Private Security Personnel and Private Investigators Bill — In Committee 
Private Security Personnel and Private Investigators Bill — In Committee 
[Volume:666;Page:13848] 
Private Security Personnel and Private Investigators Bill 
In Committee 
CHRIS TREMAIN (Senior Whip—National) 
: 
 I seek leave for the Committee stage of the Private Security Personnel and Private Investigators Bill to be taken as one debate with multiple calls. 
The CHAIRPERSON (Hon Rick Barker) 
: Are members clear on the leave being sought? Is there any objection? There being none the Committee stage of the Private Security Personnel and Private Investigators Bill will be taken as a single debate. I want some clarity from the Committee as to whether it wants a single question to be put at the end of the debate or the parts to be put separately. The debate is to be taken as a single question—[ 
Interruption 
] Yes I got that bit but I want clarity from the Committee as to whether it wants a single question at the end or each part to be put separately. 
Hon Darren Hughes 
: Each part. 
The CHAIRPERSON (Hon Rick Barker) 
: OK. Is the Committee clear on that? It is a single debate and at the end each part will be taken as a separate vote. We are agreed on that. 
Parts 1 to 6 schedules 1 to 3 and clauses 1 and 2 
Hon NATHAN GUY (Associate Minister of Justice) 
: 
 I think it is appropriate that I make a couple of introductory remarks about Supplementary Order Paper 162 in my name which is on the Table this afternoon. In essence it changes the commencement date of the bill from 1 December 2010 to 1 April 2011 to allow time to implement the bill and time for the industry to prepare for these changes. It broadens the existing power to exempt crowd controllers from the requirement to hold a certificate of approval to include property guards and personal guards. It allows an exemption to be made for the purpose of a major event or associated event if the Minister is satisfied that the public interest in ensuring there are sufficient numbers of security personnel at the event outweighs the benefits of those people being regulated. That is in new clause 13G. It also makes several technical amendments throughout Part 2 to provide for online applications and it amends the regulation-making powers relating to training to allow the flexibility to introduce training requirements during the 5-year term of a licence or certificate of approval. It changes the date by which new categories of security personnel crowd controllers and personal guards become subject to the regime from 1 June 2011 to a date to be set by Order in Council. 
JACINDA ARDERN (Labour) 
: 
 I look forward to future contributions from the Minister in the chair Associate Minister of Justice Nathan Guy on the Private Security Personnel and Private Investigators Bill and to perhaps a little more enthusiasm from him in his second or third intervention. The Minister is presenting a very significant piece of work to us today and it will have significant implications for those who work in this sector. As was already indicated in the second reading of this bill there will be a doubling of the number of people in this sector who will be required essentially to be registered from around 9000 to 18000. I know that one of my colleagues will be seeking later in the Committee stage of this bill further clarification from the Minister of his expectations regarding the level of discretion that will be exercised in granting some of those licences given that some of those already operating in the sector may not have been required to be registered and may fall outside some of the expectations that this legislation may create in terms of qualifications background checks etc. It will be interesting to have that discussion and to seek further clarification from the Minister about that. 
But I wish to go back to the debate that was started in the second reading of this bill about clause 66 because obviously this bill was initially drafted by Labour and was introduced in 2008 and for the large part there is little contention between both Labour and National on this bill with the exception of clause 66. Just to give the Committee a bit of background I thought it might be useful to spend some time on what that clause originally said before it was struck out by the Government members at the Justice and Electoral Committee. 
Clause 66 set out that a private investigator or employee was to not take photographs or make recordings without consent. That provision was based on the status quo of the current legislation which I think dates back to the 1950s. It sets out that no person may in the course of or in connection with business as a private investigator take or cause to be taken or use or accept the use of any photograph any cinematographic picture or any videotape recording of another person without the prior consent in writing of that person. That includes recording devices as well. Essentially the legislation says that if a private investigator is contracted by someone else to monitor movements either by video recording or through photographs the investigator cannot do so unless he or she has the written consent of the person who is being followed. On face value it may seem to defeat the purpose of following someone covertly if one then has to seek that person’s permission for photos to be taken or used. 
We acknowledged in the select committee that there was a difficulty there and that perhaps this provision was too prescriptive but we were not satisfied that simply deleting it was a fair middle ground. We heard from some submitters that the restrictions of clause 66 would inhibit private investigators who are investigating criminal activity. Therefore they said that outweighed any concerns that may exist around privacy so they advocated that the clause should come out of the bill altogether. But it is important to be mindful that not all of the work that this provision covered would have been investigation around criminal activity. In fact probably some of the more frequent activity might have simply related to for instance marital disputes perhaps the following of famous individuals or even—we have seen and heard examples of this—politicians having their privacy invaded in this way. 
The legislation prevented that until now but clause 66 has now been removed from the bill. The consequence of that is that if an adequate code of conduct is drafted essentially it will be the case that private investigators will have wider powers than the police if we compare what we have here with the Search and Surveillance Bill which the Justice and Electoral Committee is currently considering. One of the concerns raised by the select committee was that at the moment we have two pieces of legislation in the mix. We have this bill and we also have the Search and Surveillance Bill which the Justice and Electoral Committee is considering. The Law Commission is also doing a report on privacy. We run the risk of having a lack of cohesion and an inconsistent response to the issue of privacy and some individuals may wind up with greater powers than others. That was a concern for the select committee. 
