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:1099. Text is incorporated into the Bound Volume.] 
Hon DAVID PARKER (Labour) 
: 
 The first issue I would like some clarification on from the Minister in the chair the Associate Minister of Justice relates to clause 57 of the Search and Surveillance Bill and the effect on declaratory orders of the  
Hamed 
 decision which came out after the drafting of this legislation. This point became unclear to me when I heard an address from Charles Chauvel when the Committee stage of the bill was in process during a previous sitting of Parliament when he asked what the proper role is for declaratory orders. 
We heard from the Minister of Justice in earlier stages in the debate that a declaratory order might be used when the police want to carry out some activity that is not specifically able to be authorised through a warrant because it might not have been using a technology that was thought of at the time when this legislation was passed. They could go to the court and seek a declaratory order which is a statement by a judge that he or she is satisfied that the use of the device specified in the order is in the circumstances reasonable and lawful—to paraphrase the clause. 
Charles Chauvel quite rightly raised the question as to whether this was an appropriate power at all which made me think about the effect of  
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 on this. This bill was drafted at a time when the advice that we had at the Justice and Electoral Committee—and the Hon Chester Borrows who is in the Minister’s chair will remember this because he was chair of the select committee at the time—was that where there was no express power because the technology was not in existence at the time the statutory provision conferring the warranted powers was enacted there was a residual power arising from common law for the police to do it anyway. Well that was thought by the Law Commission to be a bit loose and so officials in the Law Commission came up with a precursor to this declaratory order form—and now this form—to give some process to try to cause some judicial oversight of these new processes. 
But of course  
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 came along and said that there is no such thing as an unwarrantable legal trespassory power of surveillance. So you cannot get a declaratory order I would say to the Minister in the chair—and I ask him to respond—because how can you get a declaratory order in respect of something that is now illegal in light of  
Hamed 
? I would say then that the only way in which the declaratory order process can be of any utility is in respect of non-trespassory procedures because trespassory procedures that are not authorised expressly in any form of legislation are according to  
Hamed 
 illegal. They are in breach of the New Zealand Bill of Rights Act. So except to the extent that there might be some exercise of judicial discretion not to exclude evidence because of the seriousness of the crime it seems to me that in respect of trespassory surveillance operations this is a useless clause because  
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 has overtaken our understanding of the law as it was explained to us at the select committee. I ask the Minister in the chair to advise me whether I am correct in that analysis—and he being a learned man and a former policeman I think he might agree with me. 
The other issue I want to address relates to the amendment in my name which is an amendment to clause 69(1A) of the bill. It suggests that the Serious Fraud Office director be made by this amendment “an enforcement officer for the purposes of obtaining a production order.” which would then mean that all of the protections such as they are in this legislation relating to production orders that are sought by the police would flow through to production orders sought by the Serious Fraud Office. I do not know whether you were in the Chair at the time when we were last having this debate Mr Tisch—I think you were. You will be aware that there is a residual concern of the Opposition that even if you accept—and I heard the New Zealand First contribution in respect of production orders and examination orders in this context—that production orders might be justified sometimes they are never justified without appropriate protections of media freedoms. And that is what this amendment seeks to address by making the same protections that apply in respect of production orders sought by the police also apply in respect of production orders sought by the Serious Fraud Office. 
Since we have had those early stages in the debate we have had some editorials come out from the major newspapers in New Zealand that have been considering these issues. I would like to reflect again on what a production order does. A production order effectively requires the person who is served with the production order to hand over documents. They do not have a discretion; they must hand over the documents to the police and also at the moment to the Serious Fraud Office along with the police. The police have to get a warrant the warrant has to be from a judge the person can claim media privilege and there are certain protections—inadequate in the view of the press—in respect of police actions but none of those protections arises in respect of the Serious Fraud Office. 
What does the  
New Zealand Herald  
editorial of 8 March say? I will read just a couple of extracts: “The rights of reporters to protect confidential sources will be seriously restricted.” So it is saying that this legislation if passed seriously restricts the ability of the press to protect their sources and I think we in this House should be worried about this. Then it refers to the fact that “It is proposed that when the media invoke that essential right (which lawmakers call a privilege)”—here it is talking about media privilege—“a High Court judge will decide whether they can withhold identifying material.” As the media note: “Worse media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material.” 
The Minister can clarify for me whether the effect of the Minister’s amendments is to make it a requirement that those materials must be held in a secure place before the judge reviews the claim to privilege. But even then the newspapers make the point that you are trusting the police not to copy the information on the way past and we are also trusting that the media know their rights—and they will not all know their rights—to demand that that information be secured in the meantime. 
The media then make a wider point and say: “Powers of search seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part requiring external authorisation before any agency’s officers can search private property or set up surveillance devices. Examination orders”—and production orders are the same—“are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times their concerns might not come to light.” So they are saying that there is a special case to be made for the media because there is a public interest in preserving the confidentiality of media sources and because there is a public interest in those bad stories—they might reflect poorly on Governments or other powerful people in society—but they none the less ought to come to light for the long-term protection of the health of our democracy. 
Then they go on to say—look there’s another thing here—“News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media it is usually a warning for everybody’s rights.” Can I pay tribute to the comment that we had before from the New Zealand First speaker Denis O’Rourke because this is effectively what he is saying. I am going to repeat that because I think it is quite an important point: “News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media it is usually a warning for everybody’s rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.” That is what the  
New Zealand Herald  
says. 
This bill goes too far according to the  
New Zealand Herald 
 in respect of police powers even with the protections around them and I am sure it would agree that in respect of the Serious Fraud Office the issue is even worse because those protections that exist in respect of the police exercise of powers with production orders are not there for the Serious Fraud Office. That is what my amendment tries to make a little bit better. It does not take away the power of the Serious Fraud Office to get a production order but it does say that for the purposes of this legislation when obtaining a production order the Serious Fraud Office director is an enforcement officer and all of the provisions in the bill that apply to the commissioner in respect of production orders apply to the Serious Fraud Office director.