Telecommunications (Interception Capability and Security) Bill

I raise a point of order, Mr Chairperson. Although it is not in order to question your decision to accept a closure motion, as you did for Part 2, I would like to ask your advice about how you are going to approach Part 3. Part 2 was an extremely substantive part of the Telecommunications (Interception Capability and Security) Bill, and yet we managed only an hour’s debate on Part 2. Part 3 is an equally substantive part of this bill. This is a bill that is of significant public interest, and in which there is significant interest from the Opposition benches in debating it part by part. I would like to take some advice from you about whether you are going to consider giving Part 3 a little bit more substantive debate than you did for Part 2.

I will review the debate as we go along and make a decision accordingly.

Part 3 of the Telecommunications (Interception Capability and Security) Bill is the part of the bill about which every single telecommunications company and every entity that came before the Law and Order Committee expressed grave concerns. They expressed concerns about the extent of the powers that this bill provides to both the Government Communications Security Bureau (GCSB) and to the responsible Minister, and about what the impact of the costs of that will be on the viability and the operational requirements of those entities.

The Law and Order Committee was silent on that latter matter. I think it is very important that the Committee hears this. During the process of the select committee, every single telecommunications company that came before the committee was specifically asked by the Labour side of the select committee to provide the committee—and this was supported by the chair—with information on the cost impact of this part of the bill on their business. A number of those companies came back to the committee with substantive supplementary submissions. They included Telecom, Vodafone, Chorus, Enable Networks, and a number of other telecommunications companies that are deemed to be network operators under this bill. They provided a sobering picture for the committee, from hundreds of thousands of dollars just to set up administrative requirements, to the up to $50 million that the submission of Enable Networks, I think, suggested could be the impost on the company should it be required to change a key arrangement that it has with a provider in rolling out its part of the ultra-fast broadband programme.

Leaving aside the merits or otherwise of who those partners were and whether those decisions should or should not be made, those cost impacts are not insubstantial. In fact, they are very substantial for our telecommunications industry and for our technology industry. However, during the discussion on this bill subsequent to receiving those supplementary submissions, the committee was not allowed to discuss them. We were not allowed to ask officials about those cost impacts, because it was ruled out of order. Taking into account the redacted regulatory impact statements, held up in the Chamber before dinner, which showed great pages that were empty because they had been redacted when it came to providing the select committee with information about any economic analysis that had been done, I would just like the Committee to know that we were not allowed to discuss the economic impact submissions that had been provided to us by those telecommunications companies. This is just simply not acceptable.

This legislation is being rushed through the Committee stage tonight and the Government is trying to push through the third reading this week so that it can get it off its plate, and so that the country can move on, and the Minister can pretend that everything is all right. Every single telecommunications company, every single network operator that submitted to us said that there was a significant cost impact on their company in implementing this bill. The National Government people on the other side of the Chamber seem to think that that is just fine.

So who, when we are discussing this bill, is sticking up for the industry? Who is listening to the industry, whether it is the local tech companies or the bigger companies that are saying that there is a serious conflict with international law with this piece of legislation? Who is sticking up for them? Well, it is certainly not the Government of the day.

Instead, the Government talks to us about this security issue that, again, we were not allowed to hear evidence on. We were not allowed to hear any evidence from the surveillance authorities.

The CHAIRPERSON (Eric Roy): Can I just pause the member because I want to make a correction. The vote on the question that Part 2 as amended stand part was incorrectly announced as Ayes 61, Noes 57. After reviewing the record, the correct result should have been Ayes 61, Noes 58. The record will be corrected accordingly. A second call goes to Clare Curran.

Thank you. Just coming back to the specifics, in its submission to the select committee, Telecom, which is one of New Zealand’s major telecommunications companies, referred to one of the issues that it had with the bill. It opposed the onerous provisions in Part 3, which it felt would have a significant impact on how it went about its business, as did the other telecommunications companies. It also referred to one of the problems it had. It felt that there was not a level playing field for what we call the traditional telecommunications companies—the network operators—and those service providers that are the over-the-top providers, so, say, for comparison purposes, the likes of Telecom versus Microsoft.

Telecom told us that if it wanted to sell to a customer in New Zealand a bundled product that included your internet connection, your telephone line, and also another package, which might be a Microsoft Office - based product, so that you could have that all at once, then it had a problem in that you could also go to Noel Leeming or another outfit to buy the Microsoft Office - based product over the counter. If you wanted to buy that in a bundled way from Telecom and get it for a bit of a cheaper price, Telecom may have to provide an intercept-capable capacity on that Microsoft Office product, whereas if you went to Noel Leeming and bought it over the counter, that would not be required. Telecom had a point that there was a discrepancy in the law.

Clause 39 of the bill, which the Minister has gotten rid of in Supplementary Order Paper 366, actually on the face of it appeared to be addressing that issue for Telecom, but there is a question. Because Telecom is a network operator and because it falls within that definition of “network operator”, Part 3 applies directly to it. Part 3 of the bill provides the onerous requirements on a network operator that it has to basically be at the bidding of the GCSB, which can now go inside the organisation and can determine what it can and cannot do. If that telecommunications company decides that it does not like that, then the GCSB has the remedy of going straight to the Minister, and the Minister can make the decision. There really are no checks and balances around that.

