value good process. We actually value that process of a properNew Zealand Bill of Rights Act vet. As my colleague Clare Curran said it got a cursory vet at the very beginning. It has been substantially changed.GRANT ROBERTSON (Labour—Wellington Central): I seek leave of the Committee to table a letter from theNZRise group of companies that is relevant to Part 1 of the Telecommunications (Interception Capability and Security) Bill around the definition of “network operator”.The CHAIRPERSON (Lindsay Tisch): Leave is sought for that purpose. Is there any objection? There is no objection.Document by leave laid on the Table of the House.NICKY WAGNER (National—Christchurch Central): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; United Future 1.Noes54New Zealand Labour 33; Green Party 12; New Zealand First 7; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 366 in the name of the Hon Amy Adams to Part 1 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 33; Green Party 12; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 370 in the name of Clare Curran to clause 3 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes54New Zealand Labour 33; Green Party 12; New Zealand First 7; Mana 1; Independent: Horan.Noes64New Zealand National 59;Māori Party 3; ACT New Zealand 1; United Future 1.Amendments not agreed to.A party vote was called for on the questionThat Part 1 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 33; Green Party 12; New Zealand First 7;Māori Party 3; Mana 1; Independent: Horan.Part 1 as amended agreed to.Part 2 Interception capability dutiesCLARE CURRAN (Labour—Dunedin South): This is Part 2 of the Telecommunications (Interception Capability and Security) Bill. We are in the Committee stage of the bill and we are now talking about Part 2. This is the part of the bill that I would describe as being the “tying itself up in knots” part. This is the part of the bill where essentially the discussion that was happening in Part 1 takes effect around how those definitions play out particularly with regard to the service providers.The service providers for the sake of anybody listening in are the organisations and companies that are becoming more and more prevalent in our lives otherwise known as the over-the-top providers such as theFacebooks theGoogles theMicrosofts and other such entities. They are mainly entities that have a base in another country rather than in our own country. These are the big organisations that are enabling us to communicate in all kinds of different ways. How the provisions of this bill relate to those service providers is very important. As we discussed in the debate on the previous part of the bill the definition of “service provider” is so broad and so encompassing that it does provide a potential conflict with international law how this generally plays out and the service providers’ ability to provide what is called the “duty to assist” our surveillance agencies.I just want to put on the record that although Labour is opposed to this bill in its entirety we are not at all opposed to the modernisation of the legislation. We are not opposed to the provisions that existed in the previous legislation that put a duty to assist on organisations—a duty to assist the surveillance authorities when there was cause to do so. The problem that we have with this part of the bill—well there are several problems.I think that clause 35 is probably the most significant part of Part 2 of the bill. It gives a deem-in provision to the Minister in the chair at the moment the Minister for Communications and Information Technology and extraordinary unheard-of powers that we have not seen in this country before where a Minister gets to have for whatever reason the power to decide whether a service provider can be deemed in to become a network operator. A service provider just so that everybody knows has to have a duty to assist. That is fair enough. There is no issue with that. But the ability to deem in that service provider—such as Google such as Microsoft such as Facebook—to become a network operator would mean that it would then come under the provisions in Part 3 which are much much stronger. That then means that it becomes essentially an organisation that our surveillance agencies can have an enormous amount of power over. The conflict in law is actually really important.Again just so that everybody knows in her last-minute Supplementary Order Paper 366 which was brought before the Committee the Minister deleted clause 39 which is in Part 2—the reseller clause. That will have some beneficial effect I suppose for some of our internal telecommunications organisations. There will be a bit more of a fairplaying field for them when it comes to making their products available to the New Zealand public and the onerous conditions that could have been put on them through this bill.We are very dubious about the assurances that have been given by officials during the passage of this bill through the Law and Order Committee that the Telecommunications (Interception Capability and Security) Bill could require non - New Zealand service providers to provide access to customer data to the New Zealand Government. That is at odds with the providers’ own domestic legal obligations. The point that is being made here and that certainly has been made very publicly in the last week by these organisations—and you know this is not about getting in behind them and thinking that they are wonderful—is why is it that there should be a piece of legislation going through this Parliament when there is a question mark over whether it is in direct conflict with international law? That is just simply not good enough. The warnings were given. The submissions were made. They were made very powerfully but for some reason they have been ignored.Secondly for this part of the bill—and I know there will be more discussion by my colleagues around this and this goes directly to the amendment in Labour’s Supplementary Order Paper 370—after clause 35 Labour has put forward an amendment that creates a technical advisory board which is a check and balance. That is the other major issue with this bill—again there are many—there are no checks and balances. When we are talking about privacy we are talking about the rights of citizens and not just citizens but companies and their ability to innovate their ability to control their own destinies and their ability to go about their business in a context where security for the country for the bigger-picture interest is brought into balance. Unfortunately that balance has been tipped. One of the problems is that we do not have enough checks and balances in this law.We contend that there should be a technical advisory board established as was recommended by many of the submitters. The submitters included the Telecommunications Carrier Forum the peak body group for all of the major telecommunications companies in New Zealand. The forum said that there needed to be a technical advisory board such as there is under legislation in the UK which is essentially a panel that is set up to provide advice. It provides advice before decisions are made by the Minister on whether or not there should be interception undertaken and it should have an independent chair.As I said in the second reading debate on this bill New Zealand is a small stable peaceful democracy. We take really seriously in this country what those principles actually mean and how they are reflected in law and in regulation. This piece of legislation before us today tips that balance. It tips the balance in favour of State surveillance and secrecy without checks and balances.I would like to hear directly from the Minister who still has not got to her feet yet in this debate. She still has not got to her feet—Grant Robertson: An hour and a half she’s had.CLARE CURRAN: —after the 2 hours pretty much that we have been here. She still has not got to her feet. One of the reasons why is that she—I am starting to ask myself whether she just does not understand the legislation that is before her does not understand the impact of it has not listened to the community and has not listened to the industry. Certainly she is not taking any heed of what the implications are of her Draconian piece of legislation which is before us today. She shakes her head. Unfortunately I have come to the conclusion that she actually does not understand it because otherwise we would actually be hearing from her as to what the implicationsare. Why is it that a technical advisory board could not be put in as a check and balance to provide the public with an assurance?GRANT ROBERTSON (Labour—Wellington Central): I am sure my colleague Clare Curran will continue with her contribution on this bill the Telecommunications (Interception Capability and Security) Bill in a further call on this part. Part 2 is the interception capability part of the bill. As Clare Curran has said this is really where the balance between protecting New Zealanders’ security and protecting New Zealanders’ rights and freedoms to communicate with one another has to be put into balance. As Clare Curran has also already said in the earlier legislation that this bill amends that balance was already put there. There was an acknowledgment that network providers or network operators as they are now defined here would have roles and responsibilities around allowing for an interception capability.No matter what we might like to think about the world there are people out there who may well be wanting to do things involving cyber networks in New Zealand that are against the law and put New Zealanders in danger and therefore that capability is something that we on this side of the House accept. What we do not accept is allowing that capability to be opened up to such an extent that an enormous power now rests in the hands of the Minister of Communications and Information Technology around where that capability is used on what networks and what obligations are now on the providers of those networks.Again this is not just about Opposition politics. This is not about just getting up and saying: “This is a Government bill. We oppose it.” The Law and Order Committee heard submission after submission from those who are directly involved in the provision of internet services and the provision of networks in New Zealand that this part of the bill would have the effect of stifling innovation potentially reducing investment in New Zealand by large telecommunication companies and by the over-the-top providers that Clare Curran mentioned before and that overall it would extend out the powers of the Minister in such a way that that necessary balance between protecting our security and the freedoms of New Zealanders would go out of balance.At the select committee Microsoft came and said: “An obligation to have interception capability on a fundamentally different technology to what we have seen in the past in our view needs to be considered on its merits not swept up in broad legislation that gives wide powers to surveillance agencies and Ministers.” That is the point. It is not that Microsoft is saying it should not have any interception capability requirements upon it but that they should not be part of legislation like this which is loose poorly defined and associated with a massive expansion in the powers of the surveillance agencies in this case the Government Communications Security Bureau (GCSB) through the Government Communications Security Bureau Act and through an expansion of the powers of the Ministers. Microsoft has come along and it has said that. It has also said—and this comes to clause 39 which we can still debate because it is actually in the Minister’s Supplementary Order Paper 366 which we will vote on later on. She has decided to delete clause 39 after a massive backlash from across the telecommunications industry. But the signal sent from the Minister with clause 39 was that New Zealand was trying to in some way or other shut itself off from the rest of the world and actually cut off the possibility of innovation within the information and communications technology sector in New Zealand.It is interesting to note—and I am reading a column from theNational Business Review about the burden that New Zealand - based businesses will face. It is one thing for theMicrosofts theGoogles and the Apples of this world to come and say they do not like the burden that this bill is going to place upon them—and they have a legitimate claim there—but what about New Zealand providers? What about those who are theproviders of for instance cloud services where New Zealand actually has a very good reputation—Clare Curran: Had.GRANT ROBERTSON: Had? Well yes indeed. It had a very good reputation in terms of the development of innovative cloud technology. Well what has been said by those who provide that is that this actually over time will put huge costs on those providers and essentially make them weaker in comparison with the international cloud service providers.Here we have the National