Outer Space and High-altitude Activities Amendment Bill

Good morning, members. The committee is resumed on the Outer Space and High-altitude Activities Amendment Bill. When we suspended last night, we were debating Part 1. Once again, the question is that Part 1 stand part.

Thank you, Madam Chair. As you noted last night, we were on Part 1—near the start of Part 1—and the Minister had engaged with a range of questions, which was very helpful to us because, of course, we’re in all-stages urgency and this is the only chance for us to ask questions and to get things on the Hansard, as well, which I think is helpful.

One of the questions that she answered yesterday—I was asking if she could name some of the places that have this space infrastructure, and she confirmed that SpaceOps NZ, which is in Awarua near Bluff and also in Warkworth, would definitely be covered. But I didn’t hear her say about the organisations that do both the launching—sorry, at Māhia Rocket Lab—but also the horizontal launching at Tāwhaki; if they would be covered or not. So it would just be useful to know the answer to those two questions—those two places specifically—and if there’s any longer list of the places that are already existing, not an exhaustive list, but if there are other places that would be captured by this. That’s just helpful to know.

Also confirming: I think she mentioned that universities and scientists would be covered, so they’re not exempt. We were talking about ham radio operators being exempt—so just to confirm that around new section 49A, which is clause 7. Then I’ll go through a bit further. We’ve also, to the Minister in the chair, a number of us have asked questions about the role of mana whenua in this. I don’t think that was commented on. If I go through now, I’ve got a couple of things I just want to touch on that the Minister might be able to answer quite quickly.

At clause 7 and new section 49D—maybe on page 8 of the bill—there’s mention of a “specified person or class of [person]”, and I was wondering if the Minister—

💬 Tim Costley: Achoo!

Bless you. That was quite the interjection. I hope the member is well. The question there is just if there is any example of a specified person; that’s referred to at (1)(b). I’m just going through my bill. Another thing where it might be useful to have examples is at clause 21 and new section 83B, which is the direction to stop providing electricity or internet services to the space infrastructure—if there are any examples of that sort of thing happening anywhere else in the world, where that idea to stop providing electricity or internet services came from, and if that covers everything or not?

Then, it would be also good—and other speakers might ask for specific questions on this—but we are amending the principal Act, which obviously will say how regulations are made. It would be useful for the Minister to discuss how the regulations will be made that are set out in clause 24—the new regulations; what sort of consultation there will be with people, given that this is all in urgency.

I also want to bring the Minister’s attention to an amendment, in my name, that is to enable a post-enactment review, because this is going through all stages in urgency. We accept the Minister has said that it needs to go through urgency and that there is a real need for this legislation to be in place. So, whilst we accept that, it would be useful to have a post-enactment review in case there are mistakes or somebody is going to be impacted in a way that we haven’t thought of during our time here.

This amendment in my name suggests going to the Foreign Affairs, Defence and Trade Committee. However, I’m very happy, if the Minister is interested in this amendment, for that select committee to be the Intelligence and Security Committee, maybe, or the Regulations Review Committee might be another one. Then I’ve also said, in this amendment, that that select committee should report back to the House no later than 25 November 2025. So, again, that date is entirely arbitrary and one that I picked based on Tuesdays, because this Act is going to come into effect on a Tuesday.

Very happy for the Minister to suggest amendments to that and table other amendments or for the Minister to do that. But the point of this is that that committee would scrutinise the legislation that’s already operative, so the timing issue isn’t an issue, but properly look at the legislation and engage with those people who know about space infrastructure and then report back. Then, if the House agrees to those recommendations, then amendments suggested by that committee are treated as an amendment bill with the bill proceeding without all of the stages that we would have in a normal amendment.

That is the suggestion. I’d be very keen to hear the Minister’s views on that. As I say, the time frames and the select committees or if there are any changes—we are very pleased to discuss those. But the point is we’re going through all-stages urgency. We accept that there’s a reason for all-stages urgency, but there is no opportunity for us to have good engagement with people who know about the subject matter, and this would provide an opportunity for that to happen without inhibiting the bill from commencing.

Thank you very much, Madam Chair, and good morning to all members of the committee. A couple of interesting contributions already, one by the Hon Rachel Brooking and one by another member—I didn’t see who sneezed, but I hope she’s recovering. Ladies and gentlemen, a number of issues have been raised, both reiterating comments and discussions from last night by the honourable member, and I have the benefit of some of the analysis that flowed from those questions asked last night and now this morning, too. So please indulge me, members of the committee, if I run through those as best I’m able in terms of understanding the discussion that’s taken place so far.

