Telecommunications (Interception Capability) Bill

Last night I mentioned that National supports this bill. It is a very important piece of legislation. But what I was concerned about was that this bill had its genesis 2 years ago, when it had its first reading and then went to the Law and Order Committee, and yet it has only now surfaced again in the House, 2 years later in 2004. That is, in my view, an absolute insult, given the importance of this legislation. This is an important bill, and we support it.

💬 Hon Dr Michael Cullen: Good.

But I make the point to the member that although we support the bill, it should have come back to us at least 2 years ago, instead of sitting around. We know of the problems in the world today with regard to terrorism. In fact, if we were to look in today’s Dominion Post, in the world section we would see the headline “Foiled—the terror bombers of suburbia”. So what we see around the world, whether it be in Madrid, in Bali, or in other areas, like the Philippines, is that terrorism is at its height—and it is growing.

While we may think that here in New Zealand we are geographically isolated, and that nothing will ever happen to us, a Government that has its mind on the issue of terrorism should be protecting its citizens. The primary role of any Government is to protect its citizens, and what this bill does is to allow the surveillance organisations to be able to intercept telecommunications legally. I note the commentary on the bill, and I will quote from it because there are some misconceptions about what the bill does. The commentary on the bill, under the heading “Background”, states: “The bill does not change or extend in any way the existing powers of surveillance agencies to intercept communications.” It also states: “This legislation is necessary to prevent law enforcement and national security capability being seriously eroded because of technical issues related to telecommunications networks.” So the bill will plug the loopholes in order to make sure that we do have effective intelligence systems, and that our surveillance capabilities are the best in the world and will be kept up to date with the changes in technology.

September 11, the Bali bombing, the recent Madrid bombings, the bomb materials found just recently in London by the anti-terrorist squad, and the point I made about the headline in the Dominion Post today all show that terrorism threats around the world are growing, and they could come very close to home. I am sure that all New Zealanders will support this bill. The Government’s primary role, as I mentioned before, is to make sure we are vigilant and do have in place the methodologies needed to be able to legally intercept any communications that may be to the detriment of our country and people. The bill will allow the law enforcement agencies—that is, the surveillance agencies—to have that capability, and we need to support that. One of the problems we currently face is that some digital and Internet technologies do not permit the monitoring of communications and information, where necessary, with the interception technology that we have. Many New Zealanders have digital phones; probably every member in this House has a digital phone. They are very common, and we want to make sure they do not become a serious threat to society.

Our telecommunications industry must be able to legally intercept illegal communications. That, in essence, is what this bill provides for. The police, the Security Intelligence Service, and the Government Communications Security Bureau must have at their disposal the valuable tools provided for in this legislation to legally intercept communications. National is happy to support this bill.

I rise in support of this bill. This bill does not make it any easier for the police or the Security Intelligence Service, etc. to get interception warrants. But it does mean that when those authorities get their warrants, telecommunication providers will have a duty to assist them and will have the technical capability to intercept calls that are passing over their networks. I commend this bill to the House.

The Green Party will be opposing this bill, as it has done previously. We do not see the need to grant these powers to the police and the intelligence agencies at this time. No objective case has been made, either in terms of this bill or of the other bill that authorises such interceptions—the Crimes Amendment Bill (No 6), which passed through the House a year or so ago—that we would catch many more criminals, be they terrorists or anyone else, through the exercise of these powers. In our opinion, the downside is much greater than the upside. No one doubts that by having greater surveillance, be it electronic interception, cameras in the streets, or whatever else it is, we could catch more criminals. But we have to make an objective analysis of the situation. With any advance in surveillance or security powers, we have to analyse whether the downside with regard to issues of privacy and civil liberties is greater than the upside. We believe the downside is greater than the upside.

The argument being advanced so far in the debate by several speakers, including the last, is that we live in a new era of terrorism. Unfortunately, Ron Mark basically said that if the Greens were affected by terrorism, they would think differently from how they do. I thought I would start at that point. Just over 20 years ago, on 27 March 1984, I was living in Wellington, and was on my way down the Petone motorway to go to a meeting of the Wellington Trades Council, where I was a delegate from the railway workers union. On my car radio I heard about a bombing at the Wellington Trades Hall. One of the people I expected to see at that meeting was the caretaker of the hall, Ernie Abbott, whom I knew well and talked to a lot. When I arrived at the meeting, I heard that he had been blown up by a terrorist bomb.

