Budapest Convention and Related Matters Legislation Amendment Bill

Members, the House is in committee on the Budapest Convention and Related Matters Legislation Amendment Bill. We come first to the debate on Part 1. Part 1 is the debate on clauses 3 to 53, “Amendments relating to investigatory tools”, and Schedules 1 and 2. The question is that Part 1 stand part.

Thank you, Mr Chair. I’d just like to preface the remarks, because, obviously, this a pretty technical and detailed bill, and sometimes I think we kind of can fail to see the forest for the trees, or fail to see the water for the stormy seas, as they say—and I do want to first say that, yes, we absolutely support this bill. But I want to note the overarching concerns, which are twofold. One is to identify that this is an exercise of State power against citizens, and we want to make it clear and put on the record exactly where that balance is struck. The second part or theme that my comments and questions will identify is the difficult tension in the New Zealand State in exercising its powers against citizens assisting foreign States, and particularly in assisting—I’m going to be frank about this—repressive foreign States, those foreign States who don’t have the same human rights values as we do.

From that, I’m not going to dilly-dally, but I’m going to get straight into it, and a lot of what I’m going to do is simply to invite the Minister to expand and explain to the public, for the record, what it’s all about. At the centre of this, one of the keystones of this legislation is preservation directions. So whilst we’ve already got production orders—that is to say, telecommunication providers can be ordered to go and find and present the particular information—this preliminary step is seen as important to make sure that whilst those production orders are being sorted out, no one goes around hitting the delete button, in short.

The first thing I want to ask about is on page 14 of the bill as reported back, and I’ll just talk about the new sections. New section 79A in clause 18 talks about “enforcement agency”, and I do think it’s quite important to understand what that means in terms of who has these powers. In terms of the mutual assistance provisions, it appears to be the police, and I’ll be interested in the Minister’s comments on whether an enforcement agency simply means the police and, obviously, things like Crown Law when they’re taking advice and so on, or whether it will extend to other enforcement agencies—like, a classic one would be the Customs Service—or, in fact, whether it could go broader than that, because, certainly, if we were to say that it was prosecuting agencies, there’s a plethora of prosecuting agencies in New Zealand.

That’s my first question and that’s actually a question of clarification, and then my second question is kind of an invitation to explain, because the very next definition talks about “pathway information”, because we know telecommunications data can be routed through numerous servers and so on. I’m asking this genuinely because I don’t quite understand it: why is pathway information important in a criminal investigation? I can understand why the sender and recipient information is important, but I’d be curious to understand why we’d need to know that it was routed through—or “rowted”, if you say it that way—this server or that server, and so on and so forth, particularly if we know that the telecommunications provider holds the relevant data, and they’d have the text message, or whatever it might be.

I’m going to just keep cracking on because this is a bill we agree with and I’m not going to hold things up, and so I’m going to squeeze another question in, as well. It’s around new section 79B in clause 18, which is entitled “Enforcement officer may apply for preservation direction”. It’s about the threshold, because it says that the enforcement officer can apply for it if that officer “is satisfied that conditions in section 79E for making a direction against that person are met.” Whenever you’re exercising search and surveillance powers, it’s all about suspicions and about the reasonableness of those suspicions—you know, reasonable grounds to suspect, reasonable grounds to believe, and those kinds of thresholds. You don’t often see a kind of very subjective test that the enforcement officer “is satisfied”. So I’ve managed to squeeze in three queries in there, and I will do a bit more later.

Thank you, Mr Chair. I’m just looking here at Part 3 of the legislation, under “Subpart 1—Interpretation”, at new section 88A—and that’s actually on page 28 of the bill as it stands; I want to explore the rationale and ask the Minister to explain the reason for using certain definitions in the clause 88A(4), particularly regarding—

CHAIRPERSON (Teanau Tuiono): Could you just give us that page number again?

KAHURANGI CARTER: Sure. It’s on page 28—thank you—and it’s section 88A(4) in new Part 3A, under Subpart 1. This definition is regarding offences of “political character”. I’m wanting to explore that, and I would love the Minister to engage with my question around why the standard political offence safeguard appears to be narrower than in comparable legislation. Is there a reason for that?

I think it’s really important that when we are looking at bringing in a law that potentially opens us up to laws that don’t belong to New Zealand but that belong to other countries, but through this convention we would have to uphold them because of certain treaties we have with other countries. I think that us, as a country, and the everyday people out there really want to know that we’re not doing anything that goes against our national identity, but would want to ensure that our citizens are not being asked to uphold laws that don’t belong to us and that do not represent who we are as New Zealanders and our country of Aotearoa.

I guess that takes me into the next part. Just in this same section in new Part 3A, can the Minister clarify whether the term “serious offence” in section 88(1) is subject to any threshold test? We’d really want to make sure that any proportionality or dual criminality under New Zealand law is actually met, so we’re looking at whether that “serious offence” has been tested against what we in New Zealand deem as a criminal offence in New Zealand. I’m just really going back to that core concern that we have heard from trusted stakeholders like the Federation of Islamic Associations of New Zealand, and I’m asking the Minister if you could please explain whether there are any safeguards in place to ensure that preservation directions are not guaranteed in relation to offences that would not be recognised as criminal in New Zealand. We just really want to make sure that in New Zealand, we are a place where we’re living by our laws, and we’re not importing laws that don’t belong to us and aren’t fit for purpose here in Aotearoa.

