Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Search and Surveillance Bill — In Committee 
[Volume:678;Page:933] 
Search and Surveillance Bill 
In Committee 
Part 1 General provisions 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 The first part of this bill contains the preliminary and interpretation provisions and provides that the Act will bind the Crown. One of the most important aspects of lawmaking is to ensure that any bill is consistent with human rights values particularly when there is some concern about the powers that a bill may grant. 
The purpose clause was inserted in the bill by the Justice and Electoral Committee which acknowledged that the bill required clarification as to how it interacted with the New Zealand Bill of Rights Act 1990 and other Acts that conferred rights. The insertion of the purpose clause ensures that the rights affirmed in the New Zealand Bill of Rights Act 1990 the Privacy Act 1993 and the Evidence Act 2006 are recognised in conjunction with the law enforcement powers granted under the bill. The inclusion of this purpose clause highlights the importance of human rights values in the context of search and surveillance powers. 
The purpose of the bill also makes the necessity of this bill clear by recognising that investigative tools must be effective and adequate for law enforcement needs and the need for modernisation. Search and surveillance powers were spread across the statute book in 69 different statutes and the powers these statutes authorised did not take into account technological developments in methods for the high-tech environment within which criminals now operate. 
Law enforcement must be able to combat offenders by using methods that are able to overcome evasive techniques that criminals use. The bill allows the police and regulators to do this provided that the techniques used are reasonable and regulated. In the light of the Supreme Court decision in the  
Hamed 
 case last year which questioned the lawfulness of covert surveillance Parliament passed the Video Camera Surveillance (Temporary Measures) Act 2011. I appreciate the way in which members from the other side of the House worked with the Government to pass that Act. 
The expiry of the temporary legislation on 17 April this year means that the Search and Surveillance Bill must be enacted by then to prevent a number of ongoing investigations from being jeopardised. To that end I have tabled a Supplementary Order Paper to provide for the relevant parts of the bill to commence on 18 April 2012 as well as a number of other amendments. 
I would just like to take the opportunity to thank those members of the House who worked on this bill in the select committee. Also since then I have been working with Charles Chauvel from the Labour Party and I thank him for his cooperative manner. I have also been able to send to each party a copy of the major Supplementary Order Paper that I have tabled. I would like to hope that people now feel far more at ease with some of the amendments that have been made. So thank you and I will enjoy hearing everyone else’s contributions. 
CHARLES CHAUVEL (Labour) 
: 
 I would like to begin by agreeing with something that the Minister of Justice said and that is that the process by which parliamentarians have sought to make this a better bill is to be commended by the Committee at this point. In my second reading speech I recounted the history of this measure and I think nobody could dispute the proposition that the Justice and Electoral Committee chaired by Chester Borrows at the time with the Labour team led by my colleague David Parker paid exhaustive attention to improving this bill. The select committee members really did take their parliamentary duties very seriously in trying to fashion a better measure so I think what the Minister says in that regard is correct. This bill has had a long gestation period. We can see from the amendments to Part 1 of the bill that the select committee did not simply take a once-over-lightly approach. It did look long and hard at how it could make a better bill. 
I think one of the best examples of that is the purpose clause that the select committee inserted clause 4A where the select committee clearly thought it needed to provide some guidance to the courts. Members will know that courts look increasingly at purpose clauses when Parliament inserts them for guidance about how the rest of the Act should be construed. The purpose clause here is instructive. It speaks about “(a) modernising the law of search seizure and surveillance to take into account advances in technologies and to regulate the use of those technologies;”—I think the next paragraph is the most important paragraph—“(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments including the New Zealand Bill of Rights Act 1990 the Privacy Act 1993 and the Evidence Act 2006;”—and lastly—“(c) ensuring investigative tools are effective and adequate for law enforcement needs.” 
The primary importance of this purpose clause as I have noted is paragraph (b) because the importance of the specific freedoms that are affirmed by the New Zealand Bill of Rights Act the Privacy Act and the Evidence Act are repeated. The courts are to have regard to these freedoms when construing the rest of the legislation and this is of cardinal importance. 
The Minister in her introductory remarks mentioned that this is a Law Commission - prompted attempt to bring into line the search and surveillance powers of the State that are currently scattered across nearly 70 pieces of legislation—69 I think was the number that the Minister mentioned. With that being the status quo if the Committee reflects for a moment on how difficult it is for enforcement agencies let alone the courts let alone any other participant in the system to know just what search and surveillance powers exist in respect of any particular Act or any particular agency it will become apparent that it is a generally desirable exercise to bring those powers together in one statute and that is what this legislation will do if it passes. 
But there is one omission in the bill—one significant agency that is not brought within the purview of the legislation—and a number of speakers on the Labour side tonight intend to do their best to persuade the Committee that this is an omission that ought to be rectified. We will be tabling amendments as we go through the debate part by part where those amendments relate to the parts under discussion and we will be attempting to bring into the legislation the Serious Fraud Office. This is a matter that I have had some discussions with the Minister about. David Parker has had extensive correspondence with the Minister’s predecessor about it. The reason that it is relevant to the debate in this part is that David Parker intends if he has not already done so to table an amendment— 
Hon David Parker 
: It’s done. 
CHARLES CHAUVEL 
: —he tells me he has—that brings the definition of the Serious Fraud Office and its director into the interpretation provisions of the bill. 
My understanding of the reason that the Serious Fraud Office was not originally brought into the bill is that there was previously a Standing Order that provided that if a bill was not amended by the introductory version of a bill then it was very difficult without for example suspension of the Standing Orders or the unanimous leave of the House to deal with that legislation by way of amendment in later stages. That Standing Order has not been re-enacted in the current version of the Standing Orders. So what I am really putting to the Minister in the chair the Minister of Justice is that given that this procedural difficulty was said to be the prime reason for not being able to bring the powers of the Director of the Serious Fraud Office into line with the 69 other agencies that are going to be dealt with by this bill it seems that we in the Committee stage now have a last opportunity to do that and to standardise this one last great standout of enforcement powers. The amendments that my colleagues and I will table during the course of the debate will seek to do that. 
Here is why this is important. The Director of the Serious Fraud Office by sections 5 and 9 of the Serious Fraud Office Act has the most extraordinary powers. He can without a warrant without the permission of any other official politically or otherwise appointed require the production of any document and he can require any person to come before him and answer questions. These are very very wide powers. The Minister will tell us later in the debate about her Supplementary Order Paper 12 which is designed to try to overcome some of the concerns we have raised about media freedoms and the reason why unfortunately her Supplementary Order Paper does not quite get there is because the powers of the director remain untrammelled and unfettered. So what I am really asking the Minister and the Committee to do in this debate is to use this final opportunity to bring those powers into the standardised regime that we are considering tonight. 
What the amendments that we will deal with later starting with the amendment to the interpretation clause that David Parker has tabled would do is do away with the powers that I have described. They would retain the powers that the director has currently under sections 6 and 9 of the Serious Fraud Office Act 1990 to go to court and seek by warrant the extensive range of powers that he needs to do his job—we all acknowledge that—and those powers would be then controlled by Part 4 of this bill. In other words they would be brought into line with all the other enforcement powers that we are conferring on every other agency by every other statute. That means not only that the media freedom issue that we have raised which is a very serious one would be comprehensively dealt with pretty much by the amendments put forward by the Minister in Supplementary Order Paper 12 but also that media freedom would not be threatened by the standout Draconian powers that would be left with the Serious Fraud Office if we do not deal with them in the way that I have suggested. 
My concluding plea to the Committee is to have a good think about this as we remind ourselves that the only reason that the Serious Fraud Office is not in the legislation apart from the Standing Orders accident that I referred to earlier is that there was a proposal by the last Labour Government to merge the Serious Fraud Office and the police. Because that proposal as I understand it was on foot when the Law Commission considered this issue it did not deal with the powers of the director. Well that is a historical anomaly. It is one that we have the chance to rectify and if we do it will go a long way towards meeting our concerns. 
Dr CAM CALDER (National) 
: 
 It is a pleasure to rise and take a brief call in this Committee stage of the Search and Surveillance Bill. I would like to compliment the Minister of Justice the Hon Judith Collins on the work she has done and her collaborative approach to this very important legislation. I have in my hand a 93-page Supplementary Order Paper that has been created to update the amendments necessary in the numerous statutes covered by this bill. The amendments take into account the developments since 2010 when the bill was reported back to the House. 
I was speaking briefly earlier on protecting human rights. It has been a concern in respect of the discussion around this bill. The Search and Surveillance Bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights and there are a number of safeguards in the bill to achieve this. First of all we all realise that the bill adheres to the basic concept that independent authorisation is needed before exercising search warrants—independent authorisation is needed before exercising search warrants and search powers. Enforcement officers must justify the exercise of the search powers to neutral issuing officers. They must justify these powers to neutral issuing officers which is an important safeguard. There are detailed reporting requirements to the issuing officer the chief executive of the relevant agency and to Parliament on the exercise of the search and surveillance powers and these thus allow the search powers to be monitored to ensure that they are used properly and not being abused. The Act of course as is noted will be reviewed in 2016 to ensure that it is operating properly. Thirdly and also very importantly this bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act to be free from unreasonable search and seizure. 
Other safeguards are also important. Enforcement officers who make false search warrant or surveillance warrant applications will be penalised. More serious powers like examination orders may be authorised only by judges and that is an important thing— 
Charles Chauvel 
: I raise a point of order Mr Chairperson. I apologise for interrupting Mr Calder. I wonder whether he might be giving the speech that he intended to give about the short title and commencement rather than about the provisions that are under debate at the moment. 
The CHAIRPERSON (Lindsay Tisch) 
: I just remind members we are on Part 1 and to concentrate on Part 1. 
Dr CAM CALDER 
: I just make the final point that issuing officers may be removed from office for neglect or misconduct. Thank you. 
DAVID CLENDON (Green) 
: 
 I am pleased to speak in this Committee to this bill the Search and Surveillance Bill which the Greens are opposing. We have opposed up to now and will continue to oppose—no surprises there I am sure. 
Simon Bridges 
: Name some bills you’ve supported David. 
DAVID CLENDON 
: It would take a great deal for the Greens to support this bill. I think it would require amendments to the extent that it would no longer be the same bill. 
The reason we are opposing clearly is that this bill goes far too far in terms of compromising people’s reasonable expectations of privacy in the name of apparently protecting our rights as citizens enabling the police and other agencies—many other agencies—to go about their business. We recognise yes there is a legitimate requirement for surveillance for observation for recordkeeping for being quite intrusive in the interests of us all but this bill goes many many steps too far in terms of what it allows. 
This bill clearly is written to be as inclusive as possible. One only has to begin with Part 1 “General provisions”. The interpretations which are clearly modelled are designed to enable rather than to restrict or to control. They are quite simple things. In clause 3 in paragraph (b) of the definition of “business context” the definition of some of the people who may be investigated includes an employee. An honest innocent employee of an entity being investigated can find themselves subject to the provisions of this bill. A person’s private personal information may be compromised simply because they are an employee of an organisation an entity that may for some reason be of interest to one of the many State agencies that get powers under this bill. “Evidential material” again in the interpretation clause includes “evidence or any other item tangible or intangible of relevance”. That is an extremely broad-brush interpretation. It allows for virtually anything tangible or intangible—we assume that means of course electronic data—that may be of relevance. Who makes that test of relevance? 
With regard to the definition of what constitutes or may constitute an “interception device” I do not think it will give much comfort to any of us to know that hearing aids are specifically excluded and may not be used to spy upon us. 
Charles Chauvel 
: And spectacles. 
DAVID CLENDON 
: Or spectacles—yes. It includes “any electronic mechanical electromagnetic optical electro-optical instrument … [any] other device that is used or is capable of being used to intercept or record a private communication”. These are incredibly broad wide-ranging inclusive interpretations. There is no reasonable effort made here to limit the powers that are offered by this legislation; to the contrary. 
We heard a reference by the previous speaker Dr Cam Calder to the issuing officer role. It is interesting to note that clause 106 allows the Attorney-General to nominate—to empower—people like judges and justices of the peace as issuing officers. It also allows the Attorney-General to nominate any other person for a period of 3 years meaning issuing officers may be virtually anybody. The Attorney-General of the day decides who would be an appropriate person to sit in that role. I will speak more in this context later when we consider the Minister of Justice’s very substantial Supplementary Order Paper in terms of the inclusiveness and the broad-ranging nature of the definitions the interpretations. 
There are already very significant powers available in terms of electronic investigation particularly. I was in a court earlier in the week and without needing to comment on the substance of that hearing— 
Simon Bridges 
: What were you up on? 
DAVID CLENDON 
: No I was observing Mr Bridges. I was simply observing as one does. It was interesting listening to the evidence of a computer forensics specialist who was revealing some of the capacity that already exists within existing law and legislation to investigate what has gone on on people’s computers. This legislation if it is passed in the form the Minister wishes will capture not only computers; it will capture phones it will capture iPads. Virtually any electronic device will be fair game for any person who wants to investigate. These are extraordinarily broad-ranging powers. 
We are told clause 4A “Purpose” clearly defines the purpose of the Act. “The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences”—it certainly does that—“in a manner that is consistent with human rights …” and there is specific mention in paragraph (b): “providing rules that recognise the importance of the rights and entitlements affirmed in other enactments including the New Zealand Bill of Rights Act …”. 
