Telecommunications (Interception Capability and Security) Bill

I want to give a bit of an introduction to Part 1 of the Telecommunications (Interception Capability and Security) Bill, to the bill in general, and to where Labour stands on this, which is strongly opposed to this bill in its entirety, but certainly starting off with our reasons for opposition to Part 1. This bill, as we know, replaces the Telecommunications (Interception Capability) Act of 2004. It is certainly needed and there is justification for an updating and a modernisation of this legislation. One of the things this bill does is it adds a new component to this piece of legislation. It is called “security”.

This bill is problematic for numerous reasons. It is the companion bill to, or the facilitating bill of, the changes that this Government pushed through under the Government Communications Security Bureau Act. That bill failed to provide enough protections for New Zealand citizens’ privacy. We contend that this bill certainly reinforces that but also fails to take into account economic issues, the costs to New Zealand telecommunications and technology companies, and also the issues of data security and the rights of those companies.

This is a very one-sided bill. It involves a major expansion of Government powers over network providers, through the Government Communications Security Bureau (GCSB) and through providing extensive and unprecedented powers to Ministers in different parts of this bill. It gives Ministers extraordinary powers, in some cases without precedent in New Zealand. We will certainly have more to say on that as we go through the different parts of this bill. It creates broad, sweeping powers. It increases the role of the GCSB overall—its role in the decisions by network operators and the information that must be provided to them.

This bill, we contend, was not well drafted. We say that in all seriousness. We say that knowing that, in general, much of the legislation that comes before this House has been well drafted and a lot of thought and attention has gone into it. Our contention is that the concerns of submitters, the concerns of industry, and the concerns of civil society have been ignored, pretty much, during the course of the bill going through the Law and Order Committee. We think that there are serious issues in definitions. Certainly, in Part 1 we are addressing that.

Today we have tabled in the Chamber Supplementary Order Paper 370, which contains 10 amendments to this bill. Four of those relate to Part 1 and we will be addressing them as we go through the discussion today. The Law and Order Committee did make some changes to limit and clarify powers and processes but we believe that they were not enough. There was a last-minute Supplementary Order Paper 366 from the Minister for Communications and Information Technology, which has left many, many questions around what the implications of that are. There has been an inability to discuss that and seek advice on those matters in the select committee. There was an attempt to refer this bill back to the select committee yesterday, which, naturally, failed, but as a result we therefore do not know what the impact of the Minister’s last-minute Supplementary Order Paper actually is.

Part 1 includes the interpretation clause, which several of Labour’s Supplementary Order Paper amendments relate to. I will quickly run through what they are. They deal with, and relate to, clause 3 in Part 1, firstly deleting the definition of “national security”. This is important. There were many submissions and there has been much discussion around this part of the bill, because this definition of national security includes a concept called “economic well-being”. As I said earlier, there are a number of things that are unprecedented in this bill, and this concept of economic well-being is one of them, which has not been anywhere in this bill spelt out as to how it relates to national security, what that means, what factors are taken into account when those decisions are being made—that national security is important—and how economic well-being fits in with all of that. Our remedy for this is to delete this clause altogether because it is essentially meaningless and it creates more questions than it answers. So we have put a Supplementary Order Paper forward to delete that particular definition, which is on page 10 of the version of the bill that I have in front of me. By removing the term “economic well-being”, if we attempted to do it that way, it would make the clause redundant, so we believe that the best remedy is to actually delete the whole of that sentence altogether.

The second amendment that we are proposing is to amend the definition of “network operator”. There is going to be a lot of discussion about that particular issue as we traverse this bill today, because of the enormous, wide definition of “network operator” and the potential for encompassing so many different organisations and entities in New Zealand particularly. There are two issues there and two clauses here that we are going to amend. One is the definition of “network operator”, and the other is the definition of “service provider”. Both, again, create more problems than they solve in attempting to deal with the intent of this bill. It is our contention that they must be amended. During the select committee process we ended up with a wider version of “service provider”, and it has made the issue much more complex.

In our amending of “network operator” we say that the bill as drafted places onerous obligations on network operators, and may capture many who were not be intended to be caught. This is the same with the definition of “service provider”. Our contention is that we should return the clause to the one that was originally introduced into the select committee. As has been discussed in recent days, the revised definition of “service provider” now potentially includes anyone outside New Zealand who makes a telecommunications service available in New Zealand. On the one hand you have got a definition of “network operator” that could potentially apply to every website operating in New Zealand that has a communication with members of the public. The definition of “service provider” could capture anyone outside New Zealand who makes a telecommunications service available in New Zealand. It is our belief that this was not, and should not be, the intent of the bill and therefore we say that that should be amended.

Finally, we are inserting a new definition of “surveillance agency”, which clarifies that this term applies only to New Zealand agencies. Again, the discussion in the select committee was very unclear on this matter. It is our fear that it was meant to be wider than that. I would like to hear from the Minister her view, during the course of this discussion, on whether that was her intention. Was it meant that the definition of “surveillance agency” was to include only New Zealand - based agencies, or was it meant to be a much broader definition?

We have 10 different amendments to discuss during the course of this bill. These particular four relate to Part 1. They are core to the whole bill because everywhere that those terms are used—

I was momentarily distracted by some news about one of our parliamentary colleagues, Mr Banks, that I am sure another colleague will confirm shortly, but it seems he may have seen the light for once. I want to speak on Part 1 of the Telecommunications (Interception Capability and Security) Bill.

💬 Hon Trevor Mallard: He’s got the message, unlike John Key.

Yes, that is right, Mr Mallard. I want to carry on from where my colleague Clare Curran left off, and talk particularly about a variety of matters within the interpretation clause, which is clause 3 of the bill. But before I do that I want to set the context for those interpretations. That is provided by the purpose clause, which is clause 5 of the bill. The purpose of the bill in relation to interception capability is to “ensure that surveillance agencies are able to effectively carry out the lawful interception of telecommunications under an interception warrant or any other lawful interception authority;”. That is the first purpose of this bill.

That may sound innocuous to people listening to the House today, but the reality is—

💬 Hon Amy Adams: It is.

The Minister for Communications and Information Technology says quietly under her breath that it is innocuous, except it is not. It is not innocuous, because of legislation that has previously been passed in this House, and that is the Government Communications Security Bureau (GCSB) legislation. It is worth, in the context of Part 1, traversing the fact that the surveillance agencies that have been referred to—just for the benefit of the Committee, John Banks has resigned as a Minister but he is still the MP for Epsom. So I am sure the people of Epsom are very grateful for that.

The purpose of the bill, it says in clause 5(a), is to ensure that surveillance agencies such as the GCSB can carry out the interception that they are entitled to do under law. That right of the GCSB was vastly expanded under the GCSB legislation. It is not right to simply say that this is an innocuous provision, as the Minister has tried to claim, when in reality the very surveillance agencies that are covered by this legislation have had their powers expanded. The way in which those powers have been expanded primarily relates to their ability to spy on New Zealanders. The GCSB legislation also expanded the ways in which that surveillance could take place.