Government supposedly the friend of business bringing to the House a piece of legislation that is actually going to stifle innovation. It is potentially going to shut off interest internationally but it is actually going to stifle innovation from New Zealand companies. New Zealand businesses which will have to be able to put their services up against this law and ask whether they have the capability the New Zealand Government wants will simply walk away in my view when they see this kind of approach from the Minister. If we look at it both from the terms of those companies from overseas and companies from New Zealand the powers that are in Part 2 of this bill around interception capability quite simply put a great deal of extra cost on those companies and potentially stifle the innovation that they will be part of.In Part 2 how does this come about? Well there is a range of ways that Part 2 does this. But essentially the area that I want to focus this part of my contribution on is around clause 35 of the bill—and this is the part of the bill where Clare Curran has an amendment to establish a technical advisory board—because what we see here is the classic expansion of ministerial power. Again from a National Party supposedly all about reducing government and reducing the impact of the State we now have enormously expanded powers. Subpart 5 “Ministerial directions” states: “Minister may require service providers to have same obligations as network operators”.Clare Curran: Unprecedented.GRANT ROBERTSON: Clause 35 36 and 37 go through the way in which the Minister will do that. Everything is in the control of the Minister. There is a review provision put in here under clause 36 but it is totally within the control of the Minister. The expansion of powers alongside the complete control of the Minister is as my colleague Clare Curran interjected before unprecedented.This legislation is loose it is poorly defined and it breaks new ground. That combination is something that all New Zealanders should be very very concerned about. That is why under Supplementary Order Paper 370 we are looking to establish a technical advisory board. This technical advisory board would at least have the ability to be somewhat independent from the Minister. In Supplementary Order Paper 370 which Clare Curran has put forward the Minister appoints members of the technical advisory board only after consulting with representatives from the telecommunications industry. It needs to comprise equal representation from Government and the industry with an independent chair. Any matter referred to the Minister requesting they exercise their discretion or recommend providing an additional area of specified security interest must first be referred to the technical advisory board and it has to be established with the purpose of increasing expertise in relation to network security and consideration of proposed mitigations.At least if we have this in the law we can have some reassurance that the Minister’s increased powers will not be abused. The industry wants this. It has come to the select committee and said: “Can we have something like this?” and the Government has ignored it. Consistently throughout the process of this bill the Government has ignored the warnings of industry—ignored the warnings of the very people who provide these services to New Zealanders. It is not like they are being unreasonable. As late as the lastcouple of weeks telecommunication groups have been writing to the Minister saying: “Please can we meet with you to talk about how we can mitigate some of the problems we see in here?”. They are not walking away. They are not saying they do not want to be a part of a regime in New Zealand that provides that balance of security and the Minister will not talk to them. The Minister will not talk to them. The Minister puts up some tweaks in her Supplementary Order Paper. She gets rid of the clause that is causing her the most grief but in reality that does not change the fact that this bill breaks new ground and is unprecedented in the level of power it gives to the Minister and the expansion of powers it creates for the surveillance agencies.Yet here we are the day after the second reading with the Government trying to shove this bill through. All through this week it has been trying to get it out of the way. Well that is simply not the way to make good law. This is an area that is technical. It is difficult. It is in an area of technology that a lot of people do not fully understand. It is exactly the kind of law where there should be time taken where we should be able to get buy-in from industry and in Part 2 on interception capability the industry is crying out to be listened to and to say: “Yes we will take on our responsibilities to allow for interception capability but not at any cost and not with wide open powers for the Minister to do just as she pleases.”We would call on all members of the Committee to support Supplementary Order Paper 370 which inserts into clause 35 the provision for a technical advisory board. At least that will give New Zealanders some assurance that there will be an independent overview of the Minister’s powers. The Minister has seen fit to take out clause 39. Now is the time for the Minister to accept that there need to be some limits based on the powers. This is what industry wants from this bill. It is time that the so-called business friendly National Government actually gets off its chuff and does something to support industry.Hon AMY ADAMS (Minister for Communications and Information Technology): I am very happy to take a call on the Telecommunications (Interception Capability and Security) Bill. I have been waiting all evening for something to come up in debate that was worth responding to and was not more of the misinformation the scaremongering and the beat-up rhetoric that we have heard from Opposition parties all through this debate. I have waited and I have waited and we have not heard anything—to the point where I had to wonder whether we were in here debating the same bill—because almost all of what I have heard is simply not correct.Let us run through what this part of the bill actually does. For a start this part of the bill Part 2 deals with interception capabilities. What it does is it rewrites and replaces the 2004 law put in place by the Labour Government. I was very pleased to hear the member Clare Curran say that she has no problem with any of the provisions in the current law. That is great because the provisions that Labour members spent an hour and a half before dinner complaining about are ones that are copied directly from the 2004 Act. Given that Labour members have just said they have no problem with—Grant Robertson: No they’re not. That’s not right. The definitions have changed.Hon AMY ADAMS: Look back at theHansard Mr Robertson. Look back at theHansard. Read the bill. The definitions of network operators telecommunications servers and public telecommunications networks are word for word what Labour wrote in 2004. None of that has changed. The duty to assist on service providers has not changed. The fact that it applies to overseas service providers has not changed. The encryption requirements have not changed. The privacy protections—and we have heard ad nauseam from Labour that somehow this bill is going to destroy the privacy protections—have not changed. In fact we worked very hard with the Privacy Commissioner on putting this bill together to the point where she indicated that she wasvery happy with it. So for all the rhetoric for all the scaremongering we have a Privacy Commissioner who confirmed that the bill worked well privacy protections that are carried over from 2004 and definitions that are carried over from 2004.If parties want to know whether they are covered under the obligation of being network operators there is a very simple test—a very simple test. The test is that if they were not a network operator for the last 9 years under the provision that Labour has just told us it was very happy with then they are not one now. The definition is the same. Nothing has changed. If members have read the bill they will know that.So let us talk about the effect on service providers because again we have had all of this rhetoric—some of it quite misinformed—about how it applies to service providers in this section. What happens is that at the moment if you provide a telecommunications service in New Zealand you are subject to our law. Frankly my view is that if you are providing telecommunications services to New Zealanders you should be subject to our law no matter where you are residing. Is it Labour’s position that New Zealand companies should be bound but that anyone else should get off scot-free? Well that is not my position. They have always been bound in New Zealand and they will continue to be. The concern about conflict of laws in my view was never an issue and that is very clear under common law. Recognising that there was a concern we have made it clear through Supplementary Order Paper 366 that there is an absolute defence if there is a conflict of laws issue arising in our duty to assist. So there simply is no basis for concern in that regard.Equally we have heard comments that somehow this is new and it puts us out of step with the rest of the world which again is not true. Just recently we have had the Australian Parliament confirm that its service providers are already regarded as being within the full interception capabilities in Australia. So we have not even gone that far. That is the case in Australia.Can I also confirm that as I said with the service providers their obligations have not changed. They have protection from conflict of laws. It is not internationally inconsistent. The interesting thing for me is that the New Zealand telecommunications companies put in submissions asking why the service providers were not subject to full obligations straight away. So if Labour’s position is right and we are being far too hard on these poor overseas multinationals then they would be taking the opposite position to what New Zealand companies want which is full extension of powers to service providers right now. That is what the New Zealand telecommunications companies want so Labour has to decide whether it is backing the overseas mega-multinationals or whether it is backing New Zealand companies. Our view is that at the moment we are in the right space. We have the duty to assist and for now that is sufficient. If in the future there needs to be a greater level of obligation bringing us into line with what New Zealand companies want and what overseas jurisdictions already do then we have a process to do it.It is completely wrong to say that there are no checks and balances on that process. The process is very clearly set out in legislation. It is akin to what Ministers do under any number of pieces of legislation for granting exemptions or putting restrictions in place. It is subject to the review of a specifically and highly qualified review panel and of course it is subject to judicial review. It would make no sense to have a standing panel sitting around waiting for the odd situation where this would occur. I know Labour loves to set up committees and panels and put all its mates on them. But having a panel sitting there doing nothing for the odd occasion that this might happen—Hon Trevor Mallard: Or their sisters-in-law.Hon AMY ADAMS: —oh you want to talk about Mike Williams—then it can do that. But in our world you do not do that. You have an appointed ad hoc panel that can have the skills and expertise needed in that case.Clare Curran: Appointed by the Minister?Hon AMY ADAMS: Yes appointed by the Minister Ms Curran—very well spotted. You can read. It is an ad hoc panel appointed to serve the needs of that provision. It is an independent panel and it reports back on how that works so that if people have concerns there are of course other processes they can follow to review that as well.Let us be very clear. This provision does not in any way change the power of these agencies. We have heard from Mr Horan from the Greens and from New Zealand First that somehow this is open slather for people to access our networks. Anyone who says that frankly is being absolutely duplicitous and giving quite false information. It is clear from the most basic reading of this bill that nothing in this changes what can be accessed or by whom. The warranting powers are in other legislation. They determine what can be looked at. This is simply the mechanism by which that warrant is given effect to. Nothing in this bill changes the warranting powers and nothing extends the warranting powers. All this bill talks to is the extent to which they can be given effect to.Let us be very clear. The reason for this bill and this part of the bill is that it reduces the cost of compliance and the compliance time and commitment for companies in carrying out interceptions. Under the law that Labour wrote there was the requirement for full standing intercept