Despite the fact that clause 39 has now been deleted from the bill, the question remains, and this is a question directly for the Minister, and it would be good if she could answer it in the Committee tonight: do the likes of Telecom have to come and ask for an exemption if they want to sell a bundled product and not provide an intercept capability over that product? Do they have to, Minister? Do they have to? They do have to come—

💬 Hon Amy Adams: I heard you. I’ll answer shortly.

So was that a yes?

💬 Hon Amy Adams: I’ll answer shortly, when I take a call.

Oh, thank you. That would be good if you could get to your feet and answer it, because it is actually a very significant question.

The reason it is a significant question is that this Government is a Government that trumpets its ultra-fast broadband scheme as something that is going to—even though hardly anyone is taking it up at the moment—kick-start the economy. And yet this legislation is actually making it harder for the network operators, the retail service providers, and the internet service providers to actually provide bundled products that are actually going to drive the uptake of ultra-fast broadband.

So on the one hand the Government is saying it is all great and everything is going to be wonderful in this new fibre world, but on the other hand it has got legislation that is actually making it harder for the locally based companies to actually bundle up those products and sell them to consumers. It is putting onus on them that is going to cost them money or make them go and ask for an exemption, potentially—and it would be good if we could get an answer from the Minister as to whether or not they can actually sell those products with or without intercept capabilities, because if—

I thought I would take a call early in Part 3 and run through very clearly what this part of the Telecommunications (Interception Capability and Security) Bill intends to do, so that everyone has that information in front of them. What I want to do is to start by addressing the question of the member, Clare Curran, that I said I would address. She raised a question about Telecom seeking exemptions, which relates to Part 2, which we have now, of course, completed, but, nonetheless, she has asked me while we are talking about Part 3. As she will know, the restriction on selling resold services was in clause 39, which has been removed, so that really answers her question in respect of the right to seek exemptions. If they have other exemptions that they wish to seek from their general capabilities, then, clearly, there is a regime in Part 2 for that. Turning to—

💬 Hon Trevor Mallard: Oh, uneven treatment.

Oh, do not be silly, Mr Mallard. That reflects what is in the current legislation.

So in Part 3, which we are on and we are talking about now, what I want to reflect is that this is the part of the bill that is a new regime. I want to be very clear about that. Currently what we have is a loose partnership arrangement where a number of the network operators—not all, but some of them—have seen the value in working with the intelligence agencies to identify threats. What I think everyone in this Committee is likely to accept is that the cyber-threat environment is considerably more serious today than it has ever been, and that is going to continue very much to be the case. If we do not protect very carefully the security of our telecommunications networks, then we not only put at risk the safety and well-being of New Zealanders, but we put at risk all of the intellectual property of New Zealand businesses, and all of our economic prosperity is potentially at risk.

I think everyone recognises—or, at least, all sensible people recognise—that if you want to be a country that is a good place to invest and do business in, then you have to be able to reassure people that your telecommunications infrastructure is secure. I think everyone would agree with that. What we know is that increasingly there are attacks by various players who try to get access to the telecommunications networks in New Zealand and through those networks to gain either commercial ends or some other ends that suit their agendas. This part of the bill is about doing what we need to do in a world of increasing threat to ensure that there are not undisclosed capabilities in our networks to copy or divert or destroy or disrupt data. These are very real threats, and I think anybody with even a cursory understanding of the current geopolitical or threat situation understands that the cyber-threats are real, they are very serious, and they are increasing all the time. That is commonly understood in freely available publications.

So what we have at the moment, as I said, is an informal situation where the better network operators choose to go to the intelligence agencies and work with them to identify and address threats. But, unfortunately, that process has its failings. It is not transparent, it does not apply to everyone, not all operators know it even exists, and, of course, there is no power, ultimately, to enforce it if it does not work. So what the powers in this part of the bill require is for network operators—and let me be very clear that it is only network operators. It is not service providers, it is not cloud companies, and it is not software providers. It is only network providers that are subject to this part of the bill. They approach the Government Communications Security Bureau (GCSB) if they are dealing with an area of critical infrastructure, and we have tightened the definition around where that applies. They identify to the GCSB what their intentions are. If there is a risk identified, then the network operators themselves decide how they want to fix it.

The GCSB does not tell them what to do. The GCSB does not do anything. It does not make them do anything. It does not require any particular fix. The network operator is the only one who determines how it wants to address that risk. If, however, the GCSB is concerned that there still remains a significant threat to national security—not just a risk; a significant threat to national security—then the only power the GCSB has is to refer that up to the Minister. Before the Minister can do anything about that, they will now, under Supplementary Order Paper 366, have to go through another check, which is to be reviewed by the Commissioner of Security Warrants to ensure there is a second set of independent eyes reassuring the Minister that the information that the GCSB has presented confirms that there is a significant threat to national security.

