Parker David: Search and Surveillance Bill — Third Reading 
Parker David: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1258] 
Hon DAVID PARKER (Labour) 
: 
 Mr Bridges in his criticisms of Mr O’Rourke and the New Zealand First Party did exactly what the Minister of Justice a former Minister with responsibility for the Serious Fraud Office did in the Chamber the other night in the Committee stage which was to try to suggest that parties who are opposed to the Search and Surveillance Bill are soft on law and order. It is a reprehensible claim to make because it is not correct. It is using the artifice of this legislation to try to position Opposition parties on law and order issues for the political gain of National to the detriment of our country. It has not worked Mr Bridges because that line has been played by your Minister by you and by lots of your fellow members of Parliament in an effort to position Opposition parties. What has happened is that National has positioned itself and has been criticised in editorials up and down the land for getting the balance wrong between protecting New Zealanders from inappropriate search and surveillance protecting the long-term viability of our democracy by protecting those who keep our democracy clean and protecting the long-term relationship between the police and other law enforcement agencies and the public. In the time I have got available I want to explain why it is that those principles are not being properly balanced in this legislation. 
Before I go into the detail which relates mainly to search and surveillance powers I will acknowledge the general proposition—except in respect of examination orders and production orders and perhaps to a lesser extent residual warrants—that this legislation is good legislation. It does not create wholesale extra rights for State agencies and it does regularise slightly different legal tests that applied to lots of different agencies across the statute book—and that updating was necessary. 
It also brings up to date legislative control of new search and surveillance techniques that were not technologically available at the time of earlier legislation and that need to be covered with legislation now. The Labour Party does not have a problem with those parts of the bill—and they are 90 percent of the bill in volume but not 90 percent of the bill in principle. The important principle as my colleague Charles Chauvel and Denis O’Rourke have I think quite eloquently explained—as have other members in earlier stages of the debate including the Greens—is that the problem lies in examination orders and production orders. I want to explain to the extent that I am able why both in the context of the media and more broadly than the media that is wrong. 
The right to silence has a number of reasons that lie behind it. Denis O’Rourke and before him Charles Chauvel have explained some of those in terms of the protection of the civil liberties of people who ought not to have to answer and incriminate themselves. There are other reasons that I will go into. One is that long term the relationship between law enforcement agencies and the public relies upon cooperative relationships. That might surprise us when we think about it—yes you might have confrontational relationships between the police and the accused—but most of the evidence that the police get or other arms of the State get is because it is volunteered by people who think they should be cooperating with law enforcement agencies because they believe that law enforcement agencies have a proper role in society for enforcing laws. Those relationships between the public and the police on a cooperative basis are absolutely fundamental to the police being effective in their law enforcement work. Those relationships are also absolutely fundamental to minimising the physical risk that policemen and policewomen face as they go about their jobs because most of the populace are on their side. You undermine the safety of the police long term and you undermine the effectiveness of their investigative procedures if you bring the population into conflict with the police by forcing them to give evidence against their loved ones. That is one of the really important reasons why we have a right to silence—so that we do not put people in the position whereby they have got to dob in their kids or their husband or their wife or their partner or their lover. That is a very important principle of law that is being undermined by these production orders and examination orders which say to people they must give evidence. 
Law enforcement agencies in New Zealand have existed for the last 150 years—with the exception of the Serious Fraud Office for the last few years—without those powers and law enforcement in New Zealand is probably more effective than it is in 99 percent of the other countries around the world. We do not need these additional powers in order to have effective law enforcement and we risk undermining effective law enforcement if we do that. 
Further we put at risk media freedoms not so much in respect of these police powers but more in respect of the Serious Fraud Office where even the protections that are found in this legislation are not present. At the moment it is an absolute outrage that the Serious Fraud Office without any intervention from a judicial officer overseeing its conduct does not need to get a warrant and can serve either a production order or an examination order on the media. We have catalogued previously in this debate the calculated way in which National has stopped that problem being remedied including during the select committee. There have been delays of more than a year in responding to Labour Party entreaties that this needed to be fixed. National has ignored entreaties by the  
National Business Review 
 by the media freedom committee and by other arms of the media to fix this problem during the 2 years that it has been around since the  
National Business Review  
was raided by the Serious Fraud Office and was asked to disclose things that could have included its sources. We have seen the process by which National has abused that but I am going to state again the principle of why it is so important that the problem be fixed. 
The real example lies in the raid of the  
National Business Review  
by the Serious Fraud Office. What led to that? The  
National Business Review  
was doing its own inquiries as to what had gone wrong in the South Canterbury Finance collapse. Remember that collapse has caused hundreds of millions of dollars of loss to taxpayers. Allegations have been made of incompetence or poor practice by Treasury increasing that liability by tens if not hundreds of millions of dollars as it let the risk grow and of incompetence by the directors who made some very shonky loans including perhaps to related parties during the period following the grant of the guarantee. The  
National Business Review  
did its inquiry. It no doubt relied upon confidential sources from within those organisations telling it in confidence what they knew in order to bring this to light so that this could have light shone upon it. Why did we do that? Well where you have incompetence and in other instance—and I am not suggesting there was corruption by the Government here—where you have corruption how you protect democracy long term from corruption and from incompetence is by shedding light upon it and causing consequences for those who are involved in it and the fourth estate has an absolutely fundamental role in doing that. 
I am one of those who at times has felt like the criticisms that I have faced from the media have been ill-informed or they have been a bit superficial or they have been a bit hurtful and I have not liked it but I will defend until my last day in this place the media’s right to make those criticisms because their role in keeping democracy clean is far more important than my sensitivities. Protecting the  
National Business Review  
sources from inappropriate use of powers by the Serious Fraud Office is absolutely essential if people are to have confidence to give information to the  
National Business Review  
in confidence. If they cannot be assured of that they clam up and the public interest is not served because these things are not brought to light. That is the essence of the problem. 
The other problem with the Serious Fraud Office is that it does not just relate to the  
National Business Review 
; it uses its powers far more often than it needs to and far more broadly than it needs to when it could use alternative techniques including warrants and including normal investigative techniques. 
The final point that I will make is that having listened to the debate I think that the production orders we are conferring upon the police go too far and should be narrowed to organised crime in a business context.