I take issue with that. It is good yes as Mr Chauvel noted that reference to the New Zealand Bill of Rights Act is in there but we need to concede that the New Zealand Bill of Rights Act in itself is an extremely weak document in terms of—if you do any sort of international comparison—a section of the existing New Zealand Bill of Rights Act that denies any court the right to overturn or annul any enactment that may be at odds with the provisions of the New Zealand Bill of Rights Act. We routinely see reports to this House that say particular proposed legislation is at odds with the New Zealand Bill of Rights Act does not meet those provisions and yet we are able to enact those provisions. That is a fundamental weakness in the New Zealand Bill of Rights Act. Reliance on it is clearly not sufficient nor indeed with other privacy legislation the Evidence Act and so on. We can take very little comfort from the fact that the New Zealand Bill of Rights Act for example is referenced in this bill. We know that this House can very readily—and routinely does—subvert the good intention of that Act. We tend to wear our freedoms very lightly in New Zealand. 
We have a history I guess of trusting Governments and legislation and indeed enforcement agencies. The provisions of this bill I believe play on that trust in a very unhelpful manner. I think people will be astonished when they discover just what the level of intrusion is that this bill will allow that these parts of the bill will allow. There is very little in this bill that increases the protection the rights of citizens to be secure in their homes in their privacy and in their private communication even between family members between spouses and certainly in a business context. There is virtually nothing that will be sacrosanct that will not be amenable to the intrusive powers given to such a wide range of agencies within this bill. 
There are later parts as I said but I do think that right up front in the bill the purpose of the bill is spelt out very clearly. It is intended to make it easier for New Zealanders’ privacy for their private communications for their private business and their day-to-day activities to be observed recorded and imposed upon. There is very little if anything in this bill that we see that adds appropriate balance to the protection of our civil liberties and human rights. Thank you. 
TIM MACINDOE (National—Hamilton West) 
: 
 I am happy to assure the previous speaker David Clendon that the rights of law-abiding citizens are not infringed by the Search and Surveillance Bill. In fact on the contrary this represents a very elegant solution to a significant problem and one that is of considerable public interest. I too would like to join my colleague Dr Calder in commending our new Minister of Justice for the considerable body of work that she has done on this bill since she assumed her new portfolio and for the very detailed Supplementary Order Paper that she has produced to respond to some concerns that had been made apparent to the Justice and Electoral Committee when it looked at the earlier version of it. The important thing is to ensure that we get it right so that the provisions and the impact of the bill are appropriate in the modern context. 
I am very happy to speak on Part 1 of the bill. The previous speaker has just referred to clause 4A which is the purpose of the bill. It is important to have that purpose clearly understood—that the Search and Surveillance Bill will provide a comprehensive regime of search and surveillance powers under a single statute. Let us not underestimate how important that is because the many bills that have existed and have come together in a piecemeal fashion over five decades now have become as the Law Commission pointed out a bit of a jumbled mess. It was the Law Commission that recommended—in fact it urged in 2007 during the period of the previous Government—that there should be one bill “to bring order certainty clarity and consistency to the sprawling mass of statutory powers of search and surveillance scattered throughout the statute book.” And the Law Commission identified a need to address the glaring gaps where the law has failed to keep up with changes in modern society; we all know that it is a vastly different society even from 10 years ago with the rapid speed of technological development. It seems that every year there are new gadgets that open new possibilities for things that could be— 
Simon Bridges 
: Evil—evil-doing. 
TIM MACINDOE 
: —as Mr Bridges is pointing out in the wrong hands used to ill effect. So we need to ensure that our laws are relevant but also as Dr Calder has pointed out that we are mindful of the human rights provisions—the important human rights of all law-abiding citizens. I have to say I do not have a lot of interest in the human rights of those who are not interested in obeying the laws because quite often they threaten our safety our security our homes our elderly and the vulnerable in our society. Everything that we can do within lawful means to give our law enforcement agents the ability to apprehend them is vital. 
The Search and Surveillance Bill consolidates police powers from several different pieces of legislation as well as case law. There are also some new powers such as examination orders production orders surveillance device warrants and a warrantless power to preserve evidence of serious offences punishable by 14 years’ imprisonment or more. Those are very serious offences that we are considering here and we need to be mindful of just how important it is for us to deal with them to provide our law enforcement agents with the ability to apprehend such significant criminal offending. 
But these new powers are balanced by safeguards to protect human rights and the right to privacy. How does it do that? Well my colleague Dr Calder began to speak about that. The bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights values. There are a number of significant safeguards in the bill to deal with that and I am sure that those who are listening will be reassured by this. First the bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. Secondly there are detailed reporting requirements to the issuing officer to the chief executive of the relevant agency and to Parliament on the exercise of search and surveillance powers. These allow search powers to be monitored to ensure they are being used properly and not being abused. And as Dr Calder mentioned the Act will be reviewed in 2016 to ensure it is operating properly. So there are quite a number of reassurances and safeguards there. Thirdly the bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act which was mentioned by Mr Clendon a few minutes ago to be free from unreasonable search and seizure. 
There are other safeguards in the bill which include the provisions that enforcement officers who make false search warrant or surveillance warrant applications can and will be penalised that more serious powers such as examination orders may be authorised only by judges not just by any issuing officer and that issuing officers from an agency cannot issue warrants to enforcement officers from the same agency to ensure neutrality and impartiality. 
Hon DAVID PARKER (Labour) 
: 
 Can I first respond to something that the Green Party member David Clendon said. You know it is actually wrong to say except in respect of production and examination orders that this Search and Surveillance Bill extends Crown powers. For the Green Party member to stand here and tell New Zealanders that it does is wrong because it actually undermines public confidence in important democratic institutions including the police. So please do not make wrong accusations in respect of what I think is important law. You can say that you do not think the Crown should have those powers and that therefore they should not be carried forward but please do not pretend that these are new powers except in respect of the powers of examination orders and production orders for the police. 
Everything else is a carry-over and indeed there are areas in which powers are being constrained that were not previously constrained. The police gave up some of those powers. One example is that at the moment the police when they pull over a vehicle have got a right to search the vehicle even if they were pulling the driver over for a traffic offence. That is wrong. You should not have unreasonable search and surveillance and the police going on a fishing expedition in respect of a car. If my memory serves me right—and the Minister of Justice will correct me on this one—my recollection is that the police gave up that power which they currently have because they thought it was not appropriate. They agreed with the Justice and Electoral Committee that it was not appropriate. 
There is one other general thing I will say and that is that at the select committee we were told that there were new technologies pursuant to which search and surveillance powers were being exercised. The advice we had at the select committee was that the use of those powers was unregulated because they were not covered by old search and surveillance laws that were promulgated or passed by this Parliament before those new technologies came along. Between that time and now we have had the  
Hamed 
 decision of the Supreme Court which said that the advice that we were getting from officials was wrong and that in the absence of specific statutory authority the exercise of those new technologies was illegal. What the process threw up was that there are new technologies that I think everyone in this House agrees should at times be available to the police—for example video surveillance technologies. And the example that was used at the select committee by the Law Commission which was in favour of the extension of this power to the police was in respect of drug syndicates who draw the blinds and do not talk when they are describing where they are going to distribute their drugs. The only way that the police can get evidence of that activity is through video surveillance and that video surveillance technology is a form of technology that was not properly covered by prior technology. So either you do not have these powers at all or you have them and you regulate them properly so as to safeguard civil liberties and to protect the public from inappropriate intrusions by State agencies into their privacy. And what this bill tries to do is get that balance right between those two competing objectives. 
I would like to thank the select committee. I thought Chester Borrows was a very very good chair. He brought the experience of policing as well as his legal experience as a lawyer plus his experience in life. Together with other members of the select committee we sorted through a very very complex series of issues. We actually went to the extent of producing another draft of the bill. It was so complex that we thought we should put it out to a second round of consultation after we fixed up some of the things that were of particular concern to submitters because you do not want people having unnecessary concerns that the State is getting unwise powers of search and surveillance. So I would thank the Government for that. But there is one glaring issue in this and in all of these pious talks about how we are rationalising the powers of search and surveillance for all agencies. Well we are generally for the police and most other agencies but not for the Security Intelligence Service which has got separate legislation which was tidied up last year. 
The other glaring anomaly is the Serious Fraud Office. The Serious Fraud Office has got broader powers than any other State agency. It does not have to get a warrant to exercise its powers to issue a production order or an examination order. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
Hon DAVID PARKER 
: I had just turned to the issue of the Serious Fraud Office just before the dinner break and I was responding to one of the claims made by Mr Macindoe from National that this law was standardising rules relating to different arms of the State whether it is the Pork Industry Board—I think that was one of those listed—Housing Corporation New Zealand or the many statutory bodies that are listed at the back part of this schedule where the different powers of the Meat Board and the board for health practitioners’ competence assurance are allocated the different powers that arise from the bill. They do not all get the same powers but one way or another all of the powers of these various arms of the State are regulated through this legislation. Of course the most important of all of those for most investigative processes is the police but excluded from this is the Serious Fraud Office. 
The reason that Part 1 has got an amendment in my name to add the Serious Fraud Office director into the interpretation section is that we need to have the Serious Fraud Office brought into this. As my friend Charles Chauvel has said this was blocked by Government members and by the then Minister of Justice’s refusal to cooperate through alternative processes that could have fixed this under the old Standing Orders. Those Standing Orders said that a matter was outside the scope of the bill even if it was within the scope of the subject matter if the Act that was to be amended by the bill was not listed in the bill that was before us. We could not have an amendment that effected that other Act that is not listed even though it was within the scope of what we were talking about. That silly rule within the Standing Orders has not been carried forward into the Standing Orders for this Parliament. That is a good change and can I thank members from all sides of the House for cooperating on that change in the Standing Orders. What it effectively means is we can now fix it in this bill. We actually do not need to have any special process other than a vote in this House to say we can fix the Serious Fraud Office powers at the same time because it is within scope. 
Why should we be concerned about this? Media freedoms are absolutely essential to the health of democracy. Media freedoms are necessary to maintain public institutions. Countries that do not have media freedoms have more corruption they have less public confidence in public institutions they have poorer outcomes they have poorer societies and they have more human rights abuses. So we must be very very careful to protect media freedoms. 
In New Zealand there is one glaring exception to pretty good laws in terms of media freedoms and that relates to the Serious Fraud Office. The Serious Fraud Office can issue a production order or an examination order against the press from its own office. It does not need any judicial oversight which was one of the things that was referred to by Cam Calder in his contribution when he was saying why people should have confidence in this law and that people had to have judicial oversight to get a warrant. The Serious Fraud Office does not have to. It has got two routes it can go: a warranted route or a production order examination route. What does it do in practice? It takes the easy route and it does not get a warrant. 
By an internal administrative act of the Serious Fraud Office it can tell the media that it wants them to hand over their documents—that is what a production order does. It did not happen since the Serious Fraud Office legislation was passed until 2 years ago when under this Government the Serious Fraud Office issued a production order against the  
National Business Review 
 ordering it to produce its documents in respect of the  
National Business Review 
 inquiry into the failure of South Canterbury Finance. The  
National Business Review 
 was then faced with the situation that if it refused to comply with that production order then it would be in breach of the law and committing a criminal offence. It would be subject to fines plus other criminal penalties both the journalists if they were the ones who got the production order and the owner of the  
National Business Review 
. So immediately the  
National Business Review 
 is put in breach of the law. What did it want to do? It just wanted to protect its source. Why should it protect its source? Because if the sources of the media are not protected they do not talk to the media and there is a public interest in the media being able to report things that are adverse to governments or to politicians. We might not like the times when we think the media’s criticisms of us are wrong when we think they are a bit superficial or where they are a bit hurtful. We might not like it but we must always defend the right of the media to do that because that is what protects the health of our democratic institutions—rooting out corruption and rooting out mistakes when they are found. In the case of the  
National Business Review 
 there were hundreds of millions of dollars of wasted money. 
SIMON BRIDGES (National—Tauranga) 
:  
I want to take I hope a reasonably short call just in regard to Part 1 of the Search and Surveillance Bill and really elaborate on the commonality National members have with Labour members but also I suppose underscore some of the differences. I want to start as I say by really agreeing with what the Hon David Parker said at the start of his contribution before the dinner break where he said that actually the Greens are entirely wrong to say that we are not united on most of this. The fact of the matter is that there was an exceptional select committee process. I know that this is the kind of thing that is often said in this House perhaps by some somewhat insincerely but it is true to say that when members of the Justice and Electoral Committee sat around—and I agree with David Parker on this and commend the then chair the now Hon Chester Borrows for the way it was handled—we went into it very much with a view that we were not going to increase the powers of the State. I remember sitting down with charts and diagrams and we went through the various agencies and their powers before and after and I think we were scrupulous in that regard to have here a bill that does not—and contrary to what the Greens say—essentially increase the powers of the State. To some extent— 
Hon David Parker 
: Except for production. 
SIMON BRIDGES 
: I will come to the Hon David Parker’s point; I am not going to short-change him on that. 
Hon Lianne Dalziel 
: Because you are actually nailing the point. 
SIMON BRIDGES 
: I am going to come to that. The basic point still holds though that actually in relation to the vast majority of this bill most of this Parliament is united. We are not trying to increase powers. We are trying to bring this law into the modern day to as Cam Calder has spoken about keep up with this ever increasing flow of technology. 
I do want to deal with the Serious Fraud Office because yes there is some disagreement. David Parker and I do not criticise him for this has given can I say a Labour version of the history of the Serious Fraud Office. That is fine but the fact of the matter is the Serious Fraud Office was originally as I understand it set up by a Labour Government by Sir Geoffrey Palmer. 
Hon Lianne Dalziel 
: Actually it was Richard Prebble. 
SIMON BRIDGES 
: Back then they gave—OK Richard Prebble good friend of Lianne I am sure. 
