Telecommunications (Interception Capability and Security) Bill

It will be interesting to see whether the Minister in the chair, the Minister of Defence, is able to answer the specific questions that are put to him during this part of the Telecommunications (Interception Capability and Security) Bill. This is Part 4 of a badly drafted bill that sits alongside the Government Communications Security Bureau Amendment Act to create a surveillance State in New Zealand, that ignores and disregards the rights of New Zealanders, and that includes unprecedented powers for the Government Communications Security Bureau (GCSB) and for Ministers to interfere in the activities of our digital businesses and our telecommunications networks with no checks or balances. Part 4 of this bill is where the rubber hits the road, because this is the part where the expanded regime is set out for the registration of network operators and for the security clearance process of nominated employees within networks. It sets out how they will interact with these GCSB operatives that will work within the networks inside New Zealand, how the compliance and penalty regimes for networks will operate, and how those compliance networks will operate for those who do not comply.

I want to focus on clauses 96 to 98 in Part 4 of this bill for my contribution in this particular speech, because this is the part that talks about protecting classified information. It certainly did impact on a number of submitters, who put in some very strong pleas about how this part of the bill was exercised. They did not say that there could not be, and should not be, a mechanism for the hearing of secret evidence to be presented in court in the absence of a defendant and their lawyer. Where there is a dispute, or where there is a problem and if it actually gets to court, this is the part where the secret powers can be most concerning if they do not have adequate checks and balances.

Tech Liberty NZ, which is a significant civil society organisation in our country and has presented on a number of bills before this House in the last almost 5 years around the rights of citizens and the privacy of citizens, submitted quite strongly with regard to clauses 96 to 98, which provide for secret evidence to be presented in court in the absence of the defendant and their lawyer: “As a matter of civil liberties and the right to due process enshrined in the Bill of Rights Act, we reject the ability of the government to use secret evidence. Secret evidence that cannot be challenged or responded to is a gross offense to the idea of a fair trial. These provisions should be removed from the bill.”, but “If this is to be retained, we would expect that the appointment of a special advocate as mentioned in 97(3)(c) would be the barest minimum required to provide any semblance of fairness. This appointment should be mandatory and not at the discretion of the court.”

Well, I will tell you what the response was to that suggestion. We on this side of the Chamber would probably not take as strong a view as Tech Liberty NZ did on this, in the sense that there may be times when there could be secret evidence provided in court, but we think that the provision of a check and balance through having a special advocate is an integral part of a system that holds up the highest standards of democracy before this country. Unfortunately, this Government, as we have heard in the previous debate, certainly does not do that. So what was said back was that the officials gave us the advice that those clauses should not be removed, and that the New Zealand Bill of Rights Act advice prepared by the Ministry of Justice and by the Attorney-General acknowledged that withholding classified security information during a court proceeding was a limitation on the right to natural justice, but given the safeguards put in place, such as having a special advocate and the need to keep classified security information confidential, it was considered justifiable. Well, we will be saying more about the cursory vetting of this bill in the New Zealand Bill of Rights Act vetting process by the Attorney-General later on in the debate on this, because we considered that it was just a cursory vetting—a once-over-lightly, a rubber-stamping process—and we also contend that the amended bill should have gone back to the Law and Order Committee for another vetting against the New Zealand Bill of Rights Act because of the extensive changes that were made.

We were given the advice that the appointment of a special advocate should not be mandatory. If that does not say that there is no serious check and balance being provided in this legislation, I do not know what is. On the one hand you have the New Zealand Bill of Rights Act vetting saying that there is a check and balance and, therefore, it is OK. But on the other hand, that check and balance is at the discretion of another process. So it is not there as a right. It is not there as a right for citizens, and we contend that this is a serious issue in this bill.

We need to talk about costs and the impact of the costs of this bill on companies, because when it comes to the compliance regime in Part 4 of this bill, this is where significant costs can be realised and may be realised particularly to the smaller companies that we have been warned about through the passage of this bill, because of the broad definitions of “network operator” and “service provider” in this bill, particularly around what constitutes a network operator. I just want to go back to the letter that we all, as members of Parliament, received from NZRise, which is a body that represents the New Zealand - owned digital technology sector. This is a group of reputable companies that are trying to be the innovators in our country, and we should be listening to them. They say that in practice a small number of businesses—these are the bigger networks, the telecommunications companies—will self-identify as network operators, and those businesses will notify only a small subset of the decisions covered by the bill. The rest will be in possible non-compliance, and, as a result, can be easily pressured by security agencies. They are warning us that this broad definition of “network operator” could encompass an enormous number of smaller companies that may find themselves in non-compliance and may end up liable under the compliance section of this bill, which is overly onerous, secretive, without checks and balances, and could have a huge detrimental effect on our technology sector.