How could we have resolved that concern? I will look at clause 106 which sets out the regulations that will be subsequently drafted and which will remedy some of the issues that we looked at as a select committee. For the large part I am happy for a lot of these regulations to be set outside the ambit of the select committee inquiry and to be set in consultation with the sector because by and large they relate to the prescribing of forms the setting of fees and the prescribing of the competency knowledge and skills required by applicants for licences and certificates which was perhaps one of the more significant provisions inserted by the select committee. I acknowledge that the sector has a huge role to play in setting out its own expectations and standards for the industry and I think that is good and proper. Of course the Regulations Review Committee will also have oversight particularly of the fees that will then be set. 
But I think we have gone a step too far in setting out and allowing a code of conduct to be set outside the ambit of this House—and I have some questions for the Minister in the chair about that. We see that clause 106A which is I guess the counterweight to the removal of clause 66 states that “the Minister must recommend that the Governor-General make regulations … to be in force at all times on and after 1 December 2010”—I imagine that date is changed on Supplementary Order Paper 162 in the name of the Hon Nathan Guy—“prescribing a code of conduct containing matters that the Minister is satisfied are necessary or desirable in relation to the surveillance of individuals by private investigators and private investigator employees.” That is very broad. We do not have a sense at this stage of how comprehensive the code of conduct will be or of the expectations of the Minister or the Government. 
I have a number of questions. I ask the Minister what role he envisages that the Law Commission’s report on privacy will play in developing the code of conduct and whether there will be any interaction or whether the time lines are simply out of kilter. I ask what the expectations of the Minister are for that code of conduct or whether we are essentially beginning with a blank canvas. If the Minister has some expectations then I would be interested to hear them. I ask him who will be involved in the drafting of the code of conduct because there are a number of various interested parties when it comes to these matters. I also ask what mechanisms the Government is building in to change the code of conduct if compliance becomes an issue. This is obviously what we need to take into account when we look at forms of pseudo - self-regulation. I ask how the Minister will build in the prerogative to change the code of conduct if it is inadequate. 
Just to restate Labour’s position on this issue—which I believe is shared by the Greens—I say our preference was to retain clause 66 although acknowledging that it needed to be amended. Our view was that it should be retained and that once the Law Commission’s review had been completed we should then make an amendment to it. Our intention is to put forward an amendment along those lines. If the Government wishes to then come back with a compromise—for instance that we retain clause 66 but build in an agreement that when the Law Commission finishes its report we cooperate in ushering through an amendment so that we do not have a full lengthy House procedure on it—I think that would be good. Such a compromise would ensure that we get around all the issues and make a coherent response to the privacy issue which is certainly what we are advocating for. I know that the Law Commission has already recommended that there be security devices legislation and new offences for recording and tracking. Again that demonstrates a significant overlap in all of the work that is being done so it makes sense to slow down when it comes to this particular provision. If we get this wrong then it will be hard to backtrack and rewrite history as it were when we are expecting an entire industry to change the way that it operates as a consequence of the deletion of quite a significant clause from this bill. 
CHRIS HIPKINS (Labour—Rimutaka) 
: 
 I am happy to take a brief call on the Private Security Personnel and Private Investigators Bill. Since I took my first call on this bill the night before last I have had the opportunity to read the bill in more detail. 
Simon Bridges 
: Good on you Chris. 
CHRIS HIPKINS 
: That is right; I am a details man I say to Simon Bridges. It has raised a few more questions for me which I want to put to the Minister in the chair the Associate Minister of Justice. But first of all I thought that I should perhaps recap the three main changes this bill makes. It changes the regime for private investigators and security guards by introducing licensing requirements including police checks for criminal convictions. It extends those to cover a wider range of security-related activities—in particular crowd controllers including bouncers; bodyguards; private security staff; and people guarding others in custody. I will talk a little more about the definitions of those terms. I was quite interested in understanding a little more about the definitions of exactly who will be covered by this law and I found that some people whom I perhaps did not necessarily expect to be covered might be covered. 
Private security staff will be required for the first time in New Zealand to undertake training for their job if their job includes guarding property guarding persons or keeping order amongst groups of people. Essentially training will be required if the nature of the work is such that there is a significant risk of physical violence occurring. The details of the training requirements will be made by an explicit Order in Council. There will be a dedicated enforcement body the complaints investigation and prosecution unit which will be created to ensure compliance with the new legislation and there will be heavier penalties for offending. The penalty for unlawfully employing an unlicensed security guard will go up from the present $2000 to $20000 which is a significant increase. The penalty for unlawfully operating an unlicensed business will go up from $2000 to $40000 for an individual and to $60000 for a company. 
It is useful for everybody to understand exactly who may be covered by this legislation because when I got into it and read it in more detail I found that it covered a much wider range of people than I might necessarily have thought. It covers security consultants. Under the meaning of security consultant the bill basically makes it clear— 
Simon Bridges 
: What do they do? 
CHRIS HIPKINS 
: I am about to tell Mr Bridges. If he would just hold himself together for a moment I will enlighten him as to the details. The private security consultants are people who sell or who attempt to sell a device of any kind—for example burglar alarms cameras and so forth. The people who come around to our houses and give us advice on what sort of security system we may want to have in our homes will now have to be licensed and subject to this regime. I think that is a very positive move. It gives people confidence that when they are purchasing a product from someone the person who will be selling it to them is properly trained and appropriately qualified to give them advice on what sort of security system they need. That person will also have to be trained qualified and licensed if he or she is to be advising the owner or occupier of the premises on the desirability of having security guards looking after their premises. I think that is something that people will be pleased to see. 
The bill introduces licensing requirements for people who are involved in the destruction of confidential documents. This is one of those things we probably never think about. We all turf our documents into our green bins at the end of the day and who picks them up— 
Simon Bridges 
: Before you know it Nicky Hager’s got them. 
CHRIS HIPKINS 
: That is right. Nicky Hager could get hold of them if we are not careful. I thank Mr Bridges because he has just given me another 5 minutes. 