The second incident—there have been only two terrorist incidents in New Zealand over the last few decades—occurred on 10 July 1985. Friends of mine had come in on the Rainbow Warrior. They were active in the Nuclear Free and Independent Pacific Movement, and I knew that other friends of mine were visiting the Rainbow Warrior. I was living in Auckland at that time, and when I heard that there had been a bomb on the Rainbow Warrior I was very fearful for their safety. So the idea that people in this House, and myself in particular, are not aware of the problems of terrorism and of its effects on those closest to us is quite wrong. I think what needs to be borne in mind is that those two incidents of terrorism were terrorist acts against left-wing and progressive people. The idea that people of my political persuasion are not on the receiving end of those things and do not understand them is completely wrong.

We hear talk that we are not in a benign strategic environment and that there is a whole new era of terrorism, but we need to look objectively at the situation. We need to look at Australia, where there has not been recent terrorism but there is a history of terrorism. Terrorism was much more prevalent in Australia in an earlier period—particularly that committed by some Croatian neo-fascists, who set off a whole lot of bombs. If we look at the other countries that have been mentioned, we see that there have been some very dramatic terrorist acts over the last year or two, particularly those in Spain, in Bali, and on September 11. In the cases of Madrid and Bali, because of the placement of the bombs, there was horrific loss of life, which we have all been very sad about. We have been pleased that the Bali bombers have been brought to justice, and we hope that the Madrid bombers will be, as well.

If we look historically at the incidence of terrorism in Spain, we see that in earlier periods it has been much higher than it is currently, particularly with regard to the ETA bombings, and historically in Indonesia the incidence of bombing was much greater before September 11, 2001. In Britain, the incidence of terrorist bombings was historically much greater throughout the Irish Republican Army period. Looking at Europe as a whole, we see that with the Red Army faction of the Baader-Meinhof gang, the Red Brigades, and all the rest of it, there was a much greater incidence of bombings in an earlier period. Leaving September 11 aside, the interesting thing about the United States is that the period from 1998 until now has been a historic low point in terms of terrorism, compared with earlier periods when there were the Symbionese Liberation Army, people bombing Oklahoma, and the Weather Underground Organization people, etc. So the idea that we are in a new age of terrorism is statistically false. That is not to say that there is not a problem, particularly one generated by concerns in the Islamic world and in extremist sections of the Islamic community, but the idea that one has to have these powers now is incorrect.

When talking about a benign strategic environment, one must first examine where the problem is of countries going around and invading and occupying other countries. The prime problem with the world today is that there is only one country, the United States, together with its allies, doing that. Unfortunately, New Zealand is being dragged along with the United States in one instance. The United States had invaded and occupied Afghanistan and Iraq. That is the cause of a lot of the upset that exists throughout the Islamic world, which unfortunately gives some of the Islamic extremists a degree of support for the horrific actions they carry out. One has to remove the cause of terrorism, and particularly to address the cause that has been highlighted over the last week: the continuing occupation of Palestinian lands by Israel. That has been a running sore, and has caused a lot of the terrorism we have seen over the last decades. In fact, Palestinian terrorism in earlier times was internationalised. That occurred at the Munich Olympics and in a lot of aircraft hijackings. In order to really root out the international forms of terrorism by small groups and non-State actors, one has to deal with the underlying problem in the Middle East region, rather than be part of the problem by, for instance, sending the New Zealand SAS back to Afghanistan.

New Zealand is involved in electronic surveillance already, particularly through the Waihopai Valley tracking station near Blenheim, which is part of the US-led Echelon five-nation network. What has that involved us in? It has involved us in very nefarious activities. It was exposed recently that the network had spied on Kofi Annan and other UN officials, and there were reports in the Australian media that New Zealand had received a transcript of one of those interceptions of Kofi Annan. Unfortunately, the Government has pleaded the need for secrecy on security matters as a reason for not reporting to the House whether that is true. I think what that issue and the whole issue of Waihopai, which now links up with Echelon, shows is that the use of electronic interception is part of New Zealand being an intelligence dependency of, particularly, the United States, and alongside it, of Britain, Australia, and Canada.

