Chauvel Charles: Search and Surveillance Bill — Third Reading 
Chauvel Charles: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1247] 
CHARLES CHAUVEL (Labour) 
: 
 It has been known for many years that search and surveillance powers in this country are inadequately provided for by law. There has been a combination of patchwork provisions across a number of statutes—I think the Minister of Justice referred to some 69 Acts of Parliament upon which those seeking to invoke search or surveillance powers have had to rely in order to do so—and there are big holes in the patchwork which were previously thought by some to be filled by the common law powers of constables. But any reading of the Law Commission report in 2007 on search and surveillance powers and more directly any reading of the decision of the Supreme Court in  
Hamed v R 
 in September last year shows that even that view relating to the common law powers and their adequacy is wrong. So as we read this 330-page Search and Surveillance Bill for a third time the question today before the House is whether it will make adequate provision for State search and surveillance powers in New Zealand.  
It is true that there are many positives in the bill thanks to the extensive process of consideration that the legislation has undergone. The Law Commission developed a Search and Surveillance Powers Bill as far back as September 2008 based on the report to which I referred from 2007. That bill was replaced by a much wider regime in the Search and Surveillance Bill introduced by the National Government in September 2009. The bill had an extensive gestation at the Justice and Electoral Committee between September 2009 and October 2010 and the select committee made significant changes and added a number of safeguards to the much wider generic regime that was proposed by the Search and Surveillance Bill.  
There was in addition extensive correspondence over a year between my colleague the Hon David Parker in his former role as shadow Attorney-General and the previous Minister of Justice the Hon Simon Power as to ways in which the bill could be further improved once it became clear that the select committee process had produced all the agreement that it was going to be able to produce. Then finally there has been correspondence between Judith Collins and me going down as far as this month. We have also met and sought to reconcile outstanding differences between our parties on the provisions of the legislation.  
When the bill went into the Committee of the whole House stage there were only two outstanding differences of any note between National and Labour. There had been three in the correspondence but Judith Collins did meet the third concern relating largely to general journalistic privileges and we are pleased that she responded to the concerns we raised in that regard. As she said those changes involved ensuring that it was the High Court rather than a District Court that heard a claim of journalistic privilege and also that protections were inserted around the custody of things desired to be searched and seized in respect of which there was maintained a claim of journalistic privilege. The two outstanding concerns at the beginning of the Committee stage related first to the thresholds that should apply before certain new powers should be available to be exercised under the Act but more important as the Minister has said to the failure to include the Serious Fraud Office’s extraordinary powers concerning the answering of questions and the production of documents despite the fact that leaving the Security Intelligence Service regime aside this bill would codify every other search surveillance production and examination power on the statute book and in the laws of New Zealand.  
We had an extensive debate about these matters and in particular the inclusion of the Serious Fraud Office in the general regime of this bill when we discussed it at Committee. I am still very concerned as are my colleagues on this side of the House about the failure to embrace the Serious Fraud Office in the general regime that will be created by this legislation. The powers that the Serious Fraud Office has under its legislation were criticised by the Law Commission itself in the report that led to this legislation. The powers have been exercised in a way that has been chilling to media freedom and so our concerns partially met by the Minister concerning journalistic privilege remain at large as far as these extensive powers in section 5 and section 9 of the Serious Fraud Office Act 1990 are concerned when it comes to the fourth estate.  
And these are not abstract questions. We live in an environment at the moment where our media freedoms as far as world rankings are concerned have fallen from eighth best in the world to 13th best in the world in the space of one year. We do not want to be further undermining media freedoms in this country and yet the failure to embrace the powers of the Serious Fraud Office within this legislation contributes to just such an undermining and it will be a matter of interest—and I suspect great regret—when it is time to examine next year’s media freedom rankings for New Zealand as a result of the failure that I have described to include the Serious Fraud Office powers in this general legislation.  
It is not as if there are procedural objections that can be sustained to the inclusion of those powers in the bill. There was originally a Standing Order ground that might have stood in the way because the Serious Fraud Office Act was not one that was originally proposed to be amended by the original introduction copy of this legislation. That Standing Order was done away with before the beginning of this Parliament and so it no longer stands as an objection to dealing with the powers that I have described. 
 It is not as if this matter was not raised way back at the select committee. It is not as if submitters did not speak to the question. It is not as if the report itself of the select committee does not speak to the desirability of at least as far as the Labour minority view is concerned the inclusion of the Serious Fraud Office in the legislation. In fact greater changes than this were made by the Minister herself in her Supplementary Order Paper 12 tabled and passed by the Committee of the whole House. It is an enormous anomaly to leave section 5 and section 9 of the Serious Fraud Office Act 1990 on the book while regulating virtually every other search and surveillance power in the way that the bill will.  
We were also moved by a number of objections that were raised by other parties during the Committee stage debate including objections raised by the New Zealand First member Denis O’Rourke. There is a real question around the breadth of the incursions into the right to silence and against self-incrimination that will be made by this legislation. Certainly they should exist in the area of fighting organised crime with the protections proposed by this bill. Certainly they should exist in respect of serious and sophisticated white-collar offending. But doing away with the right to silence in the way that the bill proposes across the board and requiring the production order to be available in the circumstances that it will is something that we are increasingly troubled about as a result of having heard the Committee stage debate.  
I think the fact that this is an unsatisfactory way to deal with the search and surveillance powers of the New Zealand State in 2012 is amply demonstrated by the fact that the substantive votes in the Committee stage and presumably today were of the narrowest margins: 59 to 61 votes. They would have been even narrower if the Maori Party had voted at full strength. We remain very concerned about this legislation and for the reasons I have articulated we will continue to oppose this bill.