Hon Trevor Mallard 
: Or Roger Foley. 
CHRIS HIPKINS 
: Or Roger Foley. It could well be that all those Don Brash emails came out of a security bin that maybe was not locked or maybe they were not properly— 
Hon Darren Hughes 
: How close to Bill English was it? 
CHRIS HIPKINS 
: If Don Brash had put his emails into the bin in Bill English’s office it is no wonder Nicky Hager ended up having them in his possession. The licensing regime that this bill will require for those people involved in the destruction of confidential documents will give some more reassurance. However it will not cover somebody such as Mr English who we know does a lot of his own cleaning these days because Ministerial Services would not give him those extra hours of cleaning that he wanted for his ministerial home—actually I do not know whether it is still technically a ministerial home. Members of the public and everybody who works in an office and disposes of confidential documents will be able to have more confidence that their confidential documents will be handled in an appropriate matter and that someone will not go AWOL with them and give them to Nicky Hager. 
This bill will cover property guards. It will cover people who are looking after commercial premises but it will also presumably cover people who look after private property. Like many members of Parliament I have a monitored security alarm device. If it goes off when I am not at home a security guard will be sent out to make sure nobody is breaking into my house. The people who monitor the alarm system and the people who check on the house where the alarm has gone off will have to be licensed and appropriately trained to do that work. Frankly as a consumer that is not something I had even given any thought to when the security system was installed in my house. New Zealanders can have confidence that the people who are doing this work will be appropriately trained and licensed. 
However this is an area where I have some questions. One of the requirements the bill puts in place is that anybody who monitors in real time elsewhere than on the premises owned or occupied by themselves a camera a burglar alarm or a similar device will have to be licensed. I was not on the Justice and Electoral Committee and I do not have a detailed knowledge of the bill so I would like some clarification. I have a question about the community patrols. What about the people who volunteer for the police and help out? 
Chester Borrows 
: It’s not a private place. 
CHRIS HIPKINS 
: It is not a private place? 
Chester Borrows 
: Well they’re not monitoring a private place. They are monitoring a public place. 
CHRIS HIPKINS 
: Some of the cameras are in private places. Some of the cameras monitored by the police and by the community patrols are in private places so will they have to be licensed under this bill? I would like some clarification from the Minister rather than an interjection from Chester Borrows although I place a lot of— 
Hon Trevor Mallard 
: He’s likely to be more informed. 
CHRIS HIPKINS 
: Chester Borrows is likely to be more informed. I will praise him. I think he is an excellent chairperson of the Justice and Electoral Committee. 
Hon Trevor Mallard 
: He should be a Minister. 
CHRIS HIPKINS 
: He should be a Minister. He would make an outstanding Minister of Police. 
Hon Darren Hughes 
: If Nathan’s one why not Chester? 
CHRIS HIPKINS 
: That is right. If Nathan Guy can make the grade I am not sure why Chester Borrows cannot. I think he would have a very very good grasp on these issues and would make a stellar Minister of Police. It would not be hard to be better than the current Minister. If the Minister in the chair could clarify that issue for me I would very much appreciate it. 
I will recap. Labour introduced this bill. It is another quality piece of legislation that was introduced by the previous Labour Government. Labour left the National Government very well positioned to look quite good in its first few years. Such a large amount of legislation was introduced by the very diligent and hard-working Ministers in the previous Labour Government that in fact National members have not had to do much in terms of coming up with ideas of their own. They were able to pass the legislation established by the previous Labour Government. I congratulate Clayton Cosgrove my colleague from Christchurch who cannot be here today to see this bill continue its passage through the House. I am sure he would like to be here. He is with his constituents in Christchurch and I think everybody would agree that that is where he should be at this time as I know are many Canterbury members from both sides of the Chamber. 
This bill had a significant gestation period because of a review of this legislation which has been in place since 1974 and was significantly out of date. When laws get to that age it is time to take a look at them. Technology has changed dramatically in that time. I do not think anybody could have imagined digital cameras cellular phones surveillance equipment closed-circuit television and all of those things which would not have been in place or even available in 1974. 
Hon Trevor Mallard 
: What? 
CHRIS HIPKINS 
: They would not have been in place in 1974. 
Hon Trevor Mallard 
: Surveillance cameras? 
CHRIS HIPKINS 
: No I meant closed-circuit surveillance cameras of the type that we have now but I will defer to Trevor Mallard’s superior knowledge. I was not born then. 
Hon Darren Hughes 
: Trevor was in his second term in the House. 
CHRIS HIPKINS 
: Trevor was probably already in Parliament. He was probably already well established here. Actually he had probably had more ejections from the House than any other member at that point. 
Paul Quinn 
: He had nowhere to go. Nobody else would employ him. 
CHRIS HIPKINS 
: I would be careful going down that road I say to Mr Quinn. 
Hon Trevor Mallard 
: He’s one of the few people fired from KiwiRail. 
CHRIS HIPKINS 
: That is right; Mr Quinn is one of the few people ever fired from New Zealand Rail. 
I am very happy to have made this brief contribution to the bill. I am looking forward to hearing the remainder of the Committee stage debate—I think I have 3 seconds left to go. Thank you very much. 
CHESTER BORROWS (National—Whanganui) 
: 
 A number of points have been made about the need for the refurbishment of this legislation bearing in mind the changes in technology over the last 35 years or so. It is interesting to note that almost every area of core business of policing for instance is now replicated in some form by the security industry and done privately. So the need for that vetting process as the public perceive it is such that these people need to be certificated. They need to go through a vetting process and the public need to be reassured that these people are worthy of their trust. A number of those points were made by the previous speaker. 
