Government Communications Security Bureau and Related Legislation Amendment Bill

I move, That it be an instruction to the Committee of the whole House on the Government Communications Security Bureau and Related Legislation Amendment Bill that it reconsider Part 1 of the bill for the purpose of considering and, if it thinks fit, adopting the amendments in the name of David Shearer set out on Supplementary Order Paper 331. The Supplementary Order Paper will prevent access to the content of New Zealanders’ emails unless absolutely necessary under section 8A, inserted by clause 6, of the bill. I think we could probably give a signal that this is a debatable motion. [Interruption]

💬 Mr SPEAKER: Order! Would the member just carry on.

I was just being kind to the staff. Otherwise they could be there for an hour or so.

💬 Mr SPEAKER: I will equally assist there. That is not the member’s job. Would the member continue with his contribution.

Thank you, Mr Speaker. What this Supplementary Order Paper will do is it will prevent access to the content of the emails under section 8A of the bill, unless absolutely necessary. Neither the Government Communications Security Bureau Act 2003 nor any of the amendments that are currently in the Prime Minister’s name offer such a protection. This Supplementary Order Paper would legislate to make Parliament’s intent clear, and New Zealanders’ expectation that—

💬 Mr SPEAKER: Order! I apologise to the member. Point of order, the Hon Gerry Brownlee.

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker. I assume that we are entering into this debate on the basis of Standing Order 173, which does make it clear that someone can move that an instruction is given to the Committee of the whole House. What it also says is that any debate on the question for an instruction is restricted to the subject matter of the motion, not, in this case, the Supplementary Order Paper that Mr Mallard is speaking on. It may not extend to the principles, objects, or provisions of the bill or any other matter to which the motion relates. That makes it very clear that Mr Mallard’s current content is well outside the Standing Orders. He should simply be making a case for the House to consider his motion as it is written, not the various reasons that might be behind his choosing to move this today.

Speaking to the point of order, that is exactly what I was doing. What I was explaining to the House was what was in the Supplementary Order Paper. I was not debating the merits of it—I was not debating the merits. I was speaking exactly to the question that I had proposed to the House. Mr Speaker, if you remember exactly what I said, it was—

💬 Mr SPEAKER: Order! I do not need to hear that. Can I say to the member that Mr Brownlee is right to point out that this is a very narrow debate. I will follow very closely the contribution from the member, and will expect that he will be within the Standing Orders. I invite the member to continue.

I agree with you, Mr Speaker, that it is a relatively narrow motion, it is a relatively narrow question, and it is actually quite a narrow amendment. It is a very specific amendment. The reason that we need to deal with the question now, rather than previously, is that it has become clear from the statements of the Prime Minister, including a very good article by Audrey Young in the New Zealand Herald, where the Prime Minister’s lack of understanding on the bill and on this specific question became clear. What the Prime Minister has indicated since the last time the House was in Committee is that there was an arrangement whereby he would be trusted in order to—

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker. This strays, once again, well outside what is permissible for a debate of this nature. I say, again, that the subject matter of the motion—the subject matter of the motion—is what this is all about. For Mr Mallard to start straying into what he believes is some particular revelation from a New Zealand Herald article, etc., does not meet the test for the Standing Orders.

💬 Chris Hipkins: Mr Speaker, I have had a chance, after Mr Brownlee’s first intervention, to look at the relevant Speakers’ rulings. I refer you particularly to page 81 and the first ruling on that page, which makes it clear that “The only matter under debate is whether the committee should have the power to examine and adopt this Supplementary Order Paper.” So, therefore, it is perfectly in order for a member moving such a motion to outline the reasons why the Committee should have the power to consider that Supplementary Order Paper.

💬 Mr SPEAKER: I invite the member to refer to that Speaker’s ruling again.

💬 Chris Hipkins: Speakers’ ruling 81/1. The procedural motion, which is the second part of it, states: “The only matter under debate is whether the committee should have the power to examine and adopt this Supplementary Order Paper.” So it is important, therefore, that the amendment needs to be able to explain why the Supplementary Order Paper should be debated.

💬 Mr SPEAKER: I think, in fact, the point raised now by Chris Hipkins has very much strengthened the point made by the Hon Gerry Brownlee. The Hon Trevor Mallard must remain very tight in his debate and, frankly, tighter than he was before he resumed his chair.