capability on every provider of any size at every level. That is not necessary. It was hugely burdensome and it did not work for industry. This bill reduces that cost. It reduces it by tens of millions of dollars potentially and it reduces the compliance time and cost on those companies. Anybody can see that to have a much more tiered proportionate sophisticated response targeted to where we need it is better than having a blank “everyone invest fully in areas where it is simply not needed”. This bill simply modernises that part of the framework where the warrants are granted under other legislation and given effect to. It is business-friendly. It strikes the right balance between need andfutureproofing. It maintains all the privacy protections and it does not extend the reach any further.CLARE CURRAN (Labour—Dunedin South): The Minister for Communications and Information Technology does not understand her own bill the Telecommunications (Interception Capability and Security) Bill. She does not understand the impact of it or she has got her fingers in her ears. I will just to talk about the response from industry.NZRise is a credible organisation that represents New Zealand tech-based industries—New Zealand Kiwi companies. Google Facebook Yahoo! and Microsoft represent a group of international service providers and all of them are actively opposing the key measures in this bill that we are talking about today. What they say is that as currently drafted this bill would impose in Part 2 a duty to assist on service providers and empower the Government to impose additional—not what the Minister just said but additional—interception obligations on a service provider by deeming them in to be a network operator for certain purposes. That is the difference in this part of the bill. Clause 35 in this part of the bill provides unprecedented powers to a Minister to decide whether a service provider which is the over-the-top provider such as theGoogles or theFacebooks etc. can be deemed in to become a network operator. In other words they get treated just the same as organisations such as the telecommunications companies in Part 3 of this bill. It is the Minister who gets to decide that on the recommendation of the Government Communications Security Bureau (GCSB) with no checks and balances.The issue in this bill is that there are not the checks and balances. There is a shadowy situation being set up for recommendations to be made on national security including something called economic well-being which is not defined and huge powers discretionary powers being given to a Minister to make those decisions. This is not the New Zealand way of doing things. The New Zealand way of doing things is where you put into legislation measures that ensure that dodgy decisions cannot be made. We have no guarantee in this legislation that a Minister based on a recommendation that cannot be made public will not make a questionable decision that cannot be challenged or if it is challenged it is through a judicial review.The big issue for the New Zealand - based companies is that the smaller tech-based companies such as our emerging innovative companies are concerned that they are going to get caught up in this legislation and be caught up in being defined as the traditional telecommunications companies are and those smaller companies do not have the resources or the means to question to provide a push-back or to have the kind of dialogue that may need to be had which their bigger brother organisations such as the Telecoms theVodafones etc. of the world could do. They do not have the means to do that and so there is no check and balance for them. Those are the New Zealand - based tech companies and they have written as a group. Every member of Parliament in this House will have received in the last few days a letter saying: “Please do not broaden the definition of ‘network operator’ in this legislation to include us.”The Minister shakes her head—the Minister shakes her head. Well Minister you have heard it said because there are cross-references in this legislation to definitions that do provide an enormous encompassing. Yes they do. So as with the GCSB legislation everybody else in the country is wrong except for the Minister. Is that right? Everybody else in the country is wrong! Yet the evidence could not be given to the Law and Order Committee on these matters properly. The Minister referenced tens of millions of dollars that are somehow going to be saved. In the regulatory impact statement provided on this legislation all of that information was redacted. We were not allowed to hear that information.In the first version of the bill clause 24(6) would have extended the application of the duty to assist to global service providers. This was a hotly debated part of the bill and it was clearly an issue. Eventually there was a decision to delete that clause which would have helped but the fact is that along with that went an expanding of the definition of “service provider” which meant that that conflict in international law which we have talked about several times tonight in this debate has been expanded. So every time “service provider” appears in this piece of legislation as set out in clause 3 it “(a) means any person who from within or outside New Zealand provides or makes available in New Zealand a telecommunications service to an end-user (whether or not as part of a business undertaking and regardless of the nature of that business undertaking); but (b) does not include a network operator”. That is the difference between the two definitions but the fact is that it is still an extremely broad definition and clause 35 of this bill means that the Minister on the recommendation of the GCSB and without a check and balance can deem in one of those service providers and make it a network operator. You deny in this Chamber tonight Minister that that is a wrong interpretation. That is a true interpretation.So that gives the Minister enormous unprecedented powers. How are those powers reflected in the existing legislation? This is a new provision and it is a provision that has been hotly contested by as I have said the international organisations—theGooglesFacebooks Yahoos! andMicrosofts of the world—who argue that this puts them in a direct conflict of law which makes our law look very foolish to the rest of the world. And for the New Zealand - based technology companies that definition of “networkoperator” draws them in in a way that is unprecedented in terms of the potential conditions that are going to be imposed on them by surveillance agencies and that will be the stifling of innovation in this country. What is missing is a check and balance from another entity that provides some balance and provides some good advice to the Minister and recourse for those smaller companies in terms of pushing back against those decisions over which they have no control. I would like the Minister to get up again and tell me how those organisations are supposed to operate under this legislation as it is put before us tonight.STEFFAN BROWNING (Green): I rise to speak to Part 2 of the Telecommunications (Interception Capability and Security) Bill. This interception capability and security is again part of the same problem that we talked about in Part 1 where we have to ask where the instructions are for New Zealand to go down this track. Was it just because of the Kim Dotcom case where there was some illegal surveillance some illegal spying and we are fixing that up? Because even when the officials were looking at this bill—looking at how we compare with other countries how our legislation stacks up and what layers of interception capability were required—the places they looked at were our “Five Eyes” partners. I do not recall seeing anything else. There was the United States the United Kingdom Canada and Australia. That is where the comparisons were done. Clearly there is an international move and the Minister for Communications and Information Technology herself has said how there was nothing internationally that we were not consistent with.Well we are apparently getting less and less inconsistent with the “Five Eyes” - Echelon partnership and it would seem in fact that this is what a lot of this is about. Of course we need some capacity for natural law surveillance. We have issues of kidnapping and issues of serious crime where we expect and accept it seems as a community a certain level of surveillance. That can happen under existing legislation and clearly does. What was happening illegally but what was not meant to be happening was spying on New Zealand citizens by an internationally linked spy agency the Government Communications Security Bureau (GCSB). I will keep on about Waihopai and the spy agency thing because that is often forgotten about when we look at where these different capabilities are in terms of access and I did touch on that earlier.In her letter to us the Minister was talking about clause 39 which is part of Part 2 and the fact that the bill currently allows the responsible Minister to direct that a network operator must not resell an overseas telecommunications service in New Zealand where the interception capability or lack of interception capability raises a “significant risk” to law enforcement or national security. Of course we have looked at some of that in the interpretation provisions but that also can be rather subjective.What is a significant risk to law enforcement? What is a “significant risk to national security”? Some of this is necessary only in a full surveillance State. It is not about dealing with organised crime in a way that the police could be managing under other law or with some other issues that might be addressed under the search and surveillance legislation. This is law that allows something much greater and as I say that is only necessary in a full surveillance State—Big Brother. There is a need for a full genuine inquiry into what we actually want as citizens in this country as a basis for surveillance law and surveillance agencies.We need that discussion because these things—the Government Communications Security Bureau Amendment Act 2013 and this bill and the interception capability in Part 2 here—are all about trade-offs between privacy human rights and the level of access by State agencies and some are unfortunately linked with overseas agencies. So what would we do? What are we prepared to do as citizens in terms of that trade-off?There is some point at which we will say “No the risk isn’t worth it.” because the event or the concern may not happen in a matter of years—terrorism as such—or it might happen once or twice in terms of a kidnapping. We have to look at that level of risk as to how much we will give over in terms of reduction in privacy and the like. So the level of access is a big part of this.Under Part 2 of this bill the network operators as such must ensure that every public network they own control or operate has full interception capability. I think that what the Minister and the officials have achieved in terms of the bill is probably very very effective for what they are trying to achieve but it does not make it right. That is the point that the Greens are very very concerned about. We do not think it is right. There are other parts around effectiveness I must say and you would have to raise questions about the size of the operators—those with fewer than 4000 customers. The bill has got a staggered level of obligation around capability. In some respects you could say that is fair enough because maybe some do not have the economic capacity to achieve everything but they still have to be basically able to turn it on if the Minister decides it.In that different degree and also in the aspect around encryption and decryption there is some encryption that these agencies are not going to nail. We know that through the committee stage—not this Committee stage but the select committee stage—there was an acknowledgment that not everything is going to be able to besurveilled. Then you have to say that if that is not going to be that effective at that point is it fair that some operators still have to provide capability when another one has got a way through or a way out of it? So we have to ask whether there is a point where we do not do some of these things because the things that are absolutely critical and accepted by the community can be done through another method. So if it is not even going to be able to be applied fully maybe it is time for us to have a rethink. That is why we say we need to have a full independent inquiry to look at this including the interception capability aspect of it.The Law and Order Committee also recommended that proposed regulations relating to Part 2 of the bill be the subject of consultation with the telecommunications industry. Clearly the Green Party will support Clare Curran’s Supplementary Order Paper 370 on that basis because there is in it that concept of having an industry group or others where some of these issues can be