The first is around the point about the coverage of the Acts, as compared with those different locations, versus those that the members asked as to whether they’d be covered by the ambit of the regime—up in Warkworth, which is an area within my patch, was referred to, as well as down South, where the member herself hails from. But in terms of vertical or horizontal launches, these would be covered, I understand, if they operate ground-based space infrastructure—that’s within the scope of the regime. So there’s no attempt to exclude or include more explicitly than that. But I should point out, for the sake of completeness, that activities that are already covered by the principal Act and are not being brought in or out of the regime by the amendment can be understood to be captured or otherwise already, in those terms.

As for “a specified person”, that will be a person specified in regulation. And I’m sorry, that sounds quite circular and possibly unhelpful at this point—except to say, of course, the regulation-making power, as the members referred to, will contain a certain amount of the necessary detail. That will be able to be updated as time goes on, in the way that regulations are more readily updated, of course, than primary legislation. So I’d point out that, in terms of the member’s thoughtful suggestion that a post-enactment review be mandated by the legislation, a certain amount of the detail will be under constant review by way of that regulatory process, including any regulatory review, but also, there’s a constant review—with a small “r”—that takes place, of course, in terms of the operation of any legislation. This being an amendment bill, the amending provisions would be reviewed constantly for effectiveness and also the extent to which they interact with other rights and responsibilities of New Zealanders, particularly. The Minister for Space feels—and I, in her place, am happy to relay but also support the notion—that we don’t need to specify a mandated review mechanism, be it in front of the Intelligence and Security Committee or, indeed, the Foreign Affairs, Defence and Trade Committee, as per the original proposal.

In terms of turning off electricity as being a particular action that might be taken, the intent there, or the enabling of that action, is to prevent the remote operation of such infrastructure while a disposal order is carried out. So it buys a bit of time, in that sense, pending the disposal, and that’s where it’s deemed to be necessary on national interest grounds. And, just referring to the wording of the legislation, conditions imposed by the Minister are said to be those “which may include, without limitation,”—you know, those that are specified in the bill. So it’s deliberately not excluding the range of conditions or actions that might be taken—noting, of course, that in this highly technical realm and with developing technology, it might well be the case that there are conditions or actions that might be necessary in the future that we’re not able to contemplate now and would be inappropriate to calcify in primary legislation, as compared with responding on an ongoing basis through enactment of regulation.

As for urgency, of course, the member is rightly diligent to note that we need to examine, as carefully as we can within the context, the bill, and, of course, the committee of the whole House stage is at least one way of doing that. But I think it’s also worth reiterating a point that was probably made last night—in fact, I’m certain that it was—that this is an urgent proposition and the attention of the House, including its committee today, is important to deal with the issue as expeditiously as possible so that we can have the benefit of, effectively, these defensive measures in the case of those who would do harm to New Zealand and its national interest.

I’ll leave my contribution there; I see my five minutes is nearly up. But I will acknowledge the point made around consultation and say, again, there’s nothing to preclude that on an ongoing basis in terms of the way that the Act is operating.

Thank you, Madam Chair. Just to pick up on some of the answers that the Minister just gave us, I think the point with the post-enactment review is that, yeah, everyone around the committee understood what the Minister was saying: a gap needed to be plugged, and there is broader acceptance of that around the committee. I think the point is that you have to actually be sure that the wheels are going to stay on the wagon—are all the nuts and bolts actually screwed on properly? So a post-enactment review would enable us to actually have a more thorough look at it to make sure that it does what it says that it does.

Another question around the turning off the electricity part of it: I was wondering, well, what does that mean for people that are on solar, what does it mean if they’re on battery—how will the regulator know that? They might think that, actually, this ground-based space infrastructure (GBSI) is not doing what they said it was going to do so they’re going to turn off the electricity, and they think that’s all going to be fine. But, actually, there are lots of different ways around it, so I guess it’d be good to understand practical ways of how the regulator would deal with that particular issue.

I also have another question around the application process. I guess the question is: if someone gets the permit to be able to run a GBSI, and it’s a company, but then it on-sells that to somebody else and they on-sell it again and then, next thing you know, it’s in the hands of a nefarious, possibly foreign actor that is counter to our national interest, how does that work—how does the oversight happen on that, because, often, as we know, there are different kinds of arrangements that happen? So that is a question there around that possible scenario, which officials behind you might have already thought of—possibly already have—but I think it would be useful for the committee to understand that particular perspective.

Just coming back to the questions that have emerged about where exactly this applies, my hearing of it last night was that a situation like Waihopai wouldn’t apply, because they’ve got the Defence Force exemption, but that Māhia would apply, because they don’t have that exemption. But if I was wrong in terms of how I heard that, getting some clarification from the Minister about exactly what is being covered here, I think, would be really important. So those are my questions.

Thank you, Madam Chair. I do have some questions for the Minister, but I just wanted to start by speaking in favour of my colleague the Hon Rachel Brooking’s amendment. I think the response from the Minister was that there would be review of the relevant regulations, so there’s not cause for concern in that regard. However, I do think that yesterday, when the Minister spoke in the chair, she spoke about the regulations coming into force after a year and that she would be exercising powers in the meantime. So there are aspects that aren’t attached to the technical content of the regulations that, in my view, ought to be examined, ordinarily by a select committee. In this case, we don’t have that opportunity and so, in my view, the proposal is a valid one because there are very unique powers, in my view, that are being exercised within the national security space which otherwise wouldn’t be examined.