Hon Lianne Dalziel 
: He is—we’re very close. 
SIMON BRIDGES 
: Lianne and Richard share the same sort of general philosophy of politics and life in general. Coming back to the point it was set up by a Labour Government. The powers that were given then were generally seen as right and they increased the powers for the Serious Fraud Office. They gave the Serious Fraud Office more powers—to do the sorts of things that David Parker was talking about—than were given to other authorities. I accept that Labour perhaps had a change of heart in Government and we know that David Parker’s Government with I think the assistance of New Zealand First wanted to disband the Serious Fraud Office. I am not going to go into the reasons for that but that is— 
Hon David Parker 
: No to merge it. 
SIMON BRIDGES 
: Well they wanted to disband—they say merge with the police I say disband—the Serious Fraud Office and have the police running this sort of thing and as I recall it with the same powers that the Serious Fraud Office have actually. But in any event the point is that is the history. So I think we do need to be clear on the history. 
 But I want to say this: there are actually very good reasons—there is a strong rationale—for giving the Serious Fraud Office different and in fact increased powers than a whole lot of other State agencies such as the police have. And the reason for that is this. Day in day out the Serious Fraud Office is dealing with exceptionally complex white-collar crime that cannot easily be solved. It is being perpetrated by very sophisticated customers and the Serious Fraud Office does need I am sorry to say when it is dealing with these people the sorts of powers that it has had and I think should continue to have. 
I do not want to become a legal historian but I know that earlier when we debated I think the second reading of this bill Denis O’Rourke talked about the Star Chamber. I think it is right to remember that the rationale for the right to silence and many of the I suppose now fundamental tenets of our legal system came from a system where in the United Kingdom illiterate people could not defend themselves. They were being bamboozled they did not understand what was going on and from that we got a right to silence so they would not have words put in their mouths and they would not be signing things that they did not understand. That is a world away from what the Serious Fraud Office is dealing with day in day out. It is dealing with sophisticated white-collar criminals and the rationale for the right to silence and many of those things just does not hold up at quite the same level when we are talking about those kinds of people as it does when we are talking about the sorts of people Denis O’Rourke was talking about in his speech in the second reading. 
In summary what I am really saying to this Committee is that actually the vast majority of members in this Committee agree with most of this bill. They believe that we are not increasing vastly the powers of the State. I accept there are differences when it comes to the Serious Fraud Office’s powers but what I am saying is that when you look at the history you see that Labour in fact was the one that signed us up to a Serious Fraud Office with increased powers. The rationale for giving the Serious Fraud Office powers that other State agencies do not have is pretty strong. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I kind of want to thank the member for attempting to put some history on the record but he is actually quite wrong. I think it is important to highlight the major difference. He said that a Labour Government had introduced the Serious Fraud Office and had given it extended powers or had increased its powers. We established the powers for the Serious Fraud Office and we did not give it powers that were currently held by the police. It had a special status in the legislation because it was dealing with such high-level fraud. 
When a Government establishes a new agency with significant powers as we did with the Serious Fraud Office it does actually pay to have a look at how that has operated in practice. Actually I do not think that anyone was very satisfied with how the Serious Fraud Office had utilised some of its powers. We have heard some discussion around the media which is why— 
Hon David Parker 
: Law Commission said take them off them. 
Hon LIANNE DALZIEL 
: We will deal with that when we get to the wider part of the bill but the reason we can focus on the Serious Fraud Office is my colleague’s amendment where he brings this into the definition section. I think that what the Law Commission actually recommended—and I think Simon Bridges might do well to reflect on what he tried to advise the Committee—was taking the powers away from the Serious Fraud Office. It was not saying to extend the powers to the police; it was saying to take them away from the Serious Fraud Office. 
But as it turned out there was a very simple solution to all of this because the previous Government which was the initiator of this legislation actually wanted to re-merge the Serious Fraud Office into the police. 
Simon Bridges 
: Disband—disband. 
Hon LIANNE DALZIEL 
: Disband the Serious Fraud Office and put all of its functions within the police. And I will tell you what: there are a lot of people in the police force who believe the decision to separate it off from the police should never have occurred in the first place. 
Simon Bridges 
: They don’t want to be dealing with white-collar crime. They can’t be bothered. 
Hon LIANNE DALZIEL 
: I am getting chipped by the member across the way that the police do not want to be involved with that sort of crime. I think a former chair of a select committee who is a former police officer and a former lawyer will actually tell you exactly what I am telling you and that is that the police never recommended it. I can tell the member that the amount of concern that was expressed to a previous Labour Government when Richard Prebble was the Minister of Police was extraordinary. The point that I want to make is that it was made very clear by the Law Commission that there was no need to expand these powers. In fact it recommended that they not be carried over. That was the decision that we made. 
Let me just read this out. This is the history as written to the previous Minister of Justice by our own shadow Attorney-General at the time: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office (“SFO”) into a new Organised Crime and Serious Fraud Unit within the Police. At the time the Law Commission advised the then cabinet that the SFO was in the habit of routinely using their powers to use production and examination orders. These orders do erode the right to silence and should be used sparingly. They were never intended to be a substitute for normal investigative practice but rather were intended as a reserve power to be used to unpick serious fraud when normal investigative means will not suffice. They enable information to be gathered from mainly third parties who hold information as agents who owe their principals a duty of confidence but who are able to cooperate given the legal authority of a production or examination order. … Largely because these powers had been overused by the SFO the recommendation was not to carry these powers over into the new combined agency. The proposal to completely remove these powers was criticised.”—and I actually think members of the then Opposition were among the chief critics—“In response I with the approval of my then cabinet colleagues went to see various Queen’s Counsel in Auckland who worked on SFO cases. I met with various prosecution and defence counsel. All of those I met with agreed the SFO was overzealous in its use of their powers but all but one also thought it would be wrong to remove the power entirely.” 
I hear members asking when this letter was written. It was written on 9 November 2010. It then went on to say: “There was in the end widespread agreement that the power for the SFO should be constrained but carried forward. We then in cabinet concluded that if the powers were necessary in a constrained form for the SFO then a constrained version of the powers was justified for Police investigations of serious organised crime some of which bears similarities with the complexity of serious fraud and can be more pernicious.” The point was made that the National Opposition at that time campaigned against the merger of the Serious Fraud Office into the police and upon election halted that merger. The letter then continued: “The proposal to confer upon the Police powers to obtain production and examination orders when investigating serious organised crime continued and is being given effect to by the SSB.”—this Search and Surveillance Bill. 
That is where I totally disagree with Simon Bridges. This is extending the power of search and surveillance the production and examination orders. It is for the police and they are matching it with a power that has been overused and abused by the Serious Fraud Office. That is this Opposition’s objection to this part of the bill going through without reintegrating the Serious Fraud Office into the legislative framework. The way that the legislation was originally framed was based on our assumption that there would be a merger between the two organisations and those powers would be carried forward but in a modified form. But what has really happened is that the Government has said “Well these are the Serious Fraud Office powers; we will just give those powers to the police.” 
Hon David Parker 
: More constrained. 
Hon LIANNE DALZIEL 
: They are more constrained for the police. 
Hon David Parker 
: Which makes a nonsense of not— 
Hon LIANNE DALZIEL 
: It does make a nonsense of bringing the whole thing together. 
So it is really important that the Serious Fraud Office is included as part of this legislation. It is important because I think that the Government has agreed simply to subject the Serious Fraud Office to reporting conditions. But the bottom line is that that does not solve the problem we have got in terms of the way the Serious Fraud Office has been operating. And to have it excluded from the operation of the bill actually prevents us from using this one opportunity to resolve the outstanding issue which is that the Serious Fraud Office has been using the examination orders that were supposed to be used in a relatively rare environment in a way that was totally unexpected by the Government of the day and it was expedient too in terms of its real obligations to investigate matters. 
And if people think this does not matter I point out that it does tie back into this whole question of access to information that has been collected for example by the media. The one thing that protects people from being ripped off by finance companies and things like that is when the media is threatened with defamation suits if they are to expose these goings-on. If they know that information they have received in confidence can in fact be disclosed to the Serious Fraud Office and held by it then that will make it very very difficult for people to come forward and be as open with them as they possibly can. 
So I think that this is a very simple amendment that was not possible when the bill was in front of the Justice and Electoral Committee essentially without an instruction from the House to the select committee to make the amendment. That is no longer the case and I therefore think that there is really nothing standing in the way of making the expansion to cover the Serious Fraud Office as mentioned in the amendment put forward by my colleague the Hon David Parker and then also at that point of addressing the anomaly that then exists between the two. I think there is an important reason why we need to have a uniform approach in this particular area and the Serious Fraud Office approach is not the one that we in this House want to see continued. That is why we are not supporting the passage of the bill. I do agree that there is not much left that divides us but this is a critical point of division. If we could find a resolution to this and the other matter that is standing before us but is not subject to this particular part of the bill then I believe we would be able to get the level of passing in this House that we should find acceptable in this arena. 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 I would like to add my voice to those of my learned legal colleagues who have spoken on this bill the Search and Surveillance Bill and to pick up Lianne Dalziel’s point that it would be a very good thing if this House could pass legislation of this nature which finds a fine balance between the need to give powers to the State to carry out its task of crime fighting and the need to protect fundamental individual liberties. If we could find common ground on this and pass this legislation by an overwhelming majority I think that would be good for the country. 
Clause 4A sets out the purpose of the bill and it sets out the need to balance those two factors. I would remind Simon Bridges that of course this legislation was introduced under a Labour Government. It was introduced for a very good cause and it was not done in haste. I think the Law Commission started looking at this issue in 2001 and finally reported in 2007. There was nothing rushed about that process and I think it did a good job. We recognise the need for comprehensive reform and we recognise that you cannot have 69 different Acts some of them up to 50 years old and out of date and have a cohesive and coherent law on the very important areas of search and surveillance. 
It is because we wanted a cohesive and coherent approach that it is really important that the Serious Fraud Office should not be left as an outlier in this area. The amendment in the name of I think my colleague David Parker is that we should apply the same controls on the Serious Fraud Office as this bill now applies to the police. It is impossible to make the argument that there should be a differentiation. Are the Government members really saying that the serious crimes being investigated by the police are less serious and less complex than those that the Serious Fraud Office is working on? I do not think you can sustain that argument. 
Hon David Parker 
: And the media should be protected in those cases. 
Hon PHIL GOFF 
: The other issue I am going to come to in a moment which my colleague remarks on is the question of media freedom. All of us in this Committee probably have at some time in our career good cause to resent the media—I probably ahead of many in recent times. But I have to say notwithstanding that that I recognise the need absolutely to protect the role of the fourth estate. It concerns me hugely when a reputable international agency downgrades New Zealand in terms of its record of media freedom from eighth in the world to 13th in the world as it did late last year. That is a bad reflection on what is happening with media freedom in this country and we need to address that. 
There are a whole range of things that have been done—and the Government has to bear a lot of the responsibility for this—as to why we have been downgraded. One is the teapot affair. To have as we learnt from the police today in a select committee three senior officers spending months investigating a public conversation done as a media hype in the election is crazy. But to have newsrooms subject to search to get information on that is something that damages our reputation internationally. 
It is damaging too that the Serious Fraud Office under its current powers was able to exercise those powers against the  
National Business Review 
 in terms of its own investigation of South Canterbury Finance. I do not think that any member of this Committee should feel at ease with the fact that New Zealand is now being seen by international experts as a country that does not value and protect media freedom. So what we are suggesting in the amendment is both to ensure that we can restore our reputation in that respect that the newsrooms of this country— 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 There has been a very interesting debate tonight and I would like to thank all participants for their contributions. I think there have been some intelligent contributions from both National and Labour and I think they have been very helpful. However there are a few things I want to talk about just to respond to some of the comments. The first is around the Serious Fraud Office and its powers. As has been rightly said these powers have actually been in place for 22 years. This is not a recent phenomenon. It has been around for 22 years with wide-ranging powers. The previous Labour Government did as has been noted wish to merge the Serious Fraud Office into the police and those members clearly thought that that was going to continue to happen because that is the rationale they tell us for the way they first initiated this Search and Surveillance Bill that we are debating tonight. However the National Party campaigned in 2008 on keeping the Serious Fraud Office and frankly in hindsight that was a very good thing to do. We did not know at that time—I do not think anyone in this House would have known—that we were about to walk into one of the biggest financial messes in finance companies that we can remember since the 1980s; and frankly that was when the need for the Serious Fraud Office was first apparent. So it was in fact in hindsight a good thing to do. 
In terms of issues around media freedoms I think media freedoms are extremely important and I actually was a little bit concerned to hear some contributors tonight talk about a couple of issues. The first was around the police investigating the so-called teapot inquiry. The Hon Phil Goff who has just resumed his seat was talking about that and using that as an example of something we should be concerned about. Well actually we should be concerned if a Government instructs police to do things like that and we should be concerned if a Government instructs police not to do things like that. Under this Government—and I am sure under previous Governments—Ministers did not instruct police to do things like that. I note that when I was Minister of Police there was in fact— 
Hon Phil Goff 
: The Prime Minister laid the complaint. 
Hon JUDITH COLLINS 
: Yes and as any citizen can and the police do not have to investigate it any further than they choose to. Just as when the Hon Darren Hughes was involved in media and police investigations I was instantly accused by some in the Labour Party as being involved in it. I did not even know about it. I found out like everyone else did by gossip around the place. So let us be very clear here that this Government did not tell the Serious Fraud Office to go “charging into the  
National Business Review 
” to use the words that have been used about it. We did not ask the office to do production orders. What we ask people to do is to actually perform in accordance with their obligations. 
