Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1095. Text is incorporated into the Bound Volume.] 
Search and Surveillance Bill 
In Committee 
Debate resumed from 7 March. 
Part 3 Enforcement officers’ powers and orders ( 
continued 
)  
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 Part 3 of the Search and Surveillance Bill is an important part of the bill. It deals with the powers and the orders that enforcement officers are going to use. It looks at warrants for surveillance devices and in particular it looks at the use of production orders. 
I want to say first of all that Labour supported the introduction of this bill. In fact it was introduced by Labour. When Labour looked at this bill we did not take the steps that were included in our bill lightly. It was based on 6 years of work by the Law Commission and it was based on a widespread view that comprehensive reform was necessary of a series of laws that had been subject to ad hoc changes which had led to real confusion and a lack of coherence. Some of these laws were 50 years old and simply did not cover the technological changes that had occurred. So the first principle that Labour followed was that we recognised that in fighting crime we have to give our enforcement officers adequate tools and powers particularly reflecting changes that have occurred technologically. But there was a second principle which the National Party when it took over the bill did not seem as concerned about. That principle was that equally you must recognise that when you give coercive powers to enforcement agencies you make sure you do not unreasonably undermine basic civil rights and liberties. 
The thing that worries me about the way National has gone about this bill is that it had 2½ years to actually act on it and put in place Labour’s reforms and it did nothing. National sat on it; it did nothing. Then at the last moment as a result of a court decision in  
Hamed 
 National decided in a panic-stricken way to introduce new powers and not worry at all about how these powers could be misused. The fact was that in the legislation that came in last year National was going to rush legislation through this House without reference to a select committee without the ability of any individual or organisation to make submissions on it and to improve or change that legislation. Fortunately National did not have the numbers to do so. It did not have the numbers to do so so the changes were temporary. 
When the Justice and Electoral Committee looked at these details the select committee—and I am talking about the whole of the select committee; National as well as Opposition members—acknowledged that the bill that National had introduced went far too far. It had no balance and it needed to be and has been significantly redrafted. Not only have changes been made in the select committee but the Minister of Justice has come back to this House with 92 pages of a Supplementary Order Paper—92 pages. How badly wrong did the National Party get this legislation? The truth is that but for the work of the select committee and the insistence of Labour that the bill go to the select committee that original bill would be on the statute book today and it would be wrong. National Party members on the select committee admitted that many of the powers went over the top were disproportionate to the offending went to too many agencies and went too far. 
I do acknowledge that some changes have been made that make this part of the bill more palatable. We have reduced the surveillance period without warrant. I think that is an important safeguard. We have limited the retention of surveillance data on people who are quite innocent of any offending. It is absolutely repugnant that you would be keeping on tape video surveillance of people intruding on their privacy who were doing nothing wrong. It is really important that we protect the privacy of individuals who are innocent of any offending against the law and against other people. And the bill imposes more stringent reporting requirements. But this still does not go far enough which is why Labour is not supporting the part. 
There are amendments in the name of my colleagues Charles Chauvel and David Parker which we will be supporting but in particular we want to focus in this debate on the use of production orders. Production orders are orders that require a person to produce information or documents. That is in effect overriding what we would regard as the right to silence. No person is normally forced to produce documents that might or might not be incriminating against them. In fact it is only the Serious Fraud Office that has the power to issue production orders prior to this legislation coming into effect. When we looked at how those powers were being used by the Serious Fraud Office we found—in fact the Law Commission commented on it—that there was a tendency because we gave these powers to the Serious Fraud Office for it to overuse them. It did not use conventional investigation techniques. Its first instinct was to use these extraordinary powers regardless of whether or not they were appropriate in the circumstances. 
This brings me to the point that I think is most important in this debate and that point is this: in this country Parliament acts to hold a Government accountable but there is also the fourth estate the media which has the vital role of holding a Government to account. For the media to be effective in the use of its authority then people who give information to the media must be confident that the information they provide will be made and kept confidential. It is vital to protect that confidentiality and the freedom of the press. That is why we are concerned that the Serious Fraud Office used production orders against the  
National Business Review 
 during its inquiry into South Canterbury Finance. Serious Fraud Office staff went into the news room and seized the documents. Is it any wonder that an international rating agency saw New Zealand’s rating in terms of media freedom drop from eighth in the world to 13th? That is a significant drop. We are talking about international agencies that no longer regard New Zealand as a country that will protect the freedom of the media. And by God have they not got information to back that up? 
During the election campaign what did we see? The Prime Minister using a complaint over the teapot affair to get the police to go into news rooms again. We saw the Prime Minister misusing his power in terms of going on a Radio Live programme even though he was advised by the Electoral Commission not to. We saw the appointment of the Prime Minister’s electorate chairman a direct political and politicised appointment on to New Zealand On Air and his opposing documentaries that might show the Government in a bad light. It is against that backdrop that these powers available to the Serious Fraud Office and the police have got to be met with concern. 
Labour wanted the Government to tighten the use of production and examination orders by the Serious Fraud Office at the same time as similar powers were being conferred on the police under this bill. Regrettably the Government was not prepared to show the flexibility and the common sense to agree to that. If it had agreed to that then in all likelihood this piece of legislation which is controversial and which risks intruding on the privacy of individuals could have gone through with the overwhelming support of this House. That would have been a sign that we have got the balance right: the balance between giving enforcement agencies the powers they need and protecting the privacy of innocent individuals. We offered cooperation to get that consensus support. It is not too late now for the Minister in the chair Chester Borrows although he might be reluctant to override the Minister in charge of the bill Judith Collins to say “Minister come to your senses on this legislation. We can get the overwhelming support of the House for it but let us protect the role of the fourth estate in making sure that the Government is held to account and that people’s privacy is being protected.” 
That is what Labour is asking for. It is not unreasonable and if the Government finally makes the decision to make that compromise to show that flexibility to have that common sense to respect the role of the media in our society and to get the balance right between giving police and other enforcement agencies the powers they need and protecting the right of New Zealanders ordinary New Zealanders to privacy in their life then we could give support to this bill. I urge the Government to make that change. 
The CHAIRPERSON (Lindsay Tisch) 
: There is too much noise coming from the Government benches. If you want to have discussions go out into the lobbies. That is what the lobbies are for. It is difficult to concentrate and to hear what members are saying. 
DAVID CLENDON (Green) 
: 
 I am pleased to take another call on the Search and Surveillance Bill and on Part 3 to once again affirm the Greens’ opposition to this bill. There is a very slim margin majority—or has been up to now—in the House for this bill. It is becoming very obvious in the media and in public generally that people understand what this bill is intending to do and that the majority in the street and in the public domain are very much in opposition to this bill. We are very happy to join that opposition and to voice it in this Committee. 
 We have no problem with some of the stated intentions of this bill which are to rationalise what is admittedly a very convoluted complex array of legislation. We recognise of course that the police and other bodies need investigative powers and on occasion they need covert investigation powers. But as has been very eloquently stated by the previous speaker Phil Goff this bill simply goes too far. This bill sets out deliberately to be a catch-all bill. It sets out to give the maximum possible powers to State agencies rather than taking the view that we should give the State agencies the fewest powers that they need to fulfil their obligations to do their job and to ensure public safety. 
I will move directly to some of the clauses of the bill specifically under clause 44 the part of the bill that talks about surveillance warrants devices and so on. The focus in this particular part of the bill is on the ability of State agencies—be it police or any other—to install surveillance devices on private property without warrants for a defined period of time. Yes that time has been reduced from 72 to 48 hours but it is extraordinary that agents of the State should have the power under this legislation—and indeed under the proposed Supplementary Order Paper in the name of the Minister of Justice—to enter people’s houses; to break into people’s premises areas or vehicles; to interfere with vehicles; to install using whatever force is necessary covert surveillance devices; and to add insult to injury to even plug into the electricity of somebody’s home or business premises to power up these devices. 
It is extraordinary that the State a police officer or other State agencies should have the power to actually break into people’s homes and steal their vehicles and then return them or to put in these devices unknowing on suspicion—reasonable suspicion which is a reasonably low bar we must say—that a crime has been committed is being committed or indeed might be committed. Those are very very low bars to protect the right to privacy. Basic civil liberties are at stake here and we think it is important that people are aware of the very very considerable powers in this part that would be given for warrantless intrusion into people’s homes their business premises and their vehicles—places where people ought to feel that they have a reasonable level of security and privacy. The fact that this can be done without a warrant even for a shorter period of 48 hours we think is simply a step too far. 