They invite us to consider the practical realities of this—that small New Zealand businesses may be likely to be intimidated, that the broad powers and expansive wording of the bill could completely undercut New Zealanders’ rights to privacy and protection against unreasonable and disproportionate search. These are obligations that we have contended are onerous. There are not enough checks and balances, and the definitions are far too broad in terms of whom they encompass. That is why we have used the phrase “chilling effect” on a number of occasions. We think our technology sector should be driving economic development in this country and we should be giving signals that we want it to drive economic development in this country. What we are doing with this bill is giving it another set of signals that they had better watch out because Big Brother is watching.

Thank you very much, Mr Chairperson, for the call.

💬 Peseta Sam Lotu-Iiga: Big brother just stood up.

Sorry, what was that?

💬 Peseta Sam Lotu-Iiga: I’m talking to Clare.

No call has been taken by Sam Lotu-Iiga on this bill, the Telecommunications (Interception Capability and Security) Bill. In fact, no calls whatsoever have been taken on this bill from National Party members, other than a brief intervention from the Minister for Communications and Information Technology last night. That is for two reasons. They do not understand it—that is the first reason—and, secondly, they are not proud of it. They are not proud of it over there because they know that this takes out the balance between protecting the security of New Zealanders and protecting the rights and freedoms of New Zealanders.

Sam Lotu-Iiga would not have a clue as to what is in this bill. He is blindly going along with it. He has been told he has got to sit there. He will try to move a closure motion at some point. That is the best he has got to contribute. Well, I challenge Mr Lotu-Iiga to stand up, get on his feet, and say—

💬 Peseta Sam Lotu-Iiga: I raise a point of order, Mr Chairperson. He asked me to stand up, to get on my feet. I am up. [Interruption] No, no—my name is Sam Lotu-Iiga. Thank you.

The CHAIRPERSON (Lindsay Tisch): All right. I ask members to pronounce other members’ names correctly.

I stand corrected. I would still like to see the member take a call in this debate. [Interruption] Oh! He is off. He is off because he does not know anything about it. He does not know a thing about it. He is going to find the houses in Maungakiekie that he was looking for—the affordable ones. They are not there.

There are several issues to come to now in Part 4 of this bill. The first one that I want to pick up on is one of the points that Clare Curran raised, which was around the question of the role of the special advocate and whether or not a court can hear matters in the absence of the defendant in this. This is covered in the bill, essentially under clauses 95 onwards.

I want to make reference to what was a very significant report written by the Human Rights Commission. The Human Rights Commission is allowed, under its direct reporting function—section 5(2)(k) of the Human Rights Act—to deliver a report to the Prime Minister. It has delivered in its history, as far as I am aware, only five of these reports, so it is a significant step. It chose to deliver a report to the Prime Minister on this bill and on the Government Communications Security Bureau (GCSB) legislation. That was a significant step. Those who have been following the saga of these bills will recall that that was what inspired the Prime Minister to threaten the funding of the Human Rights Commission, and to suggest that it should get its submissions in on time. He actually did not understand that this was a separate process and a very serious one.

Here is what it had to say about that exact power: “Of further concern, however, is the fact that where procedural matters involving ‘classified security information’ relating to administration or enforcement of the Act are involved, at the request of the Attorney-General, a court can receive or hear matters in the absence of the defendant or the defendant’s lawyers.” The Human Rights Commission notes that there is the provision for special advocates, but it believes that this breaches the right to natural justice under section 27(1) of the New Zealand Bill of Rights Act.

So this bill, as my colleague Clare Curran said, got a cursory look from the Attorney-General, and a rubber-stamp through here. Here is the Human Rights Commission saying that this part of Part 4 breaches the New Zealand Bill of Rights Act. Along with many other issues, this is exactly why Clare Curran moved a motion before the second reading to get this bill back to the Law and Order Committee. There is a massive Supplementary Order Paper from the Minister for Communications and Information Technology, Supplementary Order Paper 366. There are some significant changes, but a lot of issues have been left unchanged. We know from the submissions of agencies like the Human Rights Commission that significant concerns have not been properly dealt with.

