Crimes Amendment Bill (No 6)

I am about to admit a failure, and the failure is my not having realised, Mr Chairperson, as you were racing through Part 1 with the obvious approval of most of the Committee, that it covers matters on which I wanted to record a position in the Committee stage, for the ACT party. I believe that the same issues arise under Part 2.

Some of these new definitions, and some of the parts that are recorded as having been replaced in the schedules, or repealed in this part, appear to me to be matters that require further attention. In particular, I am concerned about the definition of “dishonestly”. The term is used both in titles of things that are to be repealed and in the operative sections of a number of these provisions where previously the word “fraudulently” was used. It concerns me that the new term “dishonestly” appears to assume that anything that is not expressly or impliedly authorised is not honest. I believe that it should be put on the record that that is not the intention of the Committee in passing the bill. There is a huge range of activity in any free society that does not require anyone’s consent, and that certainly is not dishonest just because there is no express or implied consent. The existing law, the common law definition, which is replaced by this part, may have been a better definition in terms of what we are doing.

I have some hesitation in raising this point, because I was not on the Law and Order Committee. I have not had the benefit of hearing the submissions. I believe that it would be unfair to expect the Minister to get up to speak to this immediately, but it does concern me that the words we have used in that definition do not go far enough to recognise that a lot of conduct—many things that can be done or not done—does not need to relate to anyone’s consent or authority, and is not dishonest merely because there is no express or implied authority.

The second point, which is also a belated acknowledgment, is that in new section 237, in clause 19, the term “blackmail” is extended to include to “disclose something about any person (whether living or dead)”, instead of it being confined to the previous grounds of criminal or sexual conduct. That seems to me to leave it far too wide, and to allow threats to be made of blackmail offences in relation to ordinary communication of information, to ordinary, conditional descriptions of things that people do in their everyday lives. It is perfectly proper for an employer, for example, to come to someone whom he believes to have been doing something wrong and say: “If you don’t do X, if you don’t make this right, if you don’t do something, I will go to the police. I will disclose.” That was covered in the previous law as potential disclosure of criminal conduct. It may be covered by subsection (2) of section 237, which states “unless … a reasonable and proper means for effecting [the] purpose.”, but given that Parliament will not look at this again for a very long time, and given that we are now repealing the existing law and making the definition of “blackmail” even wider than it was, I think we are doing the wrong thing. We are giving a weapon for the potential suppression of information, a weapon for people to connive or collude in conduct they should not connive or collude in, simply because they will be fearful of the very broad terms of the blackmail offence that is now being placed into law.

I thank the Chair for his tolerance in allowing me to put these comments on the record in relation to a part of the bill to which they are not strictly relevant.

Part 2 discusses consequential repeals and amendments relating to the matters that we have discussed. It summarises and implements many of the issues that have been traversed so far.

One thing I want to talk about particularly is the provision to allow access to computers. I want to bring in the matter of the Privacy Commissioner’s concerns. The Privacy Commissioner presented a number of submissions to the Law and Order Committee on various matters in this bill, and he was particularly concerned about our granting the law and intelligence authorities the right to access computers remotely—to hack into computers. His argument, and I agree with it and it has motivated one of my amendments, is that the police already have the power to look at the contents of a computer when they search a premises under a warrant, so why do they need to go further and have remote access or hacking powers, which are very hard for us to oversee in any serious way? It is very hard for the police to be fully, publicly accountable for the exercise of those powers, compared with the exercise of their powers under a search warrant to look directly at a computer and its contents. I support the Privacy Commissioner’s concern that that power should not be granted.

He had other concerns. For example, he did not want interception warrants to apply by way of the police just going to a judge and getting a warrant on a one-off basis. Different judges will be dealing with those warrants, and he thought there should be an additional control, as there is in Australia, where the federal ombudsman does an annual audit of interception warrants granted to the police. I think we should have implemented that provision. It was one of the things that one of my amendments dealt with. It would have meant that we do what is done in Australia and have an extra layer of accountability—that is, an ombudsman auditing those warrants.

A concern expressed by the Privacy Commissioner and most of the submitters to the select committee was that we should try to protect innocent people as much as possible. There are two ways of doing that. One is to discard the information acquired from intercepts, and that is covered by amendments in this bill that provide that when information is no longer needed it should be discarded. I put forward an additional provision in one of my amendments. My amendment would have meant that an innocent subject was notified, once the police investigation was over and it was quite clear that the police no longer had any interest in that person. Where an innocent person had been accidentally caught up in the interception system, and no charges were laid, my amendment would have meant that that person was notified that an interception had taken place.

That is what the FBI does in America. The Law and Order Committee received a submission from a person who lives here in Wellington that one of her emails to a friend in the United States had been intercepted by the FBI, and the FBI had reported that fact to the recipient of her email. That is a good provision, and it could have been added to this bill. Sometimes, in later life, in relation to later events, people are affected by an interception, because it resulted in their names ending up on a database. There is a looseness and a capacity for error in any bureaucratic system. If the agency—the FBI in the American case or the police in the New Zealand case—notifies a person that he or she was subject to an interception order, then that person, at a later point, if his or her credit rating, or travel, or something else is being affected, at least will know that he or she was subject to that interception warrant, and might be able to get to the bottom of the disadvantage that he or she is suffering. I think it is consistent with the general privacy themes that operate in our law that people should be notified of what information about them appears in public databases.

The question was put that the amendments set out on Supplementary Order Paper 84 in the name of the Hon Phil Goff to Part 2 be agreed to.

Amendments agreed to.