International Treaty examinations — International Treaty Examination of the Council of Europe Convention on Cybercrime—Report of Justice Committee
on behalf of the Minister of Justice: Thank you, Mr Speaker. I present a legislative statement on the Budapest Convention and Related Matters Legislation Amendment Bill.
ASSISTANT SPEAKER (Greg O’Connor): That legislative statement is published under the authority of the House. It can be found on the Parliament website.
Hon CHRIS PENK: I move, That the Budapest Convention and Related Matters Legislation Amendment bill be now read a first time, and that the report of the Justice Committee be noted. I nominate the Justice Committee to consider the bill—because they don’t have enough work on currently!—and, at the appropriate time, I also intend to move that the bill be reported to the House by 1 March.
This bill is a key step towards acceding to the Budapest convention, the Council of Europe’s convention on cyber-crime. Cyber-crime, of course, poses a significant threat to the public. According to the Ministry of Justice’s New Zealand Crime and Victims Survey, 11 percent of New Zealanders were victims of fraud and cyber-crime in 2023. This causes significant financial and emotional harm. Combating cyber-crime, however, is not something we can do alone. Offenders work across international borders, hiding behind the anonymity of the internet. Stopping them is only possible if we work together with other countries across the globe. It is my hope also that we can work together on these issues across this House.
Acceding to the Budapest convention demonstrates our commitment to joining this fight. Most of our closest international partners are already parties to the convention. By joining them, we signal to them that we take cyber-crime seriously and we are prepared to do our part to eliminate it. Acceding will also help our law enforcement agencies to protect New Zealanders, making it easier to request assistance in gathering this evidence, especially digital evidence that is stored overseas. Access to this evidence can be crucial to the successful detection, investigation, and prosecution of crimes of all kinds, not just cyber-crimes. Of course, you know a thing or two about detecting crimes of all kinds, Mr Speaker, so I’ve no doubt you will follow this with interest. However, we cannot accede, as you will appreciate, unless our domestic legislation aligns with the requirements of the convention. That is the very purpose of this bill.
One of the most significant changes that the bill makes is to amend the Search and Surveillance Act to bring in a new tool for law enforcement called a preservation direction. Preservation directions will protect vulnerable evidence, such as digital records, from being deleted or destroyed before law enforcement can seize them. The records held by banks and telcos—or telecommunications companies—can be valuable evidence for the police, but they are often routinely deleted as part of data storage or data minimisation policies. Preservation directions will enable law enforcement agencies to require the person or company who holds a specific document to preserve it for a set period of time while they go through the steps necessary to seize the document as evidence. In limited circumstances where the relevant document is a record or telecommunication, the company may also be required to help identify other companies who hold relevant records or who may hold relevant records. Importantly, however, the bill does not require that the document itself be handed over to law enforcement. That process for obtaining the actual content of customer records remains subject to all existing safeguards. We are simply ensuring that valuable evidence cannot disappear while this process is being undertaken. Preservation directions will be available for both domestic and foreign investigations, as required by the Budapest convention.
The bill also amends further the Search and Surveillance Act to create new offences to prevent the disclosure of information that could prejudice criminal investigations. It will be an offence for anyone required to preserve documents by a preservation direction to disclose that the preservation direction exists. Similarly, where police have a warrant to undertake surveillance, it will be an offence for anyone who assists them to carry out that warrant to disclose that it exists. These provisions are required by the convention, but they’re also good sense, because they recognise that nobody wants a criminal to be tipped off that they’re being watched by the police before the police are good and ready. To prevent unnecessary restrictions on freedom of expression, the bill contains provisions that mean that these offences may no longer apply where there is no longer a risk of prejudice to the investigation. A proportionate response—
James Meager: Justified.
Hon CHRIS PENK: A justified limitation, as my friend and colleague in the chair of the Justice Committee, James Meager, points out. The bill also amends the Mutual Assistance in Criminal Matters Act, the legislation that governs the assistance that we give other countries on criminal investigations and what we seek in return. The bill also enables police to apply for production orders and surveillance device warrants in response to a request for assistance from a foreign country.
These provisions ensure we are aligned with the Budapest convention. They also ensure that powers available domestically are available to respond to requests for assistance in foreign investigations and prosecutions. A key principle of mutual assistance is that it must be reciprocal. To receive assistance, we must of course—
Hon Dr Duncan Webb: That’s the mutual bit.
Hon CHRIS PENK: —be willing to offer it in return as well. By amending our mutual assistance legislation to allow requests for surveillance—it’s not the time of the week to be splitting hairs, “Doc” Webb—we can also make outgoing requests; very outgoing, no doubt. Accordingly, the bill also allows the Attorney-General to request a foreign country to undertake surveillance on our behalf. Adding these powers to the Mutual Assistance in Criminal Matters Act will enable us to more effectively support international criminal investigations, which is crucial, I say, if we want to combat cyber-crime and other forms of harmful criminal activity that occur across borders. It will support our law enforcement agencies to work collaboratively with their peers across the globe. Most importantly, it will also ensure that harm suffered here in our own communities is traced back to those who caused it and that they are held accountable.
Under the heading of safeguards for human rights, I do want to point out the importance of our efforts towards these laudable goals not being manipulated or misappropriated by those who do not share our values. Accordingly, there are a number of safeguards in the bills. Existing requirements in the Search and Surveillance Act and the Mutual Assistance and Criminal Matters Act must be met before a production order or a surveillance device warrant can be issued for mutual assistance purposes. These include requirements to refuse assistance if the request appears to be aimed at persecuting someone due to their race, religion, or political leanings. The bill further enhances these existing protections by only allowing a mutual assistance order or warrant to be issued by a High Court judge. To give greater clarity to those responsible for processing mutual assistance requests, the bill codifies the decision by the Supreme Court which requires that a person affected by a search under mutual assistance legislation is notified before any material seized is then sent offshore. The bill makes it clear who must be notified and when, and ensures a balance between human rights and the practical needs of criminal investigations.
In conclusion, through this bill, New Zealand will signal our commitment to combating the serious harm caused by cyber-crime both here and overseas. We will provide our law enforcement with the tools that they need to detect, investigate, and prosecute criminal offending—and we thank them for that—even when key evidence is held overseas. Most importantly, we ensure our laws can continue to protect New Zealanders in the digital age. I commend this bill, therefore, to the House.
This debate is interrupted and set down for resumption next sitting day. The House stands adjourned until 2 p.m. on Tuesday, 15 October. Thank you for three weeks of very hard work. I remind you that we began the sitting block with the tributes to the Māori king, Kiingi Tuheitia. It does seem some time ago, but it has been something when this House did come together. Thank you.
Debate interrupted.
The House adjourned at 5.59 p.m.