There is absolutely no proven necessity for these quite Draconian measures that this bill proposes and that this part of the bill proposes. We are in a place where we are not under immediate threat from major terrorist groups despite the best efforts on occasion to paint certain individuals in that light. The need simply does not exist for these extraordinarily powerful provisions in this bill—for example around the warrantless insertion of surveillance devices even in people’s homes. 
The issue of production orders has excited considerable interest in the media among other places and I think that is appropriate. The editorial in the  
New Zealand Herald 
—which is not noticed as the most radical media outlet that has ever been seen and which enjoyed the appellation “Granny Herald” at one time—acknowledges that this bill simply goes too far. 
There is a clear indication in the provisions around production orders about self-incrimination and this was referred to by a previous speaker. Within the provisions of this bill a person who is absolutely a person under suspicion—so-called reasonable suspicion—can be obliged to incriminate themselves or to involve other people in incriminating themselves. For a very very long time—for centuries—there has been a common law assumption a belief a convention that people ought not to be obliged to incriminate themselves. 
That is the job of the police and the courts. The role of the police is to bring evidence to accuse and to deliver evidence of wrongdoing and of course the courts’ role is to judge on that. The notion that people should be obliged to be complicit in their own conviction is simply anathema. Yes we understand that we want to prevent the commission of crime. We want to ensure that people who undertake criminal activities should be taken to task and should suffer the penalty. But going against a centuries-old convention for what reason? For reasons that are not adequately described in this bill. We do not have a situation where we ought to be compromising these very very long-held conventions that protect people against being obliged to incriminate themselves. There is no justification given in this bill. 
For what this bill does—and in particular in this part in the warrantless surveillance provisions in the issues around production orders and in the provisions that are made explicit in terms of production orders—the case has not been made that we need these sorts of provisions. They are major assaults on civil liberties on the privacy of individuals and of businesses in fact. The expectation of most New Zealanders is that they can go about their business with a reasonable assurance of privacy. This bill does go too far. These provisions go far beyond the pale and we will continue to oppose them. Thank you. 
DENIS O’ROURKE (NZ First) 
: 
 New Zealand First does not oppose the intent of Part 3 of the Search and Surveillance Bill relating to surveillance powers and declaratory orders. But New Zealand First certainly does have some reservations about the manner in which those powers will be used and those have been referred to already by some of the previous speakers. 
As some previous speakers have already said there does need to be a balance between enforcement especially using modern techniques—and bearing in mind some of the crime that today the community is facing—on the one hand and also the right to privacy on the other. That is a very difficult balance to reach and requires very careful consideration. In particular this is necessary where trespass surveillance is to be authorised and of course the bill takes some trouble to address that. However I note that only offences punishable by a period of imprisonment of 7 years or more will be subject to those provisions. So on balance the New Zealand First position would be that subject to some of the reservations that have been expressed and which I express here as to the methodology by which these powers are to be enforced New Zealand First would say that in respect of this part of the bill the balance has probably been correctly arrived at. So we would not for that reason oppose that part of the bill. 
We note also that the bill now provides some protection for the freedom of the press especially by confirming the privilege to protect sources contained in clause 130 but I would have to ask does that really in practice provide a significant protection? It is all very well for clause 130 to simply state that that privilege exists. However the reality is that if a search was conducted of a news media organisation and information about the sources of information was uncovered there would have to be a period of time within which the news media organisation could challenge that search and the use of that information. 
I am not satisfied that in practice therefore the bill actually does protect the freedom of the press in respect of the media’s need to protect their sources and I would like to have seen the bill go somewhat further than it does. So I would have to agree with some of the previous speakers when they say that the bill goes too far in some of the methods it authorises and some of the agencies that it authorises to have some of these powers. 
However much New Zealand First supports the need for effective enforcement we cannot agree with the bill overall simply because as I have said in previous speeches it includes a very serious issue which is examination orders and production orders that seriously breach the ancient right to silence. That is not something that New Zealand First could agree with. That has compromised the whole bill and as a result New Zealand First is unable to support it overall. 
You see it is not just a matter of balance when it comes to the protection of very important democratic rights such as the right to silence. No form of balance no consideration of balance is relevant to that. It is quite simple: rights of that magnitude must be protected. People have fought wars to protect rights of that kind and our democracy as a whole and there is no way that this should be chipped away at in the form it is in this bill and in similar sorts of legislation. I would remind the Committee that in clauses 31 and 32 a senior police officer is given the right— 
The CHAIRPERSON (Lindsay Tisch) 
: Order! That is Part 2. We are on Part 3. You cannot— 
DENIS O’ROURKE 
: I was just moving on to that Mr Chairperson. 
The CHAIRPERSON (Lindsay Tisch) 
: Just stay on Part 3. That is what we are debating—Part 3. 
DENIS O’ROURKE 
: Well Part 3 cannot be agreed to simply because the bill as a whole cannot be agreed to. I would have to repeat that in a non-business context where those rights— 
Hon DAVID PARKER (Labour) 
: 
 The first issue I would like some clarification on from the Minister in the chair the Associate Minister of Justice relates to clause 57 of the Search and Surveillance Bill and the effect on declaratory orders of the  
Hamed 
 decision which came out after the drafting of this legislation. This point became unclear to me when I heard an address from Charles Chauvel when the Committee stage of the bill was in process during a previous sitting of Parliament when he asked what the proper role is for declaratory orders. 
We heard from the Minister of Justice in earlier stages in the debate that a declaratory order might be used when the police want to carry out some activity that is not specifically able to be authorised through a warrant because it might not have been using a technology that was thought of at the time when this legislation was passed. They could go to the court and seek a declaratory order which is a statement by a judge that he or she is satisfied that the use of the device specified in the order is in the circumstances reasonable and lawful—to paraphrase the clause. 
Charles Chauvel quite rightly raised the question as to whether this was an appropriate power at all which made me think about the effect of  
Hamed 
 on this. This bill was drafted at a time when the advice that we had at the Justice and Electoral Committee—and the Hon Chester Borrows who is in the Minister’s chair will remember this because he was chair of the select committee at the time—was that where there was no express power because the technology was not in existence at the time the statutory provision conferring the warranted powers was enacted there was a residual power arising from common law for the police to do it anyway. Well that was thought by the Law Commission to be a bit loose and so officials in the Law Commission came up with a precursor to this declaratory order form—and now this form—to give some process to try to cause some judicial oversight of these new processes. 
But of course  
Hamed 
 came along and said that there is no such thing as an unwarrantable legal trespassory power of surveillance. So you cannot get a declaratory order I would say to the Minister in the chair—and I ask him to respond—because how can you get a declaratory order in respect of something that is now illegal in light of  
Hamed 
? I would say then that the only way in which the declaratory order process can be of any utility is in respect of non-trespassory procedures because trespassory procedures that are not authorised expressly in any form of legislation are according to  
Hamed 
 illegal. They are in breach of the New Zealand Bill of Rights Act. So except to the extent that there might be some exercise of judicial discretion not to exclude evidence because of the seriousness of the crime it seems to me that in respect of trespassory surveillance operations this is a useless clause because  
Hamed 
 has overtaken our understanding of the law as it was explained to us at the select committee. I ask the Minister in the chair to advise me whether I am correct in that analysis—and he being a learned man and a former policeman I think he might agree with me. 
The other issue I want to address relates to the amendment in my name which is an amendment to clause 69(1A) of the bill. It suggests that the Serious Fraud Office director be made by this amendment “an enforcement officer for the purposes of obtaining a production order.” which would then mean that all of the protections such as they are in this legislation relating to production orders that are sought by the police would flow through to production orders sought by the Serious Fraud Office. I do not know whether you were in the Chair at the time when we were last having this debate Mr Tisch—I think you were. You will be aware that there is a residual concern of the Opposition that even if you accept—and I heard the New Zealand First contribution in respect of production orders and examination orders in this context—that production orders might be justified sometimes they are never justified without appropriate protections of media freedoms. And that is what this amendment seeks to address by making the same protections that apply in respect of production orders sought by the police also apply in respect of production orders sought by the Serious Fraud Office. 