The other issue that potentially wouldn’t be examined in the ordinary process of creating the regulations is something that is unique to the House itself, which is whether the substantive content of the regulations is best suited to primary legislation or to regulation. Certainly, that happens through some Parliamentary Counsel Office advice to the Attorney-General, but my view is that that’s a legislative function, and, again, ordinarily that would happen within select committee processes. So in terms of those two aspects in particular, it doesn’t feel to me that there is post-legislation scrutiny on them. So, again, I’m just speaking in favour of that amendment.

There are some other specific questions just resulting from the discussion yesterday. The definition of “protective security arrangements” in regulation 3(1) lists not an exhaustive list but things that the applicant, if you like, would need to include. There has been a lot of discussion about nefarious actors and third-party actors, and I did wonder whether there was consideration of being more explicit in that provision, so speaking explicitly about corruption, explicitly about bribery, and what requirements, what investigations would need to be made of third-party actors.

I’m also looking at clause 6, “Section 6 amended (Act binds the Crown)”, which is the exemptions section that a few others have touched on. I was curious as to the meaning of new section (2)(b)(i). That’s the exemption for the New Zealand Defence Force, but it’s also an exemption for “a person assisting or providing services to, or working jointly with, the New Zealand Defence Force;”. I wonder if the Minister could give us an understanding of the scope of that and whether that could include foreign actors who we act in partnership with, as well, and what the intended scope of that inclusion is.

The other exclusion is new section 6(2)(b)(iii), which lists “an intelligence and security agency;”. My question there is whether the intention is for that to read “New Zealand intelligence and security agency”. The reason I ask the question is because in new paragraph (iv), just under it, it specifies “the New Zealand Police”. So just considering whether there’s a need for an amendment there, or whether there’s a definition that I haven’t spotted that makes it clear that we’re speaking here about the New Zealand Security Intelligence Service.

Thank you very much, Madam Chair. I’m seeking to take a call to respond to the thoughtful questioning from both members who have contributed, in the hope of staying on top of the issues that have been raised.

The wheels on wagon metaphor raised by Teanau Tuiono—of course, he’s right to say that we need to identify if the wheels might fall off a regime, but there are ways of doing that other than by specifying in statute that a particular type of review must take place at a particular time. To extend the metaphor, if the wheels are wobbly or the vehicle is otherwise not proceeding as it should in the right direction and in a smooth fashion, then it’s incumbent upon the Government of the day—including the Government agencies for which there is regulatory stewardship responsibility—to investigate that. It seems to me that this is a matter that is sufficiently high stakes that the appropriate degree of scrutiny as to the ongoing operation of the regime would be considered and watched carefully, such that any such shortfalls or mechanical difficulties would be identified in a timely fashion.

As for turning off electricity as a particular mechanism, I take the member’s point that solar and other ways of operating electricity exist beyond the traditional way. If not a switch to be flicked on or off, I assume that there are ways that power could be disabled in the way that’s contemplated by the legislation in respect of GBSI, or ground-based space infrastructure. I was remiss in not having spelt that out earlier at least once, but the acronym from there on is probably—hopefully—acceptable.

As for clarification in terms of whether the likes of Māhia Peninsula activities are caught by the regime, I don’t wish to be definitive in a way that would be unhelpful were I to seek to tender what would, effectively, be legal advice and be wrong. So I won’t venture an opinion on that except to, again, just reiterate the point that to the extent that activities and locations are already captured by the primary legislation as to be amended, we’re not necessarily displacing that by the addition of the measures in this amendment bill.

As to the points made by Vanushi Walters, I do take on board her point about regulations only being reviewable in that typical way, and also the time gap. If I may say, that seems to me a worthwhile point to make. Nevertheless, it happens all the time that the House will make a determination on that which is appropriate for the subject of primary legislation—as opposed to secondary or tertiary—at the point that the legislation is made, and then a determination of the content to fit within the regulations is made after. Of course, that’s the nature of a regulation-making power, as my fellow alumni of the Regulations Review Committee will appreciate, so I’m not sure that I can take that point much further except to acknowledge her having raised it. There’s always a tension between the detail that one includes in primary legislation versus the expansive ability to add, over time, technical detail in regulations that may be amended in a much more timely and flexible manner later.