Just how far the need for that certification will extend really relates to its impact on the public and the public going about their private business. There has been some discussion for instance about clause 66—which was deleted by the select committee—and in respect of who is able to use video camera surveillance or still photographs. We know that private investigators are currently unable to do that regardless of the fact they have been through that police-vetting process and that they are certificated personnel. Yet members of the public can do that any time they want. 
The point is often made that private investigators have the knowledge the skills probably and the motivation to do things that are on the edge of what is and is not acceptable because they are doing it for reward whereas the public are frequently motivated only by their own interest or by some particular hobby horse they may be on at any one time. 
I need to point out though that unscrupulous members of the security journalist and other professions are currently in a position to manipulate members of the public—so they can do things that certificated private investigators cannot do. It seems to me to be ridiculous that the public can be used in an unscrupulous way without any sort of regulation at all. Hence the Government’s preference for a code of conduct to be regulated and for that provision to replace the clause 66 model and I think that is a valid response bearing in mind where technology has gone. 
I would like to cover a point that was raised by the previous speaker Chris Hipkins. He asked whether there was a need for community patrol people who are frequently sitting in police stations monitoring closed-circuit television cameras that are used to monitor the public as they go about their business—for instance late-night Thursdays Fridays and Saturdays. We have to remember that the community patrol people who are sitting in police stations and watching those closed-circuit television cameras at the moment have been through a police-vetting process. Otherwise they would not be allowed to sit inside a police station and have access to or be in the vicinity of confidential information. 
The second point is that although a number of those closed-circuit television cameras are mounted on private property they are almost invariably looking into what is public property—if not entirely publicly owned property public in terms of section 2 of the Summary Offences Act for instance. That section covers land that is private but accessible by the public whether or not it is right to do so. For instance the closed-circuit television camera may be looking over car-parks the backs of hotels alleyways or into pieces of land that are frequently the subject of intrusion or trespass by drunken idiots whom we might want to monitor. The community patrol members who are monitoring those video cameras are not required to be certificated at the moment but they have been through a vetting process and are generally operating under the fairly close supervision of members of the police who are on duty at the time. I think it was important to point out those few measures. 
I commend the bill to the Committee bearing in mind that it is not only dragging the legislation kicking and screaming into the 21st century—it is long overdue—but also taking account of technologies that have come into vogue. Those technologies are now easily accessible to the public whereas they were not accessible in the past. This bill will provide a greater degree of scrutiny over those people who have some power and authority over us—for instance private investigators and security personnel. Thank you. 
CARMEL SEPULONI (Labour) 
: 
 Labour will be supporting this bill but some concerns have arisen for me and I shall put those concerns and some questions to the Minister in the chair the Hon Nathan Guy. In the Chamber last night Mr Harawira said that a lot of people undertaking the work that is explicitly outlined in this bill are Maori and Pacific so we are looking after our workforce and making sure that this bill addresses their needs. I feel that the tone of the bill relates largely to the protection of the public which is definitely an aspect but it also legislates that training must be put into place to ensure that the people undertaking this work are not only accountable to the public but better equipped to undertake these positions. I just wonder whether there is some scope for change to ensure that that aspect comes across in the bill and that we get to see that it is not just for the protection of the public because a lot of these people undertaking these roles are good people. The vast majority have had no problems; the vast majority have been safe in their roles and have done a service to the public. So it is good that the tone of the bill illustrates that fact and illustrates that the bill will protect them so they can do their job well and safely. 
I went through the bill and I might be wrong and I asked a couple of colleagues but I could not find a regulatory impact statement. I ask the Minister whether a regulatory impact statement goes along with this bill and if so where it is. I could not find it. 
The National Government has introduced a Supplementary Order Paper which will exempt certain groups from the bill and in reading it I wondered about Pacific wardens and Maori wardens and whether they would be exempted from the bill keeping in mind that they are volunteers I think. Members will let me know if I am wrong. A lot of them take on the roles of crowd controller and property guard. That could be considered to be part of what this legislation is pushing for. So I want to know from the Minister whether those two groups—Pacific and Maori wardens—will be exempted from this legislation and also what other groups he has in mind that will be exempted from it. 
Initially when we were debating this bill in the House the other night I had a concern about the level of discretion that the licensing authority would have with regard to granting a licence or certificate to security guards crowd controllers bouncers—any people who fall into those categories. I have gone through the bill and it seems broad but it seems that there will be a level of discretion. I would also like confirmation about that from the Minister. 
One example that was sent through to me was of someone who in his early years committed a very very serious crime—that being murder—at the age of 16. He then went to jail at 17. But that murder was committed in the early 1990s; he has been out of jail for the last 8 years. He has not committed any crime ever since. He has been practising as a security guard at a bar ever since then. So I wonder whether the authority’s discretion would extend to that sort of situation in terms of allowing him to continue to practise considering that he has done so for 8 years and despite the fact that that will be on his record for life. I wonder whether in those cases—although I am sure they will be few—the licensing authority will use its discretion to allow those people to continue and also to allow them to gain the qualification necessary in these particular roles. 
It needs to keep in mind that some of those people have been working in those jobs for long periods of time. For some of them as in the example I have just used that is the only occupation that that person has ever known. So I wonder what level of discretion the licensing authority will have. I discussed with someone earlier the case I am talking about now. It was raised with me that that would be the exception rather than the norm. But I think the licensing authority needs to have the ability to make decisions on a case-by-case basis and to have the discretion to grant an exception for exceptional cases like the one I am discussing. 