Since we have had those early stages in the debate we have had some editorials come out from the major newspapers in New Zealand that have been considering these issues. I would like to reflect again on what a production order does. A production order effectively requires the person who is served with the production order to hand over documents. They do not have a discretion; they must hand over the documents to the police and also at the moment to the Serious Fraud Office along with the police. The police have to get a warrant the warrant has to be from a judge the person can claim media privilege and there are certain protections—inadequate in the view of the press—in respect of police actions but none of those protections arises in respect of the Serious Fraud Office. 
What does the  
New Zealand Herald  
editorial of 8 March say? I will read just a couple of extracts: “The rights of reporters to protect confidential sources will be seriously restricted.” So it is saying that this legislation if passed seriously restricts the ability of the press to protect their sources and I think we in this House should be worried about this. Then it refers to the fact that “It is proposed that when the media invoke that essential right (which lawmakers call a privilege)”—here it is talking about media privilege—“a High Court judge will decide whether they can withhold identifying material.” As the media note: “Worse media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material.” 
The Minister can clarify for me whether the effect of the Minister’s amendments is to make it a requirement that those materials must be held in a secure place before the judge reviews the claim to privilege. But even then the newspapers make the point that you are trusting the police not to copy the information on the way past and we are also trusting that the media know their rights—and they will not all know their rights—to demand that that information be secured in the meantime. 
The media then make a wider point and say: “Powers of search seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part requiring external authorisation before any agency’s officers can search private property or set up surveillance devices. Examination orders”—and production orders are the same—“are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times their concerns might not come to light.” So they are saying that there is a special case to be made for the media because there is a public interest in preserving the confidentiality of media sources and because there is a public interest in those bad stories—they might reflect poorly on Governments or other powerful people in society—but they none the less ought to come to light for the long-term protection of the health of our democracy. 
Then they go on to say—look there’s another thing here—“News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media it is usually a warning for everybody’s rights.” Can I pay tribute to the comment that we had before from the New Zealand First speaker Denis O’Rourke because this is effectively what he is saying. I am going to repeat that because I think it is quite an important point: “News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media it is usually a warning for everybody’s rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.” That is what the  
New Zealand Herald  
says. 
This bill goes too far according to the  
New Zealand Herald 
 in respect of police powers even with the protections around them and I am sure it would agree that in respect of the Serious Fraud Office the issue is even worse because those protections that exist in respect of the police exercise of powers with production orders are not there for the Serious Fraud Office. That is what my amendment tries to make a little bit better. It does not take away the power of the Serious Fraud Office to get a production order but it does say that for the purposes of this legislation when obtaining a production order the Serious Fraud Office director is an enforcement officer and all of the provisions in the bill that apply to the commissioner in respect of production orders apply to the Serious Fraud Office director. 
CHARLES CHAUVEL (Labour) 
: 
 I want to begin by thanking my colleague for taking the Committee through the history and the context of clause 57 and the subsequent parts of the Search and Surveillance Bill. I spoke a little earlier in the debate about this particular part of the legislation. I found it puzzling and I now have some context for the provisions. But I would notwithstanding the fact that the Minister in the chair the Associate Minister of Justice is not the Minister with carriage for the bill be very grateful if he could ask the officials for some advice on whether particularly in light of what we have heard from the Hon David Parker it makes any sense to retain clause 57 and the clauses that follow relating to declaratory orders. 
Clearly what appears to have happened just following the text of the bill is that there was an original proposal for what were called residual warrants. I know that the Minister in the chair was on the Justice and Electoral Committee—I was not but he and David Parker were—and clearly what happened here is that there is a recommendation from the Justice and Electoral Committee to strike out the provisions relating to residual warrants and a decision to replace those provisions with one relating to declaratory orders. This was a set of provisions that will allow if we enact this legislation law enforcement to go to the High Court or a District Court and ask for an opinion from the court about the legality of any particular type of surveillance. 
This drafting has not changed since the  
Hamed 
 decision was handed down and Parliament applied what we might colloquially call a temporary fix last year to this situation which we were alerted to because of  
Hamed 
. Notwithstanding  
Hamed 
 we have still got provisions around getting these declaratory orders in place. As David Parker has pointed out these provisions are now virtually redundant except in respect of one type of surveillance thanks to  
Hamed 
. So I think we need to hear from the Minister in the chair about whether it is desirable to still retain clauses 57 through to 61 because we are really in danger I think of enacting provisions that do not have any meaning as a result of a judicial decision that we have now had some time to consider. 
I said that it was helpful to have had the history and the context of the legislation explained because I think it does show that we probably do not need these provisions and I think that if we are taking our responsibilities seriously as a Committee of the whole House we should be looking at the question of whether to retain these provisions. 
I have some more serious concerns about them and I alluded to them in my previous remarks on Part 3. I am going to just reiterate those concerns for the Minister in the chair. We do not as a rule in common law countries put the courts in the position of giving opinions. Our system as the Minister knows is one where there is a dispute of facts that goes before the courts and the courts pronounce definitively by applying the law to it. That is the way things are done. In New Zealand we have never constitutionalised that but in Australia for example the Commonwealth constitution makes it very clear that that is the judicial role; it would be unconstitutional in Australia to enact this sort of provision where the courts are put in the position of being advisers to the executive. I still have a major reservation about the propriety and wisdom of doing this here. 
Independently of the fact that we have now learnt in this debate that the provisions are probably redundant in any event what happens if an abstract request for an opinion goes before the High Court and the High Court under these provisions delivers itself of an opinion as it would be obliged to do on the face of the clauses and then the opinion from the court being expressed as advisory only is brought up in a subsequent real case a real dispute over the legality of a particular type of surveillance in a District Court? What sort of position would the District Court judge be put in in that real-life dispute situation? What sort of discretion would that judge have in any real sense in the face of a High Court advisory opinion on similar hypothetical facts? The reality is the judge would have none. Thanks to our doctrine of stare decisis even though this is all expressed to be advisory the judge would not in reality have any freedom to do anything other than apply the so-called advisory opinion given on a previous occasion in a hypothetical situation by the High Court. 
That is an indication of why we do not generally enact law in this way why we do not put the courts in the position of trying to give advice to the executive. We have a Crown Law Office and we have Crown solicitors. They are perfectly capable and as the Minister knows every day they give this sort of advice in practice to the police and to prosecuting authorities. We should not ask the courts to somehow become advisers to the executive. That violates the notion of the separation of powers and as I have tried to show it will result if these powers are ever used in any extensive way in embarrassing and uncomfortable situations as far as the courts are concerned. 
Finally as the Minister knows the courts have enough to do at the moment. We are constantly trying to find ways in this House of easing their burden and their workload rather than adding to it. I just do not understand particularly given what we have heard about the  
Hamed 
 decision and the fact that these provisions are now largely moot anyway why we would then legislate in this way. I appreciate that it is difficult for the Minister in the chair because he has to take carriage of this legislation temporarily but—I think this is important enough and it is certainly not an attempt to spin the debate out—this is a very serious question. I would not be taking time on it unless I thought it was well worth the consideration of removing these provisions from Part 3 which we are now debating. In fact if there is time in the debate I think I ought to move formally that the Committee do that because it seems to me as I say given what we have heard that clauses 57 to 61 are not only moot but actually undesirable. 
Hon CHESTER BORROWS (Associate Minister of Justice) 
: 
 Just in response to the points that have been made it is pertinent to note that where the genesis of this provision came from was the fact that technology had moved faster than the law had. So law enforcement agencies were able to draw on new abilities that were given by new technologies and they were using those in investigations where it was questionable as to whether or not there was the ability to do so. 
In response to the query raised in respect of declaratory orders the point has been made that they are advisory and I understand the point that the member has made. It is up to the courts to determine the impact of the  
Hamed  
decision in respect of that declaratory judgment and then in subsequent matters as they are raised before them case by case. 
As the member Charles Chauvel noted the declaratory order regime was recast from the residual warrant regime by the Justice and Electoral Committee when it considered the bill. I should note that declaratory orders do not give the police or any other enforcement officers new powers. However and I will come back to this in a moment the regime futureproofs the bill by enabling enforcement agencies to undertake investigation of a crime in the modern era while keeping pace with technological advancement which is a provision that has not been available in the past. 