As for third-party actors, I suspect it would be unhelpful to be more specific about the types of nefarious activity that we might want to include, even in the way that we might say that there might be other types contemplated. It’s probably typical within the realm of national security that we wouldn’t want to bind our hands in a way that we would find unhelpful—albeit, again, I acknowledge the tension between certainty and that going to the rule of law diktat, ordinarily, that the law must be knowable. I’m hopeful that the measures in the bill would be applied in an appropriate and proportionate way, and I know that the Minister for Space would understand and take seriously those responsibilities—not least of all because she’s the Attorney-General and, of course, understands that balance of rights approach that’s always appropriate, and no less in such occasions as this.

As for section 6 exemptions, I don’t myself yet know if those working with the New Zealand Defence Force might include non-New Zealand agencies or entities. If I receive some advice on that in time to be helpful to the member, then I’ll certainly look forward to relaying that.

Thank you, Madam Chair. I want to just direct attention to new section 3A of Part 3, inserted by clause 21: the provisions in 83A around disposal orders; 83B, giving the Minister the opportunity to unplug the electricity system; and 83C, forfeiture orders. These are, I think, by any measure quite Draconian provisions that give the Minister the power, if certain criteria are met, to order the disposal of private property and, ultimately, to put in place a forfeiture order. It’s easy to imagine a scenario where that would result in very significant economic harm to the owner of that ground-based space infrastructure.

I wonder, given how keen this Government is on enshrining the principle in law of compensation to the owners of assets that are affected by regulation, with the current passage through the legislative process of the Regulatory Standards Bill—the Government is obviously very keen on that principle. I just wonder whether or not the Minister for Space has considered the possibility of, let’s say, the Russians operating a bit of ground-based space infrastructure that we deem to be a threat to the national interest, or they’ve somehow inveigled their way into some other private sector operator providing a service and yet, the data is ending up in the hands of the Russians—just for argument’s sake—and the Government chooses to close that down, causing significant loss either to the Russians or their erstwhile partners. Would the Government consider compensation consistent with its adherence to the principle in the Regulatory Standards Bill?

I’d be keen to hear the Minister in the chair’s view on that but, also, I wonder whether, in fact, the Government has considered that there are embassies and diplomatic missions in New Zealand who operate ground-based space infrastructure. They operate satellite technology that I’m pretty certain would meet the definition of ground-based space infrastructure. If a diplomatic mission is conducting the interception of signals and so on from its properties here in the capital, and it was deemed to be doing so contrary to the national interest, would those diplomatic missions be covered by this bill?

Thank you very much. I look forward to responding to those points made by Mr Twyford. To come back, however, first to the question that was posed by Ms Walters: there isn’t a need to specify New Zealand in terms of security intelligence agencies because those terms are defined already in the principal Act, I understand. In terms of whether non - New Zealand actors could be said to be working with the New Zealand Defence Force such as to qualify for the exclusion, I’m advised that they could be caught by such an exclusion. This may or may not help to assuage the fears of Mr Twyford, or at least to answer the question that he has raised in terms of non - New Zealand actors, be they embassies or high commissions acting in this country. I suspect that there would be important conversations at a diplomatic level if there was any need for activity of that nature. That would be well above my pay grade, I hasten to add.

I also hear his concern about Draconian powers to switch off. Yes, these are important and serious powers, but they’re being legislated for a reason. By the way, I do acknowledge and thank the members opposite, so to speak, who have engaged with the principle of the legislation being important and, of course, asking questions to ascertain the detail. As far as those Draconian powers, and the segue into the Regulatory Standards Bill, I do wonder if Mr Twyford is signalling his intent to support that legislation, because he’s obviously very concerned about the right to compensation. I would be very surprised if the disablement of Russian ground-based infrastructure were to enable Vladimir Putin to get a red cent—and I use the phrase advisedly—as a result of this regime. I think he can feel as assured as possible on that point.

Thank you, Madam Chair. I have a number of questions for the Associate Minister of Defence, because we’re still on clauses 6 and 7, largely, and there are still a number of areas that should be covered.

Thank you to the Minister for his excellent, as always, response to our questions. I think to start with, in terms of the review clause, I want to draw the Minister’s attention to the regulatory impact statement (RIS), paragraph 145, which is around the fact that the principal Act includes the provision—in fact, in section 86 of the principal Act it actually includes a three-year review provision. The recommendation here is that we propose a similar provision to be included for review of the operation and effectiveness of the ground-based space infrastructure (GBSI) regulation regime two years after the commencement. However, that is not present in this bill, despite that being the recommendation in the regulatory impact statement. I just also want to support the tabled amendment by the Hon Rachel Brooking on this because, again, it is something that we see stated in the RIS but not reflected in the bill.

I just also want to pick up on what the Minister mentioned before and what the Hon Phil Twyford questioned in terms of what happens if we have this one-year transition period and, after, that the Minister is able to authorise the permit—yes, in some ways the permit—for the operations of GBSI. I want to pick up on what it says on page 10 of the departmental disclosure statement. I want to just check in terms of the reading here because it does say in 4.1 that the Minister has the power to require an operator to dispose of their interest. But right at the end, it says—you know, this could potentially go to a District Court—“the constable to dispose of the interest or right and pay any proceeds of the disposal to the recipient of the disposal order.” Would those proceeds also include, then—if the Minister wouldn’t mind elaborating—the cost of the interest in its entirety, or at least the market value of the cost of that particular interest, as part of that court order?