I will discuss the provisions in general. Labour supports the bill. It was introduced to the House by Mr Cosgrove in 2008. It is unfortunate that it has taken a while to push through. I understand that the rationale for pushing it through now is to have legislation in place by June 2011 so that all of the provisions can be put into place before the Rugby World Cup. I think that is a good move but I also think it could have been done earlier especially when the safety of the public was the initial reason for this bill. It is something that perhaps the Government should have pushed along with a little more quickly. But that is OK; it is going through now. 
The other issue raised earlier by my colleague Jacinda Ardern was our concern that National members of the select committee deleted the clause that would make it an offence for private investigators to photograph or to record people without consent. That is a very real concern that we on this side of the House have. We hope that the other side will address that. I think we have a Supplementary Order Paper up to address that—[ 
Interruption 
]—yes. We hope that the other side of the House will support it. Thank you very much. 
Hon NATHAN GUY (Minister of Internal Affairs) 
: 
 After hearing the contributions from members across the House this afternoon I think it is important that I make some comments. A few questions have been posed this afternoon. One of those questions was from Jacinda Ardern asking whether the removal of clause 66 from the Private Security Personnel and Private Investigators Bill meant that private investigators will have more power than the police. That is not the case. The police have specific powers as set out in the Policing Act 2008. Private investigators like any other licence holder or certificate holder have no more powers than the general public. I hope that the member can seek some reassurance from that. It is captured in clause 101. 
In terms of the code of conduct there were some questions around drafting and who will be consulted. It is my intention that the Privacy Commissioner the Law Commission and the key stakeholders will be consulted through that process. Of course once the Law Commission has done its big piece of work on privacy which could take 2 years to be frank then there is an opportunity for the code to be amended if it is necessary once that piece of work is done. We also need to be aware of the fact that the Privacy Act 1993 cannot be overridden in that process. 
There were also some comments on the discretion of licensing. The bill gives the authority some discretion to grant a licence or a certificate even if a disqualification ground applies. I think the important point is that the discretion is used in exceptional circumstances where evidence—and it would have to be strong evidence—is provided to the authority that a person’s background character or circumstances means that they are suitable for the role despite their conviction or disqualification criteria. 
There was also a comment which I thought was interesting concerning community patrols. If we think about community patrols as I understand it most of those people—I think all of them—are volunteers. Volunteers are not captured under this regime. If they operate in-house that is if they are not employed by a licence holder then they are not captured unless of course they are a crowd controller. The Supplementary Order Paper has been dropped on the Table so I look forward to hearing some comments from the Hon David Carter—Parker—about that. 
Hon DAVID PARKER (Labour) 
: 
 I thank the Minister in the chair the Hon Nathan Guy for those comments. I am not sure that it is a pleasure to be confused with David Carter but I will not take offence. 
I take issue with the Minister on whether private investigators should be able to undertake search and surveillance measures. The general policy that underlies our law is that we give additional powers to the police for search and surveillance and we control the powers of the police and other State agencies for search and surveillance. One would expect the controls that apply to search and surveillance by the police to be at least matched by controls on search and surveillance by non-State agencies like private investigators— 
Hon Darren Hughes 
: More so. 
Hon DAVID PARKER 
:—if not more so. 
The problem we have is that there is a lacuna in the law; there is a gap in the law relating to search and surveillance by non-State agencies. The general rule in respect of private investigators is that they should have no further powers than private citizens. They are not arms of the State. They are effectively private people who are agents of other private people. They have the ability to be quite invasive with modern surveillance techniques. They have the ability to infringe on the civil liberties of other private citizens to go about their daily business without undue intrusion. 
The problem is that because there is a gap in the law relating to non-governmental search and surveillance across the board there is a lack of control not just for ordinary citizens but also for private investigators. When this bill was originally introduced to the House we were alert to that. The Law Commission was alert to it. It said not to give private investigators the power to take photographs or do other search and surveillance until the underlying law that relates to search and surveillance by non-State agencies non-governmental agencies was fixed up. Labour thinks this legislation should do that. 
I agree that it is nonsensical that private investigators cannot take photographs when an ordinary citizen can. But the problem is that if we confer this power on private investigators you bet your bottom dollar that when it comes to tidying up legislation relating to search and surveillance by non-State agencies non-governmental agencies private investigators will come along and say: “But we’re special. We’ve already got these powers; Government conferred them to us under the Private Security Personnel and Private Investigators Bill. We are not private citizens we are in a different category and we should be treated differently.” That argument will be harder to rebut if private investigators are given this power now given that they have been without this power since at least 1974 which has not caused too much of a problem. 
Let us wait for Parliament to properly consider the issue of search and surveillance powers of non-governmental agencies and then fix up the law for private investigators. If we do it in the order that this bill suggests we will create a pressure in the future for private investigators to have wider powers of search and surveillance than would be held in the future by private citizens. 
In my opinion that is wrong. That is why we have promoted an amendment to reinstate into this bill the prohibition on private investigators taking photographs that would be carried forward from prior law. We have enabled that to be tidied up in the future by stating that prohibition can be repealed by Order in Council but not until after Parliament has considered search and surveillance by non-governmental agencies. We know that that consideration is coming because the Law Commission has produced a draft report we know that it intends to come up with a final report and we know that there is a gap in the law at the moment. 
In my opinion it is nonsense that we have controls on search and surveillance by the police and other State agencies but we have no protection of our civil liberties against similar intrusions by private people. 
Hon David Cunliffe 
: It’s bizarre. 
Hon DAVID PARKER 
: It is bizarre it is inconsistent and it has crept up on Parliament and our country as a consequence of changing technologies. 
