Chauvel Charles: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1110. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 What I want to do in my contribution on this part is speak to the amendment I have put forward that would amend clause 139. I think it is tolerably clear from the debate that members on this side acknowledge that the Minister of Justice has in many ways tried to accommodate a number of the concerns that we have put forward. Unfortunately we are not there on the Serious Fraud Office and that is going to prevent Labour members from voting for the legislation but it is the case that the amendments contained in Supplementary Order Paper 12 do allay a number of concerns that we have expressed over the course of a year or two to National. 
The relevant difference here is what should happen in a case where the police are concerned that a member of the news media has information that might assist them in the investigation of criminal offending. Under the original provisions of the bill as reported back what would happen in that situation would be that the police would apply to search and seize the material concerned the media organisation would have the power to file an objection to the application to search and seize the material on the basis of the privilege or confidence of the news medium’s source and that objection would be heard by a District Court judge and resolved either way. The judge would either uphold the privilege and protect the source—and we all know how important it is that journalists have a degree of protection under the law for their sources in order to be able to conduct proper investigative reporting; it is a key element of the freedom of the media—or the confidentiality would not be upheld according to the judge’s assessment of the legal position. That was the bill as reported back from the Justice and Electoral Committee. 
The problems with that regime were twofold in my view. First of all the forum in which the objection would be determined was a District Court. Frankly questions of journalistic privilege can involve complicated issues of law. They often involve questions relating to the application of the New Zealand Bill of Rights Act 1990. Because of the way that the Act is drafted it is often increasingly the practice to refer to North American cases on in the case of the United States the first amendment and in the case of Canada their protections relating to the media. The provisions of our New Zealand Bill of Rights Act are essentially drawn from the United States Bill of Rights and from the Canadian Charter of Rights and Freedoms the documents that are often influential in assisting our judges to interpret what exactly our New Zealand Bill of Rights Act means on any particular occasion but also what common law privileges such as journalistic privilege might actually amount to in any particular circumstance. So there can be difficult complex arguments involving often sophisticated overseas authorities. 
It is clearly better from the point of balancing journalistic freedom on the one hand with the interests of law and order on the other for those competing interests to be weighed in the High Court rather than a District Court. I thank the Minister for agreeing to that. That is a request that David Parker originally put to Simon Power. It was rejected by him but acceded to by Judith Collins. 
The second problem with the bill as reported back on this score was this: the police have the material from the journalistic source while they are arguing about whether or not privilege should apply to it. Even the most virtuous member of law enforcement on the planet is going to find it difficult not to want to take a peek at the material while they hold it and there was nothing in the bill as reported back to stop them from doing that. They might not be able to use the material in a legal case they might not be able to admit it in evidence before a court but they would know its content because they had seized it and they had read it. 
So again in response to a concern that we had raised about this particular point the Minister was at pains to try to accommodate the concern and she has via Supplementary Order Paper 12 sought to deal with that concern via a proposed provision that would prevent the material being searched while it was in the custody of law enforcement. It would effectively be surrendered into the custody of the court while the privilege claim was being determined one way or the other. 
We are still concerned about whether or not the provisions are sufficiently robust so the amendment in my name to clause 139 would go one step further and make it an offence punishable by up to 1 year in prison for anybody to breach the provisions inserted by the Supplementary Order Paper that the Minister has proposed. So there would be teeth—symbolic teeth admittedly not teeth that are likely to be used in any particular case. But it would be a signal we could send as a legislature that we think that these provisions are sufficiently important. 
Other speakers have spoken eloquently about the importance of journalistic freedom. It is an absolute bedrock of our free and democratic society. It is a matter of concern that in the world press freedom rankings New Zealand has fallen from eighth to 13th in the space of a year. All of us who believe in living in a free and democratic society and in the importance to us of that should be concerned about it. What Supplementary Order Paper 12 taken with the amendment that I have lodged would do is rebalance the issue here to make sure that there was sufficient protection in place where a journalist really felt that it was important to protect a source and material supplied by the source and it would ensure that we were sending a sufficient signal that we thought it was important and that it was a freedom that was worth upholding. 
I really do not want to say any more than that on this point. The provisions of Part 4 are significantly improved by Supplementary Order Paper 12. Journalistic freedom is better protected and I do acknowledge as I have said that the Minister has been amenable to listening to the concerns that have been raised on that point. 
Hon Nathan Guy 
: A great Minister. 
CHARLES CHAUVEL 
: Yes well it is a shame that we have not quite got to the Serious Fraud Office being included but I will not bang on about it. I will just make the point that if we were to make the amendment that would actually give teeth to the provision around the need to not search material that was seized until the court had determined the question of journalistic privilege we would have much better legislation than what sits on the Table at the moment and is under debate.