But it is essential to note that one of the main reasons that the Labour Party has a problem with this legislation is that it is legislation that operationalises the GCSB legislation. The widened powers, the ability to spy on New Zealanders, are given life in this bill. We believe that that legislation that was passed by this Parliament is deeply flawed and fails to strike the correct balance between protecting the security interests of New Zealand and giving New Zealanders the freedom to operate. That balance has been lost. It has now been totally lost from the intelligence agencies in New Zealand, and here we have a bill that puts that into practice. That is why the purpose of this bill as stated in clause 5 is wrong.

The purpose clause then goes on to talk about network operators and service providers having the “freedom to choose system design features and specifications that are appropriate for their own purposes.” Let us just read that again: “network operators and service providers have the freedom to choose system design features and specifications that are appropriate for their own purposes.” Well, I am sorry to say that the bill does not achieve that purpose. All of the network operators and service providers who came to the Law and Order Committee said that that is the very thing they now will not be able to do, because the Government is now going to be involved in the design of their networks. The Government is going to be able to have a say in how those networks operate. The Government is going to be able to monitor those networks. So clause 5(c) in Part 1 is completely impossible under the rest of this bill.

It is not just Opposition politicians who are saying this. Members of Parliament have all received an open letter from the NZRise group. In that open letter the group is pleading with the Government: “Don’t rush this legislation through.” The Government has not thought it through properly. The service providers and the network operators, whom this law affects, are saying that they are not clear what it means. The lawyers whom those people have consulted are not clear what it means. The Minister keeps saying “Well, we know what it means.”, but the very people whom it affects are not able to interpret this law clearly.

Those people are calling on the Government to say that this law does not reflect the purpose in clause 5. If the purpose is to allow network operators to have the freedom to choose system design features, then that is exactly what the rest of the law should do, but it does not. The purpose clause sounds good when you read it on a superficial level, but in terms of clause 5(a) around surveillance agencies and clause 5(c) around network operators the rest of the bill fails to allow those purpose subclauses to come into action.

I then want to refer back to the questions of who is a network operator and who is a service provider, and that is dealt with for us in clause 3 of the bill. As my colleague Clare Curran has already made clear, the definition of “network operator” is now potentially so broad as to include just about anybody. It could include your local school. I was down in the press gallery just a few minutes ago, discussing the matter of John Banks and his political life. I looked around the Fairfax office—

💬 Hon Trevor Mallard: The life and death of John Banks.

That is right—the very short political life remaining for John Banks. I looked around the Fairfax office and I said: “Well, you’re a network operator, I think. I’ve just had a look at the bill, and you’re a network operator.”

💬 Hon Trevor Mallard: They get bugged anyway.

That is true—that is true. In deference to some of the staff members in the Fairfax office, they have already experienced what this bill is going to allow.

💬 Iain Lees-Galloway: Isn’t that how they lost the last Minister?

It is how they lost Peter Dunne, as well. In all seriousness they are potentially, under the definition here, a network operator. It is a farcical situation for a piece of legislation to come to this Committee with a definition of “network operator” that could take into account schools, that could take into account offices. It is the kind of loose legislation that this Government unfortunately is renowned for, and it should not be going through this Parliament.

I refer again to the open letter from NZRise. It has made, I think, a very interesting statement here. It said: “The Bill places onerous obligations upon network operators. That term is defined through a tangled web of definitions drawn from the Telecommunications Act and then amended.” I could not agree more with that statement. The letter goes on to say the “definition’s second limb specifies that a network operator is a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service.” If you then add in all of the other definitions, it is, essentially, anybody who is supplying another person with the capability to provide goods, services, and equipment that enable or facilitate “the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign,”. Just pausing there at that point—

💬 Hon Trevor Mallard: Well, I am, because my kids use the thing at home.

Trevor Mallard is a network operator. That is a frightening thought for all of us. Trevor Mallard is a network operator. Under this bill we are potentially all network operators because of the “conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign,”. If we enable that, when a parent sets up a network inside their home for their children to be a part of, they are now captured by this definition of “network operator” that is here. It is a farcical situation to have a definition like that.

I am not suggesting, necessarily, that the Minister’s intention is to capture a family’s network at home, but the bill is clearly poorly drafted in that regard. Or if it is not and it is the Minister’s intention, then all of the fears that New Zealanders have about the expansion of powers of surveillance agencies have come to pass.

So that is why we have Supplementary Order Paper 370 to revise the definition around “network operator”. We need to ensure that New Zealanders have the freedom to communicate with one another in the way that we do in the modern world. That means law that is appropriate and that balances the need for security and the freedoms and rights of New Zealanders. The definition of “network operator” that is contained within clause 3 of this bill is woefully inadequate, it is far too broad, it captures far too many New Zealanders, it creates enormous uncertainty among the public and among the telecommunications industry, and the Minister must change that definition.

The other definitions that we have got particular concerns about within clause 3 include that of a “service provider”. There was, in fact, an addition in the Law and Order Committee to say that a service provider meant anyone from within or outside New Zealand providing or making available in New Zealand a telecommunications service. This is an enormously wide definition of what a service provider is, taking in people not only in New Zealand but outside New Zealand. I am not even sure that the law can do this, and I think that that clause should also be altered.

Kia ora, Mr Chair. On behalf of New Zealand First I stand to oppose this Telecommunications (Interception Capability and Security) Bill. Originally, at first reading, New Zealand First reserved its judgment, predominantly to make sure that we heard the arguments at the Law and Order Committee, and so we supported the bill through its first reading. Since then it has become incredibly obvious that this is predominantly a bill that says: “Trust us. Trust us, New Zealand. Give us all these powers. We won’t necessarily use them, but trust us.” I think we have seen, even just today, that there are some standards that this Government has that need to be questioned, so “trust us” is not good enough, unfortunately, for New Zealand First.

We recognise that the bill basically is in two parts. One is around interception and the other is around network security. The network security aspects of the bill are largely technical in nature and deal with how the telecommunications sector and companies operating inside that sector will operate in relation to interception warrants. These technical aspects relate to the operation of networks—and we have just heard how wide that description is currently—and the examination and collection of information and data both through and from various network devices.

These areas are areas that are particularly subject to rapid technological change. The nature of individual and commercial use of networks and of network devices is also changing at an incredibly rapid pace and it is through this usage, by the very nature of its usefulness, that makes companies as well as Government agencies vulnerable to exploitation. Essential services, both public and private, may be subject to eavesdropping and cyber-attacks, with the potential for intellectual property to be usurped and the possibility that essential services to individuals and companies may be compromised.

New Zealanders deserve and expect to be protected from such potential threats and, as such, it is necessary to have legislation governing the interception of electronic communications, and it is necessary to update them, as required, as the cyber-environment evolves. But New Zealanders also deserve and expect that their Government will appropriately balance these protections of security with protections around their rights, their freedoms, and their civil liberties. Having recently just come back from a democracy that is only 2½ years old, and over a 20-year period prior to that lost all its citizens’ abilities to keep their freedoms and their rights, I say that we need to not take this flippantly. New Zealanders do need to continue to maintain vigilance around legislation, such as this, where a Government just says “trust us”.