Declaratory orders will be made ex parte—in other words as with application for warrants on the papers and without notice to another party—and there will be no adversarial process. The only respondent in a case involving declaratory orders would be the person against whom the proposed device or technique or procedure was going to be used. So by giving them the opportunity to speak obviously the police or the courts would be forewarning them of the interest and so would be stymying the whole need for the application for the declaratory judgment. 
As noted by the member declaratory orders are advisory in nature and can be made by either a District Court judge or a High Court judge. However they are persuasive. It is inappropriate that declaratory orders should be binding as at a later date a court will have the benefits of all the facts and the context in relation to the actual use of the device as used at an earlier stage. That is the point that was made by the honourable member Charles Chauvel. The declaratory order is around a hypothetical matter but the later subsequent court case will be about actual facts for which the courts will have to make their own decision albeit in light of the declaratory judgment made on the earlier application. 
Hon DAVID PARKER (Labour) 
: 
 I will just follow that issue through a bit with the Associate Minister of Justice because clause 57(1) of the Search and Surveillance Bill says that a declaratory order can be made by a judge only when he or she is satisfied that the activity is reasonable and lawful. The  
Hamed 
 decision said that trespassory search and surveillance that did not have express legislative authority is unlawful. That is the effect of the  
Hamed 
 decision. So this can never work in respect of a method of search and surveillance that involves trespass on private property be it a car or a house in a way that was being envisaged when the bill was at the Justice and Electoral Committee. This whole thing has turned round because one of the ways in which this was justified at the Justice and Electoral Committee was that we were told where there was no express authorisation of a surveillance technique that required it to be warranted that surveillance technique was as a consequence of common law decisions legal because it was not required to be warranted. The  
Hamed 
 decision said that that proposition was wrong. So when this declaratory order provision was being thought through it was being seen as a way to protect civil liberties by perhaps encouraging the police to go for some sort of judicial oversight of what was lawful but might be unreasonable if done a certain way but done another way might be both lawful and reasonable. We now know that in respect of trespassory search and surveillance that is not expressly authorised by legislative authority for the enforcement officer it is unlawful and therefore clause 57(1) cannot apply. So I think Minister that that can never apply except in respect of non-trespassory surveillance where  
Hamed 
 says that you can have non-trespassory surveillance that is not expressly authorised and that does not infringe the New Zealand Bill of Rights Act. So that is my first point. 
My second point develops the theme that Charles Chauvel was developing. I listened to Charles and I thought that that was right and I am convinced by that argument that we ought not to have this advisory role for the courts. He was referring to the effect of a higher court decision on in practice the decision that is subsequently taken by a lower court. But let us just consider the actual case in point. Let us say that the evidence was gathered and then was challenged by the accused at trial. Are we saying in respect of the later decision as to whether that evidence ought to be admitted under the judicial discretion to admit illegally obtained evidence that is so serious as to warrant being admitted despite the fact that it is illegal evidence—and that discretion does exist as law as we have seen in respect of Tame Iti and others in the Tuhoe case—that we are so naive that we think that that exercise of discretion at trial will not be influenced by the declaratory order? Well I think it would be naive to say that and if it is naive and if it would influence it well that is wrong. We have an adversarial system but here on an ex parte basis just one side is being heard. In this case the police telling the judicial officer what they think without the other side of the case being put on behalf of the accused—who may be innocent; they are an accused not a guilty party; merely an accused—would be wrong. 
The Labour Party has prepared an amendment—and we would encourage the Greens New Zealand First the ACT Party and others to consider it carefully—to expunge these particular provisions from Part 3 so that declaratory orders are not carried forward. This will cause no great hole in our justice system. There have never been declaratory orders in existence until now. Declaratory orders were not needed in order to preserve the admissibility of the evidence in respect of some of the serious offences alleged in the Tuhoe case. Illegally obtained search and surveillance evidence was none the less admitted to court under the discretion that the court has to admit evidence even though it has been illegally obtained. So there are lots of protections for the public out there already. We do not need this one as well to confer additional powers on State agencies to embark on search and surveillance measures. So I would ask the Minister in the chair the Associate Minister of Justice to address this issue as to what is the effect of this in light of  
Hamed 
 when it is not lawful. 
Dr CAM CALDER (National) 
: 
 I move  
That the question be now put 
. 
KRIS FAAFOI (Labour—Mana) 
: 
 Thank you very much Mr Chair for the call as we debate Part 3 of the Search and Surveillance Bill. I do feel slightly inadequate following my two learned colleagues in the legal sense but I do have some experience in the— 
Hon Member 
: We know that; you don’t have to tell us about it. 
KRIS FAAFOI 
: That from the member who feels inadequate all the time when he stands to speak. I do have some experience in the media which has been raised by Mr Parker in an earlier contribution. Part 3 does pertain to powers of officers and the obtaining of warrants and production orders when enforcement officers are dealing with relatively serious cases. This is my first contribution at the Committee stage and I just want to say that although we do agree with a number of the measures taken in Part 3 it is as Mr Goff mentioned in his contribution unfortunate that we have not been able to come to an agreement on a number of the issues we have raised in order for us as Labour members to give support to this bill and in order for a bill of such significance to have widespread support across the Parliament. 
As a number of contributors have said during this debate it is time for change in this area. The current legislation around the obtaining of search warrants for surveillance is a patchwork and the Law Commission outlined that fact in its report some years ago. It is at least a positive move that some measures have been made although we do highlight that a number of our concerns have not been addressed even though I understand that during the select committee process some significant changes were made and I do acknowledge the Minister in the chair the Associate Minister of Justice for his stewardship as chair of the Law and Order Committee. 
I want to talk about two amendments that are pertaining to Part 3. The first is in the name of my colleague David Parker. It is an amendment to insert new clause 69(1A) and it will enforce that the Director of the Serious Fraud Office becomes an enforcement officer for the purposes of obtaining a production order. The Serious Fraud Office at the moment is an outlier in terms of the powers it has to get production orders. At the moment we do have a live case where the Serious Fraud Office did not have to seek permission to search the offices of the  
National Business Review 
 and a number of contributors on this side of the Chamber have mentioned that it is a very dangerous move when we give a law enforcement agency pretty much carte blanche to decide whether or not it can enforce a production order on our fourth estate. We did highlight this in our minority report from the select committee process and I would like to point out that we said that the Serious Fraud Office is currently as I said the only agency with a power to issues examination orders and production orders without having to seek approval from a higher power. We do believe in a number of instances that the Serious Fraud Office has used that power on too many occasions. It was not the intent of this Parliament for the Serious Fraud Office to take the liberty to use those powers especially against our media. 
As I alerted earlier having a free media is a very very important part of a democracy. A healthy democracy absolutely relies on making sure we have a free media. I think that giving the Serious Fraud Office the power to compel media outlets to provide evidence to provide documents really goes to the core of media being able to protect their sources. Sources give information to the media hoping that they can stay as secret as possible. I know that around this place that is very important. When we speak to the media we want our communication with them to remain confidential. But giving the Serious Fraud Office that power to compel our media to produce documents sources and any other kind of technology—video or audio recordings—for its purposes really does go to the core of that main tenet of media freedom around the protection of sources. It will be a very very sad day if people or organisations in this country do not feel that they can go to the media to highlight issues that are worthy of the media highlighting whether it be us as parliamentarians who are being put in the spotlight or whether it be Government agencies or whether it be— 
Andrew Little 
: ACC Ministers. 
KRIS FAAFOI 
: —ACC Ministers yes or whether it be private institutions. It will be a very sad day when we introduce or let continue legislation that puts at risk that freedom for individuals or agencies to go to the media to highlight things that we all would agree should not be happening. We need to have confidence that our media can carry out their job—to investigate to expose and to educate our communities our society. But the Serious Fraud Office having the power to compel media to gather any piece of documentation would be a very very sad move indeed. It is one that we do not support and it is why we do not support this legislation as it stands and it is why David Parker has introduced an amendment to Part 3 in order to see whether we can remove that power which the Serious Fraud Office has on its own at the moment. The police do not have that power to go in and compel news media to supply documents so why do we let the Serious Fraud Office go into an office—and this is a live issue as I said with the case of the  
National Business Review— 
and demand that they give up evidence? It is not as though the media will have the right to silence or to say no; that right will no longer be available to them. They will be forced compelled to give up that information. 