considered.So the Green Party will be opposing this bill and will be looking forward to other aspects of this bill to bring up too. Thank you.KRIS FAAFOI (Labour—Mana): Thank you very much for the chance to speak to Part 2 of the Telecommunications (Interception Capability and Security) Bill. On this side of the Chamber we would like to thank the Minister for Communications and Information Technology for standing up and taking a call on this part of the bill because there is no better advertisement for the reasons why this legislation ought not to pass than when the Minister is talking about it. That is because everything she has said does not marry up with what the reality is.The Minister said that nothing has changed in Part 2 of this bill about the reach or the powers that the Government has to surveil via telecommunications companies. That could not be any further from the truth. It is clear from the Minister saying that that those things have not changed and that her ignorance of the concerns around the industry has not changed. The Government’s arrogance around this bill and the Government Communications Security Bureau (GCSB) legislation has not changed. The Government’s attitude towards New Zealand Bill of Rights Act considerations around privacy has not changed. The Government’s inability to find some kind of balance between the need to surveil and the rights of the individual citizens has not changed because it has rammed through this piece of legislation in haste and it hasgiven huge powers to the Minister in the chair who has taken only one call to completely and utterly deny the concerns that the industry has around this bill.One of the assertions made by the Minister in the chair was that the industry was quite happy with the level of consultation and with the costs that it will be facing if it is compelled by this bill to do what it needs to do. That could not be any further from the truth. In a submission to the Law and Order Committee Vodafone—one of the largest telecommunications companies if not now the largest—said that “The burden continues to fall disproportionately on existing large telecommunications providers ignoring the significant interception gaps created by the proposed regime inadequately covering OTT and smaller providers;”. So there you have it. Vodafone is saying that there are going to be huge cost implications to the company and the Minister completely and utterly denied that.Later on in its submission to the select committee Vodafone also went on to make a point around network security saying that “The proposed approval process does represent a significant compliance cost to network operators in order to further government objectives. Network operators should be fully compensated for these additional costs.” So there will be costs to the network operators in this bill. Vodafone has said that within its submission to the select committee. But you did not hear that from the Minister during her contribution on Part 2.There were also concerns from the industry around the lack of consultation on this piece of legislation and my colleague Clare Curran has brought in Supplementary Order Paper 370 to bring in a measure for that. I will come to that later but I do want to show or read out to those at home the part of the regulatory impact statement that pertains to industry consultation. It says: “In developing the above proposals [information withheld] telecommunication industry representatives were consulted.” There is a very small gap there where it says “information withheld” so it seems like there were not many consulted. Then the next point goes on: “Wider consultation with industry was not undertaken given the technical and sensitive nature of the subject-matter”. That is borne out in the submissions to the select committee and that was certainly borne out in the submission by Vodafone. It wants to have more consultation with the Government and with those intelligence agencies so that if there is going to be any major change to its network or any major cost implications to it it has the ability to talk that through with the Government or with the surveillance agencies before that is imposed upon it. I think that is a reasonably sensible thing to do and that is why we have got this Supplementary Order Paper in the name of Clare Curran which will look to establish a technical advisory board so that those kinds of issues can be worked through before they are imposed on telecommunications companies at potentially huge expense to them and without the technical discussions around what kinds of implications that will have for their networks.Can I just move to clause 10 of the bill which is also around the interception capabilities of this piece of legislation and move towards a submission that was made by Microsoft. In her contribution earlier the Minister said that this bill does not change anything and that things have not changed but can I take the opportunity to read a section of the submission from Microsoft a huge software company operating right around the globe. Microsoft is realistic. In its submission it said: “Every day the New Zealand Government and millions of Kiwis are using technology to get things done securely and privately over a diversity of data connections.” We all know that. “Of course one side effect of this” it said “is that it is no longer possible to tap into a phone line and interpret every signal that is communicated over that line. The world has changed”—we can tick that off; everyone can agree with that—“and it can’t be assumed that the same approach that worked for a phone conversation can simply be applied toevery service that happens now to be delivered over that same network. Yet the proposed law will include powers to extend telecommunications interception capability obligations to every provider of any good or service that enables or facilitates virtually any conveyance of any information from one device to another.” It then asks us to look at the definitions of telecommunications service under the Telecommunications Act.The damning sentence here which the Minister in the chair completely ignored or was ignorant of is as it goes on to say: “That would be a dramatic change to the law and it is far from clear why this is necessary.” I will just repeat that for those who might be listening at home: “That would be a dramatic change to the law and it is far from clear why this is necessary.” So we have actually got an opportunity now because the Minister is in the chair to answer that question from Microsoft as to why that expansion of powers which she says does not exist in this bill is necessary when the Minister says that nothing has changed in terms of what the surveillance agencies can access and the types of telecommunications they can access. The Minister said in her contribution that nothing has changed. Microsoft which is not a little company in a back shed in Hokitika—sorry Mr Damien O’Connor—is saying that this is a huge change in the law. Microsoft is asking a question and saying that it is far from clear why this change is necessary. So maybe the Minister in the chair who said in her speech that nothing has changed would like to stand up and answer that question which I am putting to the Minister in the chair for Microsoft. Why is it necessary for you to change the law which you said is not being changed? The Minister has said that nothing is changing.Hon Amy Adams: No I didn’t.KRIS FAAFOI: The industry disagrees. She is exasperated. She has taken one call. Tell us why you needed to change this thing which you said is not changing. Why are you ignoring the likes of Vodafone? Why are you ignoring the likes ofInternetNZ? Why is the Minister ignoring the likes of Microsoft? The Minister is changing a piece of legislation which Microsoft says goes well beyond what she said she was doing. What is the rationale for that? Hopefully the Minister in the chair can take another call. As I say we do enjoy it when she does. I am sure that the answer will not answer the question I have asked but if the Minister could take an opportunity to address that question from the Labour Party and also from Microsoft we would be very happy.Maybe she would like to look at the technical advisory board that could be set up under Clare Curran’s Supplementary Order Paper and that could answer that kind of question but unfortunately I do not think the Government is going to take up that very sensible proposal from this side of the Chamber. It is another indication that this Minister’s attitude towards and ignorance of the concerns about this bill have not changed. The Government’s arrogance around this bill and the GCSB has not changed and the Government’s arrogance around balancing the rights of private citizens andsurveilling them for security reasons has not changed either. It has rammed this piece of legislation through.Part 2 compels network operators to do something that they agree they should do but it puts massive costs on to them. They are worried about the lack of consultation leading up to this bill and also about the lack of consultation that might happen when this legislation is enforced. That is why the Government should seriously think about looking at this Supplementary Order Paper 370 which contains the—IAN McKELVIE (National—Rangitīkei): I moveThat the question be now put.RAYMOND HUO (Labour): I rise to take a call on Part 2. Before I start I would like to reiterate the reasons why we are so strongly opposed to this particular bill the Telecommunications (Interception Capability and Security) Bill. We have primarily three main reasons why we are so strongly opposed to this bill. The first one is that this bill seeks to facilitate the implementation of its companion legislation the GovernmentCommunications and Security Bureau Amendment Act which fundamentally reduces the rights and freedom of New Zealanders to communicate with each other by failing to provide sufficient protection against the spying on New Zealand citizens by State agencies. The second reason is that the bill in its current form is poorly and broadly drafted. Thirdly it is unacceptable that such concessions have been made to the global majors such as Google Facebook etc. but not to the citizens of New Zealand.Part 2 provides interception duties. Part 2 from clause 9 through to clause 42 sets out the interception capability duties that apply to network operators and service providers. The primary duty which as the Minister in the chair the Minister for Communications and Information Technology has acknowledged is the duty to have full interception capability remains substantially the same as in the Telecommunications (Interception Capability) Act of 2004—namely the current Act. Despite the fact that the primary duty remains largely the same the problem is that under the current bill the definitions provided in Part 1 are either inaccurate or too broad. The bill as drafted places onerous obligations upon network operators and may capture many whom it may not have been intended to. So without clarifying the definition blog sites such as news sites like theNew Zealand Heraldor Scoop and other—Hon Simon Bridges: What about sites that Shane Jones looks at?RAYMOND HUO: Well what about Mr John Banks? Also other service-oriented websites such as TradeMe are likely to be captured by this legislation as well.Hon Simon Bridges: What’s he got to do with it?Kris Faafoi: He’s all over the websites.RAYMOND HUO: Ha ha! Subpart 1 “Duty to have full interception capability”—namely in clauses 9 and 10—sets out the primary duty that applies to network operators which is a duty to have full interception capability in respect of every public telecommunications network that the network operator owns and every telecommunications service that the operator provides in New Zealand.But what are we talking about here and what do all transmissions and information infrastructure mean in terms of ordinary life in New Zealand? We are not talking about rocket science we are not talking about somebody else’s business; we are talking about emails we are talking about telephone calls messages history or records left on for instance Facebook or Google or any website we have just visited. They are all potentially accessible without a warrant by spy and other agencies.So all internet service providers as a starting proposition are covered by the impact of this bill. Any internet service providers even smaller ones must at the very least be intercept-ready and substantial ones must actually be intercepted. This is a huge cost and it is a huge broadening of the powers of the State to access the private information of New Zealanders. Subpart 2 is “Reduced duties” and I would like to touch on that later on. The so-called GCSB amendment Act which this bill seeks to implement provides for the ability to intercept all transmissions that apply to information infrastructure for any purpose to do—SCOTT SIMPSON (National—Coromandel): I moveThat the question be now put.Hon TREVOR MALLARD (Labour—Hutt South): I