There was a time when there was very little privatisation of security services—that has changed over time and therefore there is a need for regulation. There was a time when there was very little privatisation of what are effectively activities of the State in policing conduct. That has changed over time as there has been more privatisation and therefore there is a need for more regulation. There was also a time where there were very few technologies available to people. People effectively had still cameras. Now people can have directional microphones and cameras tied up to the World Wide Web. As we see they can be intrusive of the public. 
Members of Parliament including me have had some experience of private-sector surveillance of our private lives which I think is inappropriate. I know that the Hon Bill English suffered some intrusions of his private residence by people taking photographs from the street of his children’s bedrooms. That is wrong irrespective of the rights or wrongs of the underlying dispute. I do not think that Bill English should suffer intrusions into his private home by busybodies taking photographs of his children’s bedrooms. That is wrong and there is a need for the law to control it. 
Hon Tau Henare 
: So why did you do it then? 
Hon DAVID PARKER 
: Well at the moment it will be permissible if we pass this law. It seems to me that we are authorising private investigators to do things similar to it and I do not think we should let that particular cat out of the bag. 
As I said previously when we in this Parliament try to properly protect the civil liberties of all New Zealanders to live private lives without inappropriate intrusion not just by State agencies governmental agencies but by non-governmental agencies like private investigators when we try to put that cat back in the bag members should just watch because private investigators will say that they are special. They will say that they need more powers than ordinary private citizens. For that reason I think that as a matter of principle we should carry forward the existing law. I know the existing law is imperfect but let us carry it forward for another few years. Let us continue with the situation we have had since the current legislation was passed in 1974 maybe for only another 1 or 2 years until this Parliament fixes up the proper control of search and surveillance by non-governmental agencies. 
I urge the Minister to consider the amendment to that effect in my name. My amendment reinstates clause 65 which was in the bill when it was referred to the Justice and Electoral Committee. The amendment states that private investigators cannot conduct these search and surveillance operations without consent. It says that the status quo—it is effectively the status quo currently—should prevail until such time as this Parliament has considered legislation that regulates surveillance by non-Government agencies. Until that legislation is considered by this House the status quo should prevail. Thank you. 
SIMON BRIDGES (National—Tauranga) 
: 
 This is a very interesting debate on the Private Security Personnel and Private Investigators Bill and one where I accept that there probably are some nuances and subtleties. But I would also say that ultimately the issue comes down to some classic philosophical dividing lines—and not necessarily between Labour and National. However I think it would be fair to say that the position I take would be the position other National members would take more often than not and that David Parker’s position is probably one that Labour members would take more often than not. I would say that in a fight between freedom of information where people can record information and use it as they like and privacy—although I know that privacy will of course sometimes win—I would go with freedom of information nearly every day. I would much rather live in a freer society where people can say report and do what they like than in one where we are cloistered by privacy rules. 
It may be—and I reserve my position on this because there will be a Law Commission report—that David Parker is right and there is a gap in the law whereby private individuals can pretty much do what they like in terms of taking recordings and the like and we may need to address that as a Parliament in the future. There will be as we know a Law Commission report looking at non-State actors and their roles and powers but the solution in the interim most certainly is not to ban private investigators from doing what any other Joe Bloggs can do right now. The solution is not to restrict private investigators—particularly when what we are doing in this law is making them adhere to high standards and a code of conduct—from doing what others can do because as I said in the reading earlier this week we get this ridiculous situation where journalists for example can do some of the most remarkable things with their surveillance and recording. By and large that does not happen in this country thank goodness with maybe one or two exceptions. But in the United Kingdom there have been some flagrant examples of journalists using surveillance in very unethical ways to entrap people. I give an example I have used already—that of  
News of the World  
and Fergie and the situation she was tricked into. It was entirely manufactured by journalists. There may be something I am unaware of but I do not think there is anything to stop that from happening legally in New Zealand. So as I say it may be that David Parker has a point and we need to address that down the track. But the answer today is not to take his amendment on board and restrict what private investigators can do because they will be held to a strict code of conduct that will be put in place prior to the enactment of this legislation. 
I come back to some other examples that give a very real face as to why private investigators should be able to use surveillance. Outside of the police most Government agencies use private investigators in the public interest. Work and Income does the Accident Compensation Corporation (ACC) does and the Inland Revenue Department does. In the public interest those agencies use private investigators in most of their civil fraud cases. It is a silly situation—and I accept that it is one we have had for a long time—when those private investigators cannot take photographs and video recordings to prove a case of fraud. I give the example of ACC and the person with the bad back who in fact plays a mean game of golf every day of the week. What would be wrong or unethical about recording that for evidential purposes in court? That cannot happen now so we are changing the law. 
Hon DAVID CUNLIFFE (Labour—New Lynn) 
: 
 This is a fascinating debate at a number of levels. I will take a very brief call. The right of politics often makes the fundamental philosophical error that the absence of regulation is the same thing as human freedom. If ever that mistake was proven it is in the context of this bill. The absence of restriction on private investigators means that the freedom of every New Zealander is curtailed not enhanced and that is proven partly by the relentless march of technology. 
Let me give a couple of easy examples. Firstly directional microphones can pick up a conversation at hundreds of yards of distance. Keystroke mapping can copy the entry of typing into a computer remotely or via a camera at great distance. Even a humble Google search web search or Facebook search will because people have larger digital footprints produce a wealth of information about ordinary individuals. It is not necessarily wrong if they have chosen to put it in the public domain but it cannot be contested that technology means that there is more information about people able to be searched than ever before and that is before the private spooks come in. We have wire taps bugging directional mikes malware and spyware on computers not to mention code crackers. One can buy for 100 bucks at Dick Smith Electronics code cracking technology that the National Security Agency did not have a decade ago. What is a 1000 digit combo lock now when for 100 bucks one could crack anything? The point is that without some regulatory framework around private spies the freedoms of every New Zealand citizen are under unprecedented threat. 
