A crucial term in the GCSB amendment bill was singled out for clarification yesterday by Appeal Court Judge Sir Grant Hammond.
Sir Grant said the definition of the term "private communications" within the protection clause of the bill was not clear and, because it was central to the protections in the bill, it needed further work.
"It's a trigger provision. A lot of other things turn on it. What worries me ... is that if it is not sufficiently dealt with in the act then the judiciary end up dealing with it."
Sir Grant, who is chairman of the Law Commission, appeared as chairman of the Legislation Advisory Committee (LAC) before the Intelligence and Security Committee.
Chaired by Prime Minister John Key, the committee is hearing submissions on the Government Communications Security Bureau and Related Legislation Amendment Bill. The function of the LAC is to give advice on whether legislation will actually achieve its ends.
Sir Grant said "private communications" was a very difficult term that is technologically outmoded and that it is "very difficult to tell in our law at the moment just what can be said to be a private communication and what cannot".
"The key question is whether the definition provides the expected degree of privacy protection."
The LAC submission said the expansion of technological communications devices had made assessing the circumstances in which parties could expect their communications not to be susceptible to interception more complex.
Dr Rodney Harrison of the New Zealand Law Society also questioned the term, saying the protections were offered only to people and not to companies.