Crimes Amendment Bill (No 6)

During the last debate on this bill we heard an amazing contribution from the Green Party member, Keith Locke. I have to say it is a good thing that under an MMP Parliament all views are represented. We heard the view of the hard-left in New Zealand from Mr Keith Locke. We heard the views of the MPs that this Government relies on for its vote, because Mr Keith Locke stood up in this House and delivered an embarrassing diatribe against the United States of America. His problem with the United States of America was that the State might be snooping on people in the interests of capturing, monitoring, and exposing those who would make war against us, those who would commit violence against us, and those whom we have come to know as “terrorists”. I do not understand how that view can sit with a man like Mr Keith Locke. I could understand it if one were a hard-core libertarian or an anarchist, but not if one were a person who supported the Soviet regime in the USSR, who supported KGB operations, and who said in 1975: “Victory for humanity: Phnom Penh falls”. We all know what happened then. Pol Pot came along, and 1 million people lost their lives in the terror regime of the State on the people of Cambodia.

Mr Locke is a man who has written articles telling workers of Aotearoa to support the Soviet occupation of Afghanistan and the terror regime that the USSR inflicted not only on its own people but on the satellite States of what Ronald Reagan called the “evil empire”. What sort of warped thinking is it of the Green Party, and of Mr Keith Locke, that complains about the intelligence network of the United States of America—where people have civil rights, individual rights, a free press, a Congress, and what we understand as a parliamentary democracy? That man, in the very next breath, supports terrorist States without check, and police States without check—where the University of the USSR is a gulag, and where political dissent is not voted on in Parliament or allowed to stand on the steps of a Parliament to be heard, but, rather, is shipped off to the salt mines of Siberia. That is the sort of regime that Keith Locke has spent his entire adult life supporting. It shows through time and time with the Greens, because they are people who do not want to protect the environment but to control people. They want to dictate to people; they want to tell people how to live their lives. It was the same airy-fairy, Moonie-type approach that saw the rise of the totalitarian dictatorships that, thankfully, the world is beginning to rid itself of.

I say to Mr Keith Locke and the Greens that if they are going to sit in this Parliament, then, sure, they should have the debates, but they should ask themselves about all the peoples of the world who do not have a vote, who do not have free speech, and who suffer from arbitrary arrest and detention because of their political views? Is it not about time that Mr Keith Locke came to this Parliament and asked whether it is not a wonderful thing to have a democracy, to have a Parliament, to have free speech, to have individual rights, and to be a citizen of a free society—and to say that he apologises to all those people of Cambodia, the USSR, Afghanistan, North Korea, Communist China, and Cuba for his support of regimes that held them down and inflicted terrible fear on them?

Do members know what Mr Keith Locke said to me at the end of his speech? He said, “I’m not a Stalinist; I am a Trotskyist.”—as if that were some excuse to walk into this Parliament and say, “Oh, I never went as far as Josef Stalin did, only as far as Leon Trotsky did.” That just means that the State tells one everything: what one can eat, how one can think, and what one can do. Let us be very clear about one thing—that is what the Green programme is. It is not about protecting the environment; it is about controlling people and removing their freedom, because the Greens know best. They do not want people to be able to drive their cars where they choose. They do not want people to be able to live where they choose. How ironic it is that they worry about the State having the minimal powers needed to protect us from terrorist activity, yet they want to tell us when our cows can let off wind, whether we can chop down a tree that we had planted, and how Māori people are supposed to live. In their ideal world they would be sitting atop a miserable socialist society where we all lived in caves and worked in the sun, with no tractors or machinery—nothing—but just hoeing in the hot sun for a dollar a day, and the only thing we had to look forward to, courtesy of Nandor Tanczos, would be a nice puff of marijuana at the end of a hard day’s work.

That is the only fun the Greens would allow New Zealanders to have. They do not like us driving our cars, they do not like us earning money, and they do not like us zooming around in a jet—unless we are a Green. They do not like us using our cellphones. They do not even like us putting our shopping, at the end of a hard week, in a plastic bag. They want us to get one of those flax-woven shopping bags and carry that—looking like some 1970s retard—walking home with our shopping, and morris dancing after a hard day. To the Greens, plastic is wrong. I say that Keith Locke—

💬 David Benson-Pope: What about the bill? Has the member read the bill?