I am going to try to take the point that I had begun to make to the point where you and the rest of the House can understand its relevance. The situation has moved since the House last debated this issue. That is why I am suggesting it, and why the Leader of the Opposition has a Supplementary Order Paper that involves reconsidering Part 1 of the bill for the purposes of considering the Supplementary Order Paper. I am explaining how the world has changed. The world has changed with two points. First of all, the Prime Minister made it clear in the New Zealand Herald that there was an element of “trust me” in this—

💬 Mr SPEAKER: Tighten the contribution.

—and what the Opposition is saying is that, given that that is the Prime Minister’s approach, we will accept him at his word and we will reinforce that with the Supplementary Order Paper.

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker. We are straying into a justification for the Supplementary Order Paper. The question is simply: should the House recommit time or go back to consider a bill that was given a considerable amount of time last week because of some revelation that Mr Mallard and his colleagues seem to have woken up to—or, more important, have decided to make some interpretation of? It is absolutely essential that for matters like this, where the House is extending the right under the Standing Orders to recommit the House to a particular course of action—to instruct the Committee of the whole House—we do stick tightly within the rules of debate. Mr Mallard is not doing that.

💬 Mr SPEAKER: I invite the Hon Trevor Mallard to now continue his contribution, but he must tighten it up. Otherwise I will have no choice but to end the member’s contribution.

OK. The reason the House needs to reconsider Part 1 is that since it considered Part 1, new information has come to hand. That new information came to hand in two ways. One was a statement, quoted by Audrey Young in the New Zealand Herald, from the Prime Minister as to his understanding of the legislation. That was something that was different. It differed from what had been said previously about the legislation by the Government. The second was the indication that the Prime Minister has made that it is his opinion that a comment that he can make at the third reading will be something that is interpreted in the court, over and above what is in the substance of the bill. That comment has also been made since the House was last debating this part in Committee.

On the latter point, I think I am probably one of the few members who has been cited in the court as a result of comments made in the House as to the interpretation of what was a bill at the time but which is an Act now. What the court made clear at that time was that the comments were useful in interpreting a particular section of that Act, but what is also absolutely clear is that that section of the Act has to actually exist in order for the courts to interpret it. The proposal here, as part of the reconsideration that is being suggested by the Labour Party—and which, I understand, is being supported by a number of other parties—is that because this new information is available, what we should do is put in front of the House a question on which the House can decide and, possibly, I think, even unanimously agree.

I want to make it very clear that nothing I am saying now will indicate that the Labour Party will support the bill. Even if this amendment—

💬 Mr SPEAKER: Order!

Just to make it clear, this is a reconsideration of a particular matter to improve the bill, to pick up the Government’s suggestion made since the House was last in Committee. We want to pick up the Government’s suggestion and get something—you know, we are from the Opposition and we are here to help. What we are trying to do is get the bill into the form that the Prime Minister indicated over the weekend, or certainly in the period since the Committee last sat, was how he wanted the law to be in. So what this Supplementary Order Paper does, and it is Supplementary Order Paper 305—

💬 Grant Robertson: It’s 331.

Sorry?

💬 Grant Robertson: 331.

I apologise. In fact, I am sure my colleague will move an amendment to my motion, because somewhere between the morning and the afternoon the Supplementary Order Paper in the name of David Shearer changed its number from 305 to 331.

💬 Hon Gerry Brownlee: It’s called snapper.

Sorry?

💬 Hon Gerry Brownlee: They’re just calling it snapper now.

💬 Mr SPEAKER: Order!

Well, really they are different sizes of snapper. I am sure Mr Brownlee does not think it is fair that commercial fishermen—

💬 Mr SPEAKER: Order! Now we are truly straying.

Well, if I am not allowed to respond to an interjection from the Leader of the House—

💬 Mr SPEAKER: Order! We are truly straying.

Oh—

💬 Mr SPEAKER: The member has responded adequately.

—that was an invitation from the Leader of the House—

💬 Mr SPEAKER: Order! The member has responded.

—to focus on the question of snapper.