Just one more question on section 88A in new Part 3A, in clause 19: can the Minister explain the basis for new section 88A(4)(b), and how bilateral agreements are assessed to ensure they are consistent with New Zealand’s human rights obligations? We have our New Zealand Bill of Rights Act, which we commonly call BORA, and we have our Auditor-General, who audits and measures the things that we do here as a Government—our Government actions and our legislation—to uphold our laws and our citizens’ human rights, so we just want to make sure that that is being done here, in this law. So I ask if the Minister can explain how the bilateral agreements are assessed to ensure that they are consistent with New Zealand’s human rights obligations.

Mōrena, Minister. My questions in relation to this bill are centred on Māori data sovereignty, and you might have picked that up in my speech. I’m keen to just question why the Minister has not considered including provisions that would safeguard our people.

Māori have the right to control their own data—that might be a clue in there. Crown agencies could or should consult with Māori, including iwi authorities or relevant stakeholders. There should be an establishment of a Māori advisory panel to monitor how preservation directions and data sharing are used where Māori and Māori data are involved.

There should also be—if I might mention this before my question, which is coming—a cultural impact statement when sharing evidence internationally that involves Māori individuals, organisations, iwi authorities, and culturally sensitive information. This will protect against the misuse of Māori data, particularly in international contexts where tikanga Māori is not understood.

So, Minister, I’m looking at clause 4, which amends section 3(1) and inserts the definition of “surveillance power”. This clause updates the definitions in the Act to include new terms like “surveillance power” and “traffic data”, and states the relevant agencies involved in intelligence and enforcement, which is an oxymoron, sometimes, in this country—I’m just saying. Can the Minister confirm why, in clause 4, the definition of “surveillance power” does not include criteria that would safeguard Māori from disproportionate levels of surveillance or discrimination, especially in the context of the Tūhoe raids, which happened only a little while ago?

Speaking to the same section, Minister, I note there’s no reference to Māori data considerations in the definition of “traffic data” as it has been drawn from section 3AB of the Telecommunications (Interception Capability and Security) Act 2013. However, I would question whether the Minister considers inserting provisions here to state and define Māori data or culturally sensitive data so that it better protects Māori interests. If he does not agree, I would ask the Minister to explain the reasons for that—this is us trying to get from the “no” lane to the “yes” lane, Minister. Kia ora.

Thank you, Mr Chair. Like my colleague Dr Duncan Webb, I just have some questions in relation to the restraint of power, because, obviously, these are considerable powers in terms of search and seizure, and, certainly, in terms of the preservation of documents, which to my mind triggers privacy issues. I’m just looking at clauses to see whether they’ve been drawn down or reasonably limited to ensure that we are walking that line.

I’m looking on page 12 at clause 10, which inserts new section 64A. This one is about the destruction of information that is found as part of that surveillance warrant process, and it says that “(2) The person must ensure that, as soon as is reasonably practicable after the warrant expires, that record—(a) is destroyed; or (b) is given to the law enforcement agency”. The first question is around whether there was consideration that that language should be restricted, as it’s very hard to determine what “reasonably practicable” may be in relation to.

The second question is in relation to clause 12, which inserts new section 71(2)(i), which says, “if the documents are sought to be produced on an ongoing basis, the facts relied on to show reasonable grounds to believe that those documents—(i) are in the possession or under the control of the person against whom the order is sought;”. There are two questions. The first is that if this is referring to documents that are produced on an ongoing basis, was there consideration of slicing that up to ask for a production order for each of those documents, as opposed to the set of documents, and the second is about the definition of “under the control of the person against whom the order is sought; or (ii) will come into that person’s possession or under their control”? Again, there’s no restriction in terms of timing there, but it stretches out to a document that will at some stage come into their position or under their control. All of that language is extremely broad. I have a question about whether there was consideration of bringing that down, as well.

In terms of new Subpart 2A, this is the start of the preservation directions section. I was first wondering about comparability of definitions across borders with countries of like jurisdiction whom we would be communicating with and whether the preservation order provisions are the same—that’s the general question.

The specific question is around an issue raised by the Privacy Commissioner, which is the fact that the Commissioner of Police is able to issue those preservation orders, and the Privacy Commissioner considered that to be quite unusual. The proposal from the Privacy Commissioner was that that’s the type of order that ought to require judicial oversight, and, certainly, that would be the more responsible thing to do, given the nature of the power, where someone is having information collected and held about them without knowing that that’s the case. So I’m asking whether there was consideration of just drawing that down and asking how that compares internationally. Thank you.

I move, That the committee report progress.

Leave is sought for that purpose. Is there any objection? There is objection. [Interruption] Could you repeat your contribution?

I move, That the committee report progress.

Madam Speaker, the committee has considered the Budapest Convention and Related Matters Legislation Amendment Bill and reports that it has made progress on the bill. I move, That the report be adopted.

Motion agreed to.

Report adopted.

Madam Speaker, I’m not sure of the protocol, but I’m informed that the House intends to lift urgency.

The Government has indicated that urgency will conclude. Therefore, the House stands adjourned until 2 p.m. today.

The House adjourned at 12.55 p.m. (Wednesday)