Interestingly, the commission goes on to say in its submission to the Prime Minister: “Despite the opinion of the Attorney-General to the contrary … the Commission considers that the limitation is unjustified and a disproportionate response to the need to protect classified security information in this context, particularly since it is relatively unclear as to who will be appointed as a Special Advocate—or if one will be appointed at all.” So that is the situation we now have.

I am not a lawyer—my colleague Andrew Little is a lawyer, and I am sure he will take a call as we go on through this—but a basic principle of natural justice is that if you are going to be talked about in a court, you have the right to be there and be represented. It is a fairly fundamental and basic right, and the Human Rights Commission is saying that Part 4 of this bill undermines that. That is an extremely serious allegation, and we have heard nothing from the Government to defend that. The Government has given it the rubber stamp and seems to think that that is fine. Well, on this side of the Chamber we do not think that it is fine. We believe that it needs to be thoroughly analysed and, at the very least, defended by the National Government as to why it is prepared to trample on the principles of natural justice in such a way that has led the Human Rights Commission to put this in.

The Government may well say—there are no Government members prepared to defend this, so let us put up the argument that they might put up. That would be that the special advocate is there to deal with this. Well, the appointment—and this is consistent throughout this bill—of the special advocate is right there in the hands of the Government. When it comes to these matters of security and intelligence, we on this side of the Chamber simply do not have confidence that the Government will appoint the appropriate people. We have seen consistently over the term of this Government the appointment of cronies. Obviously, the major one of those is the appointment of Ian Fletcher to be the director of the GCSB. That has undermined the confidence of New Zealanders in these agencies. Now we have to accept that anyone who ends up in this process has to go along with the special advocate. We do not even know whether a special advocate is going to be appointed, but they have to go along with the special advocate as their person. That fundamentally raises questions of natural justice. That is why the Human Rights Commission raised this.

I would ask a Government member to stand up and answer the Human Rights Commission’s concerns. No Government member in this debate has properly responded to the concerns that have been raised. The Minister in the chair, the Minister of Defence, could stand up and tell us why it is that his Government is prepared to go against the Human Rights Commission, which has put out on this bill, and on this particular part of this bill, one of the very few direct reports that it has done to the Prime Minister. National members should be able to defend that; otherwise, it should not proceed, because what is the point of having an agency like the Human Rights Commission if it is simply going to be ignored time after time and undermined by this Government? We have not seen any adequate response, and on this side of the Chamber we believe that this part in this bill should be opposed, in part because of that.

Another of the matters that I want to raise on Part 4 is around clauses 70 and 71, which are around the idea that there needs to be a Government-sponsored security clearance for network operators who have 4,000 or more customers. I thought that this was a good example of the point that Clare Curran raised about some of the costs and obligations that are being put on companies under this bill. Many of us in the House will have experienced the process of going through a security clearance or, indeed, being a referee for somebody who has gone through a security clearance. I have to say that it is not always the most reassuring of experiences when that occurs. A person in a long raincoat—

💬 Hon Phil Goff: I got through.

Well, actually, Mr Goff says “I got through.” Perhaps members of the Committee may want to consider that that is not that reassuring. But somebody from the SIS comes in a long coat—

💬 Hon Trevor Mallard: I never did. I failed.

Trevor Mallard failed, so the system does work on the odd occasion—

💬 Hon Trevor Mallard: That’s right. It meant when I worked at the defence department as a window cleaner, I had a pistol-packing guard accompany me all the time.

And we have always wanted to keep Mr Mallard under armed guard since then.

But the point that I am trying to make is that here is another obligation and another role for a security agency. We on this side of the House have been waiting expectantly for the Security Intelligence Service to be reviewed. It was something that the Government began and then stopped for no apparent reason and without explanation. But here the SIS is involved, along with the GCSB, in having a role in deciding how network operators are going to behave and what obligations are upon them. The vetting process is the issue that I want to raise. I understand, actually, that part of the vetting process that the SIS does may have actually been revealed as part of the process of this bill. That in itself is of concern because I would have thought that that was something that the SIS may well want to keep to itself. There will be more to say about that in the future, but this is just another example in Part 4 of additional costs and additional obligations that are being placed on businesses and network operators.

If we look at Part 4, which is essentially a set of clauses that—

💬 Ian McKelvie: I can’t believe you’ve got there.