I’m just going to pick up on some of the conversations that we’ve had, and I just want to go into a little bit more detail around there. Picking up on something the Minister for Space mentioned last night—this is a question that I signalled in my second reading—which is, in the regulatory impact statement, there were four options given to how we could look at managing some of the gaps that we have in the current legislation around GBSI. The most persuasive options were options three and four; option three is authorisation regime, option four is licensing. The Minister mentioned about licensing yesterday so I wanted to check with the Minister in the chair today on whether the Minister wouldn’t mind elaborating on the decision between, why in the end, we decided to go with option three, the authorisation regime, and not option four in terms of licensing—because they seem to be, according to the RIS, of equal footing.

One of the other questions I had, which hasn’t been responded to, is around the definition of “authorisation holder”. In section 4, amended by clause 5(1), it talks about the person who is the sole holder of a GBSI, whereas I mentioned yesterday that in the Overseas Investment Act it talks about the possibility of a collaborator. So how would a collaborator be considered under this legislation when the authorisation holder is a sole holder? Without the sole holder it naturally encompasses collaboration, because in the example that is on page 4, it talks about person A and person B, and if person B, for lack of a better term, sublets that particular control from person A, the sole holder is still person A and not person B. But it still doesn’t go into any elaboration on collaboration, and it doesn’t specify—in this case, I’m assuming the accountability, and anything that person A has to answer to, falls on person A and not person B? So if the Minister wouldn’t mind clarifying that.

My final question, noticing that I’m very short on time, but I do have another question if I may, Madam Chair? My final question is around clause 7—Madam Chair?

CHAIRPERSON (Maureen Pugh): Lawrence Xu-Nan.

Thank you. My final question is around new section 49A, inserted by clause 7, subclause 2A(i), and that is around communicating with a space object. Again, it kind of goes back to what I wanted to ask about accountability. When we are looking at communicating with a space object and also anything that’s relating to a GBSI, you’re also in the process of collecting data. I want to check with the Minister, from a data-protection and also data-sovereignty perspective, as part of the requirement for authorisation, whether the Minister would consider requiring the operator of GBSI to give a copy or all copies of data collected as a result of operation or be made available as a requirement of national interest.

Now, the regulatory impact statement was very clear that the reason we have something like this is mainly for our national interest and security, and particularly how it could be used for military purposes. I think it might be quite an important element for us to be able to at least readily view or require the operator to make the data they collect readily available by the relevant Minister in order for them to have the authorisation.

Those are a couple of my questions. If the Minister would elaborate on why has the bill gone against the advice of the regulatory impact statement for a two-year review, in paragraph 145; questions around the collaborator and the definition of sole holder; accountability measures; the difference between authorisation regime and licensing; and, finally, in terms of the requirement for the availability to review data that’s been collected by the GBSI as a requirement for authorisation.

Thank you very much, Madam Chair, and I’m grateful to Lawrence Xu-Nan for a typically thoughtful contribution from him—and he’s flattered me into giving as helpful a reply as I’m able.

At the risk of going round in circles on the point about a mandatory review versus a non-mandatory one, it seems, to me, clear that the Government decision has been around retaining flexibility in terms of the time frame and manner of such a review—notwithstanding that there is advice that there could, or rather should, be a review specified in the primary legislation, with the rationale being that, as already canvassed with various colleagues, it will be helpful to monitor the ongoing operation and effectiveness of the Act. There are other ways to skin that cat, frankly, so the Government’s view is that it’s not necessary to specify that in primary legislation. I appreciate, in relation to the particular proposal put forward by the Hon Rachel Brooking and other comments made in the House, that that may be unsatisfying to some members of the committee, but I feel at this point I can’t take that point much further.

In terms of the property rights argument, as expressed by the Hon Phil Twyford, but also with a link to the data sovereignty element raised by Dr Xu-Nan, I think it’s worth exploring—but briefly—the mechanics of what would happen in the event of the measures being triggered within the Act, namely that there is a disposal order that would allow the person issued with it to dispose of their right or interest in an agreed manner. It might be that the switch be flicked at an agreed time or in an agreed way, and it could include selling those rights or interests—and data, of course, could be conceived as being within the ambit of the rights and interests associated with the physical infrastructure. Where there is a forfeiture order, on the other hand—as opposed to a disposal order—the Act allows for sale proceeds to be returned to the person. So, unlikely as it might seem in the case of hostile foreign actors, for those of a less aggressive or unsavoury element, it might be that it’s a matter of negotiation for the New Zealand Government to engage in a conversation about the way that the confiscation, effectively, of property rights not take place but instead an agreed and mutually beneficial outcome take place—that the evil is avoided without undue impingement on the investment of those who might, for non-nefarious reasons, invest in ground-based infrastructure.