would like to make a contribution on Part 2 of the Telecommunications (Interception Capability and Security) Bill and I would say that this is one of the two really substantive parts of this bill. This is a bill that is exceptionally controversial. It is one that divides the country it is one that divides the House and it is one where I think it is important to have a full debate. I know I am not meant to draw attention to the absence of members in the Chamber but I think I can say that I was away for about a quarter of an hour of this debate and in allthe time that I have been here I have heard only one substantive call from the Government. I think it is important that Ministers do make proper contributions and respond in the Committee stage.To really emphasise the importance of this part I want to indicate to you Mr Chair—as I am sure you are aware from looking at all the clauses—that this Part 2 between clauses 9 and 42 sets out the interception capability duties that apply to network and service providers under the bill. There is a primary duty that sits here that is very similar—substantially the same—to what has been in place under the current Telecommunications (Interception Capability) Act from 2004. What Subpart 2—that is between clauses 11 and 20—does is provide for a reduction of the full interception capability by introducing lesser duties which will apply to certain classes of network operators. I do want to give notice to the Minister for Communications and Information Technology. I am going to come back to those schools in west Auckland that are providing network services to parents in their particular area and ask whether in fact they will have a duty to comply with clauses 9 and 10. I am sort of gathering from the way the Minister’s head shook earlier and one could almost hear the rattles from back here that that would not apply. But then the question is whether they have an obligation to be intercept-ready or whether they have a duty to be intercept-accessible. My understanding is that they will end up having to be intercept-accessible.Then you ask the question: if an organisation has to be internet-accessible and it is something like a school board is it in fact appropriate for the Government Communications Security Bureau (GCSB) or the SIS or for that matter the police if it is a police matter—there has been quite a lot of discussion here about the intelligence agencies and their surveillance but not a lot of discussion about the surveillance on the part of the police. My question to the Minister is whether this duty to be intercept-accessible will apply to schools that are providing internet service provision to their communities. There might be only a thousand of them. I understand that if they do not go over 4000 they do not have the full requirements. But if there are only a few hundred parents what is the requirement there?The question then is that if the level of interception capability that is required from that school operator—my understanding is that there is a provision in the bill for the level of that to be increased not by legislation but by a decision by a Minister about a particular provider. One of the very serious questions I have got is whether it is appropriate that just at the whim of a Minister—not in the case of a proper warranted arrangement and all the things that are meant to happen under the GCSB and SIS legislation but just at the whim of a Minister—the entire organisation has to provide an increased level of interception capability. I accept that there is an ability for the affected network operator to make submissions to a Minister. There has got to be certain consultation and the applicable criteria have to be taken—Dr PAUL HUTCHISON (National—Hunua): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 366 in the name of the Hon Amy Adams to Part 2 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Amendments agreed to.The question was put that the amendment set out on Supplementary Order Paper 370 in the name of Clare Curran to insert new clause 35A be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes56New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes63New Zealand National 59;Māori Party 2; ACT New Zealand 1; United Future 1.Amendment not agreed to.A party vote was called for on the questionThat Part 2 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Part 2 as amended agreed to.The result corrected after originally being announced as Ayes 61 Noes 57.Part 3 Network securityIAIN LEES-GALLOWAY (Labour—Palmerston North): I raise a point of order Mr Chairperson. Although it is not in order to question your decision to accept a closure motion as you did for Part 2 I would like to ask your advice about how you are going to approach Part 3. Part 2 was an extremely substantive part of the Telecommunications (Interception Capability and Security) Bill and yet we managed only an hour’s debate on Part 2. Part 3 is an equally substantive part of this bill. This is a bill that is of significant public interest and in which there is significant interest from the Opposition benches in debating it part by part. I would like to take some advice from you about whether you are going to consider giving Part 3 a little bit more substantive debate than you did for Part 2.The CHAIRPERSON (Eric Roy): I will review the debate as we go along and make a decision accordingly.CLARE CURRAN (Labour—Dunedin South): Part 3 of the Telecommunications (Interception Capability and Security) Bill is the part of the bill about which every single telecommunications company and every entity that came before the Law and Order Committee expressed grave concerns. They expressed concerns about the extent of the powers that this bill provides to both the Government Communications SecurityBureau (GCSB) and to the responsible Minister and about what the impact of the costs of that will be on the viability and the operational requirements of those entities.The Law and Order Committee was silent on that latter matter. I think it is very important that the Committee hears this. During the process of the select committee every single telecommunications company that came before the committee was specifically asked by the Labour side of the select committee to provide the committee—and this was supported by the chair—with information on the cost impact of this part of the bill on their business. A number of those companies came back to the committee with substantive supplementary submissions. They included Telecom Vodafone Chorus Enable Networks and a number of other telecommunications companies that are deemed to be network operators under this bill. They provided a sobering picture for the committee from hundreds of thousands of dollars just to set up administrative requirements to the up to $50 million that the submission of Enable Networks I think suggested could be the impost on the company should it be required to change a key arrangement that it has with a provider in rolling out its part of the ultra-fast broadband programme.Leaving aside the merits or otherwise of who those partners were and whether those decisions should or should not be made those cost impacts are not insubstantial. In fact they are very substantial for our telecommunications industry and for our technology industry. However during the discussion on this bill subsequent to receiving those supplementary submissions the committee was not allowed to discuss them. We were not allowed to ask officials about those cost impacts because it was ruled out of order. Taking into account the redacted regulatory impact statements held up in the Chamber before dinner which showed great pages that were empty because they had been redacted when it came to providing the select committee with information about any economic analysis that had been done I would just like the Committee to know that we were not allowed to discuss the economic impact submissions that had been provided to us by those telecommunications companies. This is just simply not acceptable.This legislation is being rushed through the Committee stage tonight and the Government is trying to push through the third reading this week so that it can get it off its plate and so that the country can move on and the Minister can pretend that everything is all right. Every single telecommunications company every single network operator that submitted to us said that there was a significant cost impact on their company in implementing this bill. The National Government people on the other side of the Chamber seem to think that that is just fine.So who when we are discussing this bill is sticking up for the industry? Who is listening to the industry whether it is the local tech companies or the bigger companies that are saying that there is a serious conflict with international law with this piece of legislation? Who is sticking up for them? Well it is certainly not the Government of the day.Instead the Government talks to us about this security issue that again we were not allowed to hear evidence on. We were not allowed to hear any evidence from the surveillance authorities.The CHAIRPERSON (Eric Roy): Can I just pause the member because I want to make a correction. The vote on the question that Part 2 as amended stand part was incorrectly announced as Ayes 61 Noes 57. After reviewing the record the correct result should have been Ayes 61 Noes 58. The record will be corrected accordingly. A second call goes to Clare Curran.CLARE CURRAN: Thank you. Just coming back to the specifics in its submission to the select committee Telecom which is one of New Zealand’s major telecommunications companies referred to one of the issues that it had with the bill. Itopposed the onerous provisions in Part 3 which it felt would have a significant impact on how it went about its business as did the other telecommunications companies. It also referred to one of the problems it had. It felt that there was not a level playing field for what we call the traditional telecommunications companies—the network operators—and those service providers that are the over-the-top providers so say for comparison purposes the likes of Telecom versus Microsoft.Telecom told us that if it wanted to sell to a customer in New Zealand a bundled product that included your internet connection your telephone line and also another package which might be a Microsoft Office - based product so that you could have that all at once then it had a problem in that you could also go to NoelLeeming or another outfit to buy the Microsoft Office - based product over the counter. If you wanted to buy that in a bundled way from Telecom and get it for a bit of a cheaper price Telecom may have to provide an intercept-capable capacity on that Microsoft Office product whereas if you went to NoelLeeming and bought it over the counter that would not be required. Telecom had a point that there was a discrepancy in the law.Clause 39 of the bill which the Minister has gotten rid of in Supplementary Order Paper 366 actually on the face of it appeared to be addressing that issue for Telecom but there is a question. Because Telecom is a network operator and because it falls within that definition of “network operator” Part 3 applies directly to it. Part 3 of the bill provides the onerous requirements on a network operator that it has to basically be at the bidding of the GCSB which can now go inside the organisation and can determine what it can and cannot do. If that telecommunications company decides that it does not like that then the GCSB has the remedy of going straight to the Minister and the Minister can make the decision. There really are no checks and balances around that.Despite the fact that clause 39 has now been deleted from the bill the question remains and this is a question directly for the Minister and it would be good if she could answer it in the Committee tonight: do the likes of Telecom have to come and ask for an exemption if they want to sell a bundled product and not provide an intercept capability over that product? Do they have to Minister? Do they have to? They do have to come—Hon Amy Adams: I heard you. I’ll answer shortly.CLARE CURRAN: So was that a yes?Hon Amy Adams: I’ll answer shortly when I take a call.CLARE CURRAN: Oh thank you. That would be good if you could get to your feet and answer it because it is actually a very significant question.The reason it is a significant question is that this Government is a Government that trumpets its ultra-fast broadband scheme as something that is going to—even though hardly anyone is taking it up at the moment—kick-start the economy. And yet this legislation is actually making it harder for the network operators the retail service providers and the internet service providers to actually provide bundled products that are actually going to drive the uptake of ultra-fast broadband.So on the one hand the Government is saying it is all great and everything is going to be wonderful in this new fibre world but on the other hand it has got legislation