But the point I am making is the same point that the Prime Minister has alluded to since the House last sat. The question was whether Kiwis are worried about this, and, in particular, about the very narrow, narrow question about whether, when their emails are picked up as a result of the cyber-surveillance—the cyber-space surveillance, and that is the area that we are talking about—there should then be the right to open them. So there is a Supplementary Order Paper that sits in there. I will not go into the merits of it, but what the Supplementary Order Paper does is make it clear that that is not a ground for opening those particular ones and that consent is necessary. I just again want to somewhat go back over the area that I have traversed and say that this is exactly the practice that over this last weekend the Prime Minister said that he wanted. The Prime Minister said that he wanted the legislation to be interpreted in a way so that New Zealanders’ consent would be obtained before their emails that were obtained as a result of the mega-data cyber-surveillance clauses in the bill could be looked at.

Again, it is relatively unusual for the Opposition to be tidying up after the Prime Minister. I think that we had some debate about whether we should just leave the question for the courts to interpret. As I indicated earlier—and I am absolutely certain that the Attorney-General will have advised the Prime Minister that it is better to have something in the particular Act that goes through, rather than just a comment in his third—[Interruption] Well, this is exactly the point, Mr Speaker. I know you are telling me to come narrow, but I am being very, very specific about the comments that were made over the weekend by the Prime Minister about this intention in this particular area to have this clause—this very clause—not written into the bill, but written into his third reading speech.

This is Parliament. This is the Parliament of New Zealand. We pass the laws. They are not dictated in a speech by the Prime Minister.

Just in relation to that last comment by the Hon Trevor Mallard, it was not that I was telling him to get narrower; it was just that the speech was becoming highly repetitive, and I give that as a warning to all other people who are contributing.

The reality of everything that Mr Mallard has said in support of his motion is that nothing has changed in the Government Communications Security Bureau and Related Legislation Amendment Bill or otherwise from last week when the Committee of the whole House gave this particular part of the bill, Part 1, a very considerable amount of attention. To make a case that effectively says “Over the weekend we woke up and had another good idea and therefore we want to delay the passage of this bill as long as possible by instructing the Committee to go back on to areas that it has previously covered.” is completely inappropriate.

One of the things that I think stands out here is the claim by Mr Mallard that any comment made in a speech in Parliament has no relevance to any piece of law. He is not the only member who has found himself quoted at various times by judges who have considered how a piece of law is to be interpreted, so that is a spurious argument that is being mounted in favour of reserving the Committee an additional amount of time for consideration of Part 1. I would also say that when the Committee does spend so much time on one part of one bill, and when the speaking arrangements for that part are so heavily weighted toward those who are opposing the part, it seems quite unreasonable that when the House has made a decision in favour of that part those who oppose it should come back in here and say “Look, we want to have another go. We want to take some more time.”

What this is all about, essentially, is trying to back up Mr Shearer, who found himself last night in front of a crowd who, for once, was interested in what he might have to say, and then overstepped the mark by indicating that he was going to take this matter back to Parliament. [Interruption] Well, using the provisions of Standing Order 173 to try to achieve a bit of face-saving for the Leader of the Opposition is not acceptable, either. I do not believe that any case has been made at this point for the House to consider supporting the motion moved by the Hon Trevor Mallard.

I raise a point of order, Mr Speaker.

💬 Hon Gerry Brownlee: I’ve finished now.

I know.

The ASSISTANT SPEAKER (H V Ross Robertson): A point of order, the Hon Trevor Mallard.

I am just making it clear to the Leader of the House that I was being polite and waiting until he had finished. I just want to seek from you a ruling with regard to the numbering within the motion that I moved. I used a piece of paper that had been supplied to me, which noted that the motion related to Supplementary Order Paper 305, when, in fact, it should have been Supplementary Order Paper 331. The question is whether, under the typographical error clause, you will just change what I moved or whether it is necessary for an amendment to correct that to be moved. It is a matter I have discussed with the Clerk, but I think we had better get—

💬 Hon Gerry Brownlee: You’d need the leave of the House for that.

I am happy to seek the leave of the House if members opposite are willing to substitute Supplementary Order Paper 331 for Supplementary Order Paper 305.

Can I just say that it had been read into the minutes of the House, but a typographic mistake does not make the instruction invalid. I call the honourable member Russel Norman.

Thank you, Mr Speaker—

💬 Grant Robertson: I don’t know about that, Mr Speaker.

Mr Robertson, I hope, will get his opportunity very shortly. This is an important motion and I speak to the motion. It is an important motion, and I say this as someone who has sat through the whole of the Committee stage and all of the other stages of this bill, and who has sat here as we have worked our way through the parts of the bill. Essentially, what this motion does is empower the Committee of the whole House to go backwards, back to Part 1. I think it is actually essential that we do go back to Part 1.

