Goff Phil: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Goff Phil: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1095. Text is incorporated into the Bound Volume.] 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 Part 3 of the Search and Surveillance Bill is an important part of the bill. It deals with the powers and the orders that enforcement officers are going to use. It looks at warrants for surveillance devices and in particular it looks at the use of production orders. 
I want to say first of all that Labour supported the introduction of this bill. In fact it was introduced by Labour. When Labour looked at this bill we did not take the steps that were included in our bill lightly. It was based on 6 years of work by the Law Commission and it was based on a widespread view that comprehensive reform was necessary of a series of laws that had been subject to ad hoc changes which had led to real confusion and a lack of coherence. Some of these laws were 50 years old and simply did not cover the technological changes that had occurred. So the first principle that Labour followed was that we recognised that in fighting crime we have to give our enforcement officers adequate tools and powers particularly reflecting changes that have occurred technologically. But there was a second principle which the National Party when it took over the bill did not seem as concerned about. That principle was that equally you must recognise that when you give coercive powers to enforcement agencies you make sure you do not unreasonably undermine basic civil rights and liberties. 
The thing that worries me about the way National has gone about this bill is that it had 2½ years to actually act on it and put in place Labour’s reforms and it did nothing. National sat on it; it did nothing. Then at the last moment as a result of a court decision in  
Hamed 
 National decided in a panic-stricken way to introduce new powers and not worry at all about how these powers could be misused. The fact was that in the legislation that came in last year National was going to rush legislation through this House without reference to a select committee without the ability of any individual or organisation to make submissions on it and to improve or change that legislation. Fortunately National did not have the numbers to do so. It did not have the numbers to do so so the changes were temporary. 
When the Justice and Electoral Committee looked at these details the select committee—and I am talking about the whole of the select committee; National as well as Opposition members—acknowledged that the bill that National had introduced went far too far. It had no balance and it needed to be and has been significantly redrafted. Not only have changes been made in the select committee but the Minister of Justice has come back to this House with 92 pages of a Supplementary Order Paper—92 pages. How badly wrong did the National Party get this legislation? The truth is that but for the work of the select committee and the insistence of Labour that the bill go to the select committee that original bill would be on the statute book today and it would be wrong. National Party members on the select committee admitted that many of the powers went over the top were disproportionate to the offending went to too many agencies and went too far. 
I do acknowledge that some changes have been made that make this part of the bill more palatable. We have reduced the surveillance period without warrant. I think that is an important safeguard. We have limited the retention of surveillance data on people who are quite innocent of any offending. It is absolutely repugnant that you would be keeping on tape video surveillance of people intruding on their privacy who were doing nothing wrong. It is really important that we protect the privacy of individuals who are innocent of any offending against the law and against other people. And the bill imposes more stringent reporting requirements. But this still does not go far enough which is why Labour is not supporting the part. 
There are amendments in the name of my colleagues Charles Chauvel and David Parker which we will be supporting but in particular we want to focus in this debate on the use of production orders. Production orders are orders that require a person to produce information or documents. That is in effect overriding what we would regard as the right to silence. No person is normally forced to produce documents that might or might not be incriminating against them. In fact it is only the Serious Fraud Office that has the power to issue production orders prior to this legislation coming into effect. When we looked at how those powers were being used by the Serious Fraud Office we found—in fact the Law Commission commented on it—that there was a tendency because we gave these powers to the Serious Fraud Office for it to overuse them. It did not use conventional investigation techniques. Its first instinct was to use these extraordinary powers regardless of whether or not they were appropriate in the circumstances. 
This brings me to the point that I think is most important in this debate and that point is this: in this country Parliament acts to hold a Government accountable but there is also the fourth estate the media which has the vital role of holding a Government to account. For the media to be effective in the use of its authority then people who give information to the media must be confident that the information they provide will be made and kept confidential. It is vital to protect that confidentiality and the freedom of the press. That is why we are concerned that the Serious Fraud Office used production orders against the  
National Business Review 
 during its inquiry into South Canterbury Finance. Serious Fraud Office staff went into the news room and seized the documents. Is it any wonder that an international rating agency saw New Zealand’s rating in terms of media freedom drop from eighth in the world to 13th? That is a significant drop. We are talking about international agencies that no longer regard New Zealand as a country that will protect the freedom of the media. And by God have they not got information to back that up? 
During the election campaign what did we see? The Prime Minister using a complaint over the teapot affair to get the police to go into news rooms again. We saw the Prime Minister misusing his power in terms of going on a Radio Live programme even though he was advised by the Electoral Commission not to. We saw the appointment of the Prime Minister’s electorate chairman a direct political and politicised appointment on to New Zealand On Air and his opposing documentaries that might show the Government in a bad light. It is against that backdrop that these powers available to the Serious Fraud Office and the police have got to be met with concern. 
Labour wanted the Government to tighten the use of production and examination orders by the Serious Fraud Office at the same time as similar powers were being conferred on the police under this bill. Regrettably the Government was not prepared to show the flexibility and the common sense to agree to that. If it had agreed to that then in all likelihood this piece of legislation which is controversial and which risks intruding on the privacy of individuals could have gone through with the overwhelming support of this House. That would have been a sign that we have got the balance right: the balance between giving enforcement agencies the powers they need and protecting the privacy of innocent individuals. We offered cooperation to get that consensus support. It is not too late now for the Minister in the chair Chester Borrows although he might be reluctant to override the Minister in charge of the bill Judith Collins to say “Minister come to your senses on this legislation. We can get the overwhelming support of the House for it but let us protect the role of the fourth estate in making sure that the Government is held to account and that people’s privacy is being protected.” 
That is what Labour is asking for. It is not unreasonable and if the Government finally makes the decision to make that compromise to show that flexibility to have that common sense to respect the role of the media in our society and to get the balance right between giving police and other enforcement agencies the powers they need and protecting the right of New Zealanders ordinary New Zealanders to privacy in their life then we could give support to this bill. I urge the Government to make that change. 
The CHAIRPERSON (Lindsay Tisch) 
: There is too much noise coming from the Government benches. If you want to have discussions go out into the lobbies. That is what the lobbies are for. It is difficult to concentrate and to hear what members are saying.