Telecommunications (Interception Capability and Security) Bill

Last night I received an email from a librarian who was trying to determine whether the National Library and libraries with over 4,000 clients, particularly in our large metropolitan centres, may be caught up in the definition of a being a “service provider” under the auspices of this bill, the Telecommunications (Interception Capability and Security) Bill. Well, I can tell you that under the definition of a “service provider”, which is “any person who, from within or outside New Zealand, provides or makes available in New Zealand a telecommunications service to an end-user (whether or not as part of a business undertaking and regardless of the nature of that business undertaking);”, the answer would be yes—yes. If it is going to be the libraries that are caught up in the definition of “service provider” in this legislation, then who else is going to be caught up in the definition? What other organisations?

We have heard, through the debate on this bill, that there may be schools or networks of schools—even the Government’s new Network for Learning—that may be caught up under the definitions in this bill. There are organisations and services that provide public services for hundreds and thousands of New Zealanders that may get caught up under the definitions of this bill. We are told that this is all pie in the sky. The problem that we have is that these definitions are far too broad, and the rights that New Zealand citizens and New Zealand companies may have to operate under a regime that is considered to be democratic are impinged in this bill.

If libraries are caught up under the definition of “service provider”, there is another chilling effect that this bill has, that a Minister has, under the powers given to them in this bill. That is at clause 35 of this bill, where a Minister could, on the recommendation of the Government Communications Security Bureau (GCSB)—with no recourse to public discussion, to any evidence provided, or to any independent organisation or entity that gives advice to that Minister—decide to deem in any service provider and turn it into a network operator, which means that they would be, under Part 3 of this bill, subject to having the most extraordinary interventions in their organisation.

This is all hypothetical, but this is the thing with legislation: if the potential is there, then it has to be considered possible. Why make the powers available in the bill if they are not able to be used? So if there is the power for a Minister to deem the National Library to be considered a network operator, which means that there could be GCSB operatives put in to determine the business of the National Library, where else could this be occurring? This is not pie in the sky. This is entirely possible, and it has been pointed out to the Government on numerous occasions in recent weeks by New Zealand technology companies that are concerned that they are going to get caught up in the definitions of this bill.

That is one of the reasons why, under clause 2 of this bill, Labour has submitted an amendment, which we believe is absolutely important in order for New Zealand citizens to feel reassured about their rights and the rights of businesses under this legislation—that this bill be submitted for Royal assent only if a select committee has reconsidered it and reported that the bill is consistent with the New Zealand Bill of Rights Act of 1990.

The problem we have is the cursory rubber-stamp vetting process that this bill went through at the beginning of its passage through this House. It is a very different bill now. It is a bill that is definitely impinging on the rights of New Zealand citizens and on the ability of New Zealand companies to go about their business, confident that although there is a regime in place that might be protecting national security, it also recognises their rights as entities and provides adequate checks and balances to ensure that the unfettered powers of a Minister are not being exercised to their detriment and to the detriment of innovation in this country.

On this basis, this bill could affect the National Library of New Zealand, it could affect many of the media organisations in this country, and, as we have heard, it could affect many of the small, innovative technology companies. I want to read to you the concerns of one of those companies, which wrote to the Minister several weeks ago and raised these concerns. It said that its company’s platforms “service New Zealand businesses, Government and general public, by providing them with internet based services that allow them to communicate electronically. These facilitate communication,”—remember, this definition is included in the bill—“publishing and broadcasting in various fields. For example more than 3,000 students across New Zealand use the MyPortfolio social learning platform that we support. Under the terms of the current definition(s), anyone who contributes to enabling schools to use that platform (including [this company]) can be argued to be a network operator under the above definition. In fact, by enabling schools to use MyPortfolio to facilitate communication with and amongst their teachers and learners, it appears to us that the Ministry of Education itself is also a network operator.”

The people on the other side of the Chamber may laugh and scoff, but the problem that we have is badly drafted law. If this is not the intent of the Minister and if this is not the intent of the Government, then why is it not clear in the law? It is bad law, and it has not gone through a process of being put against a rights-based set of legislation that we have, which actually draws out the problems, and the concerns that have been raised by reputable business entities in this country around the impact of this bill have not been properly considered.

This is a travesty of law and it should be sent right back to the select committee that it came from. It should be put right up against the New Zealand Bill of Rights Act and there should be another process back through this House. The Minister who brought this legislation before this House should be held accountable for what a dreadful, Draconian piece of legislation this is. It is shameful for this country.

It seems a shame to have to take a call this late in the Committee stage of this bill, the Telecommunications (Interception Capability and Security) Bill—

💬 Grant Robertson: He’s taking a call?

—yes—but I have sat here and listened to Clare Curran make the same speech four times this afternoon and a number of times yesterday, and I cannot believe the absolute nonsense that I have heard. I have heard Mr Goff complain about the fact that the companies have to pay to be part of this. If that is the case, why does every other business in New Zealand have to pay for almost everything we do when we transact with the Government? Those members clearly do not get it. The Opposition has talked about putting more checks and balances in place. In one mouthful those members are telling us that the obligations are onerous, and in the next they say that they want more checks and balances in place. Yesterday they wanted to insert a technical advisory board. In fact, they talked a lot about the technical advisory board. We heard during the submissions—

I am sorry to interrupt the member. The time has come for me to report progress.

Progress reported.

Report adopted.

The House adjourned at 5.56 p.m.