David Benson-Pope does not like it, does he? He knows he has to come across to Keith Locke and get his vote. I want to tell members something else about the Labour Party—compared to the Labour Party I like the Greens. At least the Greens tell us what they stand for. David Benson-Pope does not disagree with one thing that Keith Locke says. See! What he does not have is the intestinal fortitude that Keith Locke has to say it. Keith Locke—and that is why I support him—came into this Parliament, and I said “Let’s hear what you have got to say. Let’s hear what the people have to say.” The ACT party supports the bill, because we do not want to be supporting the friends of Keith Locke who are the enemies of freedom.

Why is it that Mr Rodney Hide MP spends so long castigating the poor old Greens?

💬 Jeanette Fitzsimons: He’s terrified of them!

It is either that he is terrified of the Greens or he has found the only group that makes him look reasonable, and that is a stretch. On this case we defend the right of the Greens to their view, but Labour Party members hold that the Greens have taken a position with which we cannot agree.

I commend the Law and Order Committee for this bill. The committee report does a delicate balancing act between the rights to freedom and free expression, and the need for greater protection so that everybody’s communications are protected. I note from the conclusion of the committee’s report that the committee has held that that balance has been found.

That was the Hon David Cunliffe, which indeed proves New Zealand is a land of opportunity, and if one grasps enough one may, one day, get what one desires.

💬 Rodney Hide: Has he grasped enough?

I suspect so. I draw the House’s attention to how long it has taken for this bill to resurface in the House.

💬 Rodney Hide: al-Qaeda has sought leave and gone.

Well, they have. Unfortunately al-Qaeda has not gone, and that is one of the reasons I listened intently to David Cunliffe’s speech; I think he was right. There are people in this House who think it is fashionable to be against anything that stands up for our way of life. But I think it is important that we do focus on that.

This bill was originally referred to the House in October 1999. Submissions closed in March 2000, and the Law and Order Committee reported back to the House months and months later. In fact, the committee heard submissions in 2001, and this bill has only recently come out of the select committee process. I thought that for legislation whose intent was one of urgency, particularly in respect of a number of crimes related to computer equipment, the Government would have given it a greater priority. But I would like to explain to the House why it has taken so long.

The Minister who was entrusted with this bill was the Hon Paul Swain, the then Associate Minister of Justice and Minister of Commerce. I have recited to the House previously, from reports in the media, that the reason the Hon Paul Swain lost his commerce portfolio was his inability to get anything through the parliamentary process. I think we need look no further than the Crimes Amendment Bill (No 6) to find a bill that, when in Opposition, he said was urgently needed, and in the Parliament said it was urgently needed, yet here we are, over 3 years—in fact, almost 4 years—since the bill was introduced and we are finally coming to the committee report back. We are not even doing the clause by clause debate, let alone the third reading. I suspect that we may have the third reading of this bill next year, because the progress of this bill has been appallingly slow.

In fact, it is so difficult to get the Government to take this anti-hacking computer security legislation seriously. Dr Cullen’s spokesman said that this law was on the radar screen and a priority. Who is he kidding? It has taken 4 years for the bill to get to this stage, and Dr Cullen says it is a priority. Well, goodness knows what it would be like if a bill was not a priority. Furthermore, the Minister of Justice, Mr Goff, refused to put a time frame on the progress of this bill. So the point that the National Party in Opposition wants to make is that there are some very key new offences in relation to controlling computer crimes, which this Government has dragged the chain on.

Subsequently, a Supplementary Order Paper was tabled that provided for extended powers to the authorities to attach interception devices to communications networks. Part of this is dovetailed with the Government Communications Security Bureau Bill, which has come subsequently. At that time the National Party expressed some concerns about provisions that would allow the intelligence agencies to have a permanent listening device attached to communications networks. It was always our view that interceptions should continue to be warrant based, that that warrant should be discrete, and it would then require action by the telecommunications company.