For me, if we have a significant threat to our national security through a vulnerability—a serious vulnerability—in our network infrastructure, then we all have an interest in seeing that addressed. I do not want to be in charge or be in a country where we have absolute vulnerabilities in our network infrastructure, and we see them and we can do nothing about them. It was only last year that Australia made some decisions to ban certain players from certain parts of its network, and we had all of this side of the House jumping up and down, saying: “Why isn’t the Government banning this? Why isn’t the Government doing that?”. The reality is there is no framework to do it. So if there is a threat—and they are the first ones to jump up and down if they see one—right now there is no power for a Government in New Zealand to respond to it. There is none.

What we have done is create a situation where in the most serious cases—in the most serious cases, and it would be very rare—it can be escalated to the Minister. After it has been through the review of the GCSB and another review of the Commissioner of Security Warrants, then the Minister has to go through a detailed process, set out in the law, of consulting with all the affected parties. Only then, if the threat is serious enough to the well-being of New Zealand, can action be taken. Yes, that is a new power. It is a new framework, but we are living in a new age. These threats are real, they are serious, and we need to have a framework to respond to them.

Before I get into a substantive contribution on Part 3, I want to respond to what I guess I take to be the tone of the comments that the Minister for Communications and Information Technology has just made. It was essentially that it is all or nothing. You either believe that because there are potentially security threats involving network providers in New Zealand, and therefore you have to accept anything in terms of security arrangements. That is essentially what the Minister has just told us, and that if anyone does not do this, they are somehow traitorous and acting against the interests of New Zealanders.

It is not that simple, Minister. Of course there need to be provisions in place to protect our security and to protect the security of New Zealand citizens. But those must always be balanced against the rights and freedoms of New Zealanders, and the ability of companies to operate in New Zealand to provide the very services that New Zealanders want. So operating on this “take it or leave it” approach, as the Minister is doing, is actually disingenuous.

If we are trying to create law that is robust and that upholds New Zealanders’ values, then we do that on the basis of a balance. We do not do that on the basis of the Minister coming to the House and saying “Take it or leave it. Here are these expanded powers.”—and she admits these are brand new. These powers invest a great deal of influence in the Government Communications Security Bureau (GCSB) and in the Minister, and we just have to accept that, because the Minister says that is what is required. Well, that is not right. As Clare Curran said in her earlier contribution, the Law and Order Committee was prevented from talking to the GCSB about this Telecommunications (Interception Capability and Security) Bill.

This Part 3 is the part of the bill in which our dear friends at the GCSB reappear. They have been quite the stars of Parliament over the last couple of years, and in particular their Director, Mr Ian Fletcher, the childhood friend of the Prime Minister. The GCSB’s role here in network security is significant. The Director of the GCSB, as the Minister herself has just said, sits at the centre of the process by which decisions will be made around whether there are national security issues, and whether or not there are areas of specified security interests that need to be dealt with.

Well, let us take a look at the record of the GCSB and whether or not we believe that giving such wide-ranging powers is appropriate. We are talking about an agency that has been involved in up to 88 cases of illegal spying. We are talking about an agency that has changed its story time and time again about its role in the Kim Dotcom affair. The Minister says that it is all fine because the Director of the GCSB then goes to the Minister. Well, we saw what happened with the role of the Minister who was looking after the GCSB, in terms of John Key.

I do not feel reassured by that at all—that the Minister is doing that. In fact, all the evidence we have seen is that we should be very concerned about giving increased powers to the GCSB in this way. We should be very concerned about the Minister then having the ability, once that recommendation has been made by the Director of the GCSB, to go off and decide to put in place the security measures that she is able to, under this part of the bill. The GCSB’s role, as we know from the earlier legislation that was passed, has now been greatly expanded. Its powers are greatly expanded. I stand here today in front of a bill with brand new material, it has never been put forward before, and the Law and Order Committee did not even get to talk to the GCSB about its role in doing this. I have absolutely no confidence, I have to tell you, that giving these powers to the GCSB without the Law and Order Committee being able to scrutinise them, and to ask questions of them about how they will go about this work, is appropriate. We should not be passing Part 3 of the bill with that in place.

I want to reflect on what some of the submitters have said about the question of this part of the bill. In particular I want to refer to the submission from the New Zealand Telecommunications Forum. What they said was that their key concerns relating to Part 3 were that these new obligations had insufficient protection, transparency, and appeal rights, and that they imposed additional obligations, for which there was no compensation for any additional costs. That essentially draws out two of the key elements of this bill that—I hope I have not pushed the Minister to tears or anything like that. No. No, that is good, seeing the tissues coming out. This highlights the two main bits of the bill that we have concerns about—the fact that there is insufficient transparency around these issues—because under this part of the bill the transparency is provided, according to the Minister, by the fact that she has included, through Supplementary Order Paper 366, a role for the Commissioner of Security Warrants.

