Collins Judith: Search and Surveillance Bill — In Committee 
Collins Judith: Search and Surveillance Bill — In Committee 
[Volume:678;Page:953] 
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.