No, no, I have been there the whole time, Mr McKelvie. I have been there the whole time. The human rights issues that I raise, and that Mr McKelvie has not taken a call on, he could get up and respond to. Everything I have been talking about, Mr McKelvie, is in Part 4 of this bill. If you have read this bill, get up, take a call and tell me how Mr McKelvie as a member justifies breaching the Human Rights Act. That is in Part 4, and not one of those—

It is a worry that when you have a bill like the Telecommunications (Interception Capability and Security) Bill and you are debating an important part of the bill—which has been introduced under urgency, has had the period of time that submitters could make submissions on it curtailed, and then has finally come to the Committee, where we debate the individual provisions of this bill—that the Minister in the chair, the Minister of Defence, is not the Minister in charge of the bill and probably does not know what is in it. That would explain why he is not taking the call. But not even the members of the Law and Order Committee who sit in this Chamber have taken a call. The idea of the Committee of the whole House stage is to enable the provisions in this bill to be thoroughly debated. I have heard Clare Curran and I have heard Grant Robertson stand up and raise legitimate questions about Part 4 of this bill, and there is no response. There is no response from the Minister in the chair, who is not interested and not even listening. There is no response from members on the select committee.

This is a really important part. For a start, it provides for network providers to be compulsorily registered. We know with this bill and the bill that it actually puts into effect, which is now the Government Communications Security Bureau (GCSB) Act, that there are intrusive powers. There are intrusive powers against ordinary New Zealanders, because an agency, in secrecy and without accountability, can intrude into their private communications. But Part 4 highlights the other important intrusive powers that this bill provides, and those are unprecedented powers in terms of the power of the State to direct private commercial companies to do things that the State wants but the private companies have to pay for. The first requirement in Part 4 is that companies have to be registered. [Interruption] I am sorry?

💬 Ian McKelvie: Who paid for your last tax return?

I cannot hear the member. He will have to speak louder and more clearly.

💬 Clare Curran: Take a call.

In fact, he should take the call. He should take the call, because, actually, the House has had a gutsful of members of Parliament who interject from their seats but do not have the conviction to actually take the call and debate the legislation.

What does this part do? First of all, it requires that all network providers be compulsorily registered. Secondly, it requires that every one of those companies must nominate an employee who will act on behalf of the State. That employee must get the security clearance to act on behalf of the State. Who pays for that? The State? No, I am sorry; the private company pays for it. So you force companies to register, you force them to nominate an employee who gets security clearance to do the Government’s work, and then it involves a power of the director of the GCSB to require any information or any document that he considers necessary. So the head of the GCSB can demand of a network provider that it provides any information, any document, that he, the head of the GCSB, decides is necessary. Do the network providers have any appeal against that? No. No, they do not. They must comply or they are taken to court, and they can be fined up to half a million dollars—half a millions dollars—for not complying with these provisions.

The enforcement provisions are stringent. The requirements are unusual. You might say that these powers, in the interests of national security, could be justified. You might argue that. But the onus is on the Government, first of all, to demonstrate to this House and our country that it is important to have those powers that are exercised by the State, and, secondly, that there are safeguards against the abuse of these powers. I understand and Labour understands that you need security intelligence services. We understand that there are such things as organised criminal activities and terrorist groups that the State may need to be safeguarded against. But where you start is to demonstrate that, to demonstrate that these powers are justified.

I would have thought that the Government would be prepared to let the critical agencies appear before our select committee—the police, the GCSB, and the SIS. Those agencies do the work. They could, if they wanted, have come to the select committee in secret or in private sessions and said that they need these powers because these are the activities that they are safeguarding against. They could have been invited. They could have been invited to appear before the Intelligence and Security Committee to make the same arguments in relation to the GCSB bill, which this bill allows to be carried out. But, no, the Government suppressed the right or the ability of the GCSB, the SIS, or the police to come before the select committees, the democratic institutions of this House. I have not heard one Minister or one member of the National Party stand up and justify why those agencies should not have come before the select committee and said: “This is the reason that New Zealand must have these powers.” That is the starting point. Is there a need for these extraordinary powers? Justify them. That is the role of the Government when it gives extraordinary powers to its agencies. It is to say why. The Government failed, and it failed absolutely.

Secondly, there was the requirement—

💬 Jacqui Dean: You sit down and let me take the call.

There she goes. She is interjecting from her seat, as well, so I hope she takes the call. I hope she is going to, and then we will get a chance to respond. The other precondition was that when you give these huge powers to the State, you ensure that there are safeguards to prevent the abuse of power by those agencies. That is, after all, why the GCSB bill came before this Parliament. It was because the GCSB was found to have abused its powers in the case of Kim Dotcom, and when the Kitteridge report came out it was found also to have exceeded and abused its powers against 88 other New Zealanders. So what we know from this is that there must be safeguards against the abuse of power.