We are in a good place. We are a good people, and a good democracy—150 years of unbroken democracy in this country; we do it well. But we still must be aware of what I refer to as “the invisible man theory” and that is when there is not enough oversight. When there is nobody watching the watchers, when there is nobody checking on the warrants, and those who have the powers are at arm’s length and removed from the powers that be, then there is the possibility that things will not go well in the future, and herein lies New Zealand First’s problem, which is why we will oppose the bill.

We will support Clare Curran’s Supplementary Order Paper 370 because we see there, particularly, the new insertion into clause 2 around an independent review of New Zealand security agencies. We hope that this in itself would make sure that the New Zealand public, and therefore the New Zealand First Party, could have confidence that their overview is appropriately there—that the independent overview is there. A change of Government given the same powers may not be the lovely, nice people who currently sit on the Government benches. They may be people who use these powers in another way that is not to the benefit of the people. It is necessary, therefore, for the New Zealand people to constantly have the ability to be confident that there is an oversight and that their Government is looking out for their welfare.

It is also of interest to us that four of the largest internet providers of content and email, Google, Yahoo!, Microsoft, and Facebook, gave advice to the Law and Order Committee that this legislation would create legal conflicts with other countries and that the law is out of alignment with approaches taken by the UK, Canada, the United States, and Australia—the “Five Eyes” arrangement that we are part of. The Minister for Communications and Information Technology rejected those comments. The Minister—

The first point I want to make is that I hung back a little bit from making the first of my four contributions on this part of the Telecommunications (Interception Capability and Security) Bill because I anticipated, given the long list of questions that the Minister for Communications and Information Technology had been given, that she would get on her hind legs and attempt to respond to them. But I am afraid that what I was thinking of was the old, promising Amy Adams—the Minister who was on the way up. Well, what we have now is a Minister in charge of this shambles, a Minister in charge of the Chorus network shambles and the Commerce Commission override shambles, and the Minister in charge of losing Peter Dunne on environmental legislation. What we see is a Minister in charge of this bill who is clearly someone for whom all of her potential is behind her. In the old days, when it was in front of her, she would have got up on her hind legs and she would have responded to some of the questions, but not today.

There is a particular case to do with the definitions that I want to put to the Minister. I think that she is aware of the school in west Auckland that is currently running a network with the help of one of the IT entrepreneurs whom I know she knows relatively well and Mr Joyce knows, as well. He is doing it pro bono, and they are working through that school in order to provide to the parents in the immediate area a wireless service of high quality, a lot of bandwidth, and a reseller-type arrangement, but at almost no cost to the parents. In fact, with the very small amount of money that comes in, the school is making some money out of it because of the way it is configured. In fact, in the future the school might even make some money out of franchising the arrangements so that other schools can do them, and so that parents in similar communities can get very, very cheap internet through the bulk buying arrangements that are available.

The question that I want to ask the Minister is whether that school is a network operator. Sorry, I am afraid that at the moment the Minister does not appear to be focusing. Is that school a network operator under the definition in this bill? Does it have to register with a person appointed by the Commissioner of Police or not? They do not. The Minister says that they do not. Well, how can you tell from reading this? You cannot tell from this, because according to the definition the school has customers, because “customer” is defined as “ … a person who receives telecommunications services from, and has an account or billing relationship with, a network operator”. These people—these parents who live in the community—get billed by the school. They pay through the school. The service is provided through the school. What is a school if it is not a network operator? It is clearly a network operator.

I want to refer to another one. I know this might go to the point of being nit-picking or looking into the fine print, but I think that is our job. As part of the Committee stage, we must go through the bill line by line by line. Since when has an email address been a number? This bill purports to tell us that an email address is a number. Well, you know, I am probably one of the least technologically aware people in this Parliament, but I know that an email address is not a number. Why should this Parliament mislead the people of New Zealand through its legislation and tell them that an email address is a number? Because it is not. My email address is trevor.mallard@parliament.govt.nz. I know that is not a number. I have got the Minister’s number, and I know that that is not a number. And so—

💬 Chris Hipkins: What about the dots?

Sorry?

💬 Chris Hipkins: What about the dots?

Are the dots numbers? I do not think dots are numbers.

💬 Chris Hipkins: Decimal points?

Well, it is an interesting point, and I look forward to the Minister’s particular comments on that.

Could we go to the question of a “telecommunication device”. It says this means “ … any terminal device capable of being used for transmitting or receiving a telecommunication over a network;”, and it includes a telephone. Well, for people of my generation, back in the day you would wind it round and hear someone say “Working, working.” You used to have party lines in Wainuiōmata back in the old days. In fact, we thought it was enormous progress when we got numbers that had four digits. In fact, now they have the numbers “564” in front of them to indicate Wainuiōmata. The point that I am trying to make is that there are a number of devices where it is not clear whether they are terminal or not. I have had a number of cellphones that have been terminal—generally when I have dropped them or put them in a puddle—but is a device that forwards a message terminal or not? Well, I would tend to say it is not a terminal device, but I would also tend to say that the Minister is trying to capture it under this definition. Is a device that is capable of forwarding a message terminal or not? It is not the end of the line, because the message keeps on going. So that is another point that I would like to ask the Minister.

The next question I want to ask goes to the question of the registrar. The registrar is a person who is appointed by the Commissioner of Police—I will just get the exact words, because “appointed” is not quite the right word. Oh, no—“appointed … under section 68”. I will not go into clause 68, but the person who does the appointing, or the indicating of the individual officer, is the Commissioner of Police. The question that I want to ask the Minister is whether we are satisfied with that. Are we satisfied that any old constable could be the registrar? Are we satisfied that a civilian employee of the police could be the registrar for these purposes? The registrar for these purposes is something that is a very, very serious job. It is a job with enormous powers. A rejection by the registrar could close down Vodafone in New Zealand tomorrow, or Chorus, or Telecom, or any one of a number of companies, and 3degrees—I mean 2degrees; it was 3G that I was thinking about. Do the members know that I was part of the first trial of 3G in New Zealand? The phone that I used as part of that trial—

💬 Phil Twyford: It’s in Te Papa.

—when I was Acting Minister for Paul Swain—no, it would not fit in Te Papa, it was so big. It needed its own massive van to move this particular—I presume it was a terminal device, although—

💬 Moana Mackey: How old are you?

At least twice the member’s age.

The other point that I will make while we are on the subject of devices is that the first cellphone that I owned had a handset, a big black one, and it had a dial. It had a strap that went over my shoulder and it was a man bag. It was about that long, and about that high, and about that wide.

💬 Hon Clayton Cosgrove: Did it have a crank?

No, the home phone had a crank. But the point that I am making [Interruption]—Well, it was not a party when Helen was on the line.

Before we move on, I remind members that we are on Part 1. Although there is some [Interruption]—I will comment on this. Although it is always a little bit interesting to bring some humour in, we are on Part 1, and we will concentrate our efforts on Part 1.

I raise a point of order, Mr Chairperson. I feel like you might be admonishing me for the comments I made in my speech. I was asking the Minister whether these devices—

The member will sit. I am giving a general view of how, over the next period of time, this is a very narrow debate on terms. We are on Part 1, and we will concentrate on Part 1.