There was considerable concern at the time the Supplementary Order Paper came in that what was being proposed was a permanent attachment to the telephone exchanges, with a continuous feed to the intelligence agencies, and only when the intelligence agencies had a warrant would they actually turn that feed on and allow them to monitor what was going on. The National Party expressed considerable concern about that. We will take the Committee stage very slowly and very carefully to assure ourselves that the privacy of individuals will be maintained, and that we remove any suspicion that the intelligence agencies can listen without an authority, as appropriate. We want to do that because we take it upon ourselves as a responsibility to ensure that the legislation that provides for a curtailment of our privacy and rights is appropriate to the circumstances.

The bill also has significant new insertions in respect of crimes against rights of property. We will want to move amendments to those in the Committee stage. We believe that there should be significant changes to the Crimes Act. The provisions the Government has implemented with the sentencing and parole suite of bills is inadequate. We will view this as an opportunity to provide some of the more certain and definitive sentencing that New Zealanders voted for in the 1999 Withers referendum.

Increasingly, the courts are frustrated by the lack of specific offences in respect of a number of computer crimes. The courts are finding themselves in the difficult position of having to construe existing law in order to provide penalty and sanction against those who hack into computers, illegally obtain information, and create denial of service attacks. We need to make sure that this bill is passed rapidly so that those new offences are in place and the courts can act upon them.

This is a Government that goes on and on about how it wants New Zealand to be part of the knowledge economy, that it wants to have lots of broadband for Internet delivery, yet when it comes to supporting the infrastructure to ensure that we have security and that the rights of the owners of computer infrastructure are protected, this Government is sadly wanting. I think it is consistent with the Government’s whole approach to the Internet and to telecommunications. This is a Government that goes on and on about why we need broadband past every home in New Zealand, but it cannot explain why the broadband uptake in New Zealand is so poor.

I draw the Government’s attention to some research that was released last week by the Institute for the Study of Competition and Regulation at the Victoria University of Wellington. It has hit it on the head. It said that this Government has got the wrong strategy because it keeps talking about providing great Internet access for all New Zealanders, but it ignores the fact that the reason people would want to go on to these new expensive broadband platforms is that their application justifies it—that is, it is worthwhile, and they have something that can use all that capacity. Most New Zealanders use the Internet only for the occasional surf and for email. That does not require the expense of linking into broadband 24 hours a day.

So what that indicates is that the Government has the wrong idea on all this stuff. I think it has the wrong idea on its priorities for these new offences. It has taken the Government 4 years to do anything. We could have another year before those offences are put in place. I say to this Government that it should walk the walk. As a correspondent in the New Zealand Herald wrote just some weeks ago, the Government talked the talk but it did not walk the walk, particularly when it came to the laws proposed in this bill. So my urgent call to the Government is that it should give this bill the priority it is due, walk the walk, and give the New Zealand computer community the safeguards it needs.

New Zealand is one of the few countries in the world that does not provide for computer crime. But it is about time that we saw the creation of new offences that make it illegal to intercept, access, use, or damage data held on computers, without authorisation. Our approach is at odds with our obligation to the international community, the Convention on Cybercrime, approved by the Council of Europe in 2001, and an APEC telecommunications document Cybersecurity: A Strategy for APEC. In other words, with regard to computer offences, legislatively speaking we are behind in terms of most Western countries.

Critics argue that our domestic law should not be dictated to by international or foreign interests. Yet in the age of the Internet, national boundaries mean very little in the commissioning of the sorts of offences we are currently encountering. I refer to offences such as computer hacking for delinquent and economic intelligence purposes. Frustratingly, this often leaves law enforcement authorities with their hands tied, unable to crack down on offences on citizens in their own jurisdiction, perpetrated by individuals somewhere on the other side of the world. Among other reasons, that is why our interest must be to pass this bill. By falling in line with the international community and appropriating a comparable offence regime we will be enacting provisions of an international standard.

This bill was initially stalled following the objections of Internet service providers at what they perceived would be an onerous burden on their businesses to provide police and other intelligence agencies with the interception capabilities this bill requires of them. Yet I note the change of position of the industry from organisations such as the Information Technology Association, and the reported comments of the association’s director, Jim O’Neill, last year, that the passage of the bill was now necessary so that they could get on with implementing the full economic potential of some of the technologies they had. In other words, it appears that Internet service providers have accepted the reality of the need for greater enforcement capability by authorities and are prepared to support the bill so that they can get on with their core business.