Our problem starts at the beginning of the process, the transparency at the beginning of the process involving the GCSB, because consistently under this Government the GCSB has operated outside the law, and then when it has been drawn back inside the law we have not been able to question the GCSB. We were not able to question the GCSB when its own legislation—

💬 Hon Trevor Mallard: They changed the law from the inside.

Exactly. Well, they did. That is right. They made their unlawful actions lawful by changing the law. But then we were not even able to question the GCSB properly about its own law. Then the Law and Order Committee was not able to question the GCSB about this law that the Government has to put into place. So I can only agree with the Telecommunications Forum that this bill does that.

It is also the question about the additional costs that have been put in place. Nowhere in this has the Minister been able to accurately answer, in the debate that I have heard, how that is going to be mitigated, and how the so-called chilling effect on the industry in New Zealand will be able to be dealt with.

Part 3 of the bill, in our opinion, is a significant departure from the law that we have had in New Zealand before. I simply do not agree with the Minister that there was no way to deal with significant security breaches under current New Zealand law. That simply cannot possibly be true. The Minister has got up and put that up as a straw man, to try to say again: “It is all or nothing. If you do not have this, there is absolutely nothing that is available to New Zealand to protect our national security.” That is absolutely patently wrong and ridiculous and the kind of straw man argument that has typified everything that happens throughout this.

We have on this clause, as on others, Supplementary Order Paper 370 in the name of Clare Curran to try to mitigate some of the worst aspects of this bill—in particular, in clauses 46, 47, and 48 of this bill. We would urge members of the Committee to support those amendments. What they attempt to do is at least give some more certainty to network operators about who is captured by this bill. We believe that currently the provisions are extremely wide on this and we need to make sure that there is a far better provision in the law.

We also do not believe that the appropriate method of granting exemptions here, under clause 48, should come through the GCSB. Unfortunately, the Government voted down the provision on the technical advisory board, which would also have had a role in monitoring these issues and ensuring that there was some independence. That technical advisory board would have had a significant role in this area, and again was asked for by members of the Telecommunications Forum.

I will finish this contribution now on Part 3 by saying to the Committee that what we have here is a part of the bill that is brand new, untested law being rammed through Parliament, with Government members taking closure motions to prevent Opposition members from raising concerns, and with very limited substantive contributions from the Government. That is not on, with such significant changes. We do not believe that New Zealanders’ rights to be protected are being balanced with their freedoms to use and have access to services. This bill fundamentally fails the test of good law, and Part 3 should not be supported.

I want to start off by picking up a point that was referred to by my colleague Grant Robertson in his speech. That is the what I consider particularly offensive comments by the Minister for Communications and Information Technology that if people are opposed to parts of this Telecommunications (Interception Capability and Security) Bill or part of the direction, then they are effectively supporting terrorism.

I am, I think, one of the few members in the House, and only by virtue of being a duty Minister, who has been involved in what was a very serious threat to New Zealand. I, only as a result of that, have some knowledge of the systems that work. It was not part of my regular responsibilities, but I happened to be on duty when what was potentially a massive incident or series of incidents occurred. I, with my colleagues, moved heaven and earth in order to mitigate that threat. The security agencies had a wide range of tools, which they worked on and they used, in order to mitigate that threat.

I find it absolutely repugnant that this Minister in the chair, the Minister for Communications and Information Technology, who almost certainly has had no experience in that area at all, would reflect in that way on Labour members who think there should be some balance between privacy, the rights of companies, and security. Of course there should be some balance. Otherwise we have the Orwellian, the authoritarian, the Nazi, the Stalinist approach to security, and that is something that New Zealand absolutely rejects. This party believes that there should be balance. This party believes that if a case can be made by a security agency, then our party will take it seriously, and, if necessary, make amendments to the law. But what we have here is a relatively junior Minister who is telling us that we do not care about the security of New Zealand. Well, I say to that Minister: shame on you. What that Minister wants is the sort of blank-cheque approach, the sort of ministerial power to do anything to New Zealanders that she wants or that her colleague the Prime Minister wants in a way that is unacceptable in a democracy.

Look, I think my colleagues know and I certainly know that my Green friends feel that I am no bleeding heart liberal. I am not a bleeding heart liberal, but I do know that when authorities are being granted powers they should make the case. The Minister responsible for the GCSB, John Key, refused to let his schoolboy friend come to the Intelligence and Security Committee and justify what is in this legislation. I know that David Shearer, David Cunliffe, Phil Goff, Clare Curran, and other members of the committee would have listened carefully. In fact, almost certainly they would have agreed to have a secret session of the committee in order to be properly briefed so that they could understand. But what one suspects—what one suspects—is that no case can be made.

Certainly, I have doubts about whether the case can be made for the powers under Part 3 of this bill, which are, essentially, on the part of the Minister, unmitigated. What has to happen? What has to happen? The Prime Minister’s friend, whom he appointed without proper process, comes to him with a request. There is some doubt about it. The Prime Minister has to refer it to the commissioner. But who appoints the commissioner? Who oversees the commissioner? Whose responsibility is the commissioner? It is the Prime Minister. There is no check, there is no balance in this system, and, therefore, it is bad law.