I am very happy to follow on from my colleague Trevor Mallard, who, amongst other things in his very useful contribution, established for the Committee that he is very, very old. I want to thank him for that. Of course, as we debate Part 1, which includes the interpretation clause of the Telecommunications (Interception Capability and Security) Bill—and I have got a number of points that I want to raise on the definitions—it is of course useful to remember why we are here, and how this whole debate came about. It came about because the Government Communications Security Bureau (GCSB), one of the agencies whose powers are significantly increased under this bill, was unable to read its own Act and to interpret the law as it stood. It was unable to do that, and this bill expands its powers. It was not able to stick within the law as it was, so the Government’s solution to the GCSB being unable to follow the law as it was is to increase the scope of the GCSB’s powers under the law. There are a number of reasons why the interpretation clause in this bill creates some huge concerns in that regard.

Of course, there is a little irony in all of this, in that the catalyst for this, the best example of the GCSB being unable to follow its own law, was the Kim Dotcom case. Of course, who was Kim Dotcom? He was John Banks’ big donor—

💬 Hon Clayton Cosgrove: Brown bag.

—and, of course, John Banks lost his job today because of those brown bag anonymous donations.

The CHAIRPERSON (Lindsay Tisch): Order! Order!

Well, it is absolutely relevant, Mr Chair—

The CHAIRPERSON (Lindsay Tisch): Come back, come back. That has got nothing to do with it.

—and I am intending to come back to it, because I am going to come to the definition of “national security” because it is directly relevant to the Kim Dotcom case. It is absolutely relevant to the Kim Dotcom case. “National security”—according to this legislation—“in relation to New Zealand, includes its economic well-being”. How much broader could a definition of “national security” get than simply being economic well-being? This bill gives the Minister enormous powers simply on the basis of the country’s economic well-being. It does not necessarily need to suggest that anyone has broken a law or that any operator has broken a law, but simply that a Minister deems it to be in the interests of national security.

So in the Kim Dotcom case, Kim Dotcom and Megaupload may not have even been deemed to have broken any laws. It simply could have been the case that the Minister decided that it was not in the country’s economic well-being for the Megaupload operation to continue to operate. This is my understanding of how this bill operates, and I am sure my colleague Clare Curran will correct me if I am wrong. My understanding of it is that under this definition of “national security”, which is purely economic well-being, the Minister could effectively shut down Megaupload if she deemed it to be not to do with the country’s economic well-being. It is nothing to do with whether any laws have been broken, but it simply applies an economic well-being test. That is so, so utterly broad.

Amy Adams, the Minister in the chair, is shaking her head, so I am hoping that she will address this issue when she makes her contribution in this part of the debate, because I have never seen anything that defines national security and extends national security powers so broadly, yet has such a broad definition of what national security actually is. I think that that is incredibly concerning and I am looking forward to the Minister’s contribution on that.

Coming back to network operators and the definition of “network operator”, another question that I have for the Minister is whether the Government’s Network for Learning, which is being extended to all schools in the country and being made available to all schools, would come under the definition of a “network operator”. Clare Curran has just passed me some further information about the Network for Learning, although I am relatively familiar with it. We have got 21 schools, according to Nikki Kaye, being connected to the Network for Learning by the end of this year. I would actually quite like to hear from the Associate Minister of Education, Nikki Kaye, who is overseeing the implementation of the Network for Learning. She is on the phone, so I am assuming that means that she is getting some advice on this matter so that she can participate fully in this debate.

I would like to know what the implications of this bill are for the Network for Learning. It is going to be rolled out, from what we understand, to all schools in the country over time. It is a significant network, so let us look at what the network operator definition in the bill states. It states that a “network operator means a person who owns, controls, or operates a public telecommunications network;”. The Network for Learning, surely, must come under the definition of that, so what are the implications? This is a managed network for schools that is going to connect schools together via a secure data network offering high levels of service, quality, and support, so the Government, therefore, becomes a network operator under the definitions in this bill. So what are the implications for the Network for Learning and for interactions with kids, who might be using the Network for Learning, as a result of this? Is the GCSB now going to be snooping on kids and teachers throughout the country as a result of this legislation? Because under the definition of a “network operator”, the Network for Learning could well come within that definition.

Let us look at a “network security risk”. A “network security risk means any actual or potential security risk arising from the design, build, or operation of a public telecommunications network; or any interconnection to or between public telecommunications networks in New Zealand or with telecommunications networks overseas”. Again, it is a very, very broad definition—any actual or potential security risk arising from those things. So could kids working in schools be deemed to be a potential security risk and, on the basis of that, could we have the GCSB snooping in on the activities of schools and kids as a result of this legislation? I think we do want to have some clarity.

One of the problems with this bill is that the definitions are simply so broad. I am completely willing to admit that I was not part of the select committee process for this bill. I picked up this bill for the first time this afternoon and tried to make head or tail of it. I have to say that it is incredibly complex and incredibly difficult, but I have been alarmed in reading the definitions at just how broad they are and, when we get into Part 2 in particular, at just how sweeping are the powers under Part 2. The reason that, of course, the Part 2 powers are relevant to the debate on Part 1 is that the Part 2 powers all rely on the definitions that are established here in Part 1—those very, very broad definitions.

Let us look at the “other lawful interception authority”. That “means an authority to access an information infrastructure (within the meaning of the Government Communications Security Bureau Act 2003)” and “includes an authority to intercept a private communication (whether in an emergency situation or otherwise) that is granted to any member of a surveillance agency under any other enactment”. Authority to access an information infrastructure—so what is an information infrastructure? Let us go back and see what the definition of an information infrastructure is under this piece of legislation here. An information—oh, it is not defined. An information infrastructure is not defined. So, basically, we have got here, unless I might have missed it, but, no, I did not. No, I cannot see it here. So we have got it here that—

💬 Dr David Clark: The Minister will correct you if you’re wrong.

—I am sure she will—it “means an authority to access an information infrastructure”. Well, what is an information infrastructure? How can we be having a definition with another definition contained within in it that is not then defined? It actually just makes a mockery of the whole thing. This bill is so poorly worded and gives such broad powers that it is almost certainly going to result in significant legal challenges to the Government, and the reason all of the New Zealand public should be concerned about that is that it deals with such a sensitive, delicate issue. It deals with the privacy of New Zealanders’ information and their interactions online and use of other forms of telecommunications.

I said in earlier debates on this matter that I think the issues around privacy and around what New Zealanders can expect when they are using information and communications technology is one of the biggest and most challenging issues that this Parliament is going to deal with over the next few years. What we have seen from this Government is that it deals with this debate in an ad hoc, piecemeal fashion, without a real, proper, thorough examination of the principles that should guide it, and that is why we end up with bad legislation like this.