I want to come back to the safeguards in a minute, but the next thing I want to say is this. If we really need these powers because there are organised criminal groups and terrorists out there and we need to intercept their communications, does this system, put into place by this bill, act effectively against criminal organisations and terrorists? I asked the officials that at the select committee. I said: “Aren’t there huge loopholes in this legislation?”. For example, an increasing percentage of the population these days are using over-the-top providers like Skype. Is Skype covered in this legislation? Does it have to have interception capabilities? The answer is no. But the answer is not even no; it is “I’m sorry. We’re uncertain. We’re confused. We’re indecisive. We may put those powers in place, but we won’t do it in the legislation; we will do it by regulation. We will do it in a way that does not have to come back to this House. We will do it quietly—or secretly, almost. It will not come back to this House.”

So, first of all, you do not put Skype and the over-the-top providers in, and then you do not put in the small network providers if they have fewer than 4,000 subscribers. This Government finally realised that even if you have got the network providers in, because the communications are encrypted and the network providers do not have the means to decrypt the telecommunications messages, interception of communications may not be possible. So I asked the officials that question: “Does this bill do what you need to do?”, and the answer was: “No, there are loopholes that you could drive an articulated lorry through.” If you are a professional criminal organisation you will know where they cannot intercept your communications and you will use those means. So why are we putting all of this effort in when the professional criminal organisations can evade the telecommunications interceptions? And there is no answer to that—there is no answer to that. You might get the dummies who use communications that can be intercepted, but the professional crooks or al-Qaeda will not. They know where you can get away with not being intercepted, and they will use those routes.

What I am worried about with this legislation is that it will not get the real crooks but it will allow these organisations to do what the National Security Agency has done in the United States and what the Government Communications Headquarters has done in the United Kingdom and that is to follow the communications of tens of thousands of ordinary citizens who have no connection with terrorist groups or criminal groups. So we get the worst of both worlds. We do not actually stop the bad guys but we allow the scope for ordinary citizens to have their communications intercepted or recorded in metadata without having adequate protections.

I want to talk about why the protections are not adequate. Well, for a start the enormous power that exists in this area is—

The problem that Labour has in opposing this Telecommunications (Interception Capability and Security) Bill is that it is dancing on the head of a pin trying to find reasons to oppose it. What it is conveniently forgetting is that it was that Labour Government that brought in the telecommunications bill in the first place, in 2004. What you have to ask yourself is, well, did Labour oppose it then? Labour did not oppose it then because Labour brought it in. Did Labour understand the need for national security back then? Yes, I believe Labour did understand the need for national security back then, and somehow it has had this amnesia about its former position, which is not unusual for Labour, because flip-flopping is what it does.

Labour has conveniently forgotten the need for national security, and so now its members are making up arguments that even they do not believe in. Phil Goff knows, from his former role as a Minister in the former Government, that national security is critical to the running of New Zealand. He knows full well the roles of the Government Communications Security Bureau, the SIS, and the New Zealand Police, and the roles that they must, must have under legislation to keep New Zealanders safe, because that is what this Telecommunications (Interception Capability and Security) Bill is all about. It is about keeping New Zealanders safe. Labour does not get it. But over this side of the Chamber we do.

Well, that was a pathetic contribution. I think it is fair to say that there is an old rule in this House that if you do not know anything about it, keep your mouth shut because people will think you are a fool. But if you get up, there is a likelihood of proving it. And the member just proved that rule.

💬 Clare Curran: She’s the chair.

She was the chair of the Law and Order Committee, and the complaint even from the officials was, I understand, that the member who was chairing the committee just did not bother either reading or understanding the papers that were put in front of her—not that there was that much there; not that the important people who should have given evidence were giving evidence, but the member who was meant to be guiding the arrangements through the Law and Order Committee was just so slow and so hopeless that it was an embarrassment to the parliamentary system.

I think it is fair to say that it is only in recent days that I have turned my mind to this particular piece of legislation, the Telecommunications (Interception Capability and Security) Bill. I have not had any involvement with it before. What has become clear to me is that Part 4, unusually for a bill, is where the substance and the mechanisms sit. One looks at the registration system, the requirement to register, the method of application, what is on the registration information, the purpose, the contents, the operation and access, and the rest of it.

I want to ask the Minister a question as to access to the register. Why is it so secret? Why is all the detail on that register so secret? If we have—

💬 Ian McKelvie: Why do you think?