I would also like to briefly touch on an amendment that Charles Chauvel has lodged and that is an amendment to insert new clause 42AA(1)(a) if I am right— 
The CHAIRPERSON (Lindsay Tisch) 
: I am sorry to interrupt the honourable member but the time has come for the dinner break. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
KRIS FAAFOI 
: Taloha ni Mr Chairperson. I do not intend to take up too much more of the Committee’s time speaking to Part 3. 
Hon Lianne Dalziel 
: Oh please—you were great. 
KRIS FAAFOI 
: I do intend to complete the point I was making just prior to the dinner break which was on clause 42AA on which my colleague Charles Chauvel has presented an amendment to the Committee. Clause 42AA covers the approval of trespass surveillance in instances where material could be collected. At the moment the bill says that it is for offences punishable by imprisonment of 7 years or more. The substance of Charles Chauvel’s amendment is that we seek to increase that imprisonment duration from 7 years to 10 years. The rationale simply is that we believe that because of the nature of the powers that are afforded to agencies in this bill we should use it on the rare occasion and for only the more serious offences. 
Because of the spirit in which the passage of this bill has gone through the House we ask that the Minister in the chair the Minister of Justice give that amendment due consideration and possibly support. If we did pick up that amendment as well as the amendment that has been put forward by David Parker on the powers of the Serious Fraud Office I think we will go some way to having pretty much solid support from Labour members in order for this bill to have significant support across the House especially for such important legislation. 
In finishing up we do support the general thrust of what is happening and what is proposed in Part 3. There have been some changes both at the select committee and also through the Supplementary Order Paper and amendments that are on the Table now. We do support a number of those but we do as I want to point out again seek some changes via the amendment from Charles Chauvel on the length of imprisonment that we take into account when we are looking at trespass surveillance orders being granted and also the powers of the Serious Fraud Office under the amendment being proposed by David Parker. 
I just want to speak very briefly to clause 57 which has already been traversed well by both David Parker and Charles Chauvel and talk about the uncertainty about the lack of declarations and opinion that is being sought by the judiciary around some of the new technology that may be afforded in some of the stranger situations that we might find ourselves in where applications may be sought for surveillance. If those changes could be considered I think that would go a significant way for this side of the Chamber to support this bill. We hope that the Minister in the chair might consider that. Thank you. 
ALFRED NGARO (National) 
: 
 I move  
That the question be now put 
. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I want to take over from where my colleague Kris Faafoi left off which is to talk on the declaratory orders clauses clauses 57 through to 61. I want to ask the Minister of Justice a few questions about this. It is not my area of expertise so I may not necessarily have a good grasp of this but I would really appreciate the Minister responding to this. The concern that I have is this whole area about requiring or enabling a court to give a declaratory order. It is not an expression that I am familiar with and I do not know whether they appear in other legislation. Perhaps my more learned colleagues will know the answer to that question; it is new ground. The problem I have with a declaratory order is that it is not like a declaratory judgment. With a declaratory judgment you have two parties who have a set of agreed facts upon which they ask the judge to adjudicate. It is the same as taking a case essentially because you have a set of facts that are put before you— 
Hon David Parker 
: Both sides argue. 
Hon LIANNE DALZIEL 
: Both sides argue their particular point. In fact we had a declaratory judgment last year where the Earthquake Commission basically lost to the insurance companies and it is costing the country an absolute fortune. But that was a declaratory judgment that was taken that was the outcome and that is what we have to live with. 
A declaratory order though is when the police are able to go to the court and basically ask whether something is lawful. Am I reading this in the correct way? Perhaps colleagues can again assist me. The problem with doing that is that the court makes a declaratory order which is an advisory order telling them that yes it is within the law but then a case is taken further down the track when the particular provision is utilised and a defendant in a trial then challenges the very basis of the utilisation of the device technique or procedure or the carrying out of an activity specified in the order. That to me sets up a really difficult situation because in fact the court has been asked to predetermine a position against which counsel for the defence in that particular case will not have the opportunity to argue their cause. So I am really worried about the nature of these provisions and whether they are in fact appropriate provisions. I think this is why we have asked for these particular clauses to be removed from this part of the bill. 
Charles Chauvel 
: I’ve tabled an amendment for that. 
Hon LIANNE DALZIEL 
: You have tabled an amendment to do that. My colleague Charles Chauvel has tabled an amendment to do that. I think that that is a very reasonable step to take because when we think about the circumstances that arose in the  
Hamed 
 case—and I suspect this is the reason that the bill dealt with this in this particular way without having taken into account the case because of course the drafting of this bill preceded the case in question—I guess the law is probably more settled now than it was when this was being drafted. I think that it really does need to be reviewed. 
In the current legal framework there will have to be sought a court order before particular surveillance can be undertaken. Therefore the reason for seeking a declaratory order really does not make much sense in light of where technology has already come. So it may be something that we would have looked at several years ago but it actually does not make any sense to me why we would have such a declaratory order provision. 
When I read the report back from the select committee it made the point—I think it was on page 14 of the commentary on the bill—that it was going to call it a “residual warrant regime” and it changed that to the “declaratory order regime”. But I think in so doing it has identified the specific problem with it and the problem is that a declaratory order regime is actually not appropriate. It is not appropriate for a judge to be making a decision on a particular regime such as this without in fact ensuring that—well it is inappropriate to provide judicial clarification as it has said in such a manner— 
TIM MACINDOE (National—Hamilton West) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (H V Ross Robertson) 
: The question is that the question be now put. As many of that opinion will please say Aye to the contrary No. The Ayes have it. 
CHARLES CHAUVEL (Labour) 
: 
 I raise a point of order Mr Chairperson. I may have misunderstood a brief conversation with the Minister in the chair the Hon Judith Collins prior to the debate beginning but she did indicate to me that she had had the officials have a look at this question over the dinner break and that she as I understood it was prepared to explain to the Committee whether or not the concerns raised by Labour members were correct. If there were that opportunity I know that members on this side of the Chamber would be interested in hearing from her. 
The CHAIRPERSON (H V Ross Robertson) 
: Thank you. I will just restate it. The question is that the question be now put. As many of that opinion will please say Aye to the contrary No. The Ayes have it. A party vote is called for? Please conduct a party vote. Thank you. 
A party vote was called for on the question  
That the question be now put. 
Ayes 64 
New Zealand National 59; Maori Party 3; 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 following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 3 be agreed to: 
to insert in clause 59(c) “(if available)” after “activity”; and 
to insert in clause 61(2)(c) “(if available)” after “activity”. 
A party vote was called for on the question  
That the amendments to the amendments be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 60 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 3; Mana 1. 
Amendments to the amendments agreed to. 
The question was put that the amendments as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 3 be agreed to. 
A party vote was called for on the question  
That the amendments as amended be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 60 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 3; Mana 1. 
Amendments as amended agreed to. 
The question was put that the following amendments in the name of Charles Chauvel to clause 42AA be agreed to: 
to replace clause 42AA(1)(a) with: 
(a)that is punishable by imprisonment for a term of 10 years or more; or; and 
to replace clause 42AA(2)(a) with: 
(a)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 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Noes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
The question was put that the following amendment in the name of Charles Chauvel be agreed to: 
to delete clauses 57 58 and 60. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Noes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon David Parker to clause 69 be agreed to: 
to insert after clause 69(1): 
(1A)The SFO Director is an enforcement officer for the purposes of obtaining a production order. All of the provisions in this Act which apply to the Commissioner in respect of production orders shall apply to the SFO Director in respect of production orders sought by the SFO Director. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Noes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 3 as amended be agreed to. 
Ayes 61 
New Zealand National 59; ACT New Zealand 1; United Future 1. 
Noes 60 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Maori Party 3; Mana 1. 
Part 3 as amended agreed to. 
Part 4 General provisions in relation to search and inspection powers 
The CHAIRPERSON (H V Ross Robertson) 
: This is debate on clauses 87AA to 173 and includes the schedule. 
CHARLES CHAUVEL (Labour) 
: 
 What I want to do in my contribution on this part is speak to the amendment I have put forward that would amend clause 139. I think it is tolerably clear from the debate that members on this side acknowledge that the Minister of Justice has in many ways tried to accommodate a number of the concerns that we have put forward. Unfortunately we are not there on the Serious Fraud Office and that is going to prevent Labour members from voting for the legislation but it is the case that the amendments contained in Supplementary Order Paper 12 do allay a number of concerns that we have expressed over the course of a year or two to National. 