For example, if we turn to the principles clauses in Part 1 here—I will get to the principles clauses, as I was reading them a moment ago. In clause 5 here, as part of “Purposes and principles”, we have got principles relating to an interception capability and we have got principles relating to network security, but there are no principles relating to privacy and no principles relating to the actual New Zealand citizen’s rights under this legislation. So surely in a principles clause—and Part 1 sets out the principles behind the bill—we should set out the principles under which the powers being granted by this bill should be allowed to be used. One of those principles has to be a balancing principle that protects the privacy of New Zealanders, and yet that is not in here. Fundamentally, when we debate this legislation—Clare Curran has mentioned this, and the Committee will find references to it in the Labour Party’s minority report—we have to get the balance between privacy and security right, because a democratic system relies on both of those things.

This bill basically says that the Government can ride roughshod over individual rights and freedoms in the name of security, adopting an incredibly broad definition of security. It is massively expanding powers, and it is not democratic, it is not fair, and it is not right.

I rise to speak to Part 1 of the Telecommunications (Interception Capability and Security) Bill. Just looking at some of the interpretations, I will jump through to the infrastructure aspect. The “infrastructure-level service” means “any service that provides the physical medium over which telecommunications are transmitted …”, and it talks about the optical fibre. So, in other words, it talks about the hardware—not the hardware of the phone itself but the wires and the like. I remember in the Marlborough Sounds where we ran a telephone wire down to a neighbour’s—a sort of outrigger from our home. I realised that that wire between the baches or homes in the sounds would fit within that, and, obviously, that is something else that can be intercepted.

Something that concerns me more in terms of the interpretation is the definition of “Minister”. No disrespect to the Minister sitting in the chair, the Minister for Communications and Information Technology, but in clause 3 of the bill “Minister means the Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act …”. Now, at the moment, it is the Minister for Communications and Information Technology, and I think there is a real role for a Minister who deals with the business end of communications. But this bill is really also about the spying part. One thing is that it is about network security, but the fact is that it is about snooping, it is about spying, and that Minister can change—the bill says—“with the authority of the Prime Minister,”.

That is the part that really concerns me because we have already got a problem with the Minister responsible for the GCSB and the Minister in charge of the NZ Security Intelligence Service, and his selection of his director of the Government Communications Security Bureau (GCSB). He has got strong, strong powers in this. There is nothing in this bill that would stop the Prime Minister making himself, or, in future maybe, herself, the Minister of this legislation and the Minister of the GCSB and the SIS and other aspects of that. When we have got the history of the illegal spying, and when we know that these bills do not even cover the large-volume spying that is happening within the range of activity that that Minister covers, then if that Minister were to have control of this as well—full individual control of whom he seeks to employ and did, in terms of the Director of the GCSB, Ian Fletcher—it actually gets into the realm of sinister.

Maybe the Minister for Communications and Information Technology could address that and make the interpretation a little bit more specific in regard to the range of ministerial responsibility. Maybe she can preclude that the Minister responsible for the GCSB and the Minister in charge of the NZ Security Intelligence Service can be the one and same Minister who operates this, just so we can do a little bit of separation. I think it would be a good idea, and it is good to see the Minister there with that capacity. I also say to the Minister in the chair, thanks for the letter to the Green Party. There was an expression that we could meet, but I actually find that a little bit farcical. It is probably a bit rich, seeing you are sitting there and we are face to face. It is not very practical in terms of the speed that this bill is going through. It is going to be after the event, I expect. So the dialogue is probably here and now.

I am always concerned when I see the interpretation of “national security” including economic well-being. Well, of course we want New Zealand and “New Zealand Inc.” to be in a very good economic fitting. We do not want somebody to come in and muck that around, particularly. It is always a concern as to what that definition actually is. What is in that definition? Whose version of economic well-being is it? How far out is it? How sustainable is the well-being we are talking of? Is it intensive dairying and we must protect that at all costs, when we know it has got a big externality? We need to look after some of the MPs in this House and their interests around farming, maybe. And we do—we must look after the family farmers, but we must not have economic well-being measured by something that is temporal and not sustainable at any time.

The interpretation of “network operator” has been brought up already, but that is also quite concerning when we think about what a network operator is. There are some definitions in the bill but they are very broad. They do need to be toned down and made more specific, and someone’s Supplementary Order Paper may address that. But what we have got operating through Parliament, the networks there—I would look to some of my NGO friends and wonder whether Greenpeace’s network within their offices is going to get intercepted. Are Fonterra’s big office and the networks within that and elsewhere part of the same sort of equation? That could be tidied up as well. It was interesting to hear the debate on the issue around the terminal. Is this telephone a terminal device, or does the fact that I can tweet on something that has been said to me make me part of the network? I suppose it is intended to be.

There is a concern as well in this part. There has been some criticism of the Minister’s Supplementary Order Paper 366, and we will probably revisit that. We have got some comment from outside—telecommunications and IT people—about the definitions. One of them is from Catalyst IT’s director, Don Christie, whose concern is that the definition of “network operator” is so broad as to essentially capture anyone in the sector. He said that the bill “creates huge uncertainty and therefore business and investment risk for anyone in the New Zealand ICT industry or considering entering it.” So I am hoping that through the Supplementary Order Papers the Minister sitting there might be able to fine-tune this somewhat.

The Greens, of course, are opposing this bill because of its breadth, because of the purposes and principles here—they are not being addressed properly before we have a full investigation into the surveillance issues or security issues of New Zealand. We have had so many things that have gone wrong—the illegal activities—that we must have a genuinely independent investigation, and then come back and address this bill. I am looking forward to that sometime in the future. We have in clause 5 of the bill the purposes relating to interception capability to ensure that the “agencies are able to effectively carry out the lawful interception …”. Well, that is about the lawful part, and it does concern me that it may actually need to be spelt out a little for this Government and the GCSB as to what certain activities are not lawful, because we have got other parts around the world, other countries like Brazil, which are just setting up their own new networks, new systems, to find a way to actually avoid the likes of Waihopai and the National Security Agency of the United States, which was actually spying on it. Brazil found that it was being spied on. It is not impressed.

The CHAIRPERSON (Lindsay Tisch): Order! No, you can carry on, but we are on Part 1.

This is around the purposes of the legislation relating to interception capability. I think that New Zealand, with a full investigation into the purposes and the principles relating to interception capability, might want to follow what Brazil has done, in terms of doing something that is absolutely independent and looking at network security for itself that will stop the likes of what we appear to be allowing to be set up through this bill. I will speak to this a little bit further as we go through the rest of the parts. Thank you.

I move, That the question be now put.

Part 1 of the Telecommunications (Interception Capability and Security) Bill really covers such a wide range of things because it speaks to the purposes and principles of the bill. As we have heard in the debate so far, there have been many, many different aspects of it that have been called into question. It is a piece of sloppy, permissive legislation that allows surveillance, seemingly endlessly and without clear definition, across many aspects of our society. I think that that is what many of the objections so far have pertained to.

I want to spend some time speaking about Supplementary Order Paper 370, which Clare Curran has lodged, because I think it speaks directly to some of these problems. In that Supplementary Order Paper the suggestion is that we delete the definition of “national security” as it appears in clause 3 of the bill. That is a sensible thing to do because the definition as it stands refers only to economic well-being. Economic well-being itself is not defined in clause 3. We learnt from those members who were on the Law and Order Committee that, in fact, in the select committee no real effort was made to take into consideration what economic impact this bill will have. There were supplementary submissions to the select committee by several network operators that outlined potential significant annual operating costs and potential capital expenditure costs associated with implementing this bill.