Well, no, hang on, we are not talking about the private information of individuals that the Government Communications Security Bureau is going after. It is a question of who is registered, and on what basis they are registered. Why is that a secret? No, no answer. No answer from the noddies opposite. Their heads all go down and they cannot answer. It is a genuine question. Why can we not know, as New Zealanders, who are the network operators in New Zealand? Why can we not know? What should be secret about the fact that someone is operating a network here?

💬 Ian McKelvie: You’re not much of a detective.

What? Well, the bill is so useless—so useless—that no one can explain. It should be pretty clear to most people who is operating a network. So why keep the fact that they are operating a network, and are registered to do so, a secret? No explanation. The registrar will not even be able to tell us whether Vodafone is registered or not, because that is a secret, and there is no access. You are not allowed to access it. It is an offence to have it accessed. It is an offence to reveal.

Frankly, this is nonsense legislation. I do not want to be too critical of my colleagues, and I know that Clare Curran has written a superb minority view on this bill, but I do not think that actual question—she might have missed one. Why should we try to keep secret the fact that Vodafone will have to apply? Vodafone has more than 4,000 customers, no doubt about it, and will have to apply for registration as a network operator. Why should we keep secret the fact that Vodafone has gained registration as a network operator? One will be able to tell within 3 months whether Vodafone has got its registration or not, because if it has not got its registration, the switch goes off.

💬 Louise Upston: Are you talking about this particular part of the bill?

I am talking about Part 4, the changes to the register, the security clearance, the registration, and the certification, all of which relate to whether or not a particular operator is able to operate or not, and the requirements to keep it confidential.

The next point, and I think a number of my colleagues are going to be interested in this particular area, is the method of nominating employees for clearance. In a slightly jovial way I earlier indicated that even members of this Parliament in their former lives have failed clearance checks in the past. When I cleaned the windows of the defence department as a job when I was a student—I was a window cleaner—I was accompanied by a guard who had a pistol. We are talking about the very early 1970s, when pistols were actually relatively unusual in New Zealand at that time. But it was there, it was open, and it was obvious.

The most secret part in those days was the economic espionage section. As an economics student, I thought it really interesting that the two books that they had on the shelves, because at the time they were studying Viet Nam and the economy of Viet Nam, were Samuelson and Lipsey, which were stage 1 books. They were stage 1 economics books, and they were the only books that were on the shelves of the most secret part.

But the point that I am making is that people have to submit for vetting; that the operators, certainly those that have got more than 4,000 customers, have to nominate a person or persons, who are vetted. The Government Communications Security Bureau (GCSB) goes to work in a way that Grant Robertson described—sorry, the SIS, I presume, will do the vetting on behalf of the GCSB for these particular individuals.

I would like also to turn now to clause 75 of the bill. What it says here is that “A network operator must comply with a notice under section 72 or 73 despite anything to the contrary in any deed or contract”—or, most important—“or any other enactment.” So the question that I have is that if a court makes an order under another particular enactment and the director of the GCSB issues a notice, why should the director of the GCSB override the High Court of New Zealand? Why should the GCSB director, a close friend of the Prime Minister, have the right to override the High Court, or, for that matter, the Supreme Court of New Zealand? It is just wrong. It is absolutely wrong. It gets the law of New Zealand upside down and back to front.

In New Zealand what we are meant to do is have legislation that is interpreted and ruled on by the courts, and the Minister and his lackeys do not have the right to tip it over. I do not go a long way back, but I remember Fitzgerald v Muldoon because that case established that principle pretty well. That principle is that if you want to change the law, if you want to tip over a decision of a court, you come to Parliament and do it. You do not have the director of the GCSB write out a bit of paper, get it ticked off by one of his mates, and override the rule of law in New Zealand by that particular process.

Clause 75 also says that the operator must comply even if the compliance notice involves a breach of an obligation of confidence. If that obligation of confidence is established by a court in New Zealand, then my view is that it is absolutely wrong for the director of the GCSB to make an order that overrides that court order. It is just wrong. If the GCSB does not like it, there are two avenues: you appeal—and appeal again, if necessary—and if you do not like the result at any of those—

I move, That the question be now put.