The Serious Fraud Office at that time was investigating South Canterbury Finance. Frankly there has been one fraud after another just recently shown in some guilty convictions around South Canterbury Finance. This is a very difficult situation and I would have thought that most people here would think about why we have those powers. 
The other point I want to make really about this evening’s debate is that what I am hearing from the Labour Party is that it in essence agrees with this bill. That is what I am hearing except for the fact it does not include the Serious Fraud Office. That is it in essence. I have worked with Charles Chauvel to get some amendments through which we are putting in our Supplementary Order Paper to try to help the media freedoms and deal with some other issues. The Minister responsible for the Serious Fraud Office the Hon Anne Tolley has agreed to make sure that the Serious Fraud Office reports in its annual report about its examination orders production orders and what it does and when so that we as a Parliament can have some confidence in that these are not being overused. I think that is a very good thing and I thank the Minister for that. 
But I think it is important to understand that if this bill does not get through on 17 April all police covert surveillance is turned off—all of it; that is it. There is nothing else—that is it. It is gone. What we have is a major party like the Labour Party saying that yes it agrees with the bill and thinks it is a great bill and in fact it started it but because the Government is not including the Serious Fraud Office—which by the way this party has never intended to do and has never said it would—Labour will not vote for the bill. So I hope that after this debate common sense will reign and that this Parliament can come together with the major parties which in my opinion are the parties that have to actually look to responsible Government because they have in the past and they will in the future. I think that we need to actually come together and say what is really important here—and this bill is. 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 Frankly the last comment from the Minister in the chair the Hon Judith Collins is straight scaremongering. It is the same sort of scaremongering that led National in Government before the election to attempt to ram through this Parliament without even going to the select committee the legislation regarding covert surveillance. The Minister must now surely admit that the National Government then got it wrong. 
The Justice and Electoral Committee with a majority of National people on it explicitly said that the legislation was wrong and that the appropriate balance had not been found. If it was not for the Labour Party and other parties standing in the way of ramming the legislation through before the election without any consideration from the select committee then as the select committee itself has acknowledged—and Mr Borrows has acknowledged as chair—the Government would have got it wrong. The Government would have got it wrong because it would not have found that appropriate balance. 
Another red herring is that somehow we were accusing the Government of instructing or not instructing the police to do an investigation into the teapot affair. No member said that Minister. No member did—but use your common sense. Why were the police investigating a case they would not normally have wasted their time on? Because the Prime Minister of New Zealand laid a complaint. And are the police going to ignore a complaint from the Prime Minister of New Zealand? Of course they are not. 
Ask 90 percent of New Zealanders whether they think that when 21 percent of burglaries are resolved the police should be following up the teapot affair for the Prime Minister which was just a media stunt and they would say: “No the Government has its priorities wrong and the Government is asking the police to waste their time when they have far more important things to do.” 
So Minister do not come into this Chamber with that sort of nonsense—that somehow video surveillance is going to fall over tomorrow because we are saying you should apply the same laws to the Serious Fraud Office as are applied in this bill to the police. Of course the Government should be applying the laws uniformly. The Minister was once the Minister of Police. She knows that the cases that they deal with are at least as serious are at least as complex and are at least as important as those dealt with by the Serious Fraud Office. So what the Minister has just said is absolutely wrong. 
What we have had from the Labour Party tonight are three people who have spoken very eloquently from a legal background as to why we need to change this bill—backed up the Law Commission itself. And Minister please tell the Chamber why you think that we should ignore the recommendations of the Law Commission—that the Serious Fraud Office should be dealt with in exactly the same way as the police that it should be constrained in order to find that very important balance between it having appropriate powers and protecting individual liberties. The Law Commission after 6 or 7 years of looking at this came to the conclusion that that should happen but the Minister is saying that she knows best. The Minister is rejecting the opportunity to get the overwhelming majority of the Chamber to support an important but contentious piece of legislation because she will not change her mind. 
I urge the Minister to think seriously about what she said in her speech to think seriously about what harm would be done and what good would be done if the amendment being put forward by the Labour Party in Opposition were adopted. We would create one law across the agencies in an appropriate way. We would be dealing with the problems that the Law Commission itself emphasised of the overuse by the Serious Fraud Office of powers that are unprecedented in this country compared with any other agency including the police. 
Yes those powers may have been there for 22 years and yes they have been overused in recent times but being there for 22 years was never a good argument for not considering change. We are putting this bill through because some of that legislation Minister has been there for 50 years and it has been proven to be inadequate and so has that clause in terms of ensuring the proper rights of the media and not having another incident where the Serious Fraud Office can go in and demand the production of documents by an outlet from the news media in a way that challenges the role of the fourth estate. 
JAMI-LEE ROSS (National—Botany) 
: 
 I move  
That the question be now put 
. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 When the Minister in the chair the Minister of Justice spoke before she talked about the powers of the Serious Fraud Office producing a result because of the guilty plea in relation to South Canterbury Finance. But my reading of that and I have had to look it up on my mobile phone says that it is not the South Canterbury Finance case that has led to a guilty plea. It has an impact on the South Canterbury Finance case in that the director of a company called Datasouth Group pleaded guilty to charges brought by the Serious Fraud Office in relation to a $103 million fraud involving a Ponzi-style scheme. It had an impact of about $23 million on South Canterbury Finance but the point that we were making was that the pursuit of  
National Business Review 
 by the Serious Fraud Office for the production of evidence that it had was in relation to the South Canterbury Finance allegations of fraud. So that has not produced any guilty pleas. There is obviously a lot of water to go under the bridge yet on that particular issue. 
But because the Minister is not the Minister of Commerce as well as the Minister of Justice as her predecessor was I just thought I would give her a little bit of history in relation to where my thinking developed on where the Serious Fraud Office powers should sit in relation to the changes that have been made under the Financial Markets Authority legislation. In fact the Commerce Committee did an inquiry into the finance company failures and one of the suggestions to look at was the question of whether these particular powers of the Serious Fraud Office which the Minister sort of says require this very special set of powers to be continued sit better within the framework of the Financial Markets Authority. The Financial Markets Authority process is actually a really good one. It has brought together a range of different agencies that all have a different function and often one takes precedence over the others. But by not bringing the Serious Fraud Office function into that firstly the Financial Markets Authority is deprived really of the enormous investigative background and ability that the Serious Fraud Office function would bring to the agency and would give it real teeth but secondly it has not resolved the precedence problem. That is that the Financial Markets Authority like the Securities Commission before it could not act until after the Serious Fraud Office had investigated and completed all that work. I know they work alongside each other with a degree of cooperation but the truth is that there is a hamstring effect on both the now Financial Markets Authority and previously the Securities Commission. 
I know that the Government campaigned on retaining the separate status of the Serious Fraud Office— 
Hon Anne Tolley 
: And we won. 
Hon LIANNE DALZIEL 
: OK well that is fine. You can say that you won. We know that. That is not the point. We are trying to actually have an intelligent debate about matters that really— 
Hon Anne Tolley 
: No you’re not. 
Hon LIANNE DALZIEL 
: If you are suggesting that I am not trying to contribute to this debate in a genuine way then I think that reflects more on the Minister than on me because I am actually trying to contribute to this debate in a serious way. We all on this side of the Chamber would like to reach a point where we would get such a degree of support for such a major measure as this as we could easily achieve. There is only an element of difference between us and I believe that with some goodwill and some contribution to the debate that would take into account these views we could get there. 
It is not unreasonable for us to use the Committee stage of the debate in the Chamber to actually try to persuade the Government to finally reach that point of view. I have stood in this Chamber with a Minister of Justice from that side of the Chamber and pleaded a case in a particular matter and the Minister of Justice has listened and overnight had his officials draft the instructions and the amendment still stands today. The record will show that except that in those days the Committee stage was not included in the  
Hansard 
 recordings which had only the votes on them. But the record speaks for itself and the amendments that we achieved in the Births Deaths and Marriages Registration Bill all those years ago when I was a brand new member of Parliament. It was the Rt Hon Doug Graham who was sitting in the chair as the Minister does today. 
Dr CAM CALDER (National) 
: 
 I move  
That the question be now put 
. 
STEFFAN BROWNING (Green) 
: 
 The Search and Surveillance Bill is effectively an “anyone anywhere anyhow” bill. Privacy is actually cheated in a major cut in civil liberties and later as we get into the parts regarding production and examination provisions that will be shown more fully. Many people whom I know are very concerned about this bill because of its very wide-ranging powers. These powers are an increase on anything that has been in legislation before and I notice even through Supplementary Order Paper 12 just little bits more sneaking in. There have been some improvements but I notice that even on evidential material there in the definition of it we now add in “or a suspected offence”. I have mentioned before that I have been involved in some activities that would theoretically possibly trigger this under the purposes—positive societally helpful environmentally helpful activities that are actually beneficial to this country. The purpose in fact as stated in Part 1 is actually a contradiction when you look through the rest of the bill. It says it “is consistent with human rights values” and we will see clearly where it is not. 
I will give just a little example of something that happened today of how actual people might feel if they are not actually involved in an offence but get hooked up in this. I noted in question time today when that dear subject the teapot tapes was mentioned that the Prime Minister in response to the other side of the House around illegal taping said: “How would you feel about it?”. Well that was in terms of being recorded against his theoretical will so that is just a hint of what numerous people engaged in far more positive activities could get caught up with. 
So the Green Party will be opposing this bill particularly on the basis of human rights and civil liberties. 
TIM MACINDOE (National—Hamilton West) 
: 
 I move  
That the question be now put 
. 
Hon DAVID CUNLIFFE (Labour—New Lynn) 
: 
 I speak firstly in respect of the many legal specialists who have preceded me here and I aim only to provide a layperson’s view. It is a privilege to speak to the Search and Surveillance Bill because it is one of those bills that go to the heart of our democracy. There are a number of ways in which we have seen media freedoms and the rule of law curtailed in recent months. We have seen the Serious Fraud Office use production orders against the  
National Business Review 
. We have seen the calculated refusal of the Government to address the Serious Fraud Office powers and media protections as part of the negotiations around this bill despite media calls for protection and Opposition efforts. We have seen the Government’s attempt to overrule the Supreme Court decision in  
Hamed 
—that is the Tuhoe case—rather than the more limited fix agreed by Parliament after all other parties rebelled. Of course as my colleague Phil Goff has very eloquently put it we have seen the use of the police and the Solicitor-General by the Prime Minister over the teapot tapes after a campaign media stunt went wrong. Priorities are all out of whack. Priorities are all out of whack. 
Simon Bridges 
: You’d be complaining. 
Hon DAVID CUNLIFFE 
: The perma-tanned member opposite argues that this is a legitimate power of Government but he flies in the face of the fact that 90 percent of New Zealanders would say that when only one in five burglaries is being closed by our boys and girls in blue— 
Hon Judith Collins 
: I raise a point of order Mr Chairperson. I do not think it is appropriate for a member of this Committee to refer to a member who happens to be Maori as perma-tanned and frankly I think it is offensive. 
The CHAIRPERSON (Eric Roy) 
: I nearly pulled the member up. It is out of order and I would ask him to desist from using that kind of referencing to another member. 
Hon DAVID CUNLIFFE 
: I withdraw and apologise and it was absolutely nothing to do with the member’s ethnicity of which I was henceforth unaware. So there we go. The appointment of the National Party electorate chairman of Helensville Mr Stephen McElrea to the board of NZ On Air—the Broadcasting Commission—is yet another consistent erosion of the freedoms of the media which this bill once again keeps eroding. 
Much of the debate so far has turned on the issue of the extension of the powers to the Serious Fraud Office. The importance of that has been seen in relation to South Canterbury Finance the largest corporate failure in New Zealand history. We have to strike a balance in this Committee between the protection of public freedoms and the discharge of the responsibilities of public office. South Canterbury Finance has been a litany of failure by the current Government to address in any sensible and strategic way the need to have placed that company into a statutory management regime well before the problem blew out to the multi-hundred-million-dollar problem that it has become. To use that as cover for giving the Serious Fraud Office licence to exercise powers more akin to those of the Security Intelligence Service without due checks and protections is frankly an abuse of process. It has long been a protection afforded to mum and dad New Zealanders that the less well-known but most powerful organs of the State such as the Security Intelligence Service have needed to use in all but the rarest exceptions a judge’s warrant to execute their responsibilities in respect of phone taps and the like. It is extremely important that no lesser protections are afforded through the provisions of this bill. 
Much of the bill is bipartisan much hard work has gone on between our legally qualified colleagues on both sides of the House and much of the bill is in conformity with those principles. But there are some remaining parts of the bill that are not and it is upon those parts such as those relating to the Serious Fraud Office that this debate is now engaged. The Minister sniggers. Why are we debating this now? Because this part of the bill relates to the purpose of the legislation—the purpose of the legislation—and the fact that this will be an Act to bind the Crown. It must therefore responsibly bind all arms of the Crown and there should be consistency of the public protections that are offered across all those arms. The average New Zealander wherever they are in the provinces or in the cities is more interested in paying their mortgage getting a job keeping— 
Dr JACKIE BLUE (National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
New Zealand National 59; New Zealand First 8; ACT New Zealand 1; United Future 1. 
Noes 50 
New Zealand Labour 34; Green Party 14; Maori Party 2. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 1 be agreed to. 
Amendments agreed to. 
The question was put that the following amendment in the name of the Hon David Parker to clause 3 be agreed to: 
to insert the following definition after the definition of  
rub-down search 
: 
SFO Director  
means the Director of the Serious Fraud Office as defined in section 2 of the Serious Fraud Office Act 1990. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 48 
New Zealand Labour 34; Green Party 14. 