💬 Clare Curran: $50 million.

One estimate was $50 million, I am told by Clare Curran, who sat on that committee and who has made important contributions on this bill so far. The fact that the committee did not seek advice on these supplementary submissions suggests that we do not have a mature view as to what the economic impact is that we are taking into account. I think that that is something that this Committee might like to reflect on seriously.

I would be interested in the Minister for Communications and Information Technology’s thoughts on what that economic impact would be intended to be, and I think other members of this Committee would be, too, because we have a serious problem here. If the only definition of national security that we have in the bill is that it takes economic well-being into account—and we do not know what that economic well-being is, and nor have we have defined it particularly well in the debates in this House—that opens up the Government to litigation. I think that that is not good lawmaking. I think that that needs further clarification, or, as Clare Curran suggests, that term—the definition of what national security is—should be removed from the whole clause. Currently it is redundant, it is confusing, and it is perhaps misleading at best. In the legislation it tends to suggest that there is an economic impact to be taken into account, but we have no definition of what that might be.

Amending the definition of “network provider” is also a provision that Clare Curran has in her Supplementary Order Paper. The bill as drafted places onerous obligations on the network operators. We have heard a number of members of the Committee comment on those who might be captured by it, such as TradeMe. Trevor Mallard was wondering whether his mobile telephone would be captured in that definition, whether it is a terminal device when it can forward on information, and whether, indeed, it is part of a network. We heard questions about whether schools are parts of networks and whether they are then open to surveillance when they set up internal networks, and about newspaper websites, TradeMe, and the like. In Clare Curran’s Supplementary Order Paper she suggests that clause 3 should be amended to make it clear that such things are not captured and, as best as you can, not captured in the legislation. I think that that is a very sensible step.

Amending the definition of “service provider” is another amendment put forward in the Supplementary Order Paper that Clare Curran has put before the Committee. It tries to make sure that this bill will be applicable in international law. We have a serious problem with this bill where it is not clear that the efforts made in it to define things can, in fact, be implemented internationally. It is not a good thing for the Parliament of New Zealand if we are in a position of passing legislation that is going to open us up to international ridicule and to scuffles and fights in the international sphere.

💬 Moana Mackey: It already has.

My colleague makes it clear that, in fact, it already is opening us up to some level of ridicule, but I think it would be far more serious if we were to pass legislation that put into law this kind of anomaly, this lack of clarity, and, in fact, the definitions that we currently have.

The next part in clause 3 that calls for amendment is inserting a new definition of “surveillance agency”. It is clear that—

I appreciate the opportunity to take a short call. My colleagues will be pleased to know that; I know they are all eager to speak on the Telecommunications (Interception Capability and Security) Bill.

I was interested in talking about some of the definition issues that have not been touched on yet. I think it is fair to say that this does deserve rigorous debate, because although there was an enormous amount of attention on the Government Communications Security Bureau (GCSB) bill, this is, in fact, the bill that then facilitates what was broadly set out in the GCSB bill, which did, of course, cause great upset amongst the wider New Zealand public over whether or not it had got the right balance between privacy and security. We would contend that certainly this bill in this form has still not struck that balance.

I want first of all to come to the definition around “law enforcement agency”. That is set out in clause 3 of Part 1. This is obviously something that the Law and Order Committee took an interest in. As I understand it, the clause originally had a definition that specifically set out that “law enforcement agency” meant “(a) the New Zealand Police; or (b) any government department declared by the Governor-General by Order in Council to be a law enforcement agency for the purposes of this Act”. So the bill basically said that everything that applied here would be handed over to the Minister to decide what the law enforcement agencies would be.

That was then changed. We now have a clause that states “a specified law enforcement agency within the meaning of section 50 of the Search and Surveillance Act 2012 that is approved by an Order in Council under that section to use interception devices”. I do accept that that therefore adds extra criteria. So instead of just saying that the Governor-General through an Order in Council sets up what a law enforcement agency is, it says we will use the provisions of the Search and Surveillance Act to determine the criteria for what will be deemed a law enforcement agency.

I want to look just for a moment, if I may, at what is set out in section 50 of the Search and Surveillance Act 2012. It basically says: “Look, other than the police, when we are applying trespass surveillance and the use of interception devices, how are we determining what that is going to be?”. It essentially says that the Minister of Justice may recommend the making of an Order in Council. So, just to clarify, I am assuming that—was that changing which Minister would therefore be making that recommendation, from the Minister in the chair to the Minister of Justice? That is just a point of clarification. Excuse me; I was not a member of the select committee, and that may be something that the committee debated. But the Minister of Justice would therefore be making the recommendation of an Order in Council “following consultation with the Minister of Police, if he or she is satisfied that it is appropriate for the agency to use interception devices, and that the agency has—(a) the technical capability to intercept private communications in a manner that ensures the reliability of any information obtained through the use of an interception device;”. So, basically, can the agency do the job, and can we be assured that when it gets that information, that is going to be credible?

The Act then says: “(b) policies and procedures in place to ensure that the integrity of any information obtained through the use of an interception device is preserved;”. So, write up some policies and make sure you have got some good kit—that is basically what that bit says. The Act then says: “and (c) the expertise—(i) to extract evidential material from information obtained through the use of an interception device in a form that can be used in a criminal proceeding; and (ii) to ensure that any evidential material obtained through the use of an interception device is presented to the court in an appropriate manner,”.

So, basically, that is about setting the bar for the quality of the way that the material is gathered and the way it is therefore presented, and about making sure you have got policies and procedures around that. Granted, that is criteria that in and of itself did not necessarily exist in the first definition of “law enforcement agency” that might be recommended via Order in Council. The question is whether that is a hard test. Basically, if you have got the kit, if you write some policy around it, and if you make sure that you use the kit credibly, then you are passing the threshold, and as long as the Minister of Justice and the Minister of Police have a chat together and decide that they think that it is kosher, then we have potentially got a new law enforcement agency on the books.

You might question who would be interested in using these powers as a law enforcement agency. An interesting and very important discussion was had, in fact, at the Justice and Electoral Committee—I was on the select committee for the Search and Surveillance Bill, a very technical bill. There were, essentially, two sets of agencies there that could exercise powers.

Thank you very much, Mr Chair, for the chance to have a contribution to the debate on Part 1 of the Telecommunications (Interception Capability and Security) Bill. In an effort to try to garner some kind of favour with you to get a second call, I am just going to outline what I intend to talk about. I know that my colleagues have spoken about the “network operator” and the definition of that. I certainly will try to touch on that, and also something that Dr David Clark mentioned—

💬 Hon Clayton Cosgrove: A great man.

—a very good man—and that is the definition of “surveillance agency”.

I did want to start with the definition of “network operator”. A number of my colleagues have spoken about the very broad nature of the definition as it stands within the bill. For the benefit of those who are listening or watching at home, a network operator under this bill is “(a) a person who owns, controls, or operates a public telecommunications network; or (b) a person who supplies (whether by wholesale or retail) another person with the capability to provide a telecommunications service”. A little bit further on in Part 1, it does go on to define “telecommunications service” as having the meaning given to it under section 5 of the Telecommunications Act.