The explanatory note on Supplementary Order Paper 197 with regard to this bill, which has just been put forward and which members will talk about later, shows again that there is unwarranted interception through Waihopai—that is, interception without a warrant. That is explicitly allowed in this bill, and it is very dangerous because it means that we can be involved in such things as spying on Kofi Annan, or—this also became public about a year ago—the National Security Agency issuing instructions to its overseas partners, such as those in Britain and, presumably, in New Zealand, to launch spying on UN delegates—particularly on those from countries that were believed to be wavering on a United Nations resolution prior to the American invasion of Iraq. For us to be involved in that sort of thing, by using the electronic intelligence this bill authorises and puts into practical effect, would be quite wrong. We know that electronic intelligence is used for nefarious purposes, and that the intelligence agencies themselves are very untrustworthy.

There is huge debate going on in Britain, in Australia, and in the United States, in particular, about the way in which intelligence is being altered and manufactured. That can be done very easily with regard to electronic intelligence. The material coming through into computers can be altered, manufactured, and reinterpreted very easily. So that is a very dangerous road to go down, when the New Zealand intelligence agencies and, to an extent, the police are in a dependent relationship with such overseas agencies.

The ACT party will be supporting the Telecommunications (Interception Capability) Bill, but it is a qualified support. There are many aspects of this bill that are not desirable, and in an ideal world they certainly would not be our preference, because they do impinge on civil liberties and freedoms. But we have come to the conclusion that in the troubled world we are now in, with the international terrorism we face, these measures are, on balance, necessary, and therefore we support them. However, in supporting them we always want to be assured—and we seek assurance—that adequate checks and balances are in place, so that our freedoms and individual liberty can be upheld to the greatest extent possible.

Mr Locke from the Green Party, who has just resumed his seat, made some very interesting points. He raised the issue of the bombing at Wellington Trades Hall that killed Ernie Abbott many years ago. It was a tragedy and a murderous act, but it was probably undertaken by a deranged individual or by someone who was acting individually with malice. What we have in the world today is warfare. It is no longer conducted by State nation against State nation, but rather by determined terrorists who are highly organised and well funded, and who are deliberately attacking what they perceive as Western values and the concepts of international free trade.

The interception of telecommunications in our modern, high-tech world is important. All nations of the Western World do such interceptions, and it is important that we have cooperation and the exchange of information. If anything, I regret that this country is out of the intelligence loop and is on the fringe of it. We are out of the main intelligence loop because of this Government’s position on foreign affairs matters and security issues. That is regrettable, because it does expose us to threats that we may not otherwise be exposed to. While our Prime Minister may think we live in a strategically benign region, that is not the case. There has been the Bali bombing, and there is an unstable situation throughout Melanesia, and now in Polynesia.

I believe the measure of screening phone calls, the work that is done at Waihopai with the Echelon programme, and other actions that cause so much angst to Mr Locke are, on balance, required, and there are appropriate and proper checks and balances in place for that. We know that Osama bin Laden does not carry a cellphone any more. He is probably holed up somewhere on the Pakistan-Afghanistan border, and time is running out for him. But if it were not for the level of monitoring of cellphone information and traffic, he would still be running his operation freely, and using his cellphone to talk to his operatives around the world. So that is just one rather graphic example of the need for these forms of monitoring.

Again, Mr Locke raised the issue of the 10 July, 1985 tragedy of the Rainbow Warrior. Yes, that was an act of terrorism. It was an act of terrorism committed against the sovereign State of New Zealand by another Government, in fact. But we should bear in mind that we caught the two General Directorate for External Security operatives—from memory, I think that Prieur and Mafart were their names. Four people got away. If we had had proper cellphone monitoring—if cellphones had been used to the same extent in those days as they are now—would we possibly have caught the other four? That is the mirror image of the argument that Mr Locke put to us. Yes, the bombing of the Rainbow Warrior was a tragedy, and yes, it was an unlawful act. I think that France deeply regrets that act; it was caught and exposed for doing it. That was a criminal act by France, back in 1985.

Since that time, the stakes have grown. We have had the Manhattan bombings of the World Trade Center, and bombings in Bali, Madrid, and Baghdad. Just this week in the UK, seven people, I think, were arrested, with—I forget how many—tonnes of ammonia nitrate, obviously for a very major bombing operation in the UK. My understanding is that they were caught substantially through the monitoring of cellphone traffic. In our modern, high-tech world, we have to weigh up on the one hand the question of an impingement on civil liberties against the fact on the other hand that without security we cannot have freedom. We have the incredible irony that we cannot have security without freedom, and we cannot have freedom without security. That is the exact situation we are facing. It is really on considering that balance that the ACT party lends its support to this bill.