For those who do not know the structure of the bill, Part 1 is the kind of substantive amendments to the Government Communications Security Bureau (GCSB), Part 2 is about the Inspector-General of Intelligence and Security, and Part 3 is about the amendments to the Intelligence and Security Committee. Parliament is currently on Part 3. The Committee of the whole House is currently dealing with Part 3, which is, of course, in relation to the Intelligence and Security Committee. So it is very difficult when we are dealing with the Intelligence and Security Committee to move the kind of amendment that Mr Shearer has proposed, because, clearly—

💬 Hon Gerry Brownlee: That’s why we had the debate last week.

—that amendment needs to happen under Part 1. Mr Brownlee has said it should have been done last week under the Part 1 debate. I assume that is what the member is arguing. Am I correct?

💬 Hon Gerry Brownlee: Of course.

That is right. He may well have a good point, were it not for the Prime Minister’s intervention. The reason this is significant is that the Minister in charge of the bill, the Prime Minister of New Zealand, has made some very large and controversial statements and assertions around the meaning of the legislation. Mr Shearer’s amendment on Supplementary Order Paper 331 is to try to put into black and white law those kinds of assertions. So the reason we need to go backwards in time for the Committee of the whole House to be empowered to deal with Part 1 again is so that we can deal with the issue that was raised by the Prime Minister himself, which Mr Shearer’s amendment tries to deal with.

This debate is obviously very constrained to the procedural issues around the motion that is in front of us, and I appreciate that, but, of course, the reason we are having to go through this procedural process is that the content of the amendment itself on Supplementary Order Paper 331 cannot be considered under Part 3 of this bill. Simply, if we tried to put this amendment, which I think is a legitimate amendment, into Part 3, it would clearly be in the wrong part of the bill. So it is, I believe, a perfectly reasonable procedural motion to say that we should go back to Part 1.

This amendment by Mr Shearer is probably one that most members of the Committee, I would hope, could agree with. The Prime Minister has told us that the bill already means this, so I cannot see what the possible problem is—well, he has told us it does mean this and it does not mean this; he has told us both things. But, anyway, most members of the Committee, surely, can agree with the amendment that Mr Shearer is moving, which is essentially to put into black and white law the Prime Minister’s interpretation of the legislation.

There is an issue around interpretation, and this relates to the Interpretation Act itself. The issue is whether the Minister’s speech in the third reading will carry as much weight in front of a court as black and white law—that is the question. We all know, those of us who have read the Interpretation Act, that black and white law always carries the day against a Minister’s speech. If the black and white law is clear—in this case, in my opinion, enabling access to the content of emails under the cyber-security function of the GCSB under this bill—as I believe it is, then it does not really matter what the Minister says it means in his third reading speech. The judge will make his or her own mind up based on the black and white law.

That is why it is important that we empower the Committee to go backwards to Part 1 in order to put into black and white law the interpretation that the Prime Minister has apparently taken to what this law means. I cannot see why anyone would have a problem with that, given that it is the Government’s own position that the law already means this—well, sometimes it says that it does not mean this, but put that to one side—and why anyone would have a problem with us empowering the Committee to consider Mr Shearer’s amendment so that the black and white law can sync with the—

💬 Hon Dr Nick Smith: You had your chance. You missed it. You filibustered.

I am not filibustering. This is a very simple procedural issue. It is great that the Hon Dr Nick Smith accuses us of filibustering because we are attempting to put into the legislation the very point that the Prime Minister says is what it means. What exactly is the problem here? Sorry, I should not be responding to the provocative comments of Mr Smith over there.

What we are trying to do is simply do a procedural motion that would enable the Committee of the whole House to put into black and white law the interpretation that the Prime Minister has introduced. Why time is very important in this—because it is all about time, the order in which things happen—is that the Prime Minister made these statements after the debate on Part 1 had already happened. That is what is significant. If the Prime Minister had made this statement before Part 1, then the Government would, I believe, have a legitimate gripe with us as to why we did not move this amendment when we had the Part 1 debate. That would be a legitimate criticism. But the Prime Minister made these statements after we had completed the debate on Part 1, and we cannot move this amendment in the current part we are on, which is Part 3. If the Prime Minister had made those comments before, then I think Mr Brownlee would have a legitimate complaint.