Noes 70 
New Zealand National 59; New Zealand First 8; Maori Party 1; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 59 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 2; Mana 1. 
Part 1 as amended agreed to. 
Part 2 Police powers 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 Part 2 of the Search and Surveillance Bill contains a number of powers specifically for the police. One of the most contentious of these powers is examination orders. Examination orders are included as a police-only power to reflect the need for the police to have similar powers to the Serious Fraud Office as both agencies investigate very serious and complex offences. 
The powers in the bill were examined closely by the Justice and Electoral Committee which made a number of recommendations ensuring that rights and protections available to people were maintained. It is expected that privileges such as a journalist’s right to protect their sources legal privilege religious privilege medical privilege and privilege for informers will be considered by judges and issuing officers in determining whether an examination order should be made. This is consistent with the balancing of interests currently undertaken by judicial officers when issuing a search warrant on media premises or other premises where privileged information and material are likely to be found. 
Examination orders may be made in the business context only where there are reasonable grounds to suspect that an offence punishable by imprisonment for a term of 5 years or more has is or will be committed. In the non-business context the use of examination orders has been further restricted to reflect the special relationships at risk in this context. Examination orders in the non-business context may be used only when the offending in question is a serious or complex fraud offence punishable by imprisonment for a term of 7 years or more or the offence has is or will be committed wholly or partly by an organised criminal group. The application process further restricts the use of these powers as examination orders may be applied for only by an inspector or more senior officer and the making of the application must be approved by a deputy commissioner assistant commissioner or the district commander of police. These restrictions ensure that this power will not be used on a regular basis. 
Protection offered under section 68 of the Evidence Act 2006 whereby a journalist cannot be required to reveal their source except under restricted circumstances is carried across to the Search and Surveillance Bill as is the privilege against self-incrimination. Examination orders may be issued only by a judge who will consider rights including freedom of expression when assessing whether an examination order should be made. A journalist who is presented with a production order or an examination order can refuse to reveal their source by claiming this protection. Any person can refuse to answer a question or produce documents if it would incriminate them. 
If the police dispute any claim of privilege they may apply to a judge for a determination of its validity. A judge will require a source’s name to be provided only if the name itself is required to assess whether the claim is valid. Similarly the judge will require this evidence only if it is necessary in order for them to assess whether self-incrimination is reasonably likely. If the judge upholds a claim of privilege the privileged material such as the source or name is inadmissible in any proceedings. 
The examination order powers have been subject to careful consideration by the Justice and Electoral Committee and to robust controls governing their use. This provides protection to those subject to these orders and restricts utilisation of the power to offending that warrants their use. Examination orders are also subject to a strict reporting regime in order to track the use and effectiveness of the power. 
Hon DAVID PARKER (Labour) 
: 
 The irony of this is that the Minister of Justice has just listed a large number of protections in the Search and Surveillance Bill that surround the use of examination order powers that are being conferred to the police. The first point Mr Bridges is that those powers do not currently exist in respect of production orders for the police. This is a very very significant new power being conferred to the police. It is a very important exception to the right to silence. At the moment in New Zealand we have a right to silence. We do not have to cooperate with the police and answer their questions. There are lots of reasons why that historically has been the case. There are lots of societal reasons why it is that you do not want to compel people to give evidence against their friend. They often choose to do so but you do not force them to because you create tensions in society that amongst other things bring the police into conflict with the population and therefore the population is less likely to cooperate with the police in the future. There is an overriding objective that we want to maintain cooperation with the police. That is but one reason. You do not want to be pushing members of the family against another member of the family. So we do not compel people to talk to the police. We encourage them to do so but we do not compel them to. 
Another reason is that if you compel people to talk to the police it does not mean to say that you can compel them to tell the truth. You are more likely to get fictitious evidence if people are forced to talk to the police or to the other authorities than if they do so voluntarily. So those are the reasons why we do not normally compel people to talk to the authorities. Those are some of them; I do not have time to go into all of them. 
But there are occasions when it is important that the police release people from obligations of confidence that they owe to their principal. For example an accountant who is involved quite innocently in a money-laundering operation for a drug ring cannot disclose that information voluntarily to the police and some of it might not be recorded in a way that can be obtained through a search warrant getting documents. So you release the accountant or the lawyer from their obligation of confidence and they will be willing to talk but they cannot talk without being released from that obligation of confidence. That is why on occasions it is appropriate to have examination orders. 
This can be justified in some circumstances but you have to be very careful that you are not opening this gate too wide as we found with the Serious Fraud Office. What are we doing here? Well the bill came to the Justice and Electoral Committee already with more protections than exist in respect of the Serious Fraud Office but the select committee added even more. The Minister’s Supplementary Order Paper adds more protections still in respect of the police which is a good thing. What did we add? We were already saying that it had to be through a warrant. It had to be through a warrant. It is now made clear that the warrant can be issued only by a judge not by a registrar. The Serious Fraud Office does not even have to get a warrant. It is done by internal administrative acts. What a nonsense—what a nonsense! 
I come to the second protection. The bill came to the select committee saying that the offence that was being investigated had to be imprisonable. We upped that in the business case to something that had a period of imprisonment of 5 years or more. So it is a lot more serious than when it came to the select committee. There is no equivalent provision in the Serious Fraud Office legislation. The next thing the select committee did is in respect of a non-business situation. The threshold is even higher: it has to be 7 years or more of imprisonment as the penalty under the offence before you can get an examination order. 
Then as the Minister said if this is ever used against the media—and it should not be generally but if any of it was—you have to close off the potential that it could be. You cannot have an absolute prohibition because actually it is possible that members of the press can be corrupt and involved in criminal conduct themselves. It is very rare but it can happen so you have got to leave that possibility open. You have got to put protections around it so that it is not abused. How do you do that? Well you actually say that anything that comes of it can be objected to through this process that the Minister referred to. By relying upon privilege they can claim that they should not be forced to give evidence. We have heard reference from the Minister that there are various sorts of privilege that could be claimed—legal professional privilege I think was one of them. Was medical privilege mentioned? I do not know that it was. There was legal professional privilege and also the interests of media freedom. How do you assess that? You actually put it in front of a judge to make that assessment rather than letting the police make the assessment themselves. How is that different from the Serious Fraud Office? The Serious Fraud Office does not have to do that. It does not have to do that. So at the moment we have got the Serious Fraud Office being able to go to the media force them to answer questions and put the journalists and the news media company at risk of criminal prosecutions because their refusal to answer questions—unless they are claiming the privilege against self-incrimination—and their protection of a source is illegal. It is illegal in terms of the Serious Fraud Office legislation and that exposes them to criminal penalties. 
How can that be right? It is not right for the police. The select committee the Government and the Minister have already agreed that we need protections and more protections but the Government will not move on this protection for the media. Why will it not? There is no principle behind this. Ask yourself why it will not. The answer is that it is trying to position the Opposition—and we heard the Minister in the chair the Hon Judith Collins say this in her second to last contribution—and say that because we oppose this bill we are soft on crime. That is what the Government is trying to do here. That is what it has been trying to do for 2 years. It has been trying to say that because we are taking a principled position for the protection of the media through making sure that the same protections that are in the bill in respect of examination orders for the police and media protection also apply in respect of Serious Fraud Office actions. The Government says that because we are taking that principled position we are soft on crime. No Minister what we are doing is protecting civil liberties. 
One of the most important civil liberties is maintained through a free media—a free media who are unconstrained in their ability to investigate things that have gone wrong to investigate corruption and to make sure that corruption does not happen again. That is what happens if you investigate and shed light on it: people get prosecuted Governments fall and there is a disincentive to corruption. That is how you keep a clean democracy. If you cannot investigate corruption properly because the media sources will not speak up because that source could be disclosed under an examination order by the media or be forced to be disclosed by the Serious Fraud Office you undermine democracy and that is precious to me. 
That is really precious to me and that is why I am quite happy to say that the existing law is wrong and that the Law Commission was right to recommend to the prior Government that this power be constrained. In fact the Law Commission originally recommended that it be taken away completely from the Serious Fraud Office. After it considered again and there were submissions it actually got to the point where the Law Commission and the department—I should not forget the Ministry of Justice—agreed that there should be a constrained version of this power eventually. But this Government will not do it. This Government says that it is not going to. It is not going to because for political advantage it is trying to position the Labour Opposition which is trying to protect media freedoms and our democratic institutions and trying to say that that makes us soft on crime. What is soft on crime Minister is your Government which does not see that this sort of law exposes our democratic institutions to the risk of corruption to the risk of negligent behaviour not being exposed and to the risk of losses such as we had with South Canterbury Finance when hundreds of millions of dollars in extra money was lost because of according to the Auditor-General Government inaction in terms of letting the loan book grow and that sort of thing. 
That sort of thing cannot be as well investigated by the media if their sources are at risk. That is why this bill is so important. The amendment that is in my name extends the same protections that are there for the media in respect of the police—now that they are getting this additional power—and says that those same controls should be on the Serious Fraud Office. I think it is patently clear that they should be. I think that most people think that. The media freedom committee thinks they should be all of the newspapers think they should be the radio thinks they should be and the TV thinks they should be. That is why this game that the Government is playing trying to say that our actions on this are soft on crime is actually not working for it. Instead the Government looks shady as it is. This lines up— 
Simon Bridges 
: Every time you say it David people at home think you’re soft on crime. 
Hon DAVID PARKER 
: Mr Bridges’ contribution is to say that this does show us to be soft on crime. This is the man who just told this House there was no extension to police powers in this legislation which was completely wrong. 
Dr JACKIE BLUE (National) 
: 
 I am very pleased to speak to Part 2 of the Search and Surveillance Bill. I was not part of the previous Justice and Electoral Committee in the last Parliament—I am a new member on this committee—but it is clear from the bill and the Supplementary Order Paper that this is an incredibly substantial bill. I must compliment the previous select committee and also the officials. 
When you look through and see what changes the select committee made and then the changes the Supplementary Order Paper makes you can see that a really painstaking process has gone on to ensure that there is clarity and certainty for New Zealanders so that they can feel safe that the police have the right powers that it is appropriate that there are safeguards and that there are checks and balances. So my congratulations go to the select committee which everyone seems to be acknowledging as having done a wonderful job and to the officials. I am sure on this bill that common sense will prevail as the Minister said and that other parties will support this bill through the different stages. 
Part 2 is about police powers and as I say it is disappointing that we have not got the support of other parties at this stage because it is very serious. I mean if we do not get this bill passed by the middle of April surveillance cameras will go off and police powers will be seriously curtailed. Quite frankly criminals are going to get away with crime and I am sure none of us wants that so I really hope that common sense prevails. 
There are in fact about 12 subparts to Part 2 all describing very different situations where the police can act and how they can act. It is prescriptive. It covers a lot of different situations. It is very thorough. I will go over just some of them but I will not go into detail. Subpart 1 is about internal searches search warrant powers in relation to places vehicles and other things. Subpart 2 is about warrantless powers when you do not have a warrant but you need to go into a place or search someone to effect an arrest and that includes vehicles and so forth. 
Subpart 3 is about when you do not have a warrant but you need to actually search someone who is going to be locked up in police custody. And of course Subpart 4 is about warrantless powers when you have an urgent situation. There are a number of subparts all going right through to Subpart 12. So I am really impressed with the comprehensive nature and the detail that the Supplementary Order Paper has brought out of the select committee. 
The Minister touched on examination orders and these are clearly a very serious power that will be given to police. It is something that the Serious Fraud Office has the ability to use—examination powers. But because it is quite serious it has been carefully laid out that there need to be safeguards so there will not be an abuse of power. Obviously the Serious Fraud Office has this ability to use examination orders but this bill will allow police to apply for them. Other members have talked about it but it will mean that those people can cooperate with the police without in any way compromising their own situation without any adverse consequences. 
In a business context examination powers can be used only in offences punishable by 5 years’ imprisonment or more and in a non-business context examination orders can be used to investigate serious fraud punishable by 7 years’ imprisonment or more. So there are really quite defined situations where examination orders can be used. There are safeguards; there are checks and balances. It has been very thorough and painstaking and again my compliments go to the select committee and the officials. Importantly only a judge can make an examination order and that has to be on the application of a high-ranking police officer. So again there are criteria as to when the examination order can be asked for and only a judge can provide one. 
I just want to talk about the journalists. I am sure that this part of the bill will be welcomed by journalists. We are a democratic society. People who feel they should be speaking out under cover of anonymity should have that ability and journalists often have sources they wish to protect. I know we have the ability to have free media and reporting in our country and long may that continue. I am sure this part of the bill will be welcomed by journalists and media. The bill will improve journalists’ ability to protect the identity of their sources. Thank you. 
CHARLES CHAUVEL (Labour) 
: 
 I just want to respond to some of the comments that were made by the previous speaker Jackie Blue because a lot of what she said was absolutely right but there is a falsehood woven through the debate and it is this: that the Serious Fraud Office already has production and examination powers so it is all right for it to keep those powers and it is all right for us to give those powers to the police and other enforcement agencies. What Jackie Blue just said was “It’s all right because of all the safeguards that are in the Search and Surveillance Bill.” The problem with that argument is that the Serious Fraud Office continues right outside the parameters of this legislation and it does not have any of the safeguards that are being put in place for the other agencies. 
