Katene Rahui: Search and Surveillance Bill — First Reading 
Katene Rahui: Search and Surveillance Bill — First Reading 
[Volume:656;Page:5409] 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 When the Law Commission president Geoffrey Palmer has described the present laws providing for the powers of search and surveillance as a mess that is a pretty good indication that something needs to be done. Just how big a mess the laws are in was evident from the range of deficiencies outlined by the Law Commission. Existing statutory powers are sometimes too restrictive and unduly limit the ability of the police and other enforcement agencies to gather evidence and prosecute offenders. At the same time current legislation contains insufficient safeguards to ensure that the rights of citizens are adequately protected. The importance of being able to achieve a balance between human rights and increased powers of search and surveillance is made even more complex by the fact that core police powers are scattered throughout the statute book with some enacted up to 50 years ago. The law has also failed to keep pace with technology. Existing legislation sanctioning the law enforcement use of interception and tracking devices is cumbersome and outdated yet silent in respect of the use of visual surveillance devices. Something had to be done and this bill is the response. 
This bill then is designed to improve laws that have developed in a piecemeal fashion and are out of date; real people have been disadvantaged by these flawed laws. There would be no stronger example of a flawed process than the search and surveillance methods used in the police terror raids in 2007 which have already been referred to this afternoon and the subsequent human rights breaches. This shameful episode in our history unfolded with police marching into Ruatoki armed with search and arrest warrants issued under the Summary Proceedings Act and the Arms Act while all the time the public perception was that evidence was being sought under the Terrorism Suppression Act. When people are remanded into legal custody they need to be given reasons for the deprivation of their liberty as stated in part of the Magna Carta. But no reasons were given at Ruatoki despite being asked for repeatedly. At the time the fact that people were being held in custody without reason led to comparisons with Guantánamo Bay. The jury is out as to whether the Tuhoe raids would have been carried out differently had this bill on search and surveillance been part of the statute when Operation Eight took place. What it would have achieved however was a more legislatively defined process for police action and subsequently a better ability to mount a clear legal challenge against it. 
The Maori Party has entered into the debate around this proposed new law on search and surveillance mindful that there needs to be adequate provision in the law and in practice for human rights and privacy. Any such review needs to be undertaken through a tikanga and human rights framework. It is important that in enhancing the law to provide certainty for agencies in their application of search and surveillance powers we balance any changes against the rights of people being searched. Law enforcement needs must be adequately met but at the same time in a way that is consistent with human rights values. 
I suggest that the Ministerial Review of the Foreshore and Seabed Act 2004 a case of recent occurrence provides a positive framework for such an undertaking. Essentially the foreshore and seabed issue resides around the displacement of mana. The previous Government chose to ride roughshod over the Treaty partner. Reconciliation of kawanatanga and tino rangatiratanga was far from the Labour Party’s collective mind. When the new Government was formed an understanding was developed that mana maintenance and enhancement for hapu iwi and whanau was central to the resolution of the foreshore and seabed issue. The ministerial review has now come back with a report that assumes that the Act will be repealed and that the framework of the Treaty of Waitangi and international human rights helps to provide the basis for moving forward. 
This then is the precedent being proposed from the review of the Foreshore and Seabed Act and it is a precedent that leads us all to recommend that this bill on search and surveillance powers is especially important legislation to have a Treaty clause inserted. The Tuhoe raids have shown that search and surveillance powers and how they were interpreted by the police demonstrate the importance of legislation being administered and implemented in accord with the Treaty. To this end we will be hoping to see changes come through the select committee that will bring the concept of the Treaty obligations to the fore. 
There are other crucial issues that we hope further debate will provoke. A key concern for the Maori Party is that the people’s voices are heard. The Government has stated that the bill complies with the principles of the Treaty but there is no Treaty clause and no consultation with Maori in the development of the bill. The Government has also said that this bill complies with the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990 although there is no mention of human rights in the bill and there has been no consultation with the Human Rights Commission. It is not enough to say that there are no human rights concerns under the New Zealand Bill of Rights Act as this was not a sufficient check as we saw with the Foreshore and Seabed Bill. The Government has also said that the legislation is consistent with the Privacy Act 1993 although the Assistant Privacy Commissioner has raised privacy and human rights issues. These are major issues for us and we are certainly unprepared to guarantee support until we can gain access to a wider view. 
I think it is very important to note that the scope of the generic and modernised provisions is mammoth in terms of the legislation it affects. Apparently over 50 separate Acts stand to be amended including the Boxing and Wrestling Act the International War Crimes Tribunals Act and the Wine Act to name a few. A wide range of regulatory schemes also come within the scope of the bill ranging from the Commerce Commission to industry-specific regulatory bodies such as the Civil Aviation Authority and the Meat Board. We want to be assured that in the rush to gain legislative commitment to the one-size-fits-all approach we do not end up with some bodies accessing powers that significantly exceed those required or appropriate for their roles. We would be nervous if in the creation of extraordinary powers for dealing with serious organised crime these powers are then extended to investigate suspected lesser crimes simply because they can. The worst-case scenario would be if any manner of agency official can call upon disproportionately invasive search and surveillance powers or worse yet that unwarranted surveillance takes place based on the provisions of this bill. 
Perhaps the biggest concern of all is that nothing prevents a regulator from conducting surveillance on the homes of officers and staff. The bill introduces new covert surveillance and investigative powers which might include installing recording devices to intercept calls tracking devices to determine the movements of staff hidden cameras and the like. The Privacy Commissioner made the recommendation to look more closely at the New Zealand Bill of Rights Act and in particular at section 21 which maintains that everyone has the right to be secure against unreasonable search and seizure. We are hopeful that this can be teased out further as the bill progresses. 
Finally one of the concerns we have raised with the Minister is that there is no purpose clause in the bill. It may well be that such a statement can give clarity about the balance of law enforcement values and human rights and an interpretation to justify the use of particular powers for specific purposes. There are many issues raised but we are prepared to let the bill go to the select committee at least to enable the debate to occur. Thank you.