Dalziel Lianne: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Dalziel Lianne: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1117. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I could not really resist joining the debate after listening to that contribution from Mr Calder. I am sure it was well meaning but unfortunately it was somewhat misleading. The reason it was misleading is that it completely missed the point that we have been kind of banging on about ever since this debate got started on this particular bill the Search and Surveillance Bill which is that these provisions about requirements to get a warrant do not apply to the Serious Fraud Office. What we have been asking for consistently throughout this is to have the bill extended to cover the Serious Fraud Office. I thought it was a bit unfortunate that the member concerned commented about the provisions in relation to police and then implied that they also applied to the Serious Fraud Office when in fact they do not—and that is exactly our point. 
I want to traverse some of the history of this because I also heard the Minister of Justice make the point in her contribution that this had been raised very much at the last minute. Well actually the only thing that has been raised at the last minute has been the opportunity to address this problem in a way that could have been addressed at the Justice and Electoral Committee if we had the Standing Orders then that we have now. That is all that has changed. We have the opportunity to put right a wrong that was done not I think deliberately but simply by reason of the fact that the select committee was given the advice—correctly at the time—that it could not make the amendments to bring the Serious Fraud Office within its ambit because at the time it was not within the scope of the legislation. 
In fact if one refers specifically to the commentary and to the Labour minority view in this report one sees that it states: “The Labour Party enquired of the Government via select committee members and officials whether the Government was willing to tighten the use of production and examination orders by the SFO at the same time as similar powers were being conferred upon the police under this bill. Officials advised that the Government was not willing to do so.” That was when it was reported back from the select committee which I think was actually some time ago probably— 
Charles Chauvel 
: November 2010. 
Hon LIANNE DALZIEL 
: In November 2010 the bill was reported back to the House with an interim report back having been made on 6 August 2010. The position of the Labour Party on this particular part of the bill has been well known for a long time. 
But let me talk about the letter to the then Minister of Justice the Hon Simon Power signed off by our then shadow Attorney-General the Hon David Parker who has already contributed a lot to this particular debate. In this letter which he wrote on 9 November 2010 he made it very clear about the Serious Fraud Office and he talked about why it had not been included in either the Law Commission’s report or in fact our legislation that we were going to be introducing at the time when we were in Government. 
He states the history quite clearly. He states: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office … into a new Organised Crime and Serious Fraud Unit within the Police.” That is exactly what the Minister herself from the chair accepted was the case. The letter continues: “At the time the Law Commission advised the then cabinet that the SFO was in the habit of routinely using their powers to use production and examination orders.” So her statement that this was just a one-off event involving the  
National Business Review  
is simply not accurate. It does not reflect the history nor does it reflect what we were advised by the Law Commission. 
We were advised that in fact this was a routine habit of the Serious Fraud Office. The point was made in this letter that “These orders do erode the right to silence and should be used sparingly. They were never intended to be a substitute for normal investigative practice but rather were intended as a reserve power to be used to unpick serious fraud when normal investigative means will not suffice.” 
 The decision was reached by our Government that we would proceed with providing these powers to the police but at the same time with the decision to fold the Serious Fraud Office back into the framework of the police that it would be picked up by those powers. So those appropriate restrictions that would operate around the use of those powers would apply to the Serious Fraud Office as they would to the police for that reason. That is a point that the Minister really has not I think responded to fairly because she has sort of implied that this has been raised so late in the piece that there was nothing that she could do about it. 
Well I want to refer to the Hon Simon Power’s response. The Hon Simon Power sent his response to the letter of 9 November 2010 on 25 November 2011. 
Hon David Parker 
: The day before the election. 
Hon LIANNE DALZIEL 
: The day before the election. 
Hon David Parker 
: Received after the election. 
Hon LIANNE DALZIEL 
: It was actually received after the election because it was received on 28 November 2011. I do not know what that then Minister of Justice was doing but I do not think this Minister of Justice would have let a letter lie around for that long before it got a response. 
She is actually mentioned in this particular letter and I will just read the section in relation to the Serious Fraud Office examination order powers: “I have consulted with the Minister responsible for the SFO Hon Judith Collins on this matter. The SFO’s view”—the Serious Fraud Office’s view; not the Minister’s view but the Serious Fraud Office’s view—“is that their powers were enacted in the SFO Act with agreement by both sides of the House 20 years ago and have operated with relatively little controversy since.” Well I can probably find legislation that was agreed to all around the House 20 years ago that none of us would want to have a bar of today. I am sure there are plenty of examples of where things have changed over 20 years. The letter went on to say: “Accordingly the SFO does not consider that an ad hoc change to one very specific provision in its Act is desirable and could potentially have an adverse impact on the effectiveness of its wider operations.” 
Well I think I just want to return to what Mr Calder said earlier because he said that this bill was “intended to implement a comprehensive reform of search and surveillance legislation both as regards the core substantive law enforcement powers and the way search powers are exercised across the statute book.” This bill does not live up to its expectation at all and it does not live up to it for this very reason. Having absented the Serious Fraud Office from the coverage of this particular piece of legislation we are unfortunately in a situation where the introductory comments on the commentary of the Government bill do not match the reality of the bill. That is why we have made it absolutely our position from start to finish—and it has not just been a recent position; it has been our position throughout—that this legislation should extend to cover the role of the Serious Fraud Office. 
The recent examples that we have had in relation to the  
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 are not the only examples. As I said quoting from the letter from David Parker to Simon Power back in November 2010 the Law Commission advised Cabinet then that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders and if we are going to have this comprehensive reform then it is important that the Serious Fraud Office is included within its framework. 
I think that with regard to the Minister’s point I understand that it might have been a position that could have been adopted if it had not been addressed at the select committee but it was addressed at the select committee and there were submissions received on it. In fact the question went back to the Government from the select committee to ask specifically whether that addition could be made. At the time our Standing Orders would not have allowed for this debate to occur at the Committee stage— 
Hon David Parker 
: But we could have agreed at the Business Committee. 
Hon LIANNE DALZIEL 
: —but we could have agreed through the Business Committee to do it. There was willingness I think right around the House with one exception and really the grounds for the exemption for the Serious Fraud Office simply do not stack up when one looks at the intention of this particular legislative reform. So even at this very late stage I know that members on this side of the Chamber would really like to see the Minister come to the party on this particular provision because we would have agreement then. 
If we were to have legislation like this where you have got substantive agreement across the House—I know that some Ministers might think that it is not important to have that level of agreement on such fundamental legislation—I think it actually stands in really good stead the weight that is given to legislative change when you can see the range of support that it gathers across the House. I think in measures such as these we should be looking at gaining pretty much universal support in the House where we possibly can. We were so close to getting that achieved in the discussions that we have had; I think it is not too much to ask for that further step to be taken.