I agree that the Minister of Justice has done a good job—she knows that; I have told her that and I have said it publicly—in terms of putting safeguards in Supplementary Order Paper 12 that are better than what was there in the past. She knows that I think that is a forward step and I am pleased that we are where we are with that. But before I come to explain why it is fallacious to pursue the argument that the member did I do want to respond to another point that she made and that is for her to somehow be critical that we are where we are and yet the Labour Party the major Opposition party retains its objection to the legislation because of its failure to deal with the Serious Fraud Office. This is an objection that has been known and on the record now for more than a year and it has been the subject of many attempts from our point of view to resolve the matter in good faith. We tried with the Minister’s predecessor and we were stonewalled. So notwithstanding the progress that the Minister and I have managed to make on a host of issues responsibility for the fact that we are now at the threshold and still cannot agree does not lie with the Labour Party and that is an important point to put on the record. 
I want to explain once and for all I hope why it is not accurate to say “Oh well the Serious Fraud Office has already got extensive powers but the bill puts safeguards in place so everything is all right.” As I said before the safeguards do not apply to the Serious Fraud Office. We have already heard from David Parker that there is concern real concern about the way in which the Serious Fraud Office has used its powers in the past particularly in respect of the media. Mrs Tolley can smile and scoff all she likes but that is the case and we are serious about making sure that the media can do their job in this country. This is a Government that has presided over declining media freedoms—we are 13th now internationally whereas we were eighth the year before. She has sat on the Treasury benches in senior ministerial positions while that has happened. This is our opportunity as a House of Representatives to fix the matter and I would have thought we might have actually had a bit more good-faith debate across the House in the sort of spirit that I have tried to have with the Minister. 
Here are the powers that the Serious Fraud Office has got now which it will keep because we are not dealing with the Serious Fraud Office powers in this legislation. Under section 5(1) of its Act the director may write to any person and at the time and place specified in the notice that the director writes require that person (“(a) to produce for inspection any documents which are specified in the notice and which the Director has reason to believe may be relevant to any suspected case of serious or complex fraud: (b) to answer to the best of that person’s knowledge and belief questions with respect to the whereabouts or existence of any further documents that may be relevant to the investigation.” So there we are. This is the only example that we are going to have assuming that this bill passes in our law and on our statute book of an official an appointed official accountable politically to no one able to write to anybody and say: “You must appear at my office at 2 o’clock tomorrow and you must produce the following documents.” There is nothing anybody can do about it. That has to happen. There is no way to meaningfully object to it and there are no safeguards around it in the way that there will be when this bill if it becomes law is enacted. 
Section 9 goes even further. It actually does away with the right to silence when it comes to— 
DENIS O’ROURKE (NZ First) 
: 
 New Zealand First still does not support this bill the Search and Surveillance Bill in its present form nor the amendments that have been put forward which we do not think have addressed the fundamental issues. It has been somewhat amusing to observe the jousting between the members of the Labour Party and the members of the National Party especially over the Serious Fraud Office. However New Zealand First does not regard that issue as being central to this legislation. It is rather peripheral and is not something that we wish to deal with at this stage although I think it is something that needs to be considered at some other time. 
New Zealand First does acknowledge however that the process has been comprehensive for this bill. Unfortunately many of us in New Zealand First were not here for most of that process. However we do think that the Justice and Electoral Committee in particular has done a good job of considering the safeguards to some of the personal rights and freedoms that are actually attacked by this bill. In particular I refer to the fact that it is good that the bill does consolidate and improve the powers that are current in 69 different Acts. It removes many inconsistencies. It is good that it codifies the existing law and clarifies powers that are often unclear it provides a regulatory regime for high-technology devices used in surveillance it seeks to ensure judicial oversight where it is needed it places issuing functions for warrants in experienced hands and it provides for public reporting. But none of that really is enough to ensure that New Zealanders’ fundamental rights are preserved and I refer in particular to the police powers for examination orders in the bill which are of particular concern to New Zealand First. 
Apart from the current Serious Fraud Office powers the law has protected the right to silence for a very long time and that right should continue to be protected. We do not want to move in New Zealand towards a police State. I refer to what I said in my earlier speech on this which is that requiring people to answer questions puts them in a difficult position—what has in the past been referred to as a cruel trilemma—because they may be punished for their silence they may be punished for perjury if they do not tell the truth or if they do tell the truth they may find themselves incriminating themselves or breaching the confidentiality of others. It is not right that that will not happen; even though the bill says that their right to avoid self-incrimination is protected the practical effect is not that. 
Apart from those powers of the Serious Fraud Office I read that clauses 31 and 32 of the bill would allow senior police officers to apply for examination in a business context on reasonable grounds if they believe that there is an offence punishable by more than 5 years’ imprisonment. Those are similar powers to the Serious Fraud Office’s powers in serious fraud cases but it is a serious step we think to extend those powers to the New Zealand Police. Clauses 33 and 34 extend the police powers even further to non-business cases involving serious or complex fraud punishable by imprisonment for a term of 7 years or more or if the offence has been committed by an organised criminal group as defined in the Crimes Act. This opens up a very wide area for police use of compulsory examination and for that reason it really does go too far to achieve the desired balance that many have talked about between the need for better police and agency enforcement of the law and the right to silence and other important rights. 
The line may already have been crossed with the Serious Fraud Office having rather Draconian compulsory examination powers but at least the Serious Fraud Office is experienced and is specialised in the area of serious fraud. The police are not as experienced in those areas and I believe there should be a distinction between the powers of the two. There are requirements in the bill of course for reporting on the use of these powers but I do not believe that they are likely to be a serious brake should the police over time get into the habit of using those powers. 
DAVID CLENDON (Green) 
: 
 Mr Chairman— 
Hon Member 
: He’s been waiting as well. 
DAVID CLENDON 
: I certainly have. I would like to just begin by reflecting on a couple of comments from the Government speakers who have referred to the timing of this debate. The fact is yes we understand that on 17 April the police lose the powers they currently have under the Video Camera Surveillance (Temporary Measures) Act. Apparently if that happens anarchy will run loose in the world and it will be a tragic thing. 
I think it is worth commenting on the fact that this Government set the timing for this shift—for the 17 April changeover—but this Search and Surveillance Bill has been around in some form or other for quite a number of years. I do not suggest it is not a complex bill—it is. We absolutely support the notion of bringing together what has been described as a jumble of legislation. Bits and pieces of rules and provisions spread across what 50-odd pieces of legislation is seldom helpful. Nevertheless there has been significant time available to the Government and I think I object to the fact that somehow the Opposition speakers are having blame sheeted home to them because this Government now has only a couple of weeks to sort itself out and get some legislation in place. I do not personally feel any responsibility for that. This Government has been in control of the House programme for over 3 years and I think it would do well to recall that. 
This part deals substantially with police powers—the powers the police will have under this legislation. A great deal of this part refers to the actions that the police may perform without warrants. It is entirely appropriate that the police should of course be able to conduct some activities to act on the spur of the moment. Crime and offending does act in real time and it is inappropriate to constrain the police too much but it is all about the question of balance. How much is too much? As I have said all the way through this bill seems to lean towards enabling the diminishing of people’s rights rather than having a clear sense that there are some absolute limits to that. 
I was concerned by an earlier speaker from the Government who made a comment in passing to the effect that he did not have a lot of interest in the human rights of those who are not interested in obeying the law. A similar sentiment seems to pervade this bill—that somehow people who offend or even who are accused of offending should have their basic human rights compromised. Of course when people have offended or are accused of serious offences we do put limits on their liberties. We collectively exercise the right to restrain them and in some cases to imprison them—take away their personal liberty—and that is as it should be. But the notion that somehow even people who are imprisoned do not retain human rights is absolutely anathema to me and I suspect to most other people in this House. I suspect that if we found ourselves one day in a society where people’s rights are diminished simply because they have committed crime I think that is a society none of us would actually want to live in. Human rights are fundamental to being human. We need to recognise that and understand that and act accordingly in all of these legislative measures that we are putting through. 
I would like briefly to reflect on one particular clause in this part—clause 5—which is a couple of paragraphs. The heading of clause 5 is “Internal searches generally prohibited” and then subclause (1) goes on to say: “A constable must not conduct an internal search of any part of the body of any person except for with the person’s consent” the constable may look into the person’s mouth when looking for presumably concealed drugs or whatever it may be. I note that the Minister of Justice’s Supplementary Order Paper omits that clause in its entirety. It takes away the general prohibition on internal body searches and I would be very interested in finding out from the Minister why she has chosen to do that. I would hope it is for the reason that the prohibition on internal searches is covered off in some other provision. I would hope that she has found it is unnecessary. I sincerely hope the Minister is not proposing that constables should have the right to conduct internal searches of people in the way that is prohibited currently in the bill and I would be very interested in hearing some commentary on that. 
The extent of the warrantless provisions in this section is extensive. They are comprehensive. There is reference to issues about weapons—about knives guns and all the rest of it—and I think generally yes we can accede to that. 
TIM MACINDOE (National—Hamilton West) 
: 
 I would just like to return to the contribution from the New Zealand First member who spoke a few minutes ago Denis O’Rourke and put two things on the record. The first thing is that I emphatically reject the idea that this Search and Surveillance Bill in any way moves New Zealand towards the concept of becoming a police State. That is an utterly ridiculous suggestion and the member said nothing at all to substantiate that claim. 
The second thing I would like to point out to that member is that through successive elections the party that he represents New Zealand First has lectured the electorate continuously on law and order issues and consistently told the rest of us that we are not strong enough on law and order; that we need to give the police more powers; and that we need to crack down on this that and the other thing. And when they get their first opportunity in the new Parliament to demonstrate their convictions what happens? They run the other way. They completely turn tail on it and I hope that the electorate is listening to them because when they get given the chance to demonstrate the courage of their convictions they are shown not to have it. 
We have had a number of Opposition speakers this evening especially those from Labour telling us that they are concerned about what New Zealanders will perceive of their stance on this bill. They are particularly concerned that they might be portrayed as being soft on crime. Well I want to make a point that if there are intelligent people listening they will reach their own conclusions about that without us having to tell them. But what is really significant is that this was a bill that largely originated on Labour’s watch and they suddenly turn out now and are distancing themselves as far as possible from it. They forget that this originated as a result of a very clear recommendation from the Law Commission back in 2007 while Labour was in Government and that much of the work we are seeing through to its completion now originated on its watch. 
I want to correct David Parker’s assertion that the member for Tauranga when he was speaking earlier suggested that the bill does not extend police powers. In fact the point that Mr Bridges was making was that the Government has been at pains throughout this process and in the Justice and Electoral Committee to avoid extending police powers unjustifiably and without adequate constraints. That is a very different position from the one that Mr Parker was trying to pin on to Mr Bridges because that is exactly what Part 2 of this bill is all about. 
I want to place on record for those who are listening what some of those powers are and to return to Mr Parker’s concern about the examination orders. I think that when New Zealanders understand what the powers in Part 2 are they will be very supportive of them. Let me just give you a few examples. Clause 6 provides that an issuing officer may issue a search warrant for a place vehicle or other thing on application by a constable if satisfied that there are reasonable grounds to suspect offending punishable by imprisonment and reasonable grounds to believe that the search will find evidential material related to the offending. 
Clause 7 specifies that a constable who has reasonable grounds to suspect a person is unlawfully at large may enter any place or vehicle without a warrant in order to search for and arrest that person if they have reasonable grounds to believe that that person is there. 
Denis O’Rourke 
: Get on to the real issues. 
TIM MACINDOE 
: Clause 8—Mr O’Rourke I am dealing with the clauses of this part. That is what we are debating at this stage in the debate. That is what you have just spoken in opposition to and I am letting New Zealanders know what you have just opposed. 
Clause 8 authorises a constable to enter a place or vehicle without a warrant to search for and arrest a person if they have reasonable grounds to believe that the person is there and reasonable grounds to suspect that the person has committed an imprisonable offence and believes that immediate entry is necessary to prevent the person from leaving or interfering with evidential material. And so it goes on. That is what this part is all about. That is what we are debating at this point in the debate. 
New Zealanders will welcome these measures as sensible and appropriate for public safety and the effective administration of justice. So let me turn to the examination orders that Mr Parker was so concerned about. The bill has an examination order regime that allows the police to apply for a court order requiring a person to answer questions where they have previously refused to do so. Examination orders are intended for use to investigate particularly complex crimes and we have had some discussion of what some of those are in our recent history and just how important that issue is. The Serious Fraud Office currently has the power to apply for examination orders and the bill will also allow police— 
CHARLES CHAUVEL (Labour) 
: 
 Thank you for the opportunity to take another call on Part 2 because what I want to do is just finish briefly the point that I was making earlier and it has just actually been reinforced by Tim Macindoe. The point about the orders regime in this part is as he says that it involves going to the court and applying for an order from a judge that somebody ought to be compelled to do something. A judge is going to have to think very very carefully about issuing a compulsive order because obviously when you think about the consequences of defying a compulsive order in these circumstances they are extreme. 
There are safeguards and there is a judicial procedure and that is the very point that I was trying to make in response to Dr Jackie Blue’s contribution. Those safeguards just do not exist in respect of the Serious Fraud Office regime and I just would like some indication if it is possible that that is understood on the other side of the Chamber because we are not saying the regime proposed by this Search and Surveillance Bill is wrong. We are not saying— 
Denis O’Rourke 
: Yes we are! 
CHARLES CHAUVEL 
: Well some people may be; the Labour Opposition is not. What we are saying—as the Minister of Justice knows because I have said it to her myself—is that there is an insufficiently broad and comprehensive regime here because it is very obvious that one agency remains outside it. It is not good enough frankly to say “Well it’s all OK because the regime’s protective.” It is protective but the Serious Fraud Office is outside it and until it is actually included that is a problem. 
