Parker David: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Parker David: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1112. Text is incorporated into the Bound Volume.] 
Hon DAVID PARKER (Labour) 
: 
 At the risk of banging on about it to use my colleague Charles Chauvel’s words I am going to return to the issue of the Serious Fraud Office because it is a serious issue and it comes up again in relation to clause 106 of the Search and Surveillance Bill. Clause 106 sets out the people whom the Attorney-General may authorise to issue warrants and it sets out various protections that either were in the bill or were added by the Justice and Electoral Committee. The select committee said there were some provisions that needed to be added to the rules relating to who could issue a warrant—who could authorise the issue of a warrant to an enforcement officer. 
Warrants are necessary for most search and surveillance procedures by the police. In fact for all search and surveillance procedures that are trespassory unless they are in an urgent situation during the commission of a crime effectively you need prior authorisation from a justice of the peace judge community magistrate registrar deputy registrar or other person. This is clause 106. At the select committee we heard submissions on this and we thought that it needed tightening because the words “or other person” meant that the class of persons who could authorise the issue of a warrant was too broad. We tightened that up by making it clear in clause 106(1A) that the Attorney-General may not authorise an enforcement officer to act as an issuing officer. So a policeman cannot authorise the issue of a warrant to another policeman. 
Further we added clause 106A to say that “An issuing officer who is employed or engaged by a law enforcement agency must not consider or perform any function in relation to any application made by a law enforcement officer employed or engaged by the same law enforcement agency as the issuing officer.” That is to get around the situation where someone might be a justice of the peace working for the fisheries department for example. They ought not to be able to authorise the issue of a warrant to the fisheries department because clearly a justice of the peace who could be in quite a junior role in the fisheries department could come under the influence of a more senior person in that same organisation. Again the Government has agreed that that is an appropriate limitation on who can issue warrants. 
Contrast that with the position of the Serious Fraud Office. The Serious Fraud Office is its enforcer. It does not have to go to someone who is not an enforcement officer to exercise its powers; it does it by an internal administrative act. So again Minister I ask you to justify why clause 106 is proper in respect of all of the enforcement agencies in New Zealand except two. All of the arms of the Crown except two will be covered by this. One exception is the Security Intelligence Service. It has separate legislation and its actions if it is going to exercise search and surveillance operations have to be approved by the—what is the— 
Charles Chauvel 
: Commissioner of Security Warrants. 
Hon DAVID PARKER 
: —the Commissioner of Security Warrants Charles Chauvel tells me—I had forgotten the exact term myself—who is generally a retired High Court judge. So it has a specialist High Court judge who oversees the issue of warrants to the Security Intelligence Service. The other exception is the Serious Fraud Office and it does not have to go to anyone; it does it internally. So Minister where is the principle that underlines what I think is the stubborn refusal of the Government to bring the Serious Fraud Office into line with the processes that have to be followed by every other State agency before they exercise some of these intrusive powers? 
Can I also turn to how this links into the recognition of privilege because the recognition of privilege that is provided for in Subpart 4 of Part 4 of the bill at clauses 130 onwards lists the sorts of privileges that people can claim: legal professional privilege privilege with legal advisers privilege for the preparation of materials for proceedings privilege for settlement negotiations or mediation privilege for communications with ministers of religion privilege for information obtained by medical practitioners and clinical psychologists privilege against self-incrimination privilege for informers and rights conferred on journalists under section 68 of the Evidence Act. Those are the different classes of people who can sometimes claim privilege. Behind that privilege lies a public interest in non-disclosure that outweighs the public interest in the police being able to get the information. Can those sorts of claims of privilege ever be made in respect of the Serious Fraud Office? No because the Serious Fraud Office provisions are not subject to this part of the Act. 
I want to make it clear that if there is a dishonest purpose—and you see it in those famed cases in America where you have crooked lawyers or crooked journalists who are part of some Mafia conspiracy—those sorts of cases where the journalists or the lawyer are actually part of the dishonest purpose are expressly excluded from privilege. So we are not protecting bad people here; we are actually just protecting the public interest in the privilege that traditionally—or which has grown in common law and is recognised in statute—protects certain sorts of information and relationships. This is where there is a public interest in those communications being kept private that outweighs the public interest in the police being able to get at that information. I invite the Minister to say what the difference is for the Serious Fraud Office.