Mr Chair, I want to—because I want to stay very much on the bill and not be sidetracked by other issues—read to you what a telecommunication, under the Telecommunications Act 2001, is defined as. The term “telecommunication” means “the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature, whether for the information of any person using the device or not;”. Essentially, that puts within the legislation anything you do with any electronic device—it comes under this legislation. So if you run an internet website at all, you will be included within this bill, the Telecommunications (Interception Capability and Security) Bill.

A number of my colleagues have mentioned whether or not the likes of Stuff or the New Zealand Herald website would be considered a network operator. Within the definition of “telecommunication” within the 2001 Act, that certainly seems the case. Trevor Mallard—he is absent; sorry, he is not with us at the moment—mentioned the instance of a school in Auckland and whether it would be considered a network operator. But we on this side of the Chamber put forward that anyone running any kind of internet service—whether it be the likes of Stuff or the New Zealand Herald website, or whether it be Facebook or whether it be Skype—any communication, and any type of electronic communication that any Kiwi makes can now be intercepted by this bill. That goes to the very heart of the major concern you saw on the streets of New Zealand about 2 months ago, when thousands, if not tens of thousands, of Kiwis who were very concerned about the likes of the definition of a network operator within this bill, the Telecommunications (Interception Capability and Security) Bill, and the Government Communications Security Bureau (GCSB) legislation, which is the cousin or very close cousin—

💬 Moana Mackey: Companion.

—the companion bill—to this piece of legislation, and what this meant for their everyday communication. I want to go back to the definition of “telecommunication” within the 2001 Act. It says “the conveyance by electromagnetic means from one device to another of any encrypted or non-encrypted sign, signal, impulse, writing, image, sound, instruction, information, or intelligence of any nature,”. So that means anything, whether it be a text message or whether you Skype someone on the other side of the world. This legislation gives the ability to the GCSB or pretty much any other surveillance agency—

💬 Clare Curran: Without checks or balances.

—with no checks or balances—to intercept them. Anything that they want to do with any electronic communications can be intercepted. We have major concerns about that, and we do not think that the balance is right, especially around some of the New Zealand Bill of Rights Act applications around this bill and the GCSB legislation.

Can I move on to another piece of Part 1, and that is around the definition of “surveillance agency”. As it stands in this piece of legislation at the moment, “surveillance agency” means “(a) a law enforcement agency; or (b) an intelligence and security agency”. There were major concerns on this side of the House around this at the Law and Order Committee, so my colleague Clare Curran has helpfully put forward Supplementary Order Paper 370, which will look to replace the definition of “surveillance agency” as it stands now.

I move, That the question be now put.

In taking a first call on Part 1 of the Telecommunications (Interception Capability and Security) Bill, I want to look at clauses 3 to 8 of the bill. I understand that the debate is quite tight and that we are looking at the definitions in clause 3, the purpose and principles relating to network security, and interception capability in clauses 5 to 8. I have to say that I am unable to support the bill and unable to support Part 1 for the reasons that I will outline.

I will start with clause 4. The heading of four words says “Act binds the Crown”. The clause itself adds only one word—“this”—to read “This Act binds the Crown.” Surely the purpose and principles of this bill cannot be for John Key to have his own private fiefdom, effectively, with New Zealand spies subject to no oversight, no constraint, and no law.

In clauses 5 and 6, which relate to the purpose of the Act in relation to interception capability and the principles that must be applied in relation to capability, it is apparent that the spy agency must be allowed to intercept anything, anywhere, at any time. That is a clear threat to New Zealand’s economic well-being and our future opportunities. The very legislation that members opposite would have us believe would protect our law-abiding citizens is, in fact, entirely the opposite.

Prior to the release of this bill there was a salivating opportunity for New Zealand to take advantage of our position, to take advantage of our isolation, and, in fact, possibly to become the information-holding capital of the world. We could have held and reinvented economic systems. Take accounting systems, which are currently all designed in analogue. With the relevancy, the intimacy, the convenience, and the transparency that big data and the cloud represent, the future was, indeed, looking bright. Thousands—in fact, tens of thousands—of jobs were possible, but not given the way that clauses 5 and 6 are written. According to the Ministry of Business, Innovation and Employment, the New Zealand information technology and services sector employs just over 22,000 people and has a growth rate of 8.7 percent annually. Salaries are double the national average, and research and development investment is triple the New Zealand average.

With clauses 5 and 6 in this bill, this National Government threatens jobs, innovation, and the future of the cloud in New Zealand. We are moving into an era where we will soon all have our own personal cloud. How do we protect intellectual property from the spy agencies that will have unlimited interception capabilities under clauses 5 and 6? Who will be communicating, cooperating, and collaborating with significant others across the world on matters of innovation when that information can be stripped by the Government Communications Security Bureau and immediately shared with agencies from other countries? How can it be that New Zealand companies will now have to design networks and systems for the convenience of the Government’s spy agency? How can we compete with the rest of the world when this Government is imposing that sort of Cold War, Russian-style oppressive legislation? Who oversees it? What people and what businesses would want to dock, deliver, or deploy innovative information to a New Zealander under the degree of surveillance that this bill allows?

This bill is madness, and the sad thing is that it all could have been avoided if the Government had consulted with the broad sector of New Zealand information technology businesses, the sector that could deliver our economic future, rather than with just the one-dimensional telecommunications companies. The purpose and principles of this bill should have been inspiring, but, instead, given the increasing reliance of businesses on software and services, this bill will have a disastrous effect on New Zealand companies that provide internet-enabled technologies and services.

So to this Government, on behalf of all New Zealanders, I plead: please do not rush to pass this legislation, which casts a dark cloud over our digital sector’s future. Instead, provide New Zealand with a bill that inspires confidence and investment. The job of this Government—

I want to pick up on the issue that my colleague Kris Faafoi was talking about at the end of his call, which is the definition of “surveillance agency”. I would very much like it if the Minister in the chair, the Minister for Communications and Information Technology, would take a call, because Part 1 is incredibly important. These are the definitions that define who is covered by the Telecommunications (Interception Capability and Security) Bill, when they are covered by it, how they are covered by it, and when they are not covered by it. So if we do not get the definitions right, then the rest of the bill is not going to be much use. Given that the whole reason we are here debating Part 1 of the bill is that our surveillance and security agencies could not interpret the previous legislation according to the law, I think it is even more important that we are very clear around the definitions that we are putting in place in Part 1 of this piece of legislation. What has become clear from the debate here in the Chamber today is that there is no clarity around these definitions. That echoes what submitters said at the Law and Order Committee.

So what we would like is for the Minister to do her job, which is to provide that clarity. She is sitting there like a dried arrangement. I do not know whether she is giving us her impersonation of a terminal device—all the data just stops with her and no more information is passed on whatsoever—but she should get on her feet and provide the kind of certainty that we are asking for. These are not unreasonable questions that members on this side of the Chamber are requesting of her, especially when we consider how far-reaching the implications of this bill are. The balance between privacy and security is one of the most sensitive issues we will ever cover off. So any clarity the Minister can provide around the definitions of “network operator” and “surveillance agency” can only be good for this legislation.

