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:1107. Text is incorporated into the Bound Volume.] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I want to take over from where my colleague Kris Faafoi left off which is to talk on the declaratory orders clauses clauses 57 through to 61. I want to ask the Minister of Justice a few questions about this. It is not my area of expertise so I may not necessarily have a good grasp of this but I would really appreciate the Minister responding to this. The concern that I have is this whole area about requiring or enabling a court to give a declaratory order. It is not an expression that I am familiar with and I do not know whether they appear in other legislation. Perhaps my more learned colleagues will know the answer to that question; it is new ground. The problem I have with a declaratory order is that it is not like a declaratory judgment. With a declaratory judgment you have two parties who have a set of agreed facts upon which they ask the judge to adjudicate. It is the same as taking a case essentially because you have a set of facts that are put before you— 
Hon David Parker 
: Both sides argue. 
Hon LIANNE DALZIEL 
: Both sides argue their particular point. In fact we had a declaratory judgment last year where the Earthquake Commission basically lost to the insurance companies and it is costing the country an absolute fortune. But that was a declaratory judgment that was taken that was the outcome and that is what we have to live with. 
A declaratory order though is when the police are able to go to the court and basically ask whether something is lawful. Am I reading this in the correct way? Perhaps colleagues can again assist me. The problem with doing that is that the court makes a declaratory order which is an advisory order telling them that yes it is within the law but then a case is taken further down the track when the particular provision is utilised and a defendant in a trial then challenges the very basis of the utilisation of the device technique or procedure or the carrying out of an activity specified in the order. That to me sets up a really difficult situation because in fact the court has been asked to predetermine a position against which counsel for the defence in that particular case will not have the opportunity to argue their cause. So I am really worried about the nature of these provisions and whether they are in fact appropriate provisions. I think this is why we have asked for these particular clauses to be removed from this part of the bill. 
Charles Chauvel 
: I’ve tabled an amendment for that. 
Hon LIANNE DALZIEL 
: You have tabled an amendment to do that. My colleague Charles Chauvel has tabled an amendment to do that. I think that that is a very reasonable step to take because when we think about the circumstances that arose in the  
Hamed 
 case—and I suspect this is the reason that the bill dealt with this in this particular way without having taken into account the case because of course the drafting of this bill preceded the case in question—I guess the law is probably more settled now than it was when this was being drafted. I think that it really does need to be reviewed. 
In the current legal framework there will have to be sought a court order before particular surveillance can be undertaken. Therefore the reason for seeking a declaratory order really does not make much sense in light of where technology has already come. So it may be something that we would have looked at several years ago but it actually does not make any sense to me why we would have such a declaratory order provision. 
When I read the report back from the select committee it made the point—I think it was on page 14 of the commentary on the bill—that it was going to call it a “residual warrant regime” and it changed that to the “declaratory order regime”. But I think in so doing it has identified the specific problem with it and the problem is that a declaratory order regime is actually not appropriate. It is not appropriate for a judge to be making a decision on a particular regime such as this without in fact ensuring that—well it is inappropriate to provide judicial clarification as it has said in such a manner—