that is actually making it harder for the locally based companies to actually bundle up those products and sell them to consumers. It is putting onus on them that is going to cost them money or make them go and ask for an exemption potentially—and it would be good if we could get an answer from the Minister as to whether or not they can actually sell those products with or without intercept capabilities because if—Hon AMY ADAMS (Minister for Communications and Information Technology): I thought I would take a call early in Part 3 and run through very clearly what this part of the Telecommunications (Interception Capability and Security) Billintends to do so that everyone has that information in front of them. What I want to do is to start by addressing the question of the member Clare Curran that I said I would address. She raised a question about Telecom seeking exemptions which relates to Part 2 which we have now of course completed but nonetheless she has asked me while we are talking about Part 3. As she will know the restriction on selling resold services was in clause 39 which has been removed so that really answers her question in respect of the right to seek exemptions. If they have other exemptions that they wish to seek from their general capabilities then clearly there is a regime in Part 2 for that. Turning to—Hon Trevor Mallard: Oh uneven treatment.Hon AMY ADAMS: Oh do not be silly Mr Mallard. That reflects what is in the current legislation.So in Part 3 which we are on and we are talking about now what I want to reflect is that this is the part of the bill that is a new regime. I want to be very clear about that. Currently what we have is a loose partnership arrangement where a number of the network operators—not all but some of them—have seen the value in working with the intelligence agencies to identify threats. What I think everyone in this Committee is likely to accept is that the cyber-threat environment is considerably more serious today than it has ever been and that is going to continue very much to be the case. If we do not protect very carefully the security of our telecommunications networks then we not only put at risk the safety and well-being of New Zealanders but we put at risk all of the intellectual property of New Zealand businesses and all of our economic prosperity is potentially at risk.I think everyone recognises—or at least all sensible people recognise—that if you want to be a country that is a good place to invest and do business in then you have to be able to reassure people that your telecommunications infrastructure is secure. I think everyone would agree with that. What we know is that increasingly there are attacks by various players who try to get access to the telecommunications networks in New Zealand and through those networks to gain either commercial ends or some other ends that suit their agendas. This part of the bill is about doing what we need to do in a world of increasing threat to ensure that there are not undisclosed capabilities in our networks to copy or divert or destroy or disrupt data. These are very real threats and I think anybody with even a cursory understanding of the current geopolitical or threat situation understands that the cyber-threats are real they are very serious and they are increasing all the time. That is commonly understood in freely available publications.So what we have at the moment as I said is an informal situation where the better network operators choose to go to the intelligence agencies and work with them to identify and address threats. But unfortunately that process has its failings. It is not transparent it does not apply to everyone not all operators know it even exists and of course there is no power ultimately to enforce it if it does not work. So what the powers in this part of the bill require is for network operators—and let me be very clear that it is only network operators. It is not service providers it is not cloud companies and it is not software providers. It is only network providers that are subject to this part of the bill. They approach the Government Communications Security Bureau (GCSB) if they are dealing with an area of critical infrastructure and we have tightened the definition around where that applies. They identify to the GCSB what their intentions are. If there is a risk identified then the network operators themselves decide how they want to fix it.The GCSB does not tell them what to do. The GCSB does not do anything. It does not make them do anything. It does not require any particular fix. The network operator is the only one who determines how it wants to address that risk. If however the GCSBis concerned that there still remains a significant threat to national security—not just a risk; a significant threat to national security—then the only power the GCSB has is to refer that up to the Minister. Before the Minister can do anything about that they will now under Supplementary Order Paper 366 have to go through another check which is to be reviewed by the Commissioner of Security Warrants to ensure there is a second set of independent eyes reassuring the Minister that the information that the GCSB has presented confirms that there is a significant threat to national security.For me if we have a significant threat to our national security through a vulnerability—a serious vulnerability—in our network infrastructure then we all have an interest in seeing that addressed. I do not want to be in charge or be in a country where we have absolute vulnerabilities in our network infrastructure and we see them and we can do nothing about them. It was only last year that Australia made some decisions to ban certain players from certain parts of its network and we had all of this side of the House jumping up and down saying: “Why isn’t the Government banning this? Why isn’t the Government doing that?”. The reality is there is no framework to do it. So if there is a threat—and they are the first ones to jump up and down if they see one—right now there is no power for a Government in New Zealand to respond to it. There is none.What we have done is create a situation where in the most serious cases—in the most serious cases and it would be very rare—it can be escalated to the Minister. After it has been through the review of the GCSB and another review of the Commissioner of Security Warrants then the Minister has to go through a detailed process set out in the law of consulting with all the affected parties. Only then if the threat is serious enough to the well-being of New Zealand can action be taken. Yes that is a new power. It is a new framework but we are living in a new age. These threats are real they are serious and we need to have a framework to respond to them.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.Hon TREVOR MALLARD (Labour—Hutt South): I want to start off by picking up a point that was referred to by my colleague Grant Robertson in his speech. That is the what I consider particularly offensive comments by the Minister for Communications and Information Technology that if people are opposed to parts of this Telecommunications (Interception Capability and Security) Bill or part of the direction then they are effectively supporting terrorism.I am I think one of the few members in the House and only by virtue of being a duty Minister who has been involved in what was a very serious threat to New Zealand. I only as a result of that have some knowledge of the systems that work. It was not part of my regular responsibilities but I happened to be on duty when what was potentially a massive incident or series of incidents occurred. I with my colleagues moved heaven and earth in order to mitigate that threat. The security agencies had a wide range of tools which they worked on and they used in order to mitigate that threat.I find it absolutely repugnant that this Minister in the chair the Minister for Communications and Information Technology who almost certainly has had no experience in that area at all would reflect in that way on Labour members who think there should be some balance between privacy the rights of companies and security. Of course there should be some balance. Otherwise we have the Orwellian the authoritarian the Nazi the Stalinist approach to security and that is something that New Zealand absolutely rejects. This party believes that there should be balance. Thisparty believes that if a case can be made by a security agency then our party will take it seriously and if necessary make amendments to the law. But what we have here is a relatively junior Minister who is telling us that we do not care about the security of New Zealand. Well I say to that Minister: shame on you. What that Minister wants is the sort of blank-cheque approach the sort of ministerial power to do anything to New Zealanders that she wants or that her colleague the Prime Minister wants in a way that is unacceptable in a democracy.Look I think my colleagues know and I certainly know that my Green friends feel that I am no bleeding heart liberal. I am not a bleeding heart liberal but I do know that when authorities are being granted powers they should make the case. The Minister responsible for the GCSB John Key refused to let his schoolboy friend come to the Intelligence and Security Committee and justify what is in this legislation. I know that David Shearer David Cunliffe Phil Goff Clare Curran and other members of the committee would have listened carefully. In fact almost certainly they would have agreed to have a secret session of the committee in order to be properly briefed so that they could understand. But what one suspects—what one suspects—is that no case can be made.Certainly I have doubts about whether the case can be made for the powers under Part 3 of this bill which are essentially on the part of the Minister unmitigated. What has to happen? What has to happen? The Prime Minister’s friend whom he appointed without proper process comes to him with a request. There is some doubt about it. The Prime Minister has to refer it to the commissioner. But who appoints the commissioner? Who oversees the commissioner? Whose responsibility is the commissioner? It is the Prime Minister. There is no check there is no balance in this system and therefore it is bad law.Quite a few years ago—quite a few years ago and the members who would remember it are certainly well gone from this House—in 1977 a relatively young protester was arrested upstairs because he thought that the powers that Sir Robert Muldoon was taking at the time under the SIS legislation in 1977 were unreasonable. That was me. In the end—[Interruption] What?Andrew Little: There was the punk in Wanganui but he blew himself up.Hon TREVOR MALLARD: Well I had a ponytail at the time and Muldoon remembered it. But the point that I am making is that the powers that Muldoon was taking at that point had absolutely nothing on this: the ability to go into companies and require them to spend millions of dollars or even tens of millions of dollars in order to satisfy unproven—absolutely unproven—and unjustified arrangements that are required by a person who was appointed by the Prime Minister.It is just wrong. It is just wrong that this Committee is passing this legislation and Government members are absolutely mute. They are absolutely mute. Not one single member of the Government benches has had the fortitude to stand up and support the Minister. Not one member of the Government thinks that this legislation is right and proper to the extent that they are prepared to stand up and say what they think and what they believe. Look at their heads go down. Look at their heads go down. They are ashamed. They are embarrassed because they know that the National Party of Jack Marshall the National Party of Keith Holyoake even the National Party of James Brendan Bolger would never pass this sort of illiberal attack on companies that want to work in New Zealand.And what is worse it is an uneven attack. If you happen to have a base in New Zealand and you provide services in New Zealand you are punished but if you are based offshore and you package something up and you sell it through NoelLeeming orThe Warehouse then you are not punished. The same requirements do not apply. Well the Minister says no but the legislation says yes. I do not—Hon Amy Adams: No it doesn’t.Hon TREVOR MALLARD: Well maybe I do not know the Minister well enough. I actually used to have a high opinion of her. I thought when Hekia Parata was appointed to Cabinet that Hekia got there only because of her ethnicity and that if it was done on talent then Amy Adams would have got there. Now I have got my doubts. Now I have got my doubts. This Minister is not showing any indication at all—not showing any indication at all—of actually reading her legislation and explaining it enough to any one of the mutes opposite to the extent that they could support her.And what are we saying there? We have got a number of members—there is one called McKelvie there is one from