Dalziel Lianne: Search and Surveillance Bill — First Reading 
Dalziel Lianne: Search and Surveillance Bill — First Reading 
[Volume:656;Page:5400] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I too would like to begin by congratulating the Law Commission for its excellent report which really is the predecessor to the Search and Surveillance Bill we have in front of us today. A quote from the Law Commission’s report might be a very good way to begin my comments: “The Law Commission has set out to bring order certainty clarity and consistency to the sprawling mass of statutory powers of search and surveillance scattered throughout the statute book. We have also addressed the glaring gaps where the law has failed to keep up with changes in modern society.” In that context the legislation we have before us today is certainly worthy of our support for referral to select committee and further examination. 
I am surprised though that the Minister of Justice Simon Power did not mention at any stage in his comments what is probably the most controversial aspect of this legislation which is the examination powers the bill contains. I am surprised that he did not refer to it. That provision certainly was in the bill that the previous Government introduced and in introducing it we knew it would be controversial but we did so in the context of bringing the jurisdiction of the Serious Fraud Office into the framework of the New Zealand Police. The bill had a basis for bringing powers that sat within the Serious Fraud Office into the powers of the police more generally but subject to some pretty strict controls. Given that the new Government is not proceeding with the transfer of the jurisdiction of the Serious Fraud Office to the New Zealand Police I was surprised that those provisions are still contained within the bill with no explanation whatsoever coming from the Government. I am a little disappointed that the Minister did not spend any time addressing that particular issue and I look forward to other Government members picking it up as an issue and really trying to provide some substance about the matter because it is a very serious matter. 
One of the principles of our criminal law is the right to remain silent. Some people have been somewhat disconcerted by the reality of somebody who has exercised that right to remain silent and who has successfully used the provocation defence as we saw in the earlier of the two cases that have recently concerned our headline news. It is very important that we think very carefully about why certain protections exist in our criminal law. To set them aside requires very good debate consultation and working through all the issues. I am not saying that this is the wrong approach to take. I simply say that I am surprised that the introduction of such a major change which was not the subject of the Law Commission’s report at all had no mention whatsoever by the Minister himself. I think that is rather disappointing. 
In respect of the broader issues within the bill I think it is important to acknowledge that it is of no use to anyone to have all our search and surveillance powers essentially spread throughout a multiplicity of different statutes. I was interested to hear the Minister say the reason the Government had withdrawn the bill and presented it again to Parliament was to ensure it could cover additional different Government agencies and statutes. I guess that when we are dealing with an omnibus bill such as this one it is important to get all the statutes within the context of the bill. In that context it is easier to withdraw provisions than to add them. Certainly we are very pleased to work through the detail of the additional search seizure and surveillance powers that are covered by this particular bill. 
 Just as a rough aside though—because I have an absolute abiding interest in regulatory impact statements—it would be really good if the regulatory impact statement was not just lifted out of the Cabinet paper and stuck within the bill. It would be really good if the regulatory impact statement was— 
Paul Quinn 
: At least we’ve provided one. 
Hon LIANNE DALZIEL 
: There was a regulatory impact statement in the previous bill as well. The point that I make in respect of this particular matter is that the regulatory impact statement states: The recommendations made in this Cabinet paper if agreed to will allow a new Bill to be drafted …”. All I am saying is there is no point taking the phrasing out of the Cabinet paper and just putting it in the bill; it is better to just make a tidy-up adjustment to it so that we are reading off the same page. As the regulatory impact statement states this legislation does not have significant costs for business. There will be additional costs for new forms new ways of doing things and of course the massive amount of training that will be part of the implementation of the legislation. 
One of the things I really like about the new bill—and I am sure the Government members will be very pleased to know there are things about it that I really like and that have improved it in my view—is the mechanism for introducing the law over a longer period of time. This bill will be brought into force by an Order in Council with any provisions not already in force by 1 April 2011 to come into force on that date. The explanatory note states: “The reason for having the commencement date for the Bill set by Order in Council is that considerable administrative change including the training of all affected law enforcement and regulatory officers will be required before the Bill can be brought into force. It will also be necessary to promulgate regulations dealing with a range of matters. It is not possible to determine precisely how long this will take.” I think that is a very very worthy approach for the Government to take and it is one that I support. It is really important when a Government is making huge changes as proposed in this bill that sufficient time for their implementation is allowed. 
The point the Law Commission made when it looked at the issue was that essentially the state of the present law was a mess. It highlighted—and this is an important thing for people to consider when the bill goes to the select committee—that there has been a significant variation in the tests laid down for the exercise of search and surveillance powers that stem from an accident of legislative history which is the way I think the commission described it. It essentially said that sometimes non-police agencies for no apparent reason have more powers than police have in very similar sets of circumstances. So it is really important to bring all of those powers together whether they are powers of the police statutory officers or other agents. The Law Commission made the important point that legislation frequently does not tell law enforcement officers what coercive powers they have or how to exercise them and it leaves a lot to individual discretion and judgment. That means that we hear about the exercise of those powers when the matter comes before the court and an individual court has to decide whether the particular action was legal and whether the individual acted reasonably—but it is always after the event. The intention of this bill is to set out the rules in advance so there is certainty and consistency of application of those important principles on all occasions no matter the agency that is acting. 
The Law Commission when it originally started looking at this matter decided that the rationalisation of the statute book—the commission’s original ambition—was not sufficiently ambitious. It became very apparent to the commission that that approach would not cure the problem. The law simply has not kept pace with technology or with changing trends in crime. One particular area I guess is that much of the law relating to search and seizure is still framed as if most information was contained in hard copy. Those of us who walk around with mini computers—our BlackBerrys—will of course know that a lot of information is now stored electronically and that the old rules are therefore simply not keeping up to date with modern technology. 
The Opposition welcomes the introduction of the bill. We do think there are challenging issues for the select committee to consider but I recommend that people take the time to make a submission to the select committee. I commend the bill to the House.