David Parker has amendments that he has spoken to. I think he spoke quite eloquently about the consequences of being compelled to produce a document or to forgo the right to silence. What he has done through proposed amendments to clauses 31 33 37 38 and 40 is simply apply the regime with all the protections that Dr Blue described and that Tim Macindoe was speaking about to the Serious Fraud Office’s exercise of powers. We have simply taken the time to go through the bill and to work out how it is that you would bring the Serious Fraud Office in and it is actually not a complicated exercise. As I said in my earlier contribution the Standing Orders now do not bar it—and that has been throughout the correspondence with Simon Power and with Judith Collins the reason advanced largely for not doing it in this bill. So again I simply ask that Government members turn their mind to the problem that we are going to be left with if we do not use this opportunity. 
I have amendments that address some issues in this part as well. Again they deal with an issue that I have talked to the Minister about and that is whether or not having a 5 and a 7-year threshold in respect of the orders that can be given either in a business or a non-business context is sufficient. I have suggested a couple of solutions. One is that the Minister might have a power where she could specify offences that were sufficiently serious they could go in the schedule to the Act and we could have a look at them at the Regulations Review Committee so there would be parliamentary scrutiny of the proposals rather than having this blunt instrument of basically a numerical test—5 or 7 years it is in otherwise it is not. 
One of the other proposals which was advanced by David Parker in the correspondence then by me and which I put up by way of amendment is to raise the threshold to 10 years. What I want to say is that I have had a look at the Crimes Act in this regard. There is in New Zealand a technique that is used with sentencing. If you have a look at for example perjury—the sort of offence you might want to have included—for very serious perjury in respect of an offence punishable by over 3 years of imprisonment punishment is 14 years. For lesser perjury it is 7 years for mere false oaths it is 5 years for judicial corruption under section 100 it is 14 years but for simply trying to corrupt a registrar or a non-sworn officer with tenure it is 7 years. 
Likewise for Ministers of the Crown it is 14 years and for mere MPs or officials 7 years. So this is the way in which we have crafted our sentencing science if you like. And what I am asking is for the Minister to consider this sort of flexibility. 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 I just want to answer a few of the questions that have been raised. The first one I need to deal with straightaway is the contribution from the member from the Green Party who as I recall stated that the Supplementary Order Paper was removing the general prohibition for internal searches. Actually that could not be further from the truth. 
I refer the member to page 15 of Supplementary Order Paper 12 in my name which makes it very clear that it does not in fact do that; it in fact ensures that now a general prohibition on internal searches applies to all enforcement officers not just police constables. So it actually extends it. This is the sort of nonsense that I think we have heard from the Green Party tonight and I do not normally say that sort of thing but frankly it is the sort of scaremongering that one would expect. 
I am however appalled by New Zealand First the new “soft on crime” party after that contribution. I say that for a reason. I note that the new member Mr O’Rourke said that they are new members and they have not been through the select committee process. I took that into account when I offered that party a full briefing on the bill. I said they could come along to my office and hear from the officials anything they wanted to know. Did they take that up? No. I guess they were too busy. 
However Mr Chauvel was very happy to come and talk to me about the proposed changes and we brought some of those changes through and we discussed them. They are not everything that Labour wanted but I will say this for Mr Chauvel: at least he came and talked. At least we could talk about what we could do and I think that is a very responsible thing to do. 
That however does not deal with the fact that we will still not agree with everything that he talks about. This evening Mr Chauvel suggested that we might want to change the level of seriousness of offence for which an examination order for instance could be applied for. One of the issues was around maybe making it a 10-year penalty for it to apply. But the advice that I have is that if we had anything over the 5-year maximum it would actually exclude in the business context possession of property with intent to engage in money laundering. It would exclude injuring with intent to injure. It would exclude being armed with a weapon with intent to commit aggravated robbery. 
If we took out the 7-year exclusion for non-business situations that would also take out engaging in money laundering dishonestly taking or using a document obtaining benefit or causing loss by deception accessing a computer system to dishonestly obtain a benefit or cause a loss. That would actually by reducing the threshold undermine the primary rationale for having the powers in the first place. 
But I do take his point about whether we can have a schedule and add particular things to it. There is a reason not to go down that route and the reason is this: this Parliament spends day in day out changing laws. We make amendments to Acts like the Crimes Act. We constantly do so. If we were to amend any of the laws relating to these offences we would need to make sure we carried it through to the next Act because otherwise suddenly these powers would fail. 
That has happened in the past where we have had Parliaments with the very best will in the world going through the select committee and something falls through the gap. I think really when we look at these levels of sentences available they are all for serious offences. So that is why we are not going to support that. But I would say of Mr Chauvel that at least he talked to me about it at least he put it down for me and at least he did not turn up on the night and say that that party like New Zealand First is soft on crime—because by goodness they are now. 
Hon DAVID PARKER (Labour) 
:  
I was going to on this call address a different issue and that was just to emphasise that the Justice and Electoral Committee has been careful to limit some of the powers that were proposed in this Part 2 of the Search and Surveillance Bill. I will mention a couple of examples. 
As the Greens have acknowledged in one of their recent contributions there are occasions where there are things that are going down that require the police to do things in a shorthand way without actually going through the formalities of getting a warrant. I thought that was a proper acknowledgment by the Greens. The bill allows warrantless surveillance in some situations. The bill came to the select committee recommending that it could happen for up to 3 days—72 hours. The select committee said: “No that is too long; the police should be able to get a warrant within 48 hours. If they cannot get a warrant within 48 hours they should desist.” So that was changed in the bill; it was shortened from 72 hours to 48 hours and at the same time it was made clear that the 48 hours had to start from the time of the surveillance. That would mean that they could not have repetitious 47-hour periods. The way it was drafted when it came to select committee you could monitor for 47 hours turn the camera off for an hour and you had not breached the 48-hour period. You could start again and do it for another 48 hours. The select committee really was alert to trying to limit these matters. 
In terms of the retention of data when you have a surveillance operation you do not catch just the criminal—or the alleged criminal he or she might not even be a criminal they are an alleged criminal. You do not get just them on their tape; you gets lots of other people. So if this is in a private situation or even if it is in a public situation people have got a right not to be under surveillance by the State and that sort of thing ought not to be kept for ever. So again the select committee— 
Hon Tau Henare 
: Wind it up mate. 
Hon DAVID PARKER 
: Wind it up Mr Hayes says. 
John Hayes 
: It was Henare. 
Hon Tau Henare 
: It was Hayes. 
Hon DAVID PARKER 
: Oh Mr Henare. Oh well wind it up. 
Iain Lees-Galloway 
: He wants to get on with his honeymoon. 
Hon DAVID PARKER 
: That is right; he wants to get on with something that to him is more important than the proper balance between civil liberties and State powers. I suspect— 
Hon Tau Henare 
: I’m with you bro. 
Hon DAVID PARKER 
: Oh you are with us? OK I thought you might want to have a debate on the Sale of Liquor Act or something like that tonight instead. In terms of the retention on data the select committee has said that there should be further limitations on the period for which that data can be kept. That is strengthened as well. 
There are a number of other strengthening measures. The reporting requirements for surveillance device warrants have been strengthened by the select committee. Again the Government cooperated on these things and therefore I find it absolutely impossible to understand why it will not tighten up the Serious Fraud Office powers. Can I acknowledge the contribution from New Zealand First. I actually agree with a lot of what New Zealand First said there in respect of examination orders. It is a line call as to whether they should be permitted at all. I agree with that. I can actually argue both sides of that case because it is a line call. 
Simon Bridges 
: That’s a flip-flop. 
Hon DAVID PARKER 
: No it is not a flip-flop. It is actually acknowledging that in this Parliament we have to draw very difficult lines on difficult issues and we can actually agree to disagree as to where that line can be drawn. I respect the views which I thought were quite principled and I admire that principle. I could actually see the Minister coming out here and arguing for matters of principle that I would disagree with her on and I could have a reasoned discussion with her. What I cannot understand is that in the case of media freedoms we are not protecting the media in respect of the issue of examination orders that require the media to talk to the police but with protections. Why can we not have those same protections afforded to the Serious Fraud Office? 
So Minister I ask you again to respond—because you were not in the chair when I took my last call. In your call prior to my last call you accused us of effectively being soft on crime because we will not back these unprincipled changes to the law when you will not move on the tightening up of the Serious Fraud Office. I suggest to the Minister that it is inappropriate to make that accusation because there is a serious debate going on here as to the proper balance between civil liberties and State powers. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I was going to comment on the Minister of Justice’s comments on the contribution from New Zealand First because probably there was no one more surprised than me to hear the contribution. It did surprise me somewhat that that really strict line had been taken particularly in relation to the Serious Fraud Office and the production of documents. I seem to recall that the leader of their party himself voluntarily produced documents that the Serious Fraud Office did not want in a wine box. Perhaps that is a long time ago and it is something that may have been lost in the annals of time. But I was here in the House when those documents were finally tabled in Parliament after several attempts and I know that there were some very interesting views expressed about the lack of use of particular powers at that stage. 
Charles Chauvel 
: A non-production order. 
Hon LIANNE DALZIEL 
: Yes a non-production order might have been a little bit more on the mark in that particular case. 
But I am possibly making light of what is an underlying serious issue—that is why the Serious Fraud Office had the particular examination order powers. I think they were expressed quite well by a couple of colleagues who have commented on why the Serious Fraud Office was able to call upon these powers in circumstances that the police were not. In fact the very best summary of the reason for it is in the letter that we received from the previous Minister of Justice the Hon Simon Power back in—when was it? It must have been November last year. 
Hon David Parker 
: Received the day after the election. 
Hon LIANNE DALZIEL 
: Oh that is right—received the day after the election. That is right. But it was quite good. What he said was this: “One of the primary rationales for examination orders is that investigations involving complex financial transactions will benefit from requiring a person involved (such as an accountant) to assist Police in unravelling the documents that relate to those transactions.” The whole purpose of it is that in order to break some of those lines of accountability within organisations where you have people with other obligations such as an accountant you can actually require them to explain the detailed transactions to the police—well in this case the Serious Fraud Office—in order to assist them with their investigations. The letter goes on to say: “It is also important that examination orders should be available in the business context to investigate offences committed by organised criminal groups. Offences that may be committed by such groups … are punishable by 5 years’ imprisonment”—and obviously there have been some changes in that regard in the bill; in the non-business context it talks about 7 years’ imprisonment. But it does actually identify in here what the history was for the use of examination orders which are now being expanded to the police. 
I acknowledge that both the Justice and Electoral Committee and the Minister herself by way of a Supplementary Order Paper have been open and able to address some of the concerns that we have raised. But it still leaves us with this sense of disquiet about why the Serious Fraud Office then sits outside the structure that is being put in place. It is an opportunity to get this right. I think it is important to remember that the Justice and Electoral Committee reported this bill back from the select committee back in 2010 so it actually sat on the Order Paper for months on end. In fact we were going to go into the 2011 general election with it still sitting on the Order Paper with nothing having occurred in between. But then there was the Supreme Court decision which required Parliament to take some action in order to prevent what would have been well a travesty really in that situation: existing cases could not proceed in those circumstances. 
The law was basically suspended for a period of time—I think 6 months was the period—which is why we are under some pressure now to pass this bill by mid-April. So I think it is a bit unfair to say that the reason we are under pressure to pass it is because we will be exposing the situation where all the cameras will have to be switched off. Actually all the cameras had to be switched off because of a court case. 
SIMON BRIDGES (National—Tauranga) 
: 
 I move  
That the question be now put 
. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I was just going to give a very good quote from Justice Tipping so I am pleased that— 
Hon Amy Adams 
: Well in that case carry on! 
Hon LIANNE DALZIEL 
: Yes he is a very special individual. He was talking about the reason for the court case decision going the way that it did. He spoke of “a deliberate or at the very least a reckless disregard for the boundaries of legal power …”. You know it was the correct decision to make on the basis of what had occurred. What I am worried about here is that when the bill was originally introduced into Parliament we were going to fold the Serious Fraud Office into the police. There was going to be the Organised and Financial Crime Agency or OFCANZ. 
Simon Bridges 
: The CIS. 
Hon LIANNE DALZIEL 
: It was not the SIS was it? But it was a particular structure at the head of the police and I know that the police were very pleased to be taking over that role because of so much of the organised crime swaying into this financial area for a whole lot of different reasons. 
But the point that I want to make is that that is why the legislation was framed as it was—without the Serious Fraud Office—and that is actually now why the Serious Fraud Office must be brought within the range. We are not objecting to the extension of powers to the police; we just believe that the powers for the Serious Fraud Office need to be brought within the framework of this legislation. The whole purpose of the Law Commission review of all of these matters—I cannot remember the exact words. I cannot imagine that Sir Geoffrey Palmer used the words “dog’s breakfast” but all of the different laws that existed around the place made no sense. It needed some clarity brought to the picture so that we could get some consistency across the search and surveillance provisions. That was what the legislation was designed to do. 
And I think that unfortunately at the time our Standing Orders prevented the select committee from doing the job that I actually believe it would have done. I believe that the Justice and Electoral Committee would have recommended the extension of this bill to the Serious Fraud Office. It would have dealt with that issue at the select committee and it would have come back in that frame except that it could not do that simply because it was advised at the time that the Standing Orders prevented it because it was out of scope. But actually if we fast forward to today that out of scope question would not exist. The debate would have occurred in a much more robust way and there would have been a decision made not on procedural grounds but on whether or not there was enough power of persuasion at that select committee to get that changed. I think that the process of the select committee has actually been extraordinarily good and the ongoing engagement between the Minister and our spokesperson on justice has also been good. We have acknowledged how well the Minister has been prepared to engage on these issues and we pay credit to her for adopting that approach. This is a good way for Parliament to do the right thing. 