I want to give a couple of little personal examples. They are historic; they are already in the public domain. My electorate office was burgled. Quite precise incisions were made in the windows. Nothing was stolen except the hard drive on the computer—the back-up hard drive. That was a couple of years ago. I am absolutely confident and I did a routine search just to prove it that my office is run squeaky clean. I have no concern about anything that might have been on that computer. I make the point that if somebody has done a precise no fingerprints surgical entry into a parliamentary electorate office through a window then there are people in our country who would stop at nothing to do wiretaps computer hacks or a whole bunch of other techno-savvy invasions on the very freedoms that Mr Bridges says he holds dear. 
If it is absolutely accepted and bipartisan that the Crown’s own secret service agents must have a judge’s warrant to tap a phone why do we not require a similar standard of probity from a private spy? Corporates that have large budgets can procure those services often from ex-Crown personnel like police or members of the security services on the free market using their deep pockets and that is a threat to the liberties that generations of New Zealanders fought and died to protect. 
I am not blaming the Government for not having fixed this before. This is an issue that has grown over time and the threat to private liberty is directly proportional to the reach of technology—that is as we become more sophisticated in our computing and our potential to invade privacy then equally the need for the protection of fundamental human rights and dignities around privacy rose with it. It is high time that this House addressed itself to these growing issues in a more comprehensive way than is included in this bill. However I will commend the Government—I think this is bipartisan because it transcends the change of Government—for the work of the Office of the Privacy Commissioner under Marie Shroff. For two terms— 
Hon Trevor Mallard 
: I’m sorry but I see that Mr Quinn is going to seek the call. I just can’t stand it. I’m going to leave the Chamber. 
Hon DAVID CUNLIFFE 
: I fully understand that but I will round off so that my colleague does not miss too much. 
Paul Quinn 
: He’s always run from competition. Look at him run! 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. Although I can draw attention to my leaving the Chamber no other member can especially one whom I have offered $500 to run— 
The CHAIRPERSON (Lindsay Tisch) 
: Thank you that will do. It is one all. 
Hon DAVID CUNLIFFE 
: We look forward to the contest in Hutt South that we have been denied in this Chamber. I wish my colleague all the very best although I am sure that he does not need it against that member. 
Hon Tau Henare 
: Ask Trevor to give the diary back. 
Hon DAVID CUNLIFFE 
: Mr Henare should hang on. I am going to say something nice about his Government. He will not hear it too often so if he would just button up he might get this one. 
I think that the Office of the Privacy Commissioner is doing a good job on these issues. It has a large proportion of its staff looking at digital privacy issues and that is where the action is all around the world. Our privacy is under threat as never before because of the reach of digital technology and who is leading that invasion? It is the private spies often private corporate spies who engage in industrial espionage and in the invasion of private rights that is pushing the boundary of— 
Simon Bridges 
: They can do that anyway. 
Hon DAVID CUNLIFFE 
: Oh they can do it anyway! The member being a well-read member will know that a bloke called Voltaire once wrote a book called  
Candide 
 in which he asserted that we must because of the greatness and goodness of God live in the best of all possible worlds—that is the way things are has to be the way things will always be. That went out with the ark. 
We need to protect New Zealanders’ privacy. We need to protect them from sophisticated private individuals not covered by the restraints that apply to the State who have access to advanced technology and can access information about other individuals in unprecedented ways. It is a great shame that this bill falls far short of what is required to achieve that standard—far short indeed. I call upon the Government to listen to its own Privacy Commissioner and to take this threat seriously because it is going to grow. 
In conclusion I want to end as I began by emphasising again that the right wing of New Zealand politics as in the right wing globally needs to understand that the absence of regulation is not the same thing as promoting freedom. We live in a free society when we are protected from those who would take away our freedom and it is a shame that this bill does not go far enough in that regard. 
KEITH LOCKE (Green) 
: 
 I rise to support David Parker’s amendment and also to commend the previous speaker David Cunliffe for a very good wide-ranging speech on the privacy problems we face. I thought the speaker before him Simon Bridges gave a somewhat contradictory speech in that he admitted the problems of the intrusion into people’s privacy using the example of Fergie in Great Britain and the intrusions of the media like  
News of the World  
and 
the like. Recently in Britain we have had the scandal of journalists hacking the voicemails of different politicians. I do not think we have had that scandal here yet but as David Cunliffe indicated technology advances are such that we might find it happening to us. 
Hon David Cunliffe 
: How would we know? 
KEITH LOCKE 
: Yes. If the intrusion on people’s privacy is a serious problem and if the Law Commission is devoting its attention to that issue surely we should go with that rather than say that we should loosen up in another area of society and in terms of the controls over private investigators. There may be a contradiction between what the public can do at the present time and what private investigators could do before this legislation but I think the way to level that playing field is to increase the restraints on general members of the public and journalists as well with regard to intrusions on people’s privacy. That is the way to resolve the contradiction. 
I think the difference between ordinary members of the public on the one side and private investigators or the police on the other is that private investigators and the police engage in activities that are quite intrusive into people’s privacy—for good reasons in the case of the police. For that reason we have controls on the police. Those controls are being extended under the Search and Surveillance Bill currently before the Justice and Electoral Committee and that is a good thing. A private investigator’s job is to intrude as much as he or she can to find out certain things in people’s private lives. When investigators use audio and video recording and photographs that is overly intrusive and as David Cunliffe has pointed out if they just want basic information about people for the Ministry of Social Development or whatever there is plenty of other data around on people that they can check without using audio or video recording devices or photographs. 