The relevant difference here is what should happen in a case where the police are concerned that a member of the news media has information that might assist them in the investigation of criminal offending. Under the original provisions of the bill as reported back what would happen in that situation would be that the police would apply to search and seize the material concerned the media organisation would have the power to file an objection to the application to search and seize the material on the basis of the privilege or confidence of the news medium’s source and that objection would be heard by a District Court judge and resolved either way. The judge would either uphold the privilege and protect the source—and we all know how important it is that journalists have a degree of protection under the law for their sources in order to be able to conduct proper investigative reporting; it is a key element of the freedom of the media—or the confidentiality would not be upheld according to the judge’s assessment of the legal position. That was the bill as reported back from the Justice and Electoral Committee. 
The problems with that regime were twofold in my view. First of all the forum in which the objection would be determined was a District Court. Frankly questions of journalistic privilege can involve complicated issues of law. They often involve questions relating to the application of the New Zealand Bill of Rights Act 1990. Because of the way that the Act is drafted it is often increasingly the practice to refer to North American cases on in the case of the United States the first amendment and in the case of Canada their protections relating to the media. The provisions of our New Zealand Bill of Rights Act are essentially drawn from the United States Bill of Rights and from the Canadian Charter of Rights and Freedoms the documents that are often influential in assisting our judges to interpret what exactly our New Zealand Bill of Rights Act means on any particular occasion but also what common law privileges such as journalistic privilege might actually amount to in any particular circumstance. So there can be difficult complex arguments involving often sophisticated overseas authorities. 
It is clearly better from the point of balancing journalistic freedom on the one hand with the interests of law and order on the other for those competing interests to be weighed in the High Court rather than a District Court. I thank the Minister for agreeing to that. That is a request that David Parker originally put to Simon Power. It was rejected by him but acceded to by Judith Collins. 
The second problem with the bill as reported back on this score was this: the police have the material from the journalistic source while they are arguing about whether or not privilege should apply to it. Even the most virtuous member of law enforcement on the planet is going to find it difficult not to want to take a peek at the material while they hold it and there was nothing in the bill as reported back to stop them from doing that. They might not be able to use the material in a legal case they might not be able to admit it in evidence before a court but they would know its content because they had seized it and they had read it. 
So again in response to a concern that we had raised about this particular point the Minister was at pains to try to accommodate the concern and she has via Supplementary Order Paper 12 sought to deal with that concern via a proposed provision that would prevent the material being searched while it was in the custody of law enforcement. It would effectively be surrendered into the custody of the court while the privilege claim was being determined one way or the other. 
We are still concerned about whether or not the provisions are sufficiently robust so the amendment in my name to clause 139 would go one step further and make it an offence punishable by up to 1 year in prison for anybody to breach the provisions inserted by the Supplementary Order Paper that the Minister has proposed. So there would be teeth—symbolic teeth admittedly not teeth that are likely to be used in any particular case. But it would be a signal we could send as a legislature that we think that these provisions are sufficiently important. 
Other speakers have spoken eloquently about the importance of journalistic freedom. It is an absolute bedrock of our free and democratic society. It is a matter of concern that in the world press freedom rankings New Zealand has fallen from eighth to 13th in the space of a year. All of us who believe in living in a free and democratic society and in the importance to us of that should be concerned about it. What Supplementary Order Paper 12 taken with the amendment that I have lodged would do is rebalance the issue here to make sure that there was sufficient protection in place where a journalist really felt that it was important to protect a source and material supplied by the source and it would ensure that we were sending a sufficient signal that we thought it was important and that it was a freedom that was worth upholding. 
I really do not want to say any more than that on this point. The provisions of Part 4 are significantly improved by Supplementary Order Paper 12. Journalistic freedom is better protected and I do acknowledge as I have said that the Minister has been amenable to listening to the concerns that have been raised on that point. 
Hon Nathan Guy 
: A great Minister. 
CHARLES CHAUVEL 
: Yes well it is a shame that we have not quite got to the Serious Fraud Office being included but I will not bang on about it. I will just make the point that if we were to make the amendment that would actually give teeth to the provision around the need to not search material that was seized until the court had determined the question of journalistic privilege we would have much better legislation than what sits on the Table at the moment and is under debate. 
Hon DAVID PARKER (Labour) 
: 
 At the risk of banging on about it to use my colleague Charles Chauvel’s words I am going to return to the issue of the Serious Fraud Office because it is a serious issue and it comes up again in relation to clause 106 of the Search and Surveillance Bill. Clause 106 sets out the people whom the Attorney-General may authorise to issue warrants and it sets out various protections that either were in the bill or were added by the Justice and Electoral Committee. The select committee said there were some provisions that needed to be added to the rules relating to who could issue a warrant—who could authorise the issue of a warrant to an enforcement officer. 
Warrants are necessary for most search and surveillance procedures by the police. In fact for all search and surveillance procedures that are trespassory unless they are in an urgent situation during the commission of a crime effectively you need prior authorisation from a justice of the peace judge community magistrate registrar deputy registrar or other person. This is clause 106. At the select committee we heard submissions on this and we thought that it needed tightening because the words “or other person” meant that the class of persons who could authorise the issue of a warrant was too broad. We tightened that up by making it clear in clause 106(1A) that the Attorney-General may not authorise an enforcement officer to act as an issuing officer. So a policeman cannot authorise the issue of a warrant to another policeman. 
Further we added clause 106A to say that “An issuing officer who is employed or engaged by a law enforcement agency must not consider or perform any function in relation to any application made by a law enforcement officer employed or engaged by the same law enforcement agency as the issuing officer.” That is to get around the situation where someone might be a justice of the peace working for the fisheries department for example. They ought not to be able to authorise the issue of a warrant to the fisheries department because clearly a justice of the peace who could be in quite a junior role in the fisheries department could come under the influence of a more senior person in that same organisation. Again the Government has agreed that that is an appropriate limitation on who can issue warrants. 
Contrast that with the position of the Serious Fraud Office. The Serious Fraud Office is its enforcer. It does not have to go to someone who is not an enforcement officer to exercise its powers; it does it by an internal administrative act. So again Minister I ask you to justify why clause 106 is proper in respect of all of the enforcement agencies in New Zealand except two. All of the arms of the Crown except two will be covered by this. One exception is the Security Intelligence Service. It has separate legislation and its actions if it is going to exercise search and surveillance operations have to be approved by the—what is the— 
Charles Chauvel 
: Commissioner of Security Warrants. 
Hon DAVID PARKER 
: —the Commissioner of Security Warrants Charles Chauvel tells me—I had forgotten the exact term myself—who is generally a retired High Court judge. So it has a specialist High Court judge who oversees the issue of warrants to the Security Intelligence Service. The other exception is the Serious Fraud Office and it does not have to go to anyone; it does it internally. So Minister where is the principle that underlines what I think is the stubborn refusal of the Government to bring the Serious Fraud Office into line with the processes that have to be followed by every other State agency before they exercise some of these intrusive powers? 
Can I also turn to how this links into the recognition of privilege because the recognition of privilege that is provided for in Subpart 4 of Part 4 of the bill at clauses 130 onwards lists the sorts of privileges that people can claim: legal professional privilege privilege with legal advisers privilege for the preparation of materials for proceedings privilege for settlement negotiations or mediation privilege for communications with ministers of religion privilege for information obtained by medical practitioners and clinical psychologists privilege against self-incrimination privilege for informers and rights conferred on journalists under section 68 of the Evidence Act. Those are the different classes of people who can sometimes claim privilege. Behind that privilege lies a public interest in non-disclosure that outweighs the public interest in the police being able to get the information. Can those sorts of claims of privilege ever be made in respect of the Serious Fraud Office? No because the Serious Fraud Office provisions are not subject to this part of the Act. 
