Macindoe Tim: Search and Surveillance Bill — Second Reading 
Macindoe Tim: Search and Surveillance Bill — Second Reading 
[Advance Copy - Subject to minor change before inclusion in Bound Volume.] 
TIM MACINDOE (National—Hamilton West) 
: 
 I would like to thank Mr Chauvel for his acknowledgment of our new Minister of Justice the Hon Judith Collins and the very demanding role she has assumed and the huge workload that she has inherited. I too wish her well in that. This bill the Search and Surveillance Bill is of course one of those very important measures that she is now charged with progressing through the House. 
I would also like to begin by acknowledging the work of my predecessor the Hon Chester Borrows as chairman of the Justice and Electoral Committee in the last Parliament and those members who sat with him on that committee because they were very very busy particularly in light of the  
Hamed 
 decision late last year immediately before the election. I was not a member of the committee at that stage so I acknowledge the work that others on it did as they heard the submissions and contributed to the deliberations. I agree that they have produced an important and better measure as a result of that work. 
Both the Minister and Mr Chauvel have mentioned the Supreme Court decision in  
Hamed v R 
 which called into question the lawfulness of a number of the situations in which covert video surveillance is currently used. This is an issue clearly of significant public interest. We need to get it right. The Supreme Court stated that standard search warrants could not be relied upon as a lawful authority to conduct covert video surveillance and that this needed to be regulated by a proper regime. This is provided for in the bill in the surveillance device regime. 
To prevent a number of ongoing criminal investigations that used surveillance from being jeopardised at that time the Government enacted the Video Camera Surveillance (Temporary Measures) Act which was the measure Mr Chauvel was speaking about a few moments ago which for 6 months until the middle of next month suspended the effect of the  
Hamed 
 judgment. We are now not far away from the expiry of that particular piece of legislation. So this Search and Surveillance Bill seeks to strike a balance between the need for effective law enforcement tools and protection of the rights of citizens as set out in the New Zealand Bill of Rights Act. 
The existing police powers are more than 50 years old and it is very important for the House to take that fact into account. This is an area where there have been very significant technological developments. In fact the technology available to us now is such that even our parents would not recognise it and certainly not our grandparents 50 years ago. The law during the intervening five decades has developed in a very piecemeal fashion as it has attempted to respond to those developments. That is why the Law Commission concluded in its 2007 report that search and surveillance powers should be consolidated and updated. In particular the commission called for a bill to bring order certainty clarity and consistency to the sprawling mass of statutory powers for search and surveillance which were scattered or are scattered throughout the statute book. The Law Commission also identified a need to address the glaring gaps where the law has failed to keep pace with the changes in modern society. 
It is important to understand what the bill’s surveillance regime actually covers: interception devices that can intercept communications which are also known as audio surveillance tracking devices that can detect where a thing is located or whether a thing has been opened or tampered with and visual surveillance. Only a judge may issue a surveillance device warrant if he or she is satisfied that the conditions are met. The degree of intrusiveness of surveillance will depend on the circumstances. For example video surveillance will not always be more intrusive than searching a house under a warrant. However there are significant privacy concerns with regard to visual surveillance including trespass and audio surveillance so these methods should be limited to cases of serious offending. 
There is no doubt that audio and visual surveillance are important tools for investigating crimes. However because they are also recognised as involving significant privacy concerns there are a number of safeguards necessary for their use. Visual trespass surveillance and interception devices are available only to investigate offences punishable by 7 years or more of imprisonment or for certain firearms offences. The only agency that will be able to undertake visual trespass surveillance and interception will be the police at first. The Customs Service and the Department of Internal Affairs may be allowed to conduct trespass surveillance in future once they have been properly trained in its use and authorised under the bill. 
It is my view that New Zealanders understand the need for this consolidation and updating of our search and surveillance legislation and that they will agree with and be reassured by the safeguards contained within it. It is an important measure and I acknowledge the work of the Minister her officials and those members who have brought it to this point.