In terms of collaboration, and therefore accountability, I’m not certain that there’s much I can say about its interaction with the Overseas Investment Act regime, but I would say that the intent of the legislation is to appropriately capture the activities of those who are effectively, as opposed to nominally, undertaking them. It’s my understanding from reading the legislation that there would be nothing to preclude as a nation—“us” being New Zealand and the Government through its various agencies—from acting in a manner that would reflect the intent of the legislation. Notwithstanding that it might—if you’ll excuse the legal language, and I know you will, sir—pierce the corporate veil in terms of the ownership and other structures around that.

As for licensing versus authorisation: yes, both are possible regimes. The member rightly points out that these are both contemplated as possibilities within the regulatory impact statement. It seems to me that the Minister chose the authorisation route as best reflecting the balance that we wish to have in terms of being empowering but also enabling flexibility and, of course, balancing those considerations on which we have already touched.

Finally, in terms of the data sovereignty point, I should also add that the power under the Act is to seek necessary information, and to ask operators to provide all data wouldn’t necessarily be practicable in the circumstances when that arose, whereas particular data could be stored if it’s needed. Again, the effort is to provide as much prescriptive enablement of the functions that we all, I think, wish to see provided in legislation but without constraining ourselves in the manner that that might take place.

I do have a few questions that I would be keen to put to the Minister. But just before I get into that—and I acknowledge the Associate Minister of Defence has said he’s not going to move on the post-enactment review amendment; I take that point—but I do want to register my emphatic support for my colleague the Hon Rachel Brooking’s amendment, for the reasons outlined by her and by Vanushi Walters. It is disappointing that is not going any further, given the circumstances under which we are passing this bill.

To my questions: I do want to put to the Minister a question that I put to the Minister for Space last night. I did see her nodding, but the House rose before I could get a response, so I will just lay that out again, and that is with regards to new section 49C(4)(b)—

💬 Tim Costley: Repetition!

Well, I didn’t get an answer, Mr Doocey, so I have—

💬 Hon Matt Doocey: I didn’t say anything.

Oh well, whoever said that; Tim, somebody. Anyway, what I want to know is, with regards to the national interests test and the regard that the Minister needs to pay to national security, specifically, it does say in new section 49C(5) that “Before granting a GBSI activity authorisation, the Minister may consult the intelligence and security agencies about—”, and it goes on to lay out the risks to national security and then the extent to which the risks can be mitigated through the authorisation conditions.

My question to the Minister was why it seemed to be written in a way that it was optional rather than a requirement. Given the emphasis on national security for this piece of legislation, why is it not a requirement to consult with the relevant Minister and the relevant agencies, there? Related to that, in clause 7, “Replace section 53(4)(a) with … in the case of a launch licence”—and it goes on to list a whole bunch of licences, and it says: “must consult the security Ministers in accordance with section 55; and … in the case of a GBSI”—this is (aa)—“activity authorisation, may consult the intelligence and security agencies about—” those two points: the risk and the mitigation to the risk. So just keen for some clarification why that consultation is not a requirement.

The other question I had was around what I understand is already happening, which is—and I get that this legislation aims to capture operators and not the host of the GBSI—but I understand that there are scenarios where the host is in New Zealand but the operator is offshore in a different country. Therefore, my question is whether this legislative regime would capture them in that scenario, as well.

My final question that I want to raise is to tease out a little bit the options versus the funding model that is laid out or touched upon within the regulatory impact statement (RIS). There’s a fair bit of detail and analysis around the different options considered, the four options considered. Totally take the point that’s made in the RIS why option one—which is the counterfactual—was not the way to go, and option four was probably too heavy-handed given the cost requirements there. So I take that point and it seems to be between two and three, and the Minister and the Government has landed on option three.

However, when it comes to the funding of the implementation, I would have thought that the concerns around effectiveness would have been both in the design of the scheme but also in the implementation of this regulatory framework. There is a fair bit of ongoing monitoring that is involved, as well, and yet it does say in the RIS somewhere that there isn’t specific funding for the implementation of this. In another bit, it says that the anticipated estimated cost is of two fulltime-equivalents at the Ministry of Business, Innovation and Employment. It then goes on to say that the intelligence community may require further resources depending on the number of authorisations, but that they will need to assess as they go. So why wasn’t it then, perhaps, a decision to land on option two, then to move to three? Was that considered? Just keen to get a sense of how this is going to be funded, because that leads to the effectiveness of the framework, as well.

I move, That debate on this question now close.

I call the Hon Rachel Brooking, but before you begin your call, there is a lot of repetition that is now starting to come back. It doesn’t matter how differently the questions are phrased; we keep a close track of what they’re referring to.