💬 Hon Gerry Brownlee: This sounds so whiny, Russel—so whiny.

But, Mr Brownlee, I am afraid the Prime Minister made the comments after we had completed the Part 1 debate, and that is why it is a very reasonable proposal that the Labour Party is putting for us here—to go back so that we can consider this clarification amendment—because it has to be included within Part 1. So that is why I think this is a reasonable motion, and the Green Party will be supporting it.

I rise to speak in support of Mr Mallard’s motion. I am going to make three points around the three parts of the motion. The first part of the motion is the notion of an instruction to the Committee of the whole House, the second part of the motion is around the question of that instruction being the reconsideration of Part 1, and then the third part of the motion is the specific amendment for which there would be a motion of reconsideration. To talk to the first of those three elements of Mr Mallard’s motion, the instruction to the Committee of the whole House, it is unusual for Parliament to issue an instruction to the Committee of the whole House. The Committee, as most members will be aware and people watching may be aware, operates quite independently from the operations of this House, when we sit here with the Mace in place, ready to do our work as a Parliament. We act as a Committee. In order for this Parliament, acting as it is now with the Mace on the Table, to issue an instruction, as Mr Mallard is asking in his motion, is unusual. That is because the business of the Committee of the whole House normally takes place in an orderly fashion and in such a way that it proceeds through and returns to us with a report back to this House on the activities of the Committee.

The reason an unusual event like this instruction occurs is that often something occurs between when the Committee deals with something and then when the House next comes to deal with the matter. That is precisely the situation we find ourselves in today, where it is necessary to undertake the unusual move of instructing the Committee, because in the time since the Committee dealt with Part 1, the Prime Minister has made a very definitive statement about the meaning of a clause within Part 1—section 8A, inserted by clause 6, within Part 1 of the bill.

💬 Hon Gerry Brownlee: That’s right, and he’s correct.

He has made a very definitive statement. That definitive statement was not made before the Committee considered Part 1. So the unusual experience—and I can see it is disturbing for Mr Brownlee—of the House issuing an instruction to the Committee has to be justified. It is not something we would undertake lightly, but we do so because there has been a significant development in the meaning and the interpretation of a clause within Part 1. Therefore, Mr Mallard’s motion to move an instruction to the Committee is justified in this instance, in my point of view.

The question then in the instruction is should we reconsider Part 1. Just to recap—and it is important to do this—Part 1 of this bill is the substantive section of this bill. It is the part of the bill that amends the Government Communications Security Bureau Act. The other two parts of the bill actually amend other Acts, so Part 1 is the substance of this bill. The section that is addressed within Supplementary Order Paper 305 is around the functions of the Government Communications Security Bureau (GCSB), so it is absolutely core to the purpose of this legislation, to the whole legislation itself. This is not a trivial matter we are asking to be reconsidered by the Committee; it is the core of the functions of the GCSB. So when we are issuing here the idea to reconsider Part 1, the only way that we can provide clarity about an essential part of this bill is to go back and reconsider Part 1.

We are unable now—as we are, in the Committee of the whole House, up to Part 3—to amend Part 1. There is only one option for this, and that is to go back and reconsider Part 1. When we were considering Part 1, there was no definitive statement in the public arena of the fact that the content of New Zealanders’ communications, including emails, were not able to be looked at under section 8A, inserted by clause 6. That statement was made by John Key to Audrey Young—

💬 Hon Gerry Brownlee: It’s in the bill.

Gerry Brownlee interjects and says that it is in the bill. It is not in the bill. That is the whole point of this exercise. It is not in section 8A. It does not make that clear. It is not in section 15A, inserted by clause 14. It is not in section 15C. It is nowhere in those places. When John Key makes a definitive statement that New Zealanders’ communications—the content of them—cannot be accessed, we on this side of the House say “All right. Put it in the law. Do not just say it to Audrey Young in an email; put it in the law. Make it clear.”

💬 Hon Anne Tolley: It is in the law.

It is not in the law, Mrs Tolley.

💬 Hon Anne Tolley: It is in the law.