I rise on behalf of United Future to talk about the Telecommunications (Interception Capability) Bill. But before I go to some of the substance of it, I would like to address some of the concerns raised yesterday by the honourable Simon Power, who questioned the duplicity of this Government for arguing about the requirement for such a bill, given Labour’s insistence on New Zealand’s benign strategic environment.

💬 Simon Power: That’s right. Good point.

It is a very good point. To partly address it, I would like to say that although we were given advice that, yes, New Zealand is still in a benign strategic environment, underlying that is a sense of unease about the way the world is progressing. Whether we like it or not, we will be dragged into the net of worldwide terrorism. If we look at it, it is no coincidence that it came up recently in the news media that the second most powerful member of al-Qaeda might have slipped into New Zealand on two occasions. So for whatever reason, we are caught up in the net of international terrorism. We have not yet been attacked, but I do not share the optimism of the Green spokesperson, Keith Locke, that we are living in a benign strategic environment. All I say to him is simply that we have a troubled world, and Keith Locke is probably the most appropriate person to talk about that point. In my opinion, and given his views, he is a troubled man speaking out in a troubled world.

Speaking to the substance of the bill, the bill is necessary—in fact, it is essential if we are to ensure that law enforcement and our national security capability will not be compromised due to changes in technology. The bill places a legislative obligation on all telecommunications network operators to intercept communications when authorised to do so by a warrant from a lawful authority. The bill also imposes—in concert with the technological regime of interception—reasonable assistance to police, the Government Communications Security Bureau, and the SIS. It should be noted that although the bill gives those operators the capacity to intercept communications, it does not expand the powers of the respective agencies that can make use of it. I think that is a vital point. It should also be pointed out that this legislation is not unique, but puts us on a par with other nations such as the UK, Germany, our cousins the Australians across the ditch, and the US.

A question debated at some length during the Law and Order Committee process—a high-powered select committee process, I might add, under the sterling leadership of Martin Gallagher, who, with his razor mind, corralled us into really understanding this bill—was who will pay? Although there was some debate regarding the amount, and about how the apportionment was to be considered, it will be the Government—or should I say the taxpayer—who will pay for the technological requirements imposed by the bill for existing fixed and mobile phone networks. There will be a phased implementation process to provide the industry with the opportunity to put in place the necessary changes.

I suppose the real conundrum of the bill is the inevitable clash between the issues of law enforcement and the right to individual privacy. Somewhere, somehow, a balance must be struck, and I believe that the bill, in light of the very real threat to our security since 9/11, achieves that. The simple truth is that the right to individual privacy can only be guaranteed by having the ability to enforce our security, and this bill is the means to do it. The rights to privacy that we in New Zealand value so highly should not be unduly threatened or compromised by this bill. At the same time, we must not romanticise our privacy to the detriment of legitimate security concerns.

I make mention of the other point not yet raised, and it is that putting aside the international threats to our security, one of the prime reasons that this bill is being put before us is to also combat the internal threat—the threat to security and safety posed by criminal organisations. A fundamental part of this bill now gives the technological advantage to police and security agencies, so that they can access information against, for example, gangs and drug barons who use New Zealand as a way to profit from the P epidemic at the expense of the public, and against the relationship those criminals have overseas in bringing these drugs into the country and organising criminal activities. United Future supports this bill, as it properly balances the needs of internal security with our right to privacy.

My last comment at this point is simply to suggest to those people who do not see a need for such a bill that they reflect on the fact that they now have the freedom to voice their concerns about so-called intrusions into their rights to privacy because we have put in place security measures to ensure that freedom in the first place. I find it very odd that individuals are against legislation of this sort. What would they replace it with? I am left only with the conclusion that they would replace the ability to guarantee our safety with such technological innovation with measures such as throwing psychiatrists at the terrorists and criminal organisers and looking upon them as simply misguided individuals.

That is not the way forward. This bill addresses some of the legitimate concerns we have in this country about threats of both an external and internal nature. It would be good to see all parties of this House send the very same message. Sadly, that does not seem to be the case, because the Greens have romanticised their freedom, and clearly do not see that freedom as having been hard won by innovations such as the ones that this legislation proposes.