Ardern Jacinda: Private Security Personnel and Private Investigators Bill — In Committee 
Ardern Jacinda: Private Security Personnel and Private Investigators Bill — In Committee 
[Volume:666;Page:13848] 
JACINDA ARDERN (Labour) 
: 
 I look forward to future contributions from the Minister in the chair Associate Minister of Justice Nathan Guy on the Private Security Personnel and Private Investigators Bill and to perhaps a little more enthusiasm from him in his second or third intervention. The Minister is presenting a very significant piece of work to us today and it will have significant implications for those who work in this sector. As was already indicated in the second reading of this bill there will be a doubling of the number of people in this sector who will be required essentially to be registered from around 9000 to 18000. I know that one of my colleagues will be seeking later in the Committee stage of this bill further clarification from the Minister of his expectations regarding the level of discretion that will be exercised in granting some of those licences given that some of those already operating in the sector may not have been required to be registered and may fall outside some of the expectations that this legislation may create in terms of qualifications background checks etc. It will be interesting to have that discussion and to seek further clarification from the Minister about that. 
But I wish to go back to the debate that was started in the second reading of this bill about clause 66 because obviously this bill was initially drafted by Labour and was introduced in 2008 and for the large part there is little contention between both Labour and National on this bill with the exception of clause 66. Just to give the Committee a bit of background I thought it might be useful to spend some time on what that clause originally said before it was struck out by the Government members at the Justice and Electoral Committee. 
Clause 66 set out that a private investigator or employee was to not take photographs or make recordings without consent. That provision was based on the status quo of the current legislation which I think dates back to the 1950s. It sets out that no person may in the course of or in connection with business as a private investigator take or cause to be taken or use or accept the use of any photograph any cinematographic picture or any videotape recording of another person without the prior consent in writing of that person. That includes recording devices as well. Essentially the legislation says that if a private investigator is contracted by someone else to monitor movements either by video recording or through photographs the investigator cannot do so unless he or she has the written consent of the person who is being followed. On face value it may seem to defeat the purpose of following someone covertly if one then has to seek that person’s permission for photos to be taken or used. 
We acknowledged in the select committee that there was a difficulty there and that perhaps this provision was too prescriptive but we were not satisfied that simply deleting it was a fair middle ground. We heard from some submitters that the restrictions of clause 66 would inhibit private investigators who are investigating criminal activity. Therefore they said that outweighed any concerns that may exist around privacy so they advocated that the clause should come out of the bill altogether. But it is important to be mindful that not all of the work that this provision covered would have been investigation around criminal activity. In fact probably some of the more frequent activity might have simply related to for instance marital disputes perhaps the following of famous individuals or even—we have seen and heard examples of this—politicians having their privacy invaded in this way. 
The legislation prevented that until now but clause 66 has now been removed from the bill. The consequence of that is that if an adequate code of conduct is drafted essentially it will be the case that private investigators will have wider powers than the police if we compare what we have here with the Search and Surveillance Bill which the Justice and Electoral Committee is currently considering. One of the concerns raised by the select committee was that at the moment we have two pieces of legislation in the mix. We have this bill and we also have the Search and Surveillance Bill which the Justice and Electoral Committee is considering. The Law Commission is also doing a report on privacy. We run the risk of having a lack of cohesion and an inconsistent response to the issue of privacy and some individuals may wind up with greater powers than others. That was a concern for the select committee. 
How could we have resolved that concern? I will look at clause 106 which sets out the regulations that will be subsequently drafted and which will remedy some of the issues that we looked at as a select committee. For the large part I am happy for a lot of these regulations to be set outside the ambit of the select committee inquiry and to be set in consultation with the sector because by and large they relate to the prescribing of forms the setting of fees and the prescribing of the competency knowledge and skills required by applicants for licences and certificates which was perhaps one of the more significant provisions inserted by the select committee. I acknowledge that the sector has a huge role to play in setting out its own expectations and standards for the industry and I think that is good and proper. Of course the Regulations Review Committee will also have oversight particularly of the fees that will then be set. 
But I think we have gone a step too far in setting out and allowing a code of conduct to be set outside the ambit of this House—and I have some questions for the Minister in the chair about that. We see that clause 106A which is I guess the counterweight to the removal of clause 66 states that “the Minister must recommend that the Governor-General make regulations … to be in force at all times on and after 1 December 2010”—I imagine that date is changed on Supplementary Order Paper 162 in the name of the Hon Nathan Guy—“prescribing a code of conduct containing matters that the Minister is satisfied are necessary or desirable in relation to the surveillance of individuals by private investigators and private investigator employees.” That is very broad. We do not have a sense at this stage of how comprehensive the code of conduct will be or of the expectations of the Minister or the Government. 
I have a number of questions. I ask the Minister what role he envisages that the Law Commission’s report on privacy will play in developing the code of conduct and whether there will be any interaction or whether the time lines are simply out of kilter. I ask what the expectations of the Minister are for that code of conduct or whether we are essentially beginning with a blank canvas. If the Minister has some expectations then I would be interested to hear them. I ask him who will be involved in the drafting of the code of conduct because there are a number of various interested parties when it comes to these matters. I also ask what mechanisms the Government is building in to change the code of conduct if compliance becomes an issue. This is obviously what we need to take into account when we look at forms of pseudo - self-regulation. I ask how the Minister will build in the prerogative to change the code of conduct if it is inadequate. 
Just to restate Labour’s position on this issue—which I believe is shared by the Greens—I say our preference was to retain clause 66 although acknowledging that it needed to be amended. Our view was that it should be retained and that once the Law Commission’s review had been completed we should then make an amendment to it. Our intention is to put forward an amendment along those lines. If the Government wishes to then come back with a compromise—for instance that we retain clause 66 but build in an agreement that when the Law Commission finishes its report we cooperate in ushering through an amendment so that we do not have a full lengthy House procedure on it—I think that would be good. Such a compromise would ensure that we get around all the issues and make a coherent response to the privacy issue which is certainly what we are advocating for. I know that the Law Commission has already recommended that there be security devices legislation and new offences for recording and tracking. Again that demonstrates a significant overlap in all of the work that is being done so it makes sense to slow down when it comes to this particular provision. If we get this wrong then it will be hard to backtrack and rewrite history as it were when we are expecting an entire industry to change the way that it operates as a consequence of the deletion of quite a significant clause from this bill.