Well, Madam Chair, we’re all going through this, and, as you know, we are in all-stages urgency—

CHAIRPERSON (Maureen Pugh): I do understand.

—and we’re trying to work our way through this. I have some questions based on some of the Associate Minister of Defence’s responses so far. I was asking about Māhia and Tāwhaki and he said he didn’t want to get it wrong—to get the answer wrong; I don’t mean to be rude there at all. Can he clarify, then, the point is: if you already require, under the principal Act, a licence or permit for launching, but if you also have space infrastructure that will require the space infrastructure authorisation as well as whatever the launch ones are—so that’s one question.

Then, we’ve been talking a bit about the disposal orders—so that’s at new section 83A, inserted by clause 21. The Minister just went through that process, and I note that a disposal order may “specify any reasonable steps that must be taken in order to comply with the disposal order”. So if the Minister can confirm: some of this equipment is very large and I imagine—but can the Minister confirm my imagination—that it’s his expectation that any order would go through, in some detail, how it is that this large equipment would be disposed of.

Then, I note that the Minister has talked about, at 83A(4), “The Minister must have regard to New Zealand’s international obligations when acting under this section.” Are those international obligations the compensation that he’s referred to or is it something more than compensation, as well? Is it different trade agreements? Is it different treaties? What does he imagine that section to mean?

Then, wanting to just link all of that back into these questions about the host and the operator. So there’s: “An authorisation holder must—(a) comply with” and give a whole lot of information when applying for the authorisation. So that’s at new section 49D, inserted by clause 7. I’m particularly interested in 49D(e) which is: “if the authorisation holder operates, or proposes to operate, [the infrastructure] to carry out regulated activities on behalf, or for the benefit, of another person, ensure that the authorisation holder has in place partner due diligence arrangements that meet the requirements”, etc.

I know, I’ve visited space ops, just the one in the south, not the one in your electorate, Minister; this is big infrastructure and some of those—my colleague Ingrid Leary described them as a Dr Seuss - type thing whereby the antenna come up and move around—will be controlled offshore. Is it the idea that—so in this case, the person on the ground, which happens to be a council-controlled organisation, would have to show the relationships that they have with those operators offshore to get the authorisation and then the regulator would have to be satisfied that there is the right security arrangements in place, or not satisfied, and therefore, they wouldn’t be able to operate? That’s of particular, very real economic importance to those operators, and I’ve no doubt that they all want to do the best, I’m not saying that—but they will be interested in how these aspects are going to work in practice.

If you’ve got comments on that, and on what thought has gone into those relationships that the hosts—they seem to be the hosts, to me, because they are the people who have the land, and the big bits of equipment are on their land, but the antennae, the tracking that they’re doing on the satellites might be operated from offshore; how is that going to be regulated?

Thank you, Madam Chair. I love a good Dr Seuss reference and I feel like there’s something about Oh, the Places You’ll Go! in there. I feel like we’re in that waiting room on page 7 of the book—no, just kidding; I don’t know the page number, but it’s very familiar.

In response to the points made by the Hon Rachel Brooking in terms of the disposal of the large physical infrastructure, I think it’s a question that I might have anticipated from a member of Parliament concerned with environmental considerations, and rightly so. I would think, however, that there’d be nothing that would necessarily preclude the disposal of such infrastructure in a way that would be consistent with the usual manner of disposing of waste, as it would be by that point. The member will be more familiar with those legislative and regulatory frameworks than me, but it seems to me that it would need to be disposed of thoughtfully, but I don’t think that’s a matter to specify in this legislation in relation to, effectively, the data and space-related aspects of how the infrastructure is used.

In terms of international obligations, whether that goes beyond mere compensation, instinctively I would expect that it might, and we can all use our imagination about different international instruments to which New Zealand is a signatory that might become relevant, but, again, I think it’s appropriate in terms of the background documentation and the legislation itself not to attempt an exhaustive list of what those obligations might be for fear of missing out some, or unduly emphasising the importance of others, in a way that’s general, given the particular circumstances might dictate what is appropriate or not. And, of course, our international obligations do change over time as we enter into, and theoretically could withdraw from, international obligations of a bilateral or multilateral nature. So it seems sensible to me that we’re not more specific about that, but I can’t see a reason, personally, that it would be limited only to matters of compensation as to those obligations.

As to the authorisation process and what would be necessary to demonstrate security and other relationships with non - New Zealand actors, I can imagine well that a thorough process of determining such factors and investigating them will be necessary for authorisation to be passed, but, again, it’s not something that I can comment on in terms of the content of the law that’s in front of us as to how those discussions might play out in any particular case.