It is not in the law. What clause? What clause is it in, Mrs Tolley? What clause? She cannot answer because it is not. That is why we have to ask the Committee of the whole House to reconsider Part 1, because the Prime Minister has moved from a situation when this Committee was originally debating Part 1, where there was no definitive statement about whether or not the content of New Zealanders’ communications, including emails, would be possible. He made those statements after the Committee went through Part 1, and then said it on television after Part 1 had been debated. He then repeated it. It was then printed in the newspaper on the basis of a written email—a communication from John Key to Audrey Young. That is new information about Part 1. That means that the Committee of the whole House has not been able to fully consider Part 1 when the Committee went past that last week. That is why our submission and Mr Mallard’s motion say that we should be reconsidering Part 1.

It is not good lawmaking for this House to find out that there is something definitive about Part 1 that is not expressed in the law at this time. Mr Mallard and others have already mentioned the fact that Mr Key has subsequently said that he will make statements in his third reading speech and that that will make sure that the interpretation of Part 1 is clear. That is not good lawmaking. It is a far better practice, and a far clearer practice, to write down in law what is meant. The Prime Minister could not have been more definitive over the weekend, when he said the content of New Zealanders’ communications would not be accessed as a result of section 8A. He made that clear after the House had gone through Part 1, and we on this side of the House submit that that means we should be reconsidering Part 1, because we cannot do that.

💬 Hon Gerry Brownlee: 8CA covers it.

Gerry Brownlee has found 8CA. I very, very much doubt section 8C could have anything to do with this, because that is not about cyber-security, Mr Brownlee.

💬 Hon Gerry Brownlee: It is.

It is not. Section 8C is about assisting other agencies. It is a different clause, Mr Brownlee. Section 8C is a different clause. We are talking about section 8A. Mr Brownlee has no idea about the structure of this bill whatsoever—no idea. Section 8A is cyber-security, section 8B is the foreign intelligence function, and section 8C is assisting other agencies, Mr Brownlee—

💬 Hon Gerry Brownlee: No, it’s not.

Yes, it is. That is what it is. Gerry is wrong once again.

I come to the third point, which is the specific amendment that is included in Mr Mallard’s motion. The need for the specific amendment is because the people of New Zealand have been told by John Key that we have to trust him in order for their communications, including emails, to be protected. Mr Mallard’s motion says that we need to consider the Supplementary Order Paper from David Shearer that says that just having someone like John Key say “Trust me.” is not good law. What we need in the law is a statement. David Shearer’s Supplementary Order Paper 331 begins with the words “For the avoidance of doubt, …”. It is quite clear that there is considerable doubt. John Key claims that it is all fine—trust him, the content of communications will not be looked at. The Law Society, Geoffrey Palmer, and all sorts of other people have come forward and said: “We are seriously concerned here about whether the content of New Zealanders’ communications, including email, can be accessed.”

This Supplementary Order Paper 305, covered by Mr Mallard’s motion, says that for the avoidance of doubt, let us say once and for all that the content of New Zealanders’ communications is not covered under section 8A. That is a perfectly reasonable suggestion—to go back and do something that apparently the National Government already agrees with. Well, for the avoidance of doubt, let us put that into the law. Mr Mallard’s motion should be supported. The Committee should reconsider Part 1, because John Key cannot make up the law as he goes along.

I move, That the question be now put.

New Zealand First does support the motion. We think that there are good grounds for a reconsideration of Part 1 of the Government Communications Security Bureau and Related Legislation Amendment Bill. I agree with the Hon Gerry Brownlee that there has, in fact, been a very long debate. But, in fact, there has been a very great amount to debate on this bill, and I, for one, did not get a full opportunity certainly to discuss all of the matters that I would have wished to debate, even during the debate that we have had. It did take quite a long period to get through it as far as it has gone. But there remain a lot of issues that are un-debated, so I do not accept the argument, to begin with, that the fact that there has already been a long debate necessarily means that all the issues that members wish to debate have, in fact, been debated. That is a very important consideration for us.

But there are some good reasons, as I have said, for reconsidering Part 1. The most important one of these is uncertainty. We have heard the Prime Minister today answer some very good questions, I felt, about Part 1 of the bill, and that resulted only, I believe, in even more confusion and even more uncertainty than before those questions were asked and answered. Having regard to what the Prime Minister said, and then rereading the clauses that were referred to, both by those who have been asking the questions—

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker. I know you are a stickler for parliamentary procedure, particularly good behaviour from members. It is very good behaviour for members to stick to the Standing Orders, and the member speaking is straying well wide of Standing Order 173(5): “It may not extend to the principles, objects, or provisions of the bill [itself]”, which the member is now doing. It is simply confined to the subject matter of the motion—in other words, the question of should we or should we not open up Parliament. It is deliberately restrictive—there is no question about that—because when these Standing Orders were written, as you are probably well aware, there was a desire to terminate some of these interminable debates that Parliament had seen before on these sorts of motions.