Quite a few years ago—quite a few years ago, and the members who would remember it are certainly well gone from this House—in 1977 a relatively young protester was arrested upstairs because he thought that the powers that Sir Robert Muldoon was taking at the time under the SIS legislation in 1977 were unreasonable. That was me. In the end—[Interruption] What?

💬 Andrew Little: There was the punk in Wanganui, but he blew himself up.

Well, I had a ponytail at the time, and Muldoon remembered it. But the point that I am making is that the powers that Muldoon was taking at that point had absolutely nothing on this: the ability to go into companies and require them to spend millions of dollars or even tens of millions of dollars in order to satisfy unproven—absolutely unproven—and unjustified arrangements that are required by a person who was appointed by the Prime Minister.

It is just wrong. It is just wrong that this Committee is passing this legislation and Government members are absolutely mute. They are absolutely mute. Not one single member of the Government benches has had the fortitude to stand up and support the Minister. Not one member of the Government thinks that this legislation is right and proper to the extent that they are prepared to stand up and say what they think and what they believe. Look at their heads go down. Look at their heads go down. They are ashamed. They are embarrassed because they know that the National Party of Jack Marshall, the National Party of Keith Holyoake, even the National Party of James Brendan Bolger would never pass this sort of illiberal attack on companies that want to work in New Zealand.

And what is worse, it is an uneven attack. If you happen to have a base in New Zealand and you provide services in New Zealand, you are punished, but if you are based offshore and you package something up and you sell it through Noel Leeming or The Warehouse, then you are not punished. The same requirements do not apply. Well, the Minister says no, but the legislation says yes. I do not—

💬 Hon Amy Adams: No, it doesn’t.

Well, maybe, I do not know the Minister well enough. I actually used to have a high opinion of her. I thought when Hekia Parata was appointed to Cabinet that Hekia got there only because of her ethnicity and that if it was done on talent, then Amy Adams would have got there. Now I have got my doubts. Now I have got my doubts. This Minister is not showing any indication at all—not showing any indication at all—of actually reading her legislation and explaining it enough to any one of the mutes opposite to the extent that they could support her.

And what are we saying there? We have got a number of members—there is one called McKelvie, there is one from Hamilton East, there is one from Marlborough, there is one from Rotorua, there is one from Botany or some area, Craig Foss, Tony Ryall—but none of them understand the legislation well enough to take a call on it. You know, actually it is not that complicated legislation. It has got some weight to it, but it is pretty easy to read and it is pretty easy to understand. Anyone who has had a bit of experience in Parliament—

Fakalofa lahi atu. I want to pick up from that very good contribution made by my colleague the Hon Trevor Mallard. I think that people listening to this debate will hopefully have got the seriousness of what we are talking about here tonight. We are speaking at the moment about Part 3 of the Telecommunications (Interception Capability and Security) Bill. This part, clauses 43 to 54A, relates to network security. It is supposedly around preventing, mitigating, or removing security risks arising from public telecommunications networks and interconnections between those networks.

As many of my colleagues have said, our concern is not that we do not deal with potential security risks. We know that we need to do that, and we know that that legislation does need to be updated, particularly to take account of the changing nature of technology. We understand all of that, and we are not opposed, as some have been trying to say, including the Minister in the chair, the Minister for Communications and Information Technology, to being aware of security risks. What we want, though, is to ensure that that is balanced with the rights of New Zealanders to privacy, and that there are controls on the power that is being given to the Minister in particular under this legislation. We believe absolutely that this bill does not provide that balance, and that this Telecommunications (Interception Capability and Security) Bill is the bill that, effectively, implements the provisions of the Government Communications Security Bureau legislation. That is something that New Zealanders are deeply troubled about, and they should be.

In Part 3 we basically have a situation where in the description itself from the Law and Order Committee we have got it noted that, as introduced, aspects of this part were not clear or were too broad. That is what it says. There have been some changes made, clearly, as it has been reported back from the select committee, but the question I ask myself, having not been involved in that select committee, is how confident we can be that those changes have actually addressed all of the areas that are not clear or are too broad. Well, I have to say that I think that the select committee cannot have done that. When you look at the powers of the Minister responsible for the GCSB to make directions under clause 54 of the bill, and when you look at the fact that there is provision for continuing regulations to add to the lists of areas of specified security interests, which are listed in clause 46, then you have to ask yourself whether there is sufficient protection here.

I want to commend my colleague Clare Curran, who has done enormous work on this bill and who has got Supplementary Order Paper 370 on the Table around clauses 46, 47, and 48. Basically, the Supplementary Order Paper that she has put up would limit the network operators to which these sections apply to a class of network operators positively identified, rather than have blanket coverage of all network providers, from which exemptions may be sought. That then leads to clause 48 being deleted, as it relates to exemptions and is redundant, as the presumption with the amendments to clauses 46 and 47 I have just referred is for a specific inclusion, rather than blanket coverage. I think that that Supplementary Order Paper is very worthy and should be considered.