I rise to speak to Part 4 of the Telecommunications (Interception Capability and Security) Bill. I just want to back up a little bit, because we have got a bit of a theme emerging, not just in relation to this bill but in relation to a number of the Government’s activities. Although it might sound as if it is recalling some of the echoes of the previous urgent debate, it is entirely pertinent to this bill. Mr John Key, the Prime Minister, said in November 2008: “I expect high standards from my ministers … If they don’t meet the standards I set, then obviously I will take action if necessary.” He said: “If they don’t meet the standards I set, then obviously I will take action if necessary.” What we have with this bill is a bill that the Prime Minister controls. It is my suggestion that the Prime Minister, far from requiring high standards of his Ministers—standards repeatedly broken by some, who have been ostensibly punished but then rehabilitated—does not even apply high standards to himself. There is no accountability, there is no transparency, and there is no appeal in this bill.

In this part, this is the bit where we are talking about registration enforcement and miscellaneous provisions. One could be forgiven for thinking that it is pretty pedestrian stuff and it is just the mechanics of what has gone on before. But the point is that what has gone on before in this legislation, which sets the context for these mechanical pieces to apply, has not had any transparency, or accountability, or appeal processes within it. What we see repeatedly is a reference to the only person, or delegated person, who may be able to take action, and it is constantly, repeatedly either the Prime Minister or the Director of the Government Communications Security Bureau. Here we have a registrar, as well, within the police. Unfortunately, the police were not allowed to present evidence in the select committee process. The Government Communications Security Bureau (GCSB) was prevented from presenting evidence. The SIS was prevented from giving evidence. Immigration New Zealand and the Customs Service were not allowed to give evidence. So that was the whole process by which this offensive at worst and inadequate at best piece of legislation has come back to the House.

The follow-up to my quotation from John Key from November 2008—“I expect high standards from my ministers … If they don’t meet the standards I set, then obviously I will take action if necessary.”—is that having seen that breached on a number of occasions, which have been rehearsed in the previous urgent debate, I just want to say that, in relation to this bill, the Prime Minister, being the architect of it, the designer of it, and the person who gives effect to it, has not upheld high standards, at all. He has not upheld any expectation that people in this country have of the laws, including mechanical things like miscellaneous provisions, registration, and enforcement, that are found in this bill having any comeback to those matters.

One of the other quotations I would like to offer comes from the State Services Commission’s code of conduct. It says: “failure to meet expectations causes people to lose trust in Government.”—failure to meet expectations causes people to lose trust in Government. For the first time in this country, despite the protestations from members opposite about the original legislation existing and coming in under Labour’s term, the GCSB can spy on ordinary citizens—for the very first time, the GCSB can spy on ordinary citizens. It was not able to do that under previous legislation. So it does not matter how much Jacqui Dean says “Oh, well, this was really introduced by the Labour Party.”; this is qualitatively different—qualitatively different. We now have the sanctioned ability for the GCSB to spy on ordinary citizens, and that has never happened before. It happened previously in error, and instead of correcting the error, this Government has gone on to compound it by not getting the provisions right.

In Part 4, we do not see any further ability for ordinary people—or, in this case, network operators in particular—to get the Government, or the GCSB, or the Prime Minister to revisit any decision. They do not have that ability, they do not have that right, and they must do what is asked of them at every turn. If we go to clauses 75 and 76 of the bill—and I would like to go on from the point that my colleague the Hon Trevor Mallard made about clause 75—as one goes down that page, the miscellaneous provisions only compound the absolute power of this bill. There is no comeback. There is no ability for a network operator or anybody who has had a document seized or a system seized to get that back or to be able to withhold that information. The point remains that in this section, we have the nuts and bolts of some of the things that are operational in the bill, but it cannot be seen separately from the context in which it rests. That context has not got either the protection of citizens or the protection of citizens’ rights in balance. The protection of citizens—that is, the protection of our security—is terribly important, but so is the protection of citizens’ rights. Those things are not in balance in this legislation.

What we have throughout these rather mechanistic bits of registration enforcement and other provisions is the repeated reference to the Director of the Government Communications Security Bureau, who may require information, who may seize material, and who may really examine and cause to have under surveillance the networks that service the information and communication requirements of New Zealanders. In the course of that, the rights of New Zealanders to have their communications kept private have been breached. Where there is a security risk, certainly there would be a need for the correct authorities, through the proper processes, which are always transparent, accountable, and appealable, to be able to carry out proper surveillance and proper seizure if necessary. But there is no nod even in the direction of—

I move, That the question be now put.