Speaking to the point of order, I made it very clear during what I was saying that the reason why we should be considering this motion is the uncertainty around Part 1, specifically relating to the answers and questions in the House today. It has got nothing to do with the substance of those things. It has got to do with whether there is a need for further debate because of the uncertainty that has been generated by what has been said by the Prime Minister today and also at other times. It has got to do with that, not the substance of the sections themselves.

💬 Hon Trevor Mallard: You probably do not need a lot of assistance here, because the width of this debate, I think, was pretty well established during the contribution of the Hon Gerry Brownlee. He—as I am sure you are aware—substantially broadened away from what would otherwise have been considered appropriate. As you are aware, once a debate has been broadened then members are allowed to respond, as long as they do not get further outside, and as long as they stay within the then broadened debate. As I moved the debate, I worked quite hard to stay narrow. That was undone in the contribution of Gerry Brownlee.

The ASSISTANT SPEAKER (H V Ross Robertson): Can I just remind members that this debate is a very narrow one and it is on the reasons why we need to go back. I want to refer members back to Speakers’ ruling 81/1, which states: “(1) This is a procedural motion … and it is a narrow debate. The only matter under debate is whether the committee should have the power to examine and adopt this Supplementary Order Paper. (2) Members cannot debate the content of the amendments; they are tabled for members to look at.” Just to remind members, I say that it is a very narrow debate and it has to be on the reasons why we need to go back.

That is exactly what I was saying. The reason for us having to go back is that what we have already debated has been called into question in terms of whether what the Prime Minister claims the bill says and what it does say are the same thing. That is the uncertainty that I refer to, because the Prime Minister has said in the House today that the bill says certain things, especially with regard to section 15B, inserted by clause 14, and section 8A, inserted by clause 6, concerning the purposes of the bill. That has introduced a high level of uncertainty, I believe, and any of the public watching this debate would not have had any confidence that the National Government actually does know what this bill says, and yet it has accused the Opposition of not understanding the bill, and I think the reverse is the case. That level of uncertainty means that this motion is what we should be passing today so that we can deal with exactly those issues.

A second issue is this: there has been concern expressed in the public, even by those who purport to support this bill, about the process for the passing of this legislation, if indeed it does pass. That would be allayed significantly if the Committee of the whole House were permitted to look again at Part 1, which is the substance of this motion and is the substance of the bill as a whole. I believe that the people of New Zealand want to hear this Parliament look again at Part 1 so that we can make good law that is certain and that the people of New Zealand at least understand whether they support it or not.

Finally, what harm would it do for the Committee of the whole House to take another hour or two to look at a piece of legislation that has gained significant notoriety out there in the public arena? We need to look at that.

💬 Hon Gerry Brownlee: No, it hasn’t.

The opposition says no. Rather, the National opposition says no, but everybody in this country does feel—

💬 Hon Anne Tolley: You’re the Opposition.

I said “the National opposition”, the National opposition to us—

💬 Hon Anne Tolley: No, no. We’re the Government, the National Government.

The Minister is wasting time. The issue is that people in this country want to hear this debate held again, because they do not understand this and we should look at it again for those reasons.

I move, That the question be now put.

The ASSISTANT SPEAKER (H V Ross Robertson): It is a very narrow debate but I will take one more.

For a start, can I deal with just a couple of points that have been raised by the Hon Gerry Brownlee. He said that because the Part 1 debate on the Government Communications Security Bureau and Related Legislation Amendment Bill was long, we should not be able to recommit.

💬 Hon Gerry Brownlee: No, I didn’t say that.

Well, I heard you say that. I might have misunderstood what you said, but I thought you were saying that because there had been a long Part 1 debate, it should have been raised as part of that debate and we should not go back. I think that is wrong. There was a long Part 1 debate because this is a serious matter and there are lots of hooks in it.