I do find it fascinating that we have members opposite all sitting there, talking to each other, reading something, heads down, doing whatever it is they are doing across the Chamber, and not engaging with this legislation. Why is it that those members opposite are not addressing the concerns that we are raising? These are significant questions in a democracy, and you would expect that members of Parliament, who are here to serve democracy, would want to comment on these things. If you disagree—sorry, if members opposite disagree, because I know that the Chair is deeply troubled by this as well—if members opposite are concerned about this democracy and concerned about the issues that we are raising, then get to your feet and tell us what you think about this legislation and why the issues we are raising are incorrect. I think that you actually cannot do that. I think that what you are doing is allowing—

I have been biding my time, waiting to contribute to this third part of the Telecommunications (Interception Capability and Security) Bill. There are things that are profoundly and deeply troubling about this. Although I do not know all of the technical ins and outs of the information and communications technology industry, I do know about issues of accountability and I do know about issues of responsibility from a Government towards its people.

I want to draw attention to clause 44 in Part 3, which is what we are talking about at the moment. This is where the truth comes home—this is where the truth comes home. Clause 44 is simply the definition of “Minister”. One would think that that would be inconsequential, but no, because it says: “In this Part, unless the context otherwise requires,”—which it never does, actually—“‘Minister’ means the Minister responsible for the Government Communications Security Bureau.” Here we have the intersection, the absolute nub, of Labour’s opposition to this bill. This is the vehicle for the delivery of the Government Communications Security Bureau Act. This is the delivery mechanism.

I want to go to some of the points in this part of the bill that delineate the responsibilities and the powers that have been given to this Minister, who is usually the Prime Minister. What we have here, repeated throughout this section, whether it is clause 46, clause 47, or clause 48, is an absolute reliance on the Minister and the Director of the Government Communications Security Bureau, who answers to the Prime Minister, the Minister responsible, for powers that have no check and balance. Members opposite may wonder why this side of the House is getting so agitated about this bill, and it is because there is insufficient regard paid to the rights of citizens in this country, the rights to privacy, the rights to security, certainly, but also the rights to be able to check on the power of the executive.

I want to talk a bit of technical language to the Minister now in the chair and ask him about certain things that appear in clause 48, which says: “The Director may, by written notice, exempt a network operator or a class of network operators from any of the requirements in section 45(1) or 47 if the Director is satisfied that the matter to which the exemption relates will not give rise to a network security risk.” So the Director of the Government Communications Security Bureau can exempt anybody if they think there is no security risk. Here we have this Government’s attitude towards citizens’ rights encapsulated—this Government’s attitude towards citizens’ rights. “We will make a decision about what is safe for you. We will give powers”—discretionary powers—“to people who have no accountability and for whom there is no comeback for the people of New Zealand.”

I want to draw that point out because I would like to ask the Minister in the chair whether clause 48—which is an exemption from clause 47, so please go back and have a look at the previous one, Minister—is a disallowable instrument. Tell me, is it a disallowable instrument? In other words, is it a regulation? Does it come before anybody for scrutiny? The answer, Minister, in case you are wondering—allow me to help you—is comprised of two letters and not three. The answer is no. It is not a disallowable instrument. All right, well, the Minister might then say: “Well, that is as it should be. Hard decisions have to be made here and the Government has to make them with all the information it has at its disposal and we will not have any check or balance. We will not have any scrutiny. We will not have any transparency. We will not have any appeal rights. We will not have any accountability over this.” [Bell rung] Mr Chairman, I have only just started. It is my only contribution.

Then we get to clause 54. Well, let us have a look at clause 54. It says the Minister may make a direction. The Minister may make a direction, and the Minister makes that direction if matters have been referred to him—let us say “him”, in this instance, being the Prime Minister we have currently—under a previous section, which details referral rights. Then it says: “the Minister has considered any submissions from the network operator.”—all right, that is not so bad—and “the Minister is satisfied that exercising his or her powers under this section is necessary to prevent, sufficiently mitigate, or remove a significant network security risk.” So the Minister is going to be responsible for determining where the security risk lies and whether or not there is a security risk caused by this.

This bill is silent, Minister Foss, unless you can prove otherwise to me—and I hope that paper you are looking at is something to do with this, because that Minister is the Minister in the chair and I would like him to answer these questions. As I read it, the bill is silent as to whether the instruments are disallowable for the purposes of the disallowance legislation. There is an argument that if it is appropriate for Orders in Council to be both disallowable and legislative instruments, then it is also appropriate for the powers to make ministerial directions to be subject to the same level of scrutiny and accountability. I do not even know whether the Minister understands what I am saying. The powers to make ministerial directions are the same as Orders in Council.

Orders in Council are disallowable instruments or legislative instruments—usually legislative instruments—but they are subject to scrutiny. They are subject to scrutiny by the Regulations Review Committee, whether they are disallowable instruments or legislative instruments. But this bill does not say whether any of this is subject to scrutiny. It is inconsistent for this bill to take upon itself rights and powers that may disempower the ordinary citizens of New Zealand from appeal, from knowing why the Government has made that decision, or for calling the Government to account.