I want to make it clear that if there is a dishonest purpose—and you see it in those famed cases in America where you have crooked lawyers or crooked journalists who are part of some Mafia conspiracy—those sorts of cases where the journalists or the lawyer are actually part of the dishonest purpose are expressly excluded from privilege. So we are not protecting bad people here; we are actually just protecting the public interest in the privilege that traditionally—or which has grown in common law and is recognised in statute—protects certain sorts of information and relationships. This is where there is a public interest in those communications being kept private that outweighs the public interest in the police being able to get at that information. I invite the Minister to say what the difference is for the Serious Fraud Office. 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 Thank you very much for the opportunity to speak in the Committee stage of this bill the Search and Surveillance Bill. First I would like to thank the members who have spoken on this part Mr Chauvel and the Hon David Parker. They have been good contributions and I would like to thank them for the work they have been doing to try to get as much agreement as we can on this. There are a couple of issues that have been raised by them. 
Mr Chauvel has raised an issue around the safety or security really of documents that have been seized by police under a warrant where a claim of privilege has been raised. There has been some concern that once the documents are in the possession of the police or the court they are effectively disclosed. I do not agree with that. The police or other agency must not search the thing secured and that is in clause 139(c) in the bill itself. 
The courts are generally trusted with highly sensitive matters on a very regular basis—for example with details that are suppressed. If we do not trust our courts with this information then we would be in a very sorry state and I am pleased to say that we do trust the courts. In all cases a hearing would be held to determine whether the claim of privilege should be upheld. If it is not upheld the police or other agency could use the document or computer file containing the name or the journalist would be required to tell the police the name in the case of an examination order. 
If the police or other agency did search the document computer file this would itself be a breach of the law. Of course as we know with electronic footprints it is pretty easy to tell these days exactly who has been looking in what and where things have come from and I believe very much that that would be disclosed. In addition it is an offence under the bill to disclose information acquired in the exercise of a search or surveillance power production order or examination order other than in the course of a person’s duties functions or powers. 
There are also other avenues of redress including complaints to the Independent Police Conduct Authority and police also conduct internal investigations when officers breach procedure. For many officers if they undertook that work they would in fact essentially lose their jobs. So I do not think that we should think that police officers cannot comply with the law. In fact they do all the time. 
Another issue that the Hon David Parker has raised and I think it is a valid issue is around the Serious Fraud Office and I am happy to address that. There are a couple of issues here. He wrote as he told us before to the former Minister of Justice about the Serious Fraud Office and he wanted the Serious Fraud Office included in this bill. One of the issues with that is that the Serious Fraud Office has never been included in this bill and I understand the reason why which was that the Labour Party was committed to bringing the Serious Fraud Office into part of the police so in fact it would actually receive the powers under this bill when it went through. 
But let us be frank here. This bill has been hanging around since 2007. It has been a long time. This Government is being quite committed to the bill and we are now in year 4 of the term. If we had in fact waited for this bill to come into force and got rid of the Serious Fraud Office as the Labour Party wanted us to do we would have spent 3 or 4 years—4 years in this case—waiting for some of these powers to be available for the police. 
So we would have had the police not being able to undertake examination orders or production orders and if the Serious Fraud Office was not there it would not have been doing it either at the very time when we have had disclosed some of the worst financial crimes that we have seen since the 1980s. So I think really to say “Get rid of the Serious Fraud Office.” at that time was somewhat premature given that search and surveillance legislation and the production orders and examination orders regime were not actually in place. I understand what those members are doing and there is a lot of logic in what they are saying but it is about having things in the right order. It would have meant that we would not have had that power available to police. 
The other issue they have raised is this: why can I not bring the Serious Fraud Office in now? For a start I actually think process is relatively important on things like this. The Serious Fraud Office has never been part of the bill and therefore the public have never been asked to submit on whether or not the Serious Fraud Office should be under this regime or whether or not it should remain with the powers it has had since 1990. I think to suddenly at this late stage—and I acknowledge that the Hon David Parker wrote to my predecessor about this— 
Hon David Parker 
: A year and a half ago. At a late stage—a year and a half ago. 
Hon JUDITH COLLINS 
: The member says it was a year and a half ago but I would also ask whether the member followed it up. 
Hon David Parker 
: I did on a number of occasions. 
Hon JUDITH COLLINS 
: Since I have been in? I think it is fair to say though that at this late stage and as the new Minister of Justice I am not prepared overnight or even over a month to decide to change the powers of the Serious Fraud Office without that matter having first gone to a select committee. It is the sort of thing where we have discussed what we should do with the Serious Fraud Office over the powers. We have had allegations made and I think we have heard those around alleged misuse of the powers by the Serious Fraud Office. The only example given to me was when the Serious Fraud Office served production orders on the  
National Business Review 
 once last year. 
Just on that one issue I do not think we should be completely changing the law that has been in place since 1990 and which by the way was brought in by the then Labour Government to deal exactly with the same issue that we have just dealt with over the last few years which is massive financial crimes that were discovered as a result of the financial meltdown in the 1980s. Let us not kid ourselves. These crimes were happening before. They were simply discovered and the discovery really came about because there was in fact a run on money and therefore they got discovered. 
We have also now got the Financial Markets Authority in place which I think is doing a far better job than its predecessor the Securities Commission. So we do know we have some better processes in place. But I do not think it is right for me to come along and make a decision to rein in the powers of the Serious Fraud Office without some serious debate in public in the select committee. 
The other issue in relation to those Serious Fraud Office powers is that they are very very refined in terms of whom they serve the orders on. We are not talking about everybody who has contact with the New Zealand Police. We are talking about a very select group of people. I believe that the same reason that these powers were brought in in the first place is still there now—the same need. 
But also a production order is essentially a bit like a search warrant except that instead of having a police officer charging through looking at everything that you have got in your property they ask you for what it is that you have. So in other words it might be something like: “I want these reports from this this and this.” and for a person subject to it that is a whole lot different from and a lot less onerous than a full search warrant where everything can be looked at. 
So I think just because lots of the public do not know that there are production examination orders that does not mean to say that they necessarily are very scary and difficult things. It is simply that most people thankfully have never had to be subject to them because they are not the people whom the Serious Fraud Office is after. 
DAVID CLENDON (Green) 
: 
 I would like to take a call just to reflect on some clauses in Part 4 of the Search and Surveillance Bill that support our proposition that this bill is intended and designed to maximise the powers of the police and other agencies—an extraordinary number of agencies—to delve into people’s privacy. There is very little in this bill clearly that seeks to maximise the opportunity for people to protect their privacy. This is a catch-all bill. It is a sledgehammer bill seeking to cover every eventuality. 
A simple example of that is in some of the definitional clauses. Clause 87AD talks about what is actually a computer for the purpose of this particular part which is very much the nitty-gritty. This is how various agencies will go about the matter of delving into people’s private matters. For the purpose of this part it talks about computers. We know that computers are a primary target where search warrants or production orders or whatever are being executed. It goes to great lengths to include anything that might possibly be deemed to be part of a computer system and defines a computer system as “a computer; or … 2 or more interconnected computers; or … any communication links between computers or to remote terminals … or … 2 or more interconnected computers combined with any communication links … to any remote terminals or any other device; and … includes any part of the items … and all related input output processing storage software or communication facilities and stored data”. 
That is quite a remarkably adept attempt to think about how we can possibly broaden the definition of what is a computer. Clearly any electronic device—a computer an iPad a telephone a smartphone a smart drive a data stick—any and all of these items which are perfectly legitimate items for anybody to own become accessible to a search and to an investigation. There is no effort in this bill to minimise the scope of what might be legally investigated if this bill passes. 
Similarly I think it is interesting to put on the record the range of bodies and individuals who might be empowered to conduct searches to exercise search warrants and so on under this bill. Indeed in clause 87AC we learn that an enforcement officer in relation to the provisions in this part includes a constable—yes; logically it would. A constable is defined as any sworn police officer of no matter what rank. That is as we would expect. It also goes on to say that an enforcement officer can be any persons authorised in column 3 of the schedule of this bill. 
It is quite interesting to go and have a look at the individuals or the people who might be described as enforcement officers. The first person you see pop up in the schedule is an “ACVM officer”. I had to go away and discover that that is actually a person empowered under the Agricultural Compounds and Veterinary Medicines Act. We go on to discover that it includes animal welfare inspectors high-seas fisheries inspectors special inspectors with some sort of power under the Antarctica (Environmental Protection) Act anti-personnel mines officers people executing powers under the Anti-Personnel Mines Prohibition Act and the Biosecurity Act—people exercising authority under that Act. Designated persons may search for evidence of offences against the Commodity Levies Act. I struggled to find anybody any Government agency that might be excluded from the right to exercise the extraordinarily invasive powers that are given by the various provisions of this bill. 
