Clendon David: Search and Surveillance Bill — In Committee 
Clendon David: Search and Surveillance Bill — In Committee 
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DAVID CLENDON (Green) 
: 
 I am pleased to speak in this Committee to this bill the Search and Surveillance Bill which the Greens are opposing. We have opposed up to now and will continue to oppose—no surprises there I am sure. 
Simon Bridges 
: Name some bills you’ve supported David. 
DAVID CLENDON 
: It would take a great deal for the Greens to support this bill. I think it would require amendments to the extent that it would no longer be the same bill. 
The reason we are opposing clearly is that this bill goes far too far in terms of compromising people’s reasonable expectations of privacy in the name of apparently protecting our rights as citizens enabling the police and other agencies—many other agencies—to go about their business. We recognise yes there is a legitimate requirement for surveillance for observation for recordkeeping for being quite intrusive in the interests of us all but this bill goes many many steps too far in terms of what it allows. 
This bill clearly is written to be as inclusive as possible. One only has to begin with Part 1 “General provisions”. The interpretations which are clearly modelled are designed to enable rather than to restrict or to control. They are quite simple things. In clause 3 in paragraph (b) of the definition of “business context” the definition of some of the people who may be investigated includes an employee. An honest innocent employee of an entity being investigated can find themselves subject to the provisions of this bill. A person’s private personal information may be compromised simply because they are an employee of an organisation an entity that may for some reason be of interest to one of the many State agencies that get powers under this bill. “Evidential material” again in the interpretation clause includes “evidence or any other item tangible or intangible of relevance”. That is an extremely broad-brush interpretation. It allows for virtually anything tangible or intangible—we assume that means of course electronic data—that may be of relevance. Who makes that test of relevance? 
With regard to the definition of what constitutes or may constitute an “interception device” I do not think it will give much comfort to any of us to know that hearing aids are specifically excluded and may not be used to spy upon us. 
Charles Chauvel 
: And spectacles. 
DAVID CLENDON 
: Or spectacles—yes. It includes “any electronic mechanical electromagnetic optical electro-optical instrument … [any] other device that is used or is capable of being used to intercept or record a private communication”. These are incredibly broad wide-ranging inclusive interpretations. There is no reasonable effort made here to limit the powers that are offered by this legislation; to the contrary. 
We heard a reference by the previous speaker Dr Cam Calder to the issuing officer role. It is interesting to note that clause 106 allows the Attorney-General to nominate—to empower—people like judges and justices of the peace as issuing officers. It also allows the Attorney-General to nominate any other person for a period of 3 years meaning issuing officers may be virtually anybody. The Attorney-General of the day decides who would be an appropriate person to sit in that role. I will speak more in this context later when we consider the Minister of Justice’s very substantial Supplementary Order Paper in terms of the inclusiveness and the broad-ranging nature of the definitions the interpretations. 
There are already very significant powers available in terms of electronic investigation particularly. I was in a court earlier in the week and without needing to comment on the substance of that hearing— 
Simon Bridges 
: What were you up on? 
DAVID CLENDON 
: No I was observing Mr Bridges. I was simply observing as one does. It was interesting listening to the evidence of a computer forensics specialist who was revealing some of the capacity that already exists within existing law and legislation to investigate what has gone on on people’s computers. This legislation if it is passed in the form the Minister wishes will capture not only computers; it will capture phones it will capture iPads. Virtually any electronic device will be fair game for any person who wants to investigate. These are extraordinarily broad-ranging powers. 
We are told clause 4A “Purpose” clearly defines the purpose of the Act. “The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences”—it certainly does that—“in a manner that is consistent with human rights …” and there is specific mention in paragraph (b): “providing rules that recognise the importance of the rights and entitlements affirmed in other enactments including the New Zealand Bill of Rights Act …”. 
I take issue with that. It is good yes as Mr Chauvel noted that reference to the New Zealand Bill of Rights Act is in there but we need to concede that the New Zealand Bill of Rights Act in itself is an extremely weak document in terms of—if you do any sort of international comparison—a section of the existing New Zealand Bill of Rights Act that denies any court the right to overturn or annul any enactment that may be at odds with the provisions of the New Zealand Bill of Rights Act. We routinely see reports to this House that say particular proposed legislation is at odds with the New Zealand Bill of Rights Act does not meet those provisions and yet we are able to enact those provisions. That is a fundamental weakness in the New Zealand Bill of Rights Act. Reliance on it is clearly not sufficient nor indeed with other privacy legislation the Evidence Act and so on. We can take very little comfort from the fact that the New Zealand Bill of Rights Act for example is referenced in this bill. We know that this House can very readily—and routinely does—subvert the good intention of that Act. We tend to wear our freedoms very lightly in New Zealand. 
We have a history I guess of trusting Governments and legislation and indeed enforcement agencies. The provisions of this bill I believe play on that trust in a very unhelpful manner. I think people will be astonished when they discover just what the level of intrusion is that this bill will allow that these parts of the bill will allow. There is very little in this bill that increases the protection the rights of citizens to be secure in their homes in their privacy and in their private communication even between family members between spouses and certainly in a business context. There is virtually nothing that will be sacrosanct that will not be amenable to the intrusive powers given to such a wide range of agencies within this bill. 
There are later parts as I said but I do think that right up front in the bill the purpose of the bill is spelt out very clearly. It is intended to make it easier for New Zealanders’ privacy for their private communications for their private business and their day-to-day activities to be observed recorded and imposed upon. There is very little if anything in this bill that we see that adds appropriate balance to the protection of our civil liberties and human rights. Thank you.