The powers to make ministerial directions could be applied to the same effect as the powers to make Orders in Council, by making a number of ministerial directions, each of which applies to a different entity. So it is entirely possible that the Minister can say that this network is not a security risk and this one is, and there is no comeback. There is no comeback for those customers of that particular network that has been declared a security risk, whether it is Google or whatever it is—the network that New Zealand citizens subscribe to and use for their internet access and for information—regarding whether that is a security risk, and therefore whether they are susceptible to being cut off as a result.

This bill does not provide any democratic protection. It lodges responsibility and powers entirely with the Prime Minister. That, in the current circumstances, does not give me any cause for confidence, but it does not matter. Even if he was the best Prime Minister in the world—which he is not, but even if he were—I would still not agree with him being given those powers without transparency, without accountability, and without any right of appeal.

This is not balanced. This legislation does not take into account the rights and requirements of citizens not only to security, which we support, but also to privacy and to the transparency and accountability of a Government. On all counts this bill fails, and that Government does not understand it. New Zealand is not a company to be run like a chief executive officer would run any company. This is a country and it should be run differently from the way one runs a company. I have to say to those members opposite that “there are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.”

I rise to speak to Part 3 of the Telecommunications (Interception Capability and Security) Bill. Part 3 is on network security. Of course, in this modern age we are all very, very aware of the need for good network security. If this bill had that in it in what we might say is a fair manner, we would probably be supporting that aspect of it. We cannot. As I have said many times, we still need that full and thorough investigation, that independent investigation, and the Greens will push for that consistently until it happens.

With the Supplementary Order Paper 366 from the Minister for Communications and Information Technology as well, which is addressing part of the network security, the officials and also the Minister said there was an intention to refine the matters that must be notified to the Government Communications Security Bureau (GSCB), reducing compliance requirements for network operators. When I look at it all I can see is that it actually broadens it. I think the refinement is in making sure that there is nothing missing, that there is no way that anything would be missed. Sure, it might reduce some compliance requirements, but they have broadened it in some respects as well.

I asked them and I asked the Minister about clause 47 and her amendment replacing the old clause 47(1)(a) with a new bit. There is some wording that relates to architecture. Proposed new clause 47(1) states: “(b) any change—(i) to the architecture of any equipment, system, or service that falls within an area of specified security interest;”. What I would like to know is what the definition of “architecture” is. I can look it up. I can look it up in any dictionary, on Wikipedia, or somewhere, and of course we have got the standard definitions around building, or whatever, but basically it is about systems, or whatever. I am assuming that is what they mean—that is, it is the systems, the structure, of how a network might work. But I think they have been remiss in not spelling that out—talking of refinement—and getting it properly refined, and not giving us that definition and being absolutely confident about what is intended in that change. Maybe the Minister still wants to sort that out, because the Minister still has the capability to do that.

Under Part 3 of the bill a network operator must engage with the GCSB as soon as practicable after becoming aware of a proposed decision, course of action, or change, not necessarily related to their own network or service, that if implemented may raise a network security risk. That is pretty broad. We have all suffered some levels of risk through hacking or viruses, and sometimes we just think Government spam might be part of the problem too. We accept that there is that element of risk, and we would like to see this tuned in an appropriate way.

But I share, and the Green Party shares, the concerns that our fellows in Labour have expressed in the powers in here. Who has got the power? Well, we know who has got the power: the Minister responsible for the GCSB—generally the Prime Minister. I will talk about that once again in a moment. But as part of this network security there is a fair bit of scope in the areas of specified security interest, which can be expanded by Order in Council and by regulation, subject to consultations with registered network operators and some limitations, I must say, relating to changes in the technology.

I move, That the question be now put.

It is always a great pleasure, of course, not only to take a call on an important piece of legislation such as this, the Telecommunications (Interception Capability and Security) Bill, but to do so under your chairpersonship, because this Committee needs a good and steady hand when it is considering erosions of, and invasions into, the personal security and privacy of its citizens.

This legislation is very important legislation, which is why it is such a surprise to members on this side of the Chamber that not a single Government member tonight, apart from the Minister for Communications and Information Technology, who made a contribution earlier, has seen fit to take a call on this fundamentally important piece of legislation. It marks a continuing process we have seen under this Government, unfortunately, of diminishing and eroding important citizens’ rights: the inherent right to privacy and the inherent right to be protected from the invasion into our personal space and our personal information at the very least by the State, because we know that the State is very powerful.

Of course, the powers in Part 3 of the Telecommunications (Interception Capability and Security) Bill are about not just private citizens’ rights and privacy but also those of the telecommunications companies to whom citizens subscribe for their telecommunications services. When you look at, for example, the obligation in clause 45, it imposes—in my view, disingenuously—a duty to engage in good faith with the director of the Government Communications Security Bureau (GCSB), with no corresponding duty on the director. That tells you what this Government is about: a lack of balance; a lack of understanding of the importance of citizens’ rights; and growing, almost total power of the State over citizens in important areas.