Hamilton East there is one from Marlborough there is one from Rotorua there is one from Botany or some area Craig Foss Tony Ryall—but none of them understand the legislation well enough to take a call on it. You know actually it is not that complicated legislation. It has got some weight to it but it is pretty easy to read and it is pretty easy to understand. Anyone who has had a bit of experience in Parliament—CAROL BEAUMONT (Labour):Fakalofalahi atu. I want to pick up from that very good contribution made by my colleague the Hon Trevor Mallard. I think that people listening to this debate will hopefully have got the seriousness of what we are talking about here tonight. We are speaking at the moment about Part 3 of the Telecommunications (Interception Capability and Security) Bill. This part clauses 43 to 54A relates to network security. It is supposedly around preventing mitigating or removing security risks arising from public telecommunications networks and interconnections between those networks.As many of my colleagues have said our concern is not that we do not deal with potential security risks. We know that we need to do that and we know that that legislation does need to be updated particularly to take account of the changing nature of technology. We understand all of that and we are not opposed as some have been trying to say including the Minister in the chair the Minister for Communications and Information Technology to being aware of security risks. What we want though is to ensure that that is balanced with the rights of New Zealanders to privacy and that there are controls on the power that is being given to the Minister in particular under this legislation. We believe absolutely that this bill does not provide that balance and that this Telecommunications (Interception Capability and Security) Bill is the bill that effectively implements the provisions of the Government Communications Security Bureau legislation. That is something that New Zealanders are deeply troubled about and they should be.In Part 3 we basically have a situation where in the description itself from the Law and Order Committee we have got it noted that as introduced aspects of this part were not clear or were too broad. That is what it says. There have been some changes made clearly as it has been reported back from the select committee but the question I ask myself having not been involved in that select committee is how confident we can be that those changes have actually addressed all of the areas that are not clear or are too broad. Well I have to say that I think that the select committee cannot have done that. When you look at the powers of the Minister responsible for the GCSB to make directions under clause 54 of the bill and when you look at the fact that there is provision for continuing regulations to add to the lists of areas of specified security interests which are listed in clause 46 then you have to ask yourself whether there is sufficient protection here.I want to commend my colleague Clare Curran who has done enormous work on this bill and who has got Supplementary Order Paper 370 on the Table around clauses 46 47 and 48. Basically the Supplementary Order Paper that she has put up would limit the network operators to which these sections apply to a class of network operators positively identified rather than have blanket coverage of all network providers from which exemptions may be sought. That then leads to clause 48 being deleted as it relates to exemptions and is redundant as the presumption with the amendments to clauses 46 and 47 I have just referred is for a specific inclusion rather than blanket coverage. I think that that Supplementary Order Paper is very worthy and should be considered.I do find it fascinating that we have members opposite all sitting there talking to each other reading something heads down doing whatever it is they are doing across the Chamber and not engaging with this legislation. Why is it that those members opposite are not addressing the concerns that we are raising? These are significant questions in a democracy and you would expect that members of Parliament who are here to serve democracy would want to comment on these things. If you disagree—sorry if members opposite disagree because I know that the Chair is deeply troubled by this as well—if members opposite are concerned about this democracy and concerned about the issues that we are raising then get to your feet and tell us what you think about this legislation and why the issues we are raising are incorrect. I think that you actually cannot do that. I think that what you are doing is allowing—Hon MARYAN STREET (Labour): I have been biding my time waiting to contribute to this third part of the Telecommunications (Interception Capability and Security) Bill. There are things that are profoundly and deeply troubling about this. Although I do not know all of the technical ins and outs of the information and communications technology industry I do know about issues of accountability and I do know about issues of responsibility from a Government towards its people.I want to draw attention to clause 44 in Part 3 which is what we are talking about at the moment. This is where the truth comes home—this is where the truth comes home. Clause 44 is simply the definition of “Minister”. One would think that that would be inconsequential but no because it says: “In this Part unless the context otherwise requires”—which it never does actually—“‘Minister’ means the Minister responsible for the Government Communications Security Bureau.” Here we have the intersection the absolute nub of Labour’s opposition to this bill. This is the vehicle for the delivery of the Government Communications Security Bureau Act. This is the delivery mechanism.I want to go to some of the points in this part of the bill that delineate the responsibilities and the powers that have been given to this Minister who is usually the Prime Minister. What we have here repeated throughout this section whether it is clause 46 clause 47 or clause 48 is an absolute reliance on the Minister and the Director of the Government Communications Security Bureau who answers to the Prime Minister the Minister responsible for powers that have no check and balance. Members opposite may wonder why this side of the House is getting so agitated about this bill and it is because there is insufficient regard paid to the rights of citizens in this country the rights to privacy the rights to security certainly but also the rights to be able to check on the power of the executive.I want to talk a bit of technical language to the Minister now in the chair and ask him about certain things that appear in clause 48 which says: “The Director may by written notice exempt a network operator or a class of network operators from any of the requirements in section 45(1) or 47 if the Director is satisfied that the matter to which the exemption relates will not give rise to a network security risk.” So the Director ofthe Government Communications Security Bureau can exempt anybody if they think there is no security risk. Here we have this Government’s attitude towards citizens’ rights encapsulated—this Government’s attitude towards citizens’ rights. “We will make a decision about what is safe for you. We will give powers”—discretionary powers—“to people who have no accountability and for whom there is no comeback for the people of New Zealand.”I want to draw that point out because I would like to ask the Minister in the chair whether clause 48—which is an exemption from clause 47 so please go back and have a look at the previous one Minister—is a disallowable instrument. Tell me is it a disallowable instrument? In other words is it a regulation? Does it come before anybody for scrutiny? The answer Minister in case you are wondering—allow me to help you—is comprised of two letters and not three. The answer is no. It is not a disallowable instrument. All right well the Minister might then say: “Well that is as it should be. Hard decisions have to be made here and the Government has to make them with all the information it has at its disposal and we will not have any check or balance. We will not have any scrutiny. We will not have any transparency. We will not have any appeal rights. We will not have any accountability over this.” [Bell rung] Mr Chairman I have only just started. It is my only contribution.Then we get to clause 54. Well let us have a look at clause 54. It says the Minister may make a direction. The Minister may make a direction and the Minister makes that direction if matters have been referred to him—let us say “him” in this instance being the Prime Minister we have currently—under a previous section which details referral rights. Then it says: “the Minister has considered any submissions from the network operator.”—all right that is not so bad—and “the Minister is satisfied that exercising his or her powers under this section is necessary to prevent sufficiently mitigate or remove a significant network security risk.” So the Minister is going to be responsible for determining where the security risk lies and whether or not there is a security risk caused by this.This bill is silent Minister Foss unless you can prove otherwise to me—and I hope that paper you are looking at is something to do with this because that Minister is the Minister in the chair and I would like him to answer these questions. As I read it the bill is silent as to whether the instruments are disallowable for the purposes of the disallowance legislation. There is an argument that if it is appropriate for Orders in Council to be both disallowable and legislative instruments then it is also appropriate for the powers to make ministerial directions to be subject to the same level of scrutiny and accountability. I do not even know whether the Minister understands what I am saying. The powers to make ministerial directions are the same as Orders in Council.Orders in Council are disallowable instruments or legislative instruments—usually legislative instruments—but they are subject to scrutiny. They are subject to scrutiny by the Regulations Review Committee whether they are disallowable instruments or legislative instruments. But this bill does not say whether any of this is subject to scrutiny. It is inconsistent for this bill to take upon itself rights and powers that may disempower the ordinary citizens of New Zealand from appeal from knowing why the Government has made that decision or for calling the Government to account.The powers to make ministerial directions could be applied to the same effect as the powers to make Orders in Council by making a number of ministerial directions each of which applies to a different entity. So it is entirely possible that the Minister can say that this network is not a security risk and this one is and there is no comeback. There is no comeback for those customers of that particular network that has been declared a security risk whether it is Google or whatever it is—the network that New Zealand citizens subscribe to and use for their internet access and for information—regardingwhether that is a security risk and therefore whether they are susceptible to being cut off as a result.This bill does not provide any democratic protection. It lodges responsibility and powers entirely with the Prime Minister. That in the current circumstances does not give me any cause for confidence but it does not matter. Even if he was the best Prime Minister in the world—which he is not but even if he were—I would still not agree with him being given those powers without transparency without accountability and without any right of appeal.This is not balanced. This legislation does not take into account the rights and requirements of citizens not only to security which we support but also to privacy and to the transparency and accountability of a Government. On all counts this bill fails and that Government does not understand it. New Zealand is not a company to be run like a chief executive officer would run any company. This is a country and it should be run differently from the way one runs a company. I have to say to those members opposite that “there are more things in heaven and earth Horatio than are dreamt of in your philosophy.”STEFFAN BROWNING (Green): I rise to speak to Part 3 of the Telecommunications (Interception Capability and Security) Bill. Part 3 is on network security. Of course in this modern age we are all very very aware of the need for good network security. If this bill had that in it in what we might say is a fair manner we would probably be supporting that aspect of it. We cannot. As I have said many times we still need that full and thorough investigation that independent investigation and the Greens will push for that consistently until it happens.With the Supplementary Order Paper 366 from the Minister for Communications and Information Technology as well which is addressing part of the network security the officials and also the Minister