In Part 4 of the Telecommunications (Interception Capability and Security) Bill there are a number of particular issues that concern us, and there is an overriding aspect of human rights. But right from the start the network operators must register. As we discussed in other parts of the bill, we are a little bit unsure how far that goes, as to who is a network operator. It is not clearly defined enough, or it may come right back to individuals having minimal networks, but they might be included as well. But there is an obligation on those people to identify themselves and register. Actually, theoretically, it could even be people in this room—but hopefully not enforced—having to identify themselves and register. That is how I can best interpret it. On looking through it, I cannot find why that is not the case. If that is the situation, it is an unbelievably onerous and unfair thing to put on society in New Zealand, to be looking and really thinking deeply, having to know the law—because, of course, lack of knowledge is not an excuse around law—and having to find out whether I am a network operator and, if so, I have got to register with the Government Communications Security Bureau (GCSB), of all people.

Then, it goes on. What is the information required for someone registering? If you are an operator and you have got employees, you have to give the name and contact details of a suitable employee. That is seen by submitters as not being too fair, and 2degrees submitted—and there was no change made to the bill from it—and said: “Look, the characteristics required of an employee to be cleared should be listed.” Who is a suitable employee? What are the characteristics? There should also be a requirement for the employer to consult with the employee before nominating them, and there are some provisions and some discussion around that. But there is no definitive list of characteristics, and it all goes back to the GCSB to have the ultimate powers. And yet the operator is to find those suitable employees. The security agencies want the names and the contact details. The employee’s life suddenly becomes fully exposed to the security agencies of New Zealand to look at and to get their clearance. The agencies will be into their family, and they will be into everything around the employee, as those sorts of clearances go. What rights has that employee got? What rights do their associated family have, when this is going on?

They also want to know the total number of the network operator’s customers and, in the case of an operator that offers retail services, an estimate of the total number of end-users across all the services, telecommunications services, and the networks associated with them. The geographical coverage—OK, how powerful is your gear? How far is it reaching? Do all network operators know? Is it hundreds of metres, kilometres, or whole regions—all of that? They want the lot. The whole lot is to go into this registration. Any particulars of any outsourcing arrangements, including the date of the arrangement, the names of the parties, and the general nature—it is the works that is being required of the operators. Of course, we know that the costs associated with setting up capability have to be taken on by the network operators, and in our view that is quite an unfair arrangement.

I would like to also talk about clause 76. There has been a further change to the Minister’s Supplementary Order Paper 366. The purpose of the change is to put it beyond doubt that the information-gathering provisions cannot be used to obtain information that would have been provided under an interception warrant or lawful interception authority. My interpretation of that is that the sort of eavesdropping that we anticipate through drug surveillance, maybe—the sort of surveillance that we anticipate—is to be sieved out somehow from the material that might be covered under this bill and, obviously, under the GCSB legislation. It is sieving the different parts. How are they to tell the difference between this bit and that bit when they are doing these big grabs of information? I am just wondering how that is going to happen. I think part of that is some of the stuff that needs to be looked at under the Human Rights Act, as to what material, by whom, and how it is going to be avoided.

There is another aspect around that. There is a cost thing. The network operators are fully responsible for those costs of setting up, but then there are issues around how they retrieve costs for when there is some actual spying going on, the spying itself, and the operational costs that the operators are able to retrieve. There is some intention there that if there is some argument, then there is some arbitration.

The piece that I was going to connect with—that sieving and the Human Rights Act—is actually about the liability as well. The liability provision to release operators from being liable is around good faith, and as long as somebody is doing the job in good faith, there will not be any sort of hitting on them by the people who are affected. You have to think about the 80-odd people who were spied on illegally in the past. They had no idea, they have no recourse, but this legislation sets it up as well that if the operators—not just the GCSB, the SIS, the police, or whoever else ultimately gets access; the actual operators, the neighbours, the people in our community who will be providing those provisions—muck it up, there is no recourse, it seems, for those spied on, or even for the operators in turn if they are subsequent to other operators, because there is an immunity, effectively, from liability. So that is something that really needs further addressing, and there is a Minister in the chair today, and there still is time for the Government to make some changes. [Interruption]

There is plenty of noise about the thought of making some changes. There are a number of things to have changes made to them, but the Green Party, as we stated before in the other parts of the bill, will be driving to have a full, independent investigation of security services: how they are operating; how they have operated in the past; what went wrong; who was being slighted; who, in fact, was being disadvantaged; whose human rights were being breached; and how we might protect them in the future. So the Green Party will still be driving for that independent investigation to allow a proper, community-agreed approach to surveillance interception capability and security. Thank you.

I move, That the question be now put.