You know, there have been members of the Stasi and there have been members of the old Soviet Union Politburo—many of whom looked a lot like Tim Macindoe, funnily enough—who would be proud of the powers in this legislation. They would be very pleased about what has been achieved here. We all thought after 1990 that those evil, vicious days had gone. Well, they have been resurrected. They have come to life under the New Zealand National Government of 2008 to 2014. Fortunately, we know that it is all coming to an end—but I get off the point just for a moment.

The powers contained in Part 3 of this bill are invasive, and there are no corresponding duties on the director of the GCSB when considering his right—as Maryan Street pointed out, the director of the GCSB is a “his” at the moment—and no corresponding duties on the director of the GCSB in the way he conducts himself and these powers. There is a broad definition of “network operator” because that is not just the telecommunications companies; it is anybody who supplies to them. There is a broad definition of “security interest”, and that includes aggregated information about subscribers and users. That is frightful. Just when we thought, actually, that this Government understood that there are serious issues about access to aggregated information under the GCSB legislation, here we have that yet again in this piece of legislation.

We have the “Henry VIII” power still contained in clause 46(2), which allows a change to parts of clause 46(1), which ought to be regarded as unusual and, indeed, extraordinary.

Then we come to clause 47 and the extraordinary powers of the director not only to know about what telecommunications companies are doing but to direct them, and then, if the director of the GCSB is not happy with them, to go through the “telling on you to the teacher” process if he is not satisfied with the information being provided by the telecommunications provider. Even Supplementary Order Paper 366, providing a shimmer of a check and balance by requiring going via the chap who is in charge of the warrants, the Commissioner of Security Warrants, before going to the Minister responsible for the GCSB, is no check and balance on this power at all. It just confirms yet again the extraordinary and insidious powers that this Government is reserving for itself.

I move, That the question be now put.

That was a temporary hiatus in my contribution, and I will take one moment just to collect my thoughts because they were many and varied, and in that brief pause there they have been scattered throughout my headspace, which is coming to terms with what I was saying just before.

We were up to clause 47 and we were talking about these extraordinary powers and the lack of check and balance provided by the Supplementary Order Paper of the Minister for Communications and Information Technology, which is why we actually need to ditch the Minister’s Supplementary Order Paper and, indeed, why we prefer Clare Curran’s Supplementary Order Paper 370, which provides an appropriate check and balance on these powers.

This confirms the point I was making before, which is that we should never in this House—a House of the citizens of New Zealand; a House of democracy; a House of Representatives built on the principles of freedom, of citizens’ rights, of a thriving community, and of a thriving country where we respect each other and where we respect each other’s personal space and personal lives—let a power that is as extraordinary, and, I would argue, as extreme as this, slip through this House with nary a comment. It is bad enough that not a single member opposite will talk about these extraordinary powers, will defend the need for this, or will talk about why this Government needs to pass legislation that makes even more encroachments on people’s personal information and personal rights and freedoms. We do not hear from the Government, and it is left up to members of the Opposition to have to draw the public’s attention to exactly what is happening here.

The day that a senior public servant, under the control and direction of a Minister and the Prime Minister, should be able to direct privately owned companies on informing the director—the public servant—and the Minister about the equipment that they are using, about when they are going to use that equipment, about when they are thinking about replacing that equipment, about when they are thinking about how the equipment is going to be used, and about when they are going through all those processes, and should be able to require the private company, whether it has got public shareholders or not, to keep the Government notified of those otherwise commercially sensitive and private decisions, is an extraordinary development in the creation of statute law in this country. We should not only stand here and remark on it but condemn it, and we do, and I do.

I say that there is simply no call for that, even in a country concerned about the security of its citizens and concerned about the security of its sovereignty and its nationhood, as many members of this House are—but, of course, those members supporting the Trans-Pacific Partnership agreement may take a different view because that constitutes an erosion of sovereignty. Even for those people who are concerned about this nation’s security, there is no justification for the erosions of civil liberties, civil rights, and personal privacy and personal information that this legislation represents. I simply make the point that there is no cause for this, and that we can achieve a proper balance between the nation’s security and the right of both companies and citizens to go about their lawful business, including that part of their business and their personal affairs conducted in private, without this sort of erosion. We must draw a line in the sand at some point and say that privacy—personal privacy, personal security, and personal space—must actually be given priority when it comes to passing these laws, especially when the idea of national security is called in aid to justify the ever-greater erosions of personal security, personal privacy, and personal space. It is time to put the flag up and say “Enough is enough. Enough is enough.”

I know that members of the Law and Order Committee, who looked at the bill, worked very hard to try to make some sense of it and to try to get some reasonable changes, but this Government is hell-bent on driving it through and diminishing for all time those basic personal rights and citizens’ rights. That is wrong, and it will change. It will change on a change of Government. In the meantime we stand utterly opposed to this—

I move, That the question be now put.