said there was an intention to refine the matters that must be notified to the Government Communications Security Bureau (GSCB) reducing compliance requirements for network operators. When I look at it all I can see is that it actually broadens it. I think the refinement is in making sure that there is nothing missing that there is no way that anything would be missed. Sure it might reduce some compliance requirements but they have broadened it in some respects as well.I asked them and I asked the Minister about clause 47 and her amendment replacing the old clause 47(1)(a) with a new bit. There is some wording that relates to architecture. Proposed new clause 47(1) states: “(b) any change—(i) to the architecture of any equipment system or service that falls within an area of specified security interest;”. What I would like to know is what the definition of “architecture” is. I can look it up. I can look it up in any dictionary onWikipedia or somewhere and of course we have got the standard definitions around building or whatever but basically it is about systems or whatever. I am assuming that is what they mean—that is it is the systems the structure of how a network might work. But I think they have been remiss in not spelling that out—talking of refinement—and getting it properly refined and not giving us that definition and being absolutely confident about what is intended in that change. Maybe the Minister still wants to sort that out because the Minister still has the capability to do that.Under Part 3 of the bill a network operator must engage with the GCSB as soon as practicable after becoming aware of a proposed decision course of action or change not necessarily related to their own network or service that if implemented may raise a network security risk. That is pretty broad. We have all suffered some levels of risk through hacking or viruses and sometimes we just think Government spam might be part of the problem too. We accept that there is that element of risk and we would like to see this tuned in an appropriate way.But I share and the Green Party shares the concerns that our fellows in Labour have expressed in the powers in here. Who has got the power? Well we know who has got the power: the Minister responsible for the GCSB—generally the Prime Minister. I will talk about that once again in a moment. But as part of this network security there is a fair bit of scope in the areas of specified security interest which can be expanded by Order in Council and by regulation subject to consultations with registered network operators and some limitations I must say relating to changes in the technology.COLIN KING (National—Kaikōura): I moveThat the question be now put.ANDREW LITTLE (Labour): It is always a great pleasure of course not only to take a call on an important piece of legislation such as this the Telecommunications (Interception Capability and Security) Bill but to do so under your chairpersonship because this Committee needs a good and steady hand when it is considering erosions of and invasions into the personal security and privacy of its citizens.This legislation is very important legislation which is why it is such a surprise to members on this side of the Chamber that not a single Government member tonight apart from the Minister for Communications and Information Technology who made a contribution earlier has seen fit to take a call on this fundamentally important piece of legislation. It marks a continuing process we have seen under this Government unfortunately of diminishing and eroding important citizens’ rights: the inherent right to privacy and the inherent right to be protected from the invasion into our personal space and our personal information at the very least by the State because we know that the State is very powerful.Of course the powers in Part 3 of the Telecommunications (Interception Capability and Security) Bill are about not just private citizens’ rights and privacy but also those of the telecommunications companies to whom citizens subscribe for their telecommunications services. When you look at for example the obligation in clause 45 it imposes—in my view disingenuously—a duty to engage in good faith with the director of the Government Communications Security Bureau (GCSB) with no corresponding duty on the director. That tells you what this Government is about: a lack of balance; a lack of understanding of the importance of citizens’ rights; and growing almost total power of the State over citizens in important areas.You know there have been members of theStasi and there have been members of the old Soviet Union Politburo—many of whom looked a lot like Tim Macindoe funnily enough—who would be proud of the powers in this legislation. They would be very pleased about what has been achieved here. We all thought after 1990 that those evil vicious days had gone. Well they have been resurrected. They have come to life under the New Zealand National Government of 2008 to 2014. Fortunately we know that it is all coming to an end—but I get off the point just for a moment.The powers contained in Part 3 of this bill are invasive and there are no corresponding duties on the director of the GCSB when considering his right—as Maryan Street pointed out the director of the GCSB is a “his” at the moment—and no corresponding duties on the director of the GCSB in the way he conducts himself and these powers. There is a broad definition of “network operator” because that is not just the telecommunications companies; it is anybody who supplies to them. There is a broad definition of “security interest” and that includes aggregated information about subscribers and users. That is frightful. Just when we thought actually that this Government understood that there are serious issues about access to aggregated information under the GCSB legislation here we have that yet again in this piece of legislation.We have the “Henry VIII” power still contained in clause 46(2) which allows a change to parts of clause 46(1) which ought to be regarded as unusual and indeed extraordinary.Then we come to clause 47 and the extraordinary powers of the director not only to know about what telecommunications companies are doing but to direct them and then if the director of the GCSB is not happy with them to go through the “telling on you to the teacher” process if he is not satisfied with the information being provided by the telecommunications provider. Even Supplementary Order Paper 366 providing a shimmer of a check and balance by requiring going via the chap who is in charge of the warrants the Commissioner of Security Warrants before going to the Minister responsible for the GCSB is no check and balance on this power at all. It just confirms yet again the extraordinary and insidious powers that this Government is reserving for itself.IAN McKELVIE (National—Rangitīkei): I moveThat the question be now put.ANDREW LITTLE (Labour): That was a temporary hiatus in my contribution and I will take one moment just to collect my thoughts because they were many and varied and in that brief pause there they have been scattered throughout my headspace which is coming to terms with what I was saying just before.We were up to clause 47 and we were talking about these extraordinary powers and the lack of check and balance provided by the Supplementary Order Paper of the Minister for Communications and Information Technology which is why we actually need to ditch the Minister’s Supplementary Order Paper and indeed why we prefer Clare Curran’s Supplementary Order Paper 370 which provides an appropriate check and balance on these powers.This confirms the point I was making before which is that we should never in this House—a House of the citizens of New Zealand; a House of democracy; a House of Representatives built on the principles of freedom of citizens’ rights of a thriving community and of a thriving country where we respect each other and where we respect each other’s personal space and personal lives—let a power that is as extraordinary and I would argue as extreme as this slip through this House with nary a comment. It is bad enough that not a single member opposite will talk about these extraordinary powers will defend the need for this or will talk about why this Government needs to pass legislation that makes even more encroachments on people’s personal information and personal rights and freedoms. We do not hear from the Government and it is left up to members of the Opposition to have to draw the public’s attention to exactly what is happening here.The day that a senior public servant under the control and direction of a Minister and the Prime Minister should be able to direct privately owned companies on informing the director—the public servant—and the Minister about the equipment that they are using about when they are going to use that equipment about when they are thinking about replacing that equipment about when they are thinking about how the equipment is going to be used and about when they are going through all those processes and should be able to require the private company whether it has got public shareholders or not to keep the Government notified of those otherwise commercially sensitive and private decisions is an extraordinary development in the creation of statute law in this country. We should not only stand here and remark on it but condemn it and we do and I do.I say that there is simply no call for that even in a country concerned about the security of its citizens and concerned about the security of its sovereignty and its nationhood as many members of this House are—but of course those members supporting the Trans-Pacific Partnership agreement may take a different view becausethat constitutes an erosion of sovereignty. Even for those people who are concerned about this nation’s security there is no justification for the erosions of civil liberties civil rights and personal privacy and personal information that this legislation represents. I simply make the point that there is no cause for this and that we can achieve a proper balance between the nation’s security and the right of both companies and citizens to go about their lawful business including that part of their business and their personal affairs conducted in private without this sort of erosion. We must draw a line in the sand at some point and say that privacy—personal privacy personal security and personal space—must actually be given priority when it comes to passing these laws especially when the idea of national security is called in aid to justify the ever-greater erosions of personal security personal privacy and personal space. It is time to put the flag up and say “Enough is enough. Enough is enough.”I know that members of the Law and Order Committee who looked at the bill worked very hard to try to make some sense of it and to try to get some reasonable changes but this Government is hell-bent on driving it through and diminishing for all time those basic personal rights and citizens’ rights. That is wrong and it will change. It will change on a change of Government. In the meantime we stand utterly opposed to this—TIM MACINDOE (Junior Whip—National): I moveThat the question be now put.A party vote was called for on the questionThat the question be now put.Ayes63New Zealand National 59;Māori Party 2; ACT New Zealand 1; United Future 1.Noes56New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Motion agreed to.The question was put that the amendments set out on Supplementary Order Paper 366 in the name of the Hon Amy Adams to Part 3 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Amendments agreed to.The question was put that the amendments set out on Supplementary Order Paper 370 in the name of Clare Curran to clauses 46 and 47 be agreed to.A party vote was called for on the questionThat the amendments be agreed to.Ayes56New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes63New Zealand National 59;Māori Party 2; ACT New Zealand 1; United Future 1.Amendments not agreed to.The question was put that the amendment set out on Supplementary Order Paper 370 in the name of Clare Curran to clause 48 be agreed to.A party vote was called for on the questionThat the amendment be agreed to.Ayes56New Zealand Labour 33; Green Party 14; New Zealand First 7; Mana 1; Independent: Horan.Noes63New Zealand National 59;Māori Party 2; ACT New Zealand 1; United Future 1.Amendment not agreed to.A party vote was called for on the questionThat Part 3 as amended be agreed to.Ayes61New Zealand National 59; ACT New Zealand 1; United Future 1.Noes58New Zealand Labour 33; Green Party 14; New Zealand First 7;Māori Party 2; Mana 1; Independent: Horan.Part 3 as amended agreed to.Part 4 Registration enforcement and miscellaneous provisionsThe CHAIRPERSON (H V Ross Robertson): The question now is that Part 4 which is debate on clauses 55 to 110 and the schedule stand part. But having said that it is now 5 to 10 and it is the time when I need to report progress to the House.Progress reported.Report adopted.