Chauvel Charles: Search and Surveillance Bill — Second Reading 
Chauvel Charles: Search and Surveillance Bill — Second Reading 
[Advance Copy - Subject to minor change before inclusion in Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I want to begin my remarks today by acknowledging the new Minister of Justice the Hon Judith Collins and wishing her well in her justice portfolio. I also want to recognise the consultative approach that she has adopted early on in her stewardship of the portfolio and I think it is appropriate to acknowledge also that she has a herculean task ahead of her in trying to rationalise the workload that she has inherited. 
It is as I have said previously in this House a difficult workload to have inherited. It is a grab bag of measures frankly some of which sit half—or not even half—completed. I think it will be important for her with respect to rationalise the workload that she has inherited. In doing that I have already expressed to her privately that the Labour Opposition will offer its support for the sensible measures that are part of that legacy although not all of those measures because I am not sure frankly that history will be kind to her predecessor in the portfolio. 
Mr Power was a popular member of this House and a charming member of this House but frankly the backlog that now sits in the justice portfolio waiting to be processed is most undesirable. Frankly also the record reflects that Mr Power was not willing to consult on measures that he ought to have consulted on particularly this one the Search and Surveillance Bill where it is undoubtedly desirable that there be a multiparty consensus on the powers of search and surveillance that the State ought to be able to exercise. 
This legislation has a protracted history. Labour introduced the original Search and Surveillance Powers Bill back in 2008 following a Law Commission report. The bill as the Minister has said was extensively modified via the select committee process in which the Labour team was led by my predecessor as shadow Attorney-General the Hon David Parker. I want to also pay tribute to Mr Parker for the diligence that he showed in that exercise. As the Justice and Electoral Committee report from November 2010 shows his work contributed to a much better bill emerging from the committee than what entered it. In singling out Mr Parker for praise I want to join the Minister in congratulating the other members of the select committee on the work that they did. 
It is clear that this is a much better bill. There are significant modifications to the proposed surveillance device regime better regulation of the more intrusive forms of surveillance that were originally proposed a reduction in the warrantless surveillance period better rules over the retention of data stronger reporting requirements for surveillance device warrants and better controls over examination and production orders. So it is absolutely the case that Parliament did what it is expected to do via the select committee process on this measure. It did look at the detail. The parties worked together and they did produce a better bill. 
But Labour left the select committee process with three issues that it remained concerned and dissatisfied about. As soon as that process ended back in November 2010 Mr Parker wrote to Mr Power and he said: “These are the three issues that we need you to address in order to get multiparty support”—that is Labour support as well as National support—“for the legislation. First of all there needs to be an exemption for the news media for production and examination orders. The powers relating to the Serious Fraud Office concerning production and examination orders ought to be brought into line with the powers that are going to be conferred on the police by this bill. And the thresholds for the availability of production and examination orders in respect of the offences they would apply to should be raised generally from 7 to 10 years.” So those were the three issues. 
These are important issues particularly in the time in which we sit now of declining media freedoms. And concerns have been raised earlier for example in question time by my colleague Clare Curran: concerns about apparent political influence at New Zealand On Air; concerns around turning Television New Zealand through less than transparent means into a commercial broadcaster rather than a public broadcaster a State broadcaster with those characteristics; the resourcing of Radio New Zealand and the adequacy of that; concerns about deals done with private broadcasters like MediaWorks involving a senior Minister; and of course the tea tapes. All these matters are matters of concern relating to the climate of media freedom in this country and they are matters that we cannot ignore. They are matters that are directly within the purview of this bill and they are matters that really have to be dealt with if we are going to make progress here. 
Consideration of the bill became more urgent last year because of the  
Hamed 
 decision already referred to by the Minister. The legislation had been languishing on the Order Paper for a year when the Supreme Court decision forced Parliament to act late last year in those dying days of the last Parliament when we put in place an interim regime which is due to expire next month. 
So clearly we are in a tight time frame to deal with this problem but it took Mr Power a year a full year to give Mr Parker a substantive reply to the three concerns he raised. 
Hon David Parker 
: It wasn’t received until after the election. 
CHARLES CHAUVEL 
: It was not received as Mr Parker said until after the election and essentially he put the burden on Mrs Collins to deal with these three concerns. 
The Minister and I met yesterday. She wrote to me today and I accept her good-faith attempt to try to resolve these problems and in passing I should say that in respect of at least two other measures I can think of I appreciate the approach she has already shown in this portfolio. She is willing to stand back and take a look at whether a measure is really necessary and whether or not it really commands stakeholder support and if it does not she is willing to give it another look. That is something that ought to be said for the record. 
The problem we have with this legislation is that as I have said we are in an urgent legislative phase here because of the expiry of the interim Act next month. We still do not have a Supplementary Order Paper even though I acknowledge the Minister’s commitment to share it when it is ready but as the Leader of the House signalled before question time we could be 5 days away from the Committee stage. 
So we have the problem really over the issue of media freedoms which is that even though the Minister says she will ensure that it is a High Court warrant that will be required for a production or examination order against the media rather than a District Court warrant—and that is a great step forward—there is still the problem that the police will have the material in their possession in the interim while the order is being applied for and while objections are being processed and journalists and their sources are going to know that. They are going to know that the enforcement authorities of the State can see that material before a judge can pronounce on its admissibility because a copy can be kept to prevent its destruction. Until we can get that fundamental issue dealt with as I have said to the Minister we do have a real issue. 
I think on the other two matters that are outstanding the Minister has given an undertaking about reporting on the Serious Fraud Office powers which I know she has consulted her colleague about and will give that careful consideration. On the issue of the threshold of 7 or 10 years I am not sure that that is so much of a problem. We can have a schedule of offences in the bill and we would know what was in and what was out and that would get around the objection that has been raised. 
If this measure proceeds past a second reading I hope a satisfactory Supplementary Order Paper can be produced and considered in time and that if it is we can support the measure. But meanwhile without a Supplementary Order Paper to consider with the Committee stage maybe 5 days away and without addressing the objections that Labour has consistently raised now for over a year it is impossible for us to support the legislation in its current form and we will be voting against the second reading of this bill.