I am not quite sure why she is not taking a call. She has got an army of advisers behind her to provide her with that clarity—unless she wants this to be uncertain, unless she wants this to actually be far broader in its interpretation than New Zealanders are comfortable with and than we were led to believe this legislation would be, unless she is happy with that uncertainty because that allows the broad powers in this bill to be extended even further. If she refuses to take a call and provide us with that certainty, then that is really all that we can assume, unfortunately.

My question to the Minister is whether this definition of “surveillance agency”, which is “(a) a law enforcement agency; or (b) an intelligence and security agency” applies only to New Zealand agencies or whether it applies to any agency internationally—to any law enforcement agency or intelligence and security agency. Minister, are the people who can access this data restricted only to New Zealand law enforcement agencies and New Zealand intelligence and security agencies, or could they be any law enforcement agency or intelligence and security agency internationally? Is it just New Zealand?

It really, really worries me that she has acknowledged my question but has not given me an answer. That is really serious. Because if it applies just to New Zealand, I think people would like to hear the Minister say that, so that we can limit this bill to New Zealand law enforcement agencies and New Zealand intelligence and security agencies.

💬 Clare Curran: I think we know the answer.

I think we know the answer, which is that this opens us up—the privacy around the information of New Zealand citizens is opened up to any law enforcement agency or any intelligence and security agency around the world. I am looking at the National MPs over here. Are you really comfortable with that? Are they really comfortable?

💬 Clare Curran: They didn’t know.

Did they even know that this goes international in its broad-ranging powers? [Interruption] The Minister says it is rubbish. She should stand up and provide some certainty. Does she not think this is an important enough issue to stand up and provide some certainty over it?

This is going to form the basis of a lot of the rest of the debate on the protections around that, and the limitations around that. She might think it is funny, but actually it is deadly, deadly serious—it is deadly, deadly serious. Given how we got into this mess in the first place, given that this is around one of the most sensitive issues, and given that New Zealanders feel incredibly strongly about this, I think we deserve to know whether the broad powers being given to the intelligence and security agencies now actually apply to every law enforcement and intelligence and security agency around the world, not just those based here in New Zealand. I look forward to the Minister taking a call on that. I think that is actually a really critical point. She can chip away at me from the chair, but she should stand up and actually take a call. That is what she is paid to do. That is actually what the Committee of the whole House stage is meant for.

I want to come back to Supplementary Order Paper 370, in the name of my colleague Clare Curran. This is in relation to the commencement clause of the bill, which is clause 2 of the bill. [Bell rung]

The CHAIRPERSON (Lindsay Tisch): I am calling Moana Mackey.

💬 Iain Lees-Galloway: Asleep at the wheel, Nicky.

It is because they are so worried about the definition of “surveillance agency”. They were pondering it. They want to know as well. They were hoping that the Minister was going to take a call and reassure her own colleagues that she is not selling away New Zealanders’ right to privacy to every law enforcement agency and intelligence and security agency around the world, and they are right to be concerned.

I come back to the commencement clause and the Supplementary Order Paper in the name of my colleague Clare Curran. It makes two changes. The first change is that it inserts a requirement that the bill may not be assented to without first holding an independent review of New Zealand’s security agencies and incorporating those recommendations into the bill prior to the third reading. This is sensible. This is sensible, given the process we have gone through with this bill, and given the fact that we have a Minister who refuses to provide any answers to the very, very serious questions we are posing to her. The only way we are going to be able to provide any kind of comfort to the hundreds of thousands of New Zealanders who are deeply, deeply concerned about this piece of legislation is to actually do a proper review of our intelligence and security agencies and find out what the issues actually are. What a novel idea—that when we try to fix a problem we might work out what the problem actually is before we do that.

I know from the conversations that I have had with people that they saw an intelligence and security agency that went far outside its mandate under the law, broke the law, and acted illegally. Most New Zealanders would say that if you were going to have a knee-jerk reaction to that, it would be to restrict their powers. Lo and behold, we ended up with two pieces of legislation that broadly expand their powers, to the point where the Minister in the chair will not even guarantee—actually she pretty much told us—that these powers do now go offshore and that every surveillance agency and law enforcement agency around the world is now able to have access to the private data of New Zealand citizens. That is serious stuff. That is not the kind of response I think New Zealanders expected following the illegal activities of the Government Communications Security Bureau.

So how about we pass the recommendation in the Supplementary Order Paper from Clare Curran, have that inquiry, and find out what actually went wrong, find out what actually needs to change in law, and find out how we can get that very critical balance between privacy and security right? In the telecommunications age, when we are dealing with streams of information that we have never had to consider before when we originally had legislation around these issues, how about we actually do it properly? What a novel idea. That is what the Supplementary Order Paper in the name of my colleague Clare Curran says that we should do—that there will not be any Royal assent to this bill until we have that inquiry, and the changes recommended through that inquiry are then incorporated into this piece of legislation.

The second suggestion or amendment that Clare Curran is putting up to the commencement clause is requiring that the bill be reconsidered by a select committee and found to be consistent with the New Zealand Bill of Rights Act 1990 before it can be submitted for Royal assent. This is a bill that was substantially changed at the Law and Order Committee. The Minister herself is introducing the extensive Supplementary Order Paper 366. Once again we have a regulatory impact statement that is hugely redacted. Did anyone even really use that word “redacted” before the National Government? I do not think so. I think most people had never—

💬 Grant Robertson: It’s like liquefaction; it’s a new word.

It is a new word. Thanks to this Government, “redacted” is so commonly used now, because in the regulatory impact statements that are meant to inform—

💬 Dr David Clark: Have a look at this page. See what you can find on there.

This is great. This is the kind of information that the National Government is asking this Parliament to make its decisions on. This is a regulatory impact statement on this piece of legislation, which we are very interested in, and this is what the National Government is allowing the Parliament to consider when it passes this bill. It is a completely redacted page, just like many of the other regulatory impact statements we have had from the Government. We are used to it from the National Government, but when you are considering the implications of this bill it is not appropriate at all that we are not given the relevant information to make those decisions.

So Supplementary Order Paper 370 in the name of my colleague Clare Curran amends clause 2 to say that this should go back to a select committee, we should have that discussion, and we should get clarification that we are not breaching the New Zealand Bill of Rights Act, and only then can it come back and be submitted for the Royal assent. That is just practical. That is good, common-sense lawmaking. I know that the National Party does not really give due regard to the New Zealand Bill of Rights Act, or, clearly, the right of New Zealand citizens to privacy, but on this side of the Chamber we actually value good process. We actually value that process of a proper New Zealand Bill of Rights Act vet. As my colleague Clare Curran said, it got a cursory vet at the very beginning. It has been substantially changed.

I seek leave of the Committee to table a letter from the NZRise group of companies that is relevant to Part 1 of the Telecommunications (Interception Capability and Security) Bill around the definition of “network operator”.

Leave is sought for that purpose. Is there any objection? There is no objection.

Document, by leave, laid on the Table of the House.

I move, That the question be now put.