Chauvel Charles: Search and Surveillance Bill — In Committee 
Chauvel Charles: Search and Surveillance Bill — In Committee 
[Volume:678;Page:934] 
CHARLES CHAUVEL (Labour) 
: 
 I would like to begin by agreeing with something that the Minister of Justice said and that is that the process by which parliamentarians have sought to make this a better bill is to be commended by the Committee at this point. In my second reading speech I recounted the history of this measure and I think nobody could dispute the proposition that the Justice and Electoral Committee chaired by Chester Borrows at the time with the Labour team led by my colleague David Parker paid exhaustive attention to improving this bill. The select committee members really did take their parliamentary duties very seriously in trying to fashion a better measure so I think what the Minister says in that regard is correct. This bill has had a long gestation period. We can see from the amendments to Part 1 of the bill that the select committee did not simply take a once-over-lightly approach. It did look long and hard at how it could make a better bill. 
I think one of the best examples of that is the purpose clause that the select committee inserted clause 4A where the select committee clearly thought it needed to provide some guidance to the courts. Members will know that courts look increasingly at purpose clauses when Parliament inserts them for guidance about how the rest of the Act should be construed. The purpose clause here is instructive. It speaks about “(a) modernising the law of search seizure and surveillance to take into account advances in technologies and to regulate the use of those technologies;”—I think the next paragraph is the most important 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 1990 the Privacy Act 1993 and the Evidence Act 2006;”—and lastly—“(c) ensuring investigative tools are effective and adequate for law enforcement needs.” 
The primary importance of this purpose clause as I have noted is paragraph (b) because the importance of the specific freedoms that are affirmed by the New Zealand Bill of Rights Act the Privacy Act and the Evidence Act are repeated. The courts are to have regard to these freedoms when construing the rest of the legislation and this is of cardinal importance. 
The Minister in her introductory remarks mentioned that this is a Law Commission - prompted attempt to bring into line the search and surveillance powers of the State that are currently scattered across nearly 70 pieces of legislation—69 I think was the number that the Minister mentioned. With that being the status quo if the Committee reflects for a moment on how difficult it is for enforcement agencies let alone the courts let alone any other participant in the system to know just what search and surveillance powers exist in respect of any particular Act or any particular agency it will become apparent that it is a generally desirable exercise to bring those powers together in one statute and that is what this legislation will do if it passes. 
But there is one omission in the bill—one significant agency that is not brought within the purview of the legislation—and a number of speakers on the Labour side tonight intend to do their best to persuade the Committee that this is an omission that ought to be rectified. We will be tabling amendments as we go through the debate part by part where those amendments relate to the parts under discussion and we will be attempting to bring into the legislation the Serious Fraud Office. This is a matter that I have had some discussions with the Minister about. David Parker has had extensive correspondence with the Minister’s predecessor about it. The reason that it is relevant to the debate in this part is that David Parker intends if he has not already done so to table an amendment— 
Hon David Parker 
: It’s done. 
CHARLES CHAUVEL 
: —he tells me he has—that brings the definition of the Serious Fraud Office and its director into the interpretation provisions of the bill. 
My understanding of the reason that the Serious Fraud Office was not originally brought into the bill is that there was previously a Standing Order that provided that if a bill was not amended by the introductory version of a bill then it was very difficult without for example suspension of the Standing Orders or the unanimous leave of the House to deal with that legislation by way of amendment in later stages. That Standing Order has not been re-enacted in the current version of the Standing Orders. So what I am really putting to the Minister in the chair the Minister of Justice is that given that this procedural difficulty was said to be the prime reason for not being able to bring the powers of the Director of the Serious Fraud Office into line with the 69 other agencies that are going to be dealt with by this bill it seems that we in the Committee stage now have a last opportunity to do that and to standardise this one last great standout of enforcement powers. The amendments that my colleagues and I will table during the course of the debate will seek to do that. 
Here is why this is important. The Director of the Serious Fraud Office by sections 5 and 9 of the Serious Fraud Office Act has the most extraordinary powers. He can without a warrant without the permission of any other official politically or otherwise appointed require the production of any document and he can require any person to come before him and answer questions. These are very very wide powers. The Minister will tell us later in the debate about her Supplementary Order Paper 12 which is designed to try to overcome some of the concerns we have raised about media freedoms and the reason why unfortunately her Supplementary Order Paper does not quite get there is because the powers of the director remain untrammelled and unfettered. So what I am really asking the Minister and the Committee to do in this debate is to use this final opportunity to bring those powers into the standardised regime that we are considering tonight. 
What the amendments that we will deal with later starting with the amendment to the interpretation clause that David Parker has tabled would do is do away with the powers that I have described. They would retain the powers that the director has currently under sections 6 and 9 of the Serious Fraud Office Act 1990 to go to court and seek by warrant the extensive range of powers that he needs to do his job—we all acknowledge that—and those powers would be then controlled by Part 4 of this bill. In other words they would be brought into line with all the other enforcement powers that we are conferring on every other agency by every other statute. That means not only that the media freedom issue that we have raised which is a very serious one would be comprehensively dealt with pretty much by the amendments put forward by the Minister in Supplementary Order Paper 12 but also that media freedom would not be threatened by the standout Draconian powers that would be left with the Serious Fraud Office if we do not deal with them in the way that I have suggested. 
My concluding plea to the Committee is to have a good think about this as we remind ourselves that the only reason that the Serious Fraud Office is not in the legislation apart from the Standing Orders accident that I referred to earlier is that there was a proposal by the last Labour Government to merge the Serious Fraud Office and the police. Because that proposal as I understand it was on foot when the Law Commission considered this issue it did not deal with the powers of the director. Well that is a historical anomaly. It is one that we have the chance to rectify and if we do it will go a long way towards meeting our concerns.