I would also like to point out to those concerned about compliance costs that increased enforcement powers will mean that we are all served by better protection against hackers. It will mean that our computer systems will crash less often, be less infected with email viruses, and provide a more efficient basis for business.

As I have said, presently we have no specific computer-related offences. The courts have, in turn, interpreted laws covering fraud, theft, criminal damage, and even trespass sufficiently broadly to bring activities that we need to outlaw within the ambit of present legislation. Common law has evolved to satisfy the gap.

Critics of this bill feel that this legislation is unnecessary, given the way the courts have dealt with the issue. But a lack of statutory recognition of these Internet and computer-based offences remains, nevertheless, problematic. The law as a whole needs to be more than piecemeal development. I do not mean to detract from the value of common or judge-made law, but it is necessary in many areas of the law for an integrative scheme to be enacted. For example, in 1999, in the case of R v Wilkinson, the Court of Appeal threw out a conviction for theft in a convoluted electronic transfer of funds case. I think that well illustrates the need for more specific statutes in this area.

I also note a paper commissioned by the policy committee of the New Zealand Computer Society in 1989. It was produced by a special project group, under Victoria University senior law lecturer and criminal law guru, John Miller.

The paper espoused two particular principles that remain relevant today. Firstly, the criminal law must remain certain. Whenever the State sanctions citizens for their actions, the conditions upon which this is predicated must be certain and must be known. The alternative is that where there is any doubt about the criminal law’s application, the benefit of such a doubt must be given to the accused. This is an undesired effect if hackers are resultantly left to run free. Secondly, a clear signal is needed to emphasise the antisocial nature of hacking and the grave consequences that can arise from it. For example, while the punishment provisions in the bill for computer offences are a range of jail terms, under Missouri law victims of computer crime can recover the costs of any expenditure reasonably incurred by the owner to verify whether a computer system was damaged by the access. The intent is to encourage victims of computer crime to take action when they are victimised.

I note the work of the select committee in examining this bill and the changes it has made as far as ensuring that members of the Government Communications Security Bureau and our other intelligence agencies will not be prosecuted under the bill for the legitimate activities they can carry out in protecting national security and similar matters. They are positive changes. One example is the recent Government Communications Security Bureau offshoot, the Centre for Critical Infrastructure Protection, which I am led to believe is directed to protect our critical infrastructures such as power grids, water supplies, and air travel, from Internet-based crime.

I understand that the paranoid party of Aotearoa—the Greens—will be concerned that this so-called expansion of State power will lead inevitably to an age of surveillance and unmitigated State intrusion into our private lives, and that we are only one step down the road from a security State. As per usual, if we pause to shake off our agendas, the answer to that sort of rubbish is quite clear. In truth this bill places a strict limit on the organisations that can monitor Internet traffic, emails, and the like, as well as what they can monitor and when they can monitor it.

The police electronic crime unit is on record as stating that the police will not be trawling through emails looking for suspicious correspondence. It has further stated that it will target and name suspects’ emails only after getting a court warrant. Most of all, and perhaps this is the most disconcerting, even if the police wanted to, they simply do not have the resources to spend hours monitoring the emails of every potential crackpot.

I have also had it pointed out to me that those organisations that will have the authority to intercept Internet traffic are already undertaking that type of surveillance anyway. Further, as our society becomes increasingly aware of the number of paedophiles who use the Internet to contact innocent children, trade in images that exploit our children, and that sort of monitoring, the authority is absolutely necessary if we are at all serious about combating such problems. I, for one, am not prepared to accept the irrational fears of a few whilst those sorts of perverts are going undetected.

Finally, I note the changes the bill makes to some property offences such as the simplification of the definition of burglary. Also, it is a positive move to extend the grounds on which blackmail can take place to include threats to disclose matters other than criminal and sexual behaviour. I commend the bill to the House.

The debate having concluded, the motion lapsed.

Bill to proceed.

The House adjourned at 9.59 p.m.