Passing to the points made by the Hon Priyanca Radhakrishnan, to respond to that point that she’s raised regarding whether the Minister for Space should be required, on a mandatory basis, to consult the security Minister; she’s rightly pointed out that the Minister for Space “may” but we’re not saying “must”. That’s because, in practice, consultation will take place between the regulator—which is the Ministry of Business, Innovation and Employment, of course—and security agencies for every authorisation application, as agreed from time to time by Cabinet. So that’s, we think, a more efficient approach requiring consultation that would actually lead to the same outcome than necessarily requiring that particular formal element whereby consultation must take place in a way that’s understood by that term. So we think that, overall, the regime will provide for appropriate advice to the decision-making Minister; and, of course, the Minister herself, or himself, potentially in the future, would make decisions on behalf of the Government, in any case.

The other points made by Priyanca Radhakrishnan seem to me to be around costs and funding, and we think that the effectiveness of the design and implementation is appropriately set, but, again, all these matters are not set in stone and can be reviewed and should be reviewed in terms of practice as well as the policy over time. Then she’s again made the point about the regulatory review proposal, and I’d hate to repeat my own answer on that and thereby risk the committee of the whole House stage being shut down by the Chair—because we wouldn’t want that to happen, would we now?—but if I were to dwell on it for one more moment, she said she wants to express her view on that. Of course, parties will be able to do that through a vote in due course, at some point, on the proposal as encapsulated by Ms Brooking’s tabled amendment.

I think there is still room for new material.

Thank you, Madam Chair. I actually just have quite a small question on an area that we haven’t covered yet. This is clause 7, new section 49E, “Minister may vary, revoke, or suspend GBSI activity authorisation”. I actually just have a very small question on this. Understandably, the Minister may vary or potentially may revoke and suspend a particular authorisation, but can I just check if the Minister would consider—if there’s the scope, for example, to give a prior warning first, to say, “Look, you are operating out of the scope of the particular thing.” Is there going to be some sort of criteria that the Minister for Space is going to be looking at when there is a suspension of a particular authorisation?

That’s actually, essentially, my question, which is around whether there might be a notification period to say, “Hey, we’ve noticed something that you’re not supposed to be doing. Please correct yourself before further actions might be taken.”, or maybe it depends on severity—that’s it, you know, you violated it, you get your authorisation revoked. If the Minister wouldn’t mind elaborating how that revocation would work.

I feel as though the mechanisms already have a degree of flexibility in the fact that there would be a discussion, or could be a discussion—could be a discussion—and the disposal of data in an agreed manner could contemplate the opportunity to respond, if the Minister, acting on behalf of the Government for the people of New Zealand, were to determine that was appropriate. So it seems to me there’s nothing that precludes that, but, at the same time, we don’t want to be so prescriptive in law, as in the other factors that have been raised, in a way that would be unhelpful in the future.

Thank you, Madam Chair. I just wanted to respond to the Minister’s response on a question relating to exemptions. This is actually more to do with the Minister’s lack of power in terms of granting an exemption or preventing an exemption, on the basis of the Minister’s response. I asked a question earlier about new section 6(2)(b)(i), in terms of who that exemption would apply to. The response was that it could apply to a foreign actor as well, potentially. My colleague the Hon Phil Twyford asked questions about embassies in New Zealand. Putting those two together, it feels to me like partners such as our Five Eyes partners could potentially fit into that space.

Now there may, of course, be times when it is appropriate that an exemption would be granted. However, on New Zealand territory, it would seem to me that that ought to be a decision of the Minister, in terms of the scope of an exemption. I’m not ordinarily one to argue for an increase to discretionary powers, but it just feels to me, in light of the way that clause is drafted, that either ministerial discretion should apply or the clause should be drafted more closely. Another example of how the clause could be drafted more closely is that there’s also an exemption for a person who’s “providing services to … the New Zealand Defence Force”. That’s it. It’s not couched by more limiting language. I wonder whether the Minister would be open to limiting that, for example, by including the words “security or intelligence service” to the New Zealand Defence Force.

I’m just wondering whether there is either an appetite for more closely drafted language to ensure that New Zealand is still retaining its autonomy in terms of potential third-party actors or whether, appropriately, the Minister should have discretion to prevent an exemption from being granted in certain circumstances—and, if so, whether that should be drafted into the legislation.

Thank you, Madam Chair. I think I understand the point made by Vanushi Walters, but I also think that the discretion could be applied—or would be applied in practice—at the stage that the New Zealand Defence Force would choose to work with the other partners, be they other Government agencies of New Zealand, including the New Zealand Security Intelligence Service or the Government Communications Security Bureau, potentially, or overseas players. I think there’d be enough flexibility in the system such that they could choose with whom they work. Therefore, to give the Minister either more power or discretion, on the one hand, or to more tightly constrain her or him, on the other hand, isn’t necessary.

I move, That debate on this question now close.

The Hon Rachel Brooking’s tabled amendment to Part 1, providing for post-enactment review of the bill by a select committee, is out of order as not being in the correct form of legislation.