If we are not going to be back in this Parliament looking at this issue again for a long time which is the Minister’s argument for not having a schedule of offences then why would we let this opportunity go by and not address the question of the Serious Fraud Office coverage? I am afraid the Serious Fraud Office has not served us well in terms of this Parliament’s expectations of its role and the way that it has used that power on a far more frequent and actually spurious basis than it ought to have used it. I believe we almost would not be having this argument if it had not used its powers in the way that it had. That has been the primary objection that we have had: holding this back for another opportunity for the House to look at it some time in the future. I think this is the opportunity that the House has to fix this problem and to fix it now and then we get agreement across the House. 
TIM MACINDOE (National—Hamilton West) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 63 
New Zealand National 59; Maori Party 2; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Motion agreed to. 
The question was put that the amendments set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 2 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 59 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 2; Mana 1. 
Amendments agreed to. 
The question was put that the following amendments in the name of Charles Chauvel to Part 2 be agreed to: 
to replace clause 32(a) with: 
(a)there are reasonable grounds to suspect that an offence punishable by imprisonment for a term of 10 years or more has been committed or is being committed or will be committed; and 
to replace clause 34(a)(i) with: 
(i)involves serious or complex fraud that is punishable by imprisonment for a term of 10 years or more; or. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Mana 1. 
Noes 70 
New Zealand National 59; New Zealand First 8; Maori Party 1; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the following amendments in the name of the Hon David Parker to Part 2 be agreed to: 
to replace the heading to Part 2 with “Police and Serious Fraud Office Powers”; 
to insert after clause 31(1): 
(1A)The SFO director may apply to a Judge for an examination order against a person in a business context if the SFO Director is satisfied that the conditions specified in section 32 are met in respect of the person.; 
to insert in clause 33(1) before “A constable” “The SFO Director or”; 
to insert in clause 33(1)(a) before “the constable” “the SFO Director or”; 
to insert after clause 33(1)(b)(iii): 
(iv) the SFO Director. 
to insert in clause 37(1)(a) after “or a delegate of the Commissioner”’ “or the SFO Director” 
to insert in clause 37(2)(d) after “a delegate of the Commissioner” “or the SFO Director”; 
to insert in clause 38 after “the Commissioner’s delegate” “or the SFO Director”; and 
to insert in clause 40A(1) “the delegate of the Commissioner” “or the SFO Director”. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 49 
New Zealand Labour 34; Green Party 14; Maori Party 1. 
Noes 70 
New Zealand National 59; New Zealand First 8; Mana 1; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
A party vote was called for on the question  
That Part 2 as amended be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 59 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 2; Mana 1. 
Part 2 as amended agreed to. 
Part 3 Enforcement officers’ powers and orders 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 Part 3 of the Search and Surveillance Bill contains the surveillance device declaratory order and production order regimes. This has been subject to much debate and it was not clear that the bill as introduced struck the right balance between human rights and enforcement needs. The Justice and Electoral Committee therefore very carefully considered this part of the bill. The amendments it has made are astute sensible and valuable. 
The select committee has amended this part to limit the use of visual surveillance devices in circumstances that involve a trespass and every use of an interception device to offences punishable by 7 years’ imprisonment or more. This means that such devices will be used only to investigate serious offences ensuring that the investigative benefit justifies the level of intrusion involved. There is an exception for certain Arms Act offences that are punishable by less than 7 years’ imprisonment. This recognises that these offences can have very serious consequences to people’s safety. 
As a further protection the use of such surveillance will be limited to the police the Customs Service and the Department of Internal Affairs—the only agencies who currently investigate offences punishable by 7 years’ imprisonment or more. The Customs Service and the Department of Internal Affairs will be authorised to carry out this surveillance only if they can demonstrate they have developed this capability to a satisfactory standard and can do so in a manner that protects human rights as provided by the regime. A statutory amendment would be required if any other agencies wished to be authorised to use such powers. This means that the appropriateness of other agencies to conduct such surveillance will be determined by Parliament. This ensures that such a potentially intrusive power is granted only after full debate and careful scrutiny by the House. This is an important protection that I welcome. 
This part also protects citizens by regulating the use of surveillance devices that are currently unregulated. There is currently nothing to stop any agency from using a tracking device so long as it does not commit a trespass nor is this use regulated now except in the case of police and the Customs Service. The use of visual surveillance devices is subject to even less regulation. All agencies can use a visual surveillance device such as a camera or binoculars providing they do not commit a trespass. This means that police can currently set up a camera that looks directly into someone’s home without any limits other than a possible claim after the fact under the New Zealand Bill of Rights Act 1990. The bill regulates such visual surveillance by requiring enforcement officers to apply for a warrant. This requires enforcement officers to justify the use of such surveillance before it is used protecting citizens from unjustified invasions of privacy. 
This part also contains an innovative regime that recognises the pace at which technology is advancing: the declaratory order. Declaratory orders allow agencies to obtain a judicial view as to the reasonableness of a new device technique or procedure before using it. This gives agencies a degree of comfort about the admissibility of such techniques and devices although it is not determinative. Such declaratory orders are also subject to reporting requirements to Parliament. This enables Parliament to keep track of the use of such techniques giving it the option to regulate if appropriate. 
Finally this part also includes the production order regime. A person presented with a production order is required to provide the documents that are described in the order. This regime reflects a current and common practice of police in executing search warrants against occupiers willing to assist. The courts have held that a search warrant may be executed by the police sending a copy of the search warrant to a company and the company sending the documents to the police. The production order regime therefore is effective and efficient. It allows the people with the best knowledge about where a document is to be found to locate it so that enforcement officers do not have to search through irrelevant and potentially confidential information. The fact that companies organisations and individuals may refuse to comply on the grounds of self-incrimination or a recognised privilege such as the right of journalists to protect their sources provides adequate protection for those who receive production orders. This part really does strengthen all of the powers of people to in fact resist unlawful searches. 
CHARLES CHAUVEL (Labour) 
: 
 I want to start by saying that when the current legal regime applicable to search and surveillance is compared with the regime that is set out in Part 3 then what the Minister of Justice says is right. This is a much better regime. It does call as she correctly described for approval prior to the fact and that will be judicial approval. This is the element that was missing in the matter that was decided by the Supreme Court late last year. It is a shame Parliament did not manage to get this regime in place prior to that decision but the reality is we are getting it in place now and that is something that I think we should all be reasonably pleased about. 
The matters that I particularly wanted to draw attention to in this part and I would be grateful if the Minister would have a think about these are first of all the typescript amendment in the name of my colleague David Parker which would continue the process that each of the three Labour typescript amendments have started which is to mainstream the protections that appear in the Search and Surveillance Bill by applying them to the Serious Fraud Office. 
In respect of this part of the bill the way in which that would occur is that clause 69 would be applied to the Serious Fraud Office because the Director of the Serious Fraud Office would be for the purposes of the Act an enforcement officer who would be entitled to apply for a production order. So just as we have begun to build in or attempted to build in the Serious Fraud Office right from the beginning in the interpretation clause so that exercise continues in a necessary clause in respect of this part. 
 The other matter that I want to draw the Committee’s attention to is one that was referred to by the Minister in her introductory remarks. It might also be interesting to hear from a member of the Justice and Electoral Committee on this because it relates to the regime that would be set up by clauses 57 through to 61 the declaratory orders provisions. On my reading of the reported-back bill what was originally proposed was a residual warrants regime. So a law enforcement agency would have to obtain a residual warrant if it wanted to obtain evidence relating to an offence and the agency wanted to use a device technique procedure or activity that might constitute an intrusion into the reasonable expectation of privacy of any person. All that has been struck out by the select committee and it has been replaced with this declaratory orders regime. 
I have some concerns about the way in which this might operate in practice. What would happen is as the Minister has said if there is a new type of device that law enforcement agencies want to use they can go to a judge and seek effectively an opinion about the propriety of the use of that device. But there are some fish-hooks I think in the regime as it is set out. The application will be made to a judge. A judge is defined now in this legislation as either a High Court judge or a District Court judge. It is expressly provided in clause 57(2) that “A declaratory order is advisory in character and does not affect the jurisdiction of any court to determine whether the activity that was the subject of the order”—of the court—“was reasonable and lawful.” That is going to put a District Court in some difficulty I imagine if on some previous occasion an opinion—advisory only but none the less from a higher court such as the High Court—has been obtained. If the High Court purports to give one of these advisory opinions in circumstances that are very similar to those that then come before a District Court it is difficult to imagine circumstances in which the District Court is going to be able to feel free to depart from the views that were expressed on the earlier occasion. 
The other concern about the declaratory orders is really that it is a novel procedure. We have a declaratory judgments procedure in our Judicature Act at the moment whereby on a set of existing facts it is possible to go to the court and ask for the law to be declared on those facts. But they are real facts not hypotheticals which seems to be the situation that this regime contemplates. We have never put our courts in the position of having to decide on hypotheticals put to them by a law enforcement agency. Our courts generally decide contentious litigation based on real-world facts. Where in the adversarial model does the evidence to contest what is put up by the enforcement officer come from in this envisaged regime? How does the court undergo an adversarial process in order to come to the view that is envisaged it would by this procedure? Why on earth would we not just do what we expect agencies to do at the moment? They get an opinion from the Solicitor-General the Crown Law Office or on occasion a Crown solicitor on the legality of a proposed method of surveillance and they proceed on the basis of that opinion. 
I think we are putting the courts in an odd position where we say the courts can pass an advisory view—and it is expressed to be just an advisory view—yet we are not clear in the legislation about any procedure that would have to be engaged in by the courts particularly where the “hearing the other side” practice would come from. We say that they would be advisory only so presumably in real-world facts that came before the court that were very similar to the theoretical position that was put to the court the court would still be free to come to a different view. If that is the case what is the utility of this procedure is it likely to ever be used and what sort of comfort is it likely to be able to give enforcement agencies in the ultimate analysis? 
Those are the particular concerns that I wanted to raise about this part. I commend the amendments in David Parker’s name. I think the general regime that the part sets out is a great improvement as far as protections for our people from potentially unlawful search and surveillance is concerned but I do wonder whether the declaratory orders regime is in the end going to be worth the paper it is written on. 
Dr JACKIE BLUE (National) 
: 
 I am very pleased to speak on Part 3 of the Search and Surveillance Bill. I would like to congratulate the officials and the Justice and Electoral Committee because again this is another substantial part of this very good bill. Going through and looking at the changes the select committee made changes in the Supplementary Order Paper and changes that have been made by officials it is clear that it has been very carefully scrutinised. It is also clear that there has been a concern about getting that balance right between privacy and using the powers in an appropriate way. I am very pleased to see that that has been addressed. 
There are four subparts to Part 3: Subpart 1 “Surveillance device warrants and declaratory orders”; Subpart 2 “Production orders”—which I will talk about a little bit later on—Subpart 3 “Police and Customs officer powers to search in relation to delivery under section 12 of Misuse of Drugs Amendment Act 1978”; and the last subpart Subpart 4 “Warrantless powers of entry and search incidental to arrest or detention”. 
Just talking about the bill’s surveillance regime initially this covers the interception devices that can interpret communications otherwise known as audio surveillance; tracking devices that can detect where things are located or whether a thing can be opened or tampered with; and visual surveillance. Only a judge importantly can issue a surveillance order a warrant and they have got to be satisfied that all the conditions are met. I think the thing that impresses me in this particular bill is that it is very prescriptive. There is a recipe you have got to follow there are criteria that have to be met and there is a high level of scrutiny. I am very pleased to see that. 
Not being a legal person and speaking as a member of the public as I am when I am not in Parliament I am pleased to know that we have these protections here. I think the degree of intrusiveness of surveillance will depend on obviously the circumstances. So for example video surveillance will not always be more intrusive than searching a house under a warrant but there are significant privacy concerns with regard to visual surveillance involving trespass and audio surveillance so these methods are limited to very serious offending. I think it is entirely appropriate that they are used only in very serious situations and are not used frivolously or with a very low-level hurdle to cross. 
I will speak a little bit about production orders. This part of the bill also introduces the production order regime and that means really that when a person is presented with a production order they have got to produce the goods that are described in that particular document. It is something that the Serious Fraud Office has been able to do but this is now going to be extended to the police. Importantly there is going to be provision for people who feel that they cannot comply and that they must refuse for reasons such as self-incrimination or recognised privilege. 
We talked before in the debate on Part 2 about journalists and about how they want to protect their sources of information. New Zealand is a country of free speech and I feel that all of us here if we were in a situation where someone had to blow a whistle or wanted to say something using anonymity would respect that. 
Similarly I know that it will be welcomed by journalists that they can protect their sources. Indeed there has been a real improvement in that power for journalists to protect their sources. So in a situation where there is a production order the journalist can invoke this situation and not divulge their source at all. Again I think that this is another substantial part. There are a number of subparts. It is very prescriptive and very comprehensive and I applaud the committee and the officials in respect of this section. Thank you. 
Hon DAVID PARKER (Labour) 
: 
 I want to come to production orders but one of the great benefits of these sorts of debates is that Parliament sometimes actually comes up with issues that officials have not thought of. Charles Chauvel raises a very important point in respect of the declaratory orders in respect of new technology. 
Progress to be reported presently. 
House resumed. 
The Chairperson reported progress on the Search and Surveillance Bill and no progress on the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill. 
Report adopted.