There is a serious problem; we saw that problem when the  
Sunday Star-Times  
ran an article on the putting of a tracking device by a private investigator Thompson and Clark Investigations under the car of Rochelle Rees. She is a very fine animal welfare activist living in Auckland currently running in the elections for a local board and likely to be elected. 
Hon David Cunliffe 
: What about Solid Energy? 
KEITH LOCKE 
: Thompson and Clark also put an infiltrator into the Happy Valley Coalition and disrupted the workings and solidarity in that particular group. That is a problem. So why do we give these people more power to intrude on people’s privacy particularly with tracking technology? The tracking technology is quite intrusive. It is very simple. A little device like a magnet is put under the car. I have seen the device that was put under Rochelle Rees’ car. Wherever she went her car could be tracked by Thompson and Clark Investigations. This was done—as I understand in this case—for the interests of the Pork Industry Board because she was very strongly campaigning with others against sow crates and cages for chickens. So I think it is important to support the amendment of David Parker to reinsert the prohibition on audio and video surveillance devices and the photographing of their targets. Thank you. 
PAUL QUINN (National) 
: 
 It gives me pleasure to take a short call on the Private Security Personnel and Private Investigators Bill because I have listened intently as the debate has progressed. It seems to me that this is a classic argument. Let us be clear that the real issue here is what was clause 66 and the Supplementary Order Paper that has been submitted by the Opposition. In respect of that particular clause which all the previous speakers in the Opposition have referred to it seems to me that it is a matter of looking at two sides of a mirror and of deciding in fact which side of that mirror we want to be on. On one side of the mirror we talk about the police having certain powers but the Opposition—I think it was pointed out by Mr Parker—has claimed that a group of private investigators has more capability for doing surveillance than the police. On the other side of the mirror is the general public who in fact are able to do carte blanche what they like. 
Simon Bridges 
: Journalists perverts. 
PAUL QUINN 
: My colleague Mr Bridges has proposed that journalists and perverts are part of that group. So they can like “Joe Public” take any surveillance device that Mr Cunliffe covered and he gave a pretty broad and full description of the types of technology. I agree with him on the fact that technology is always advancing. But the fact of the matter is that “Joe Public” can actually do it. So the view we have taken is that if in fact we want to restrict freedoms then we need to be able to do it from a principled approach and until we have an effective mechanism that actually can provide the sorts of safeties that one might want then we are not prepared to restrict a group of people who in wearing their “Joe Public” hat are still able to do what they want to do. 
The arguments are thoroughly canvassed in the Justice and Electoral report. If honourable members would turn to page 13 of the select committee report this particular clause is talked about for two pages which in my experience is a very long description and shows how carefully the select committee considered this. We went through the options and yes we noted that the Law Commission was doing something. But in the end we came down to the fact that unless we could have a better system then it was not for Parliament to restrict people’s general freedoms. So that is why from this side of the Chamber we went for a code of conduct. We believe that a code of conduct properly worked through by the industry under the direction of the Minister will come up with something sufficiently robust. Members on this side have had positive experiences of self-regulation which is why we are on this side of the argument. 
The amendment submitted by the Opposition in the name of David Parker for all intents and purposes actually puts back into the bill the old clause 66. So in terms of my contribution to this debate I say that we have canvassed those arguments. They are well documented and well argued in the select committee report. I refer the members on the opposite side to the select committee report to understand why the select committee came to its very good decision. Thank you. 
The question was put that the amendment set out on Supplementary Order Paper 162 in the name of the Hon Nathan Guy to Part 1 be agreed to. 
Amendment agreed to. 
Part 1 as amended agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 162 in the name of the Hon Nathan Guy to Part 2 be agreed to. 
Part 2 as amended agreed to. 
The question was put that the following amendment in the name of the Hon David Parker to Part 3 be agreed to: 
to insert new clause 65: 
65Private investigator or employee not to take photographs or make recordings without consent 
(1)No person may in the course of or in connection with the business of a private investigator— 
(a)take or cause to be taken or use or accept for use any photograph cinematographic picture or videotape recording of another person without the prior consent in writing of that person; or 
(b)by any mechanical device record or cause to be recorded the voice or speech of another person without the prior consent in writing of that person. 
(2)Nothing in subsection (1) applies to the taking or using by any person of any photograph for the purposes of identifying any other person on whom any legal process is to be or has been served. 
(3)A person who contravenes subsection (1) commits an offence and is liable on summary conviction to a fine not exceeding $20000. 
(4)No photograph or cinematographic picture or videotape recording taken or other recording made in contravention of subsection (1) is admissible as evidence in any civil proceedings. 
(5)This section my be repealed by Order in Council provided that no such Order in Council may be promulgated before legislation regulating surveillance by non-Government agencies has been considered by this House. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 52 
New Zealand Labour 42; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
Part 3 agreed to. 
Part 4 agreed to. 
Part 5 agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 162 in the name of the Hon Nathan Guy to Part 6 be agreed to. 
Amendments agreed to. 
The question was put that the following amendment in the name of the Hon David Parker to clause 106A be agreed to: 
to omit subclause (3). 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 52 
New Zealand Labour 42; Green Party 9; Progressive 1. 
Noes 67 
New Zealand National 58; ACT New Zealand 5; Maori Party 3; United Future 1. 
Amendment not agreed to. 
Part 6 as amended agreed to. 
Schedule 1 agreed to. 
Schedule 2 agreed to. 
Schedule 3 agreed to. 
Clause 1 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 162 in the name of the Hon Nathan Guy to clause 2 be agreed to. 
Amendment agreed to. 
Clause 2 as amended agreed to. 
Bill reported with amendment. 
Report adopted.