The second point I would make is about this reference we have had that since that debate has concluded, the Prime Minister can somehow fix this legislation in the third reading debate. That is a misapprehension of the relevance given to third reading debates by the courts. The courts only ever have regard to third reading debates in the event of ambiguity. They do it to cure ambiguity; they do not do it to rewrite the law. In this case it is clear that there is not ambiguity but that the Prime Minister wants to read this law in a different way to that which it naturally reads.

💬 Hon Dr Nick Smith: Rubbish!

“Rubbish!”, says Gerry Brownlee.

💬 Hon Gerry Brownlee: No, I didn’t say that.

You did. You said: “Rubbish!”.

💬 Hon Gerry Brownlee: No, I didn’t. If it had been me, I would have said “Utter rubbish!”.

OK, “Utter rubbish!” from the Leader of the House.

The problem arises from the fact that the definitions in respect of what the Government Communications Security Bureau can look at are so broad as to include the content of emails. That is the essential problem. It is not ambiguous. That is what the law says in this bill. The Prime Minister, since we had the Part 1 debate in the Committee stage, has said that he is not going to interpret it that way. When he is called to grant warrants, he is going to—

💬 Hon Gerry Brownlee: I raise a point of order, Mr Speaker.

The ASSISTANT SPEAKER (H V Ross Robertson): I think I can—

💬 Hon Gerry Brownlee: Well, you probably can anticipate what I am going to say. The Hon David Parker is beginning to stray very, very wide of the motion. You were good enough to allow him to make a contribution to outline why he thinks the Committee should put more time into a part that has been previously been decided upon, but to start arguing the merits of the decision, as he is now doing, is not appropriate inside Standing Order 173(5).

💬 Chris Hipkins: Speaker’s ruling 21/2 stresses that it is the right of a member to raise a point of order, but once a matter has been raised and has been ruled upon, it is disorderly to continue to raise that matter. I have lost count how many times Mr Brownlee has raised the matter of relevance in this debate and each time the matter has been ruled upon, therefore he must be getting into the area where he is becoming disorderly by continuing to interrupt members to question the relevance of it. The Chair is the judge of relevance. There can be no doubt that Mr Brownlee has a view of how the Chair should be interpreting the relevance of this debate, but continuing to raise it with the Chair is disorderly.

The ASSISTANT SPEAKER (H V Ross Robertson): Can I just advise members that it is a narrow debate. I have been generous in my calling and I just caution members that we actually do need to debate this in the narrow way in which the Speakers’ rulings allow us to do so.

Thank you, Mr Assistant Speaker. Well, the point as to process is driven from the fact that a third reading speech cannot fix legislation that is flawed. A third reading speech can be, in very limited situations—

💬 Grant Robertson: That’s why we need this.

That is why we need to recommit it.

💬 Hon Gerry Brownlee: It’s not.

I am afraid it is, Mr Brownlee. That is exactly the point. We have heard the Prime Minister say he is going to fix this in a third reading speech. A court can have regard to third reading speeches only in the case of ambiguity. We are saying it is not ambiguity; it is something that needs to be fixed in Part 1.

In terms of the Leader of the House’s contribution that this was going to lead to a very long, open-ended recommittal to Part 1, the motion itself says that the reconsideration of Part 1 is limited to the consideration of this one Supplementary Order Paper. It is not all Supplementary Order Papers. It is not the whole of Part 1. This motion, if passed, would allow the House to recommit to Committee stage “for the purposes of considering, and, if it thinks fit, adopting the amendments in David Shearer’s name, set out in Supplementary Order Paper 331”—I think it is meant to be read—“to prevent access to the content of New Zealanders’ emails unless absolutely necessary under section 8A.” So it is not an open-ended recommittal of Part 1; it is the committal of Part 1 for this very narrow consideration of this issue, which since the Committee finished its consideration of Part 1 has been raised as an issue by the Prime Minister through the media.

We are dealing with civil liberties. We are dealing with the power of the State to intervene in the private lives of New Zealanders. It seems to me that this is a very appropriate case—

💬 Hon Gerry Brownlee: Read the bill.

I have read the bill, Mr Brownlee.

💬 Hon Gerry Brownlee: Not well.

I suggest I understand it at least as well as you—at least as well as Mr Brownlee. I am going to end my contribution there, because the other points have been well made, but this assertion by the Prime Minister that somehow a third reading speech can fix a flaw in the legislation is wrong.

I move, That the question be now put.