Clendon David: Search and Surveillance Bill — Third Reading 
Clendon David: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1253] 
DAVID CLENDON (Green) 
: 
 Tena koe Mr Assistant Speaker Robertson. Tena koutou. We think it is a sad day that this Search and Surveillance Bill is passing through the House. It is passing in some haste in order to meet the deadline set by the passing in equal haste last year of the video surveillance legislation that was required to correct an obvious shortcoming in the legislation. We know what upset that caused.  
This bill has one or two small redeeming features. It does bring together legislation. It brings together provisions that are currently spread around a lot of legislation—a lot of it quite old legislation. It is entirely appropriate that we should routinely update and rationalise pieces of legislation. This bill does to some extent achieve that. It does put some constraints around surveillance and other activities of agencies where currently there are no such constraints and that is a good thing. But we have heard a little bit about balance in relation to this bill—about achieving a balance between enabling the State to go about necessary work to detect criminal behaviour and other undesirable behaviour and the protection of human rights and civil liberties—and frankly we see this bill as failing very badly in achieving that appropriate balance.  
This bill is overwhelmingly negative in that it clearly seeks to give the widest possible powers to the police to the Customs Service to the Department of Internal Affairs to the Ministry of Agriculture and Forestry and to a whole swathe of other Government officials who hereafter will be enabled to make the most extraordinary intrusions into the private business of New Zealand citizens who may well simply be going about their legal and honest business. There is simply no justification for such a wide-ranging all-encompassing enabling approach. We simply do not have the political climate or the legal or social context that requires the level of intrusion that this bill will allow. This is far beyond the reasonable needs of the police or any other Government enforcement agency. The argument that this level of intrusion need concern only criminals and that honest people may rest assured that their privacy and the integrity of their homes business and indeed their person will not be compromised simply does not wash.  
It was interesting to hear a contribution from a Government member in an earlier debate who made a comment along the lines that he did not have a lot of interest in the human rights of those who are not interested in obeying the law. That statement to me reflected the underpinning—dare I say it the ideological or philosophical underpinnings—of this bill which would willingly undermine the civil liberties and human rights on a very weak and a very poor justification. The onus is absolutely on the State in a liberal democracy to maximise the protection of and give the greatest possible protection to human rights and civil liberties. Any tendency to move away from that initial premise is the beginning step down a very slippery slope. It is a step towards a situation where the State is enabled to intervene and intrude in an inappropriate way. It is a step towards a New Zealand that none of us would seek to live in and that none of us would want. If we saw it happening it would be recognised as a very unfortunate move for a country that does pride itself on civil liberties and on being a truly democratic State.  
This bill for example goes a very long way to breaking down some very long-held legal conventions such as the right to silence. This bill clearly removes in many instances the right of individuals to avoid self-incrimination. People can be obliged to hand over documents and other forms of storage of data and to make statements that are very likely to incriminate them if they have been guilty of some criminal act. That right not to self-incriminate is a very long-held tradition and a convention with some centuries of history. It is very unfortunate that this bill breaks that convention with so little real justification or need.  
This bill chips away at the integrity and the status of information that is shared in confidence—information that we consider to be privileged and that individuals may have shared with their lawyers with their ministers of religion with their medical doctors with their psychologists and indeed with the media. There is no legitimate reason. These communications this privileged information should be sacrosanct except in the most extreme circumstances. This bill enables those forms of communication and those forms of privilege to be compromised and to be broken on some very very weak underpinnings and on some very weak suspicions. The apparent safeguards contained in this bill are clearly inadequate. Once information is out of the box and has been seen it cannot be unseen. It is known to authorities and is very likely to be used in some way and that is simply inappropriate.  
I think it is worth going back to considering the numbers and the strength should I say of organisations that found fault with this bill that made objection to it that made commentaries on it and that objected to many of the provisions in the bill—organisations like some of our major law firms which are concerned about the powers that the bill gives to State agencies and others and about the breaking of some of those long-held legal conventions. There were statements from the New Zealand Law Society the Human Rights Commission the Privacy Commissioner the Council for Civil Liberties the Council of Trade Unions the New Zealand College of Clinical Psychologists and Telecom which had a major concern clearly about the transmission of electronic data and information. These are not organisations that operate without giving some reasonable thought to their statements. They all found fault with this bill. This is the purpose clearly of a select committee process and we acknowledge that the Justice and Electoral Committee did wind back some of the most extreme provisions of the initial drafting but it was not able to go far enough. Clearly there was not the will within the majority on that committee to put in place the provisions of this bill in a way that would protect rather than compromise civil liberties and human rights in New Zealand.  
It is also instructive to go back to the departmental report to the select committee from August 2010 which summarised the nature of the many hundreds of submissions that were made and the concerns that were expressed by New Zealanders as individuals and as organisations—indeed some very high-powered well-researched and thoughtful organisations. A common complaint was that the bill expands the powers of police and other agencies in a dangerous manner and that word “dangerous” came through quite routinely if you scan the submissions. People see real danger to themselves to their communities to the integrity of private information and indeed to people’s private lives in some of the provisions in this bill. This bill was seen as a threat to political activism. We and I am sure members on all sides of this House value the fact that New Zealanders have the right to object to demonstrate to be politically active and to oppose the Government of the day. I think that when large numbers of New Zealanders are seeing this bill as a threat to their ability to be politically active to protest and to demonstrate we should give pause to think what is going wrong here.  
Many commentators observed that this bill encroaches on human rights and that it contains insufficient safeguards. Having acknowledged as I have that the select committee process and the later drafting did put in place better safeguards it is still clearly inadequate. This bill sets very very low thresholds and very low standards for reasonable grounds to suspect and it gives State agencies the right to intrude in the most extraordinary ways: to break into people’s houses and cars without warrant under some situations and to insert surveillance devices that may involve cameras video recordings and direct remote accessing of people’s electronic communications. These are extraordinary powers given with completely insufficient concern for civil liberties and human rights.  
I think the last word—unusually perhaps—can go to the media and to a recent editorial in the  
New Zealand Herald 
 that said that the “Powers of search seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties.” The editorial said: “The right to silence is a cornerstone of civil liberties. This bill goes too far.” Thank you.