In clause 130 and the following clauses there is this question of privilege and this has been referred to in various contexts. I would just like to highlight as Mr Parker made mention of in another context the question of privilege. It encompasses the relationship between a person and their lawyer medical practitioner minister of religion or clinical psychologist and it encompasses journalists. The Minister has assured us that information that is privileged will be protected because no police officer acting honourably will search or investigate material if they believe privilege might— 
Dr CAM CALDER (National) 
: 
 I appreciate the opportunity to take a brief call on the Search and Surveillance Bill on Part 4 particularly. It is worthwhile recognising that Part 4 is to do with the general provisions in relation to search and surveillance powers and possibly to remind the previous speaker David Clendon of the purpose of this bill. I crave the indulgence of the honourable member Charles Chauvel because I am actually going to take a couple of words from the introduction here just to remind Mr Clendon that we are dealing with search and surveillance powers and inspection powers amended by the bill which go across 69 Acts—69 Acts. It is obviously going to deal with arcane officers to do with veterinary medicine and fisheries etc. as he pointed out. It is intended as a comprehensive reform of search and surveillance legislation. 
Part 4 is a good case in point. It deals with consent searches application for search warrants issuing of search warrants search powers detention of persons at the search scene and of course we have heard that it deals with examination orders production orders and surveillance. I would like to come back briefly to examination orders. This bill does have an examination order regime. We have heard quite exhaustively from the Opposition about how the Serious Fraud Office currently has the power to apply for an examination order. We heard from the Minister of Justice that this in fact is a power that it has had since 1990. The bill will also allow the police to apply for them. 
We know that examination orders are recognised as a serious power and that additional safeguards will be in place. What will these safeguards be? The police may apply for an examination order in a business context to investigate an offence punishable by 5 years’ or more imprisonment. Examination orders allow the police to require people who acquire information in the course of business such as accountants to cooperate with the police without being guilty of breaching professional or fiduciary obligations. In a non-business context the examination orders may be applied for to investigate serious fraud punishable by 7 years’ or more imprisonment. 
It is important to respond to some concerns—and I do acknowledge how open-minded the Minister has been to concerns that have been raised; she has specifically mentioned the Hon David Parker and Charles Chauvel for some of the help that they have given on this bill—raised concerns about the impact of this on civil society and the right to protest. The 7-year threshold in non-business contexts means that examination orders are not available to investigate such crimes as protesting trespass disorderly behaviour or unlawful assembly—a very good point I thought. 
In addition only a judge can make an examination order upon application from a police officer of the rank of police inspector or above. This is a tangible acknowledgment of the seriousness of this. This ensures that examination orders do not become a routine tool for investigation. 
The privilege against self-incrimination is something that was raised by a number of speakers. This has been the subject as we have heard of a particular Supplementary Order Paper 12 where we have dealt with this. We are particularly keen to defend media impartiality and media sources. A key change has been to significantly improve journalists’ ability to protect the identity of their sources and enhance their journalistic privilege. This has been made in recognition of the media’s role in a free and democratic society and the need to protect that role and preserve the important principle of media freedom. 
At the moment the media cannot prevent material from being seized during the search and therefore viewed and accessed. This Supplementary Order Paper will make that a lot less likely to occur. The bill will allow a journalist to claim privilege over information contained in documents preventing the documents from being searched. The documents would then be secured and taken to the High Court for safe keeping where the claim of privilege can be determined. Effectively the Search and Surveillance Bill recognises journalistic privilege and provides greater protection for journalists’ sources. Journalists can also refuse to answer questions. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I could not really resist joining the debate after listening to that contribution from Mr Calder. I am sure it was well meaning but unfortunately it was somewhat misleading. The reason it was misleading is that it completely missed the point that we have been kind of banging on about ever since this debate got started on this particular bill the Search and Surveillance Bill which is that these provisions about requirements to get a warrant do not apply to the Serious Fraud Office. What we have been asking for consistently throughout this is to have the bill extended to cover the Serious Fraud Office. I thought it was a bit unfortunate that the member concerned commented about the provisions in relation to police and then implied that they also applied to the Serious Fraud Office when in fact they do not—and that is exactly our point. 
I want to traverse some of the history of this because I also heard the Minister of Justice make the point in her contribution that this had been raised very much at the last minute. Well actually the only thing that has been raised at the last minute has been the opportunity to address this problem in a way that could have been addressed at the Justice and Electoral Committee if we had the Standing Orders then that we have now. That is all that has changed. We have the opportunity to put right a wrong that was done not I think deliberately but simply by reason of the fact that the select committee was given the advice—correctly at the time—that it could not make the amendments to bring the Serious Fraud Office within its ambit because at the time it was not within the scope of the legislation. 
In fact if one refers specifically to the commentary and to the Labour minority view in this report one sees that it states: “The Labour Party enquired of the Government via select committee members and officials whether the Government was willing to tighten the use of production and examination orders by the SFO at the same time as similar powers were being conferred upon the police under this bill. Officials advised that the Government was not willing to do so.” That was when it was reported back from the select committee which I think was actually some time ago probably— 
Charles Chauvel 
: November 2010. 
Hon LIANNE DALZIEL 
: In November 2010 the bill was reported back to the House with an interim report back having been made on 6 August 2010. The position of the Labour Party on this particular part of the bill has been well known for a long time. 
But let me talk about the letter to the then Minister of Justice the Hon Simon Power signed off by our then shadow Attorney-General the Hon David Parker who has already contributed a lot to this particular debate. In this letter which he wrote on 9 November 2010 he made it very clear about the Serious Fraud Office and he talked about why it had not been included in either the Law Commission’s report or in fact our legislation that we were going to be introducing at the time when we were in Government. 
He states the history quite clearly. He states: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office … into a new Organised Crime and Serious Fraud Unit within the Police.” That is exactly what the Minister herself from the chair accepted was the case. The letter continues: “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.” So her statement that this was just a one-off event involving the  
National Business Review  
is simply not accurate. It does not reflect the history nor does it reflect what we were advised by the Law Commission. 
We were advised that in fact this was a routine habit of the Serious Fraud Office. The point was made in this letter that “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.” 
 The decision was reached by our Government that we would proceed with providing these powers to the police but at the same time with the decision to fold the Serious Fraud Office back into the framework of the police that it would be picked up by those powers. So those appropriate restrictions that would operate around the use of those powers would apply to the Serious Fraud Office as they would to the police for that reason. That is a point that the Minister really has not I think responded to fairly because she has sort of implied that this has been raised so late in the piece that there was nothing that she could do about it. 
Well I want to refer to the Hon Simon Power’s response. The Hon Simon Power sent his response to the letter of 9 November 2010 on 25 November 2011. 
Hon David Parker 
: The day before the election. 
Hon LIANNE DALZIEL 
: The day before the election. 
Hon David Parker 
: Received after the election. 
Hon LIANNE DALZIEL 
: It was actually received after the election because it was received on 28 November 2011. I do not know what that then Minister of Justice was doing but I do not think this Minister of Justice would have let a letter lie around for that long before it got a response. 
She is actually mentioned in this particular letter and I will just read the section in relation to the Serious Fraud Office examination order powers: “I have consulted with the Minister responsible for the SFO Hon Judith Collins on this matter. The SFO’s view”—the Serious Fraud Office’s view; not the Minister’s view but the Serious Fraud Office’s view—“is that their powers were enacted in the SFO Act with agreement by both sides of the House 20 years ago and have operated with relatively little controversy since.” Well I can probably find legislation that was agreed to all around the House 20 years ago that none of us would want to have a bar of today. I am sure there are plenty of examples of where things have changed over 20 years. The letter went on to say: “Accordingly the SFO does not consider that an ad hoc change to one very specific provision in its Act is desirable and could potentially have an adverse impact on the effectiveness of its wider operations.” 
Well I think I just want to return to what Mr Calder said earlier because he said that this bill was “intended to implement a comprehensive reform of search and surveillance legislation both as regards the core substantive law enforcement powers and the way search powers are exercised across the statute book.” This bill does not live up to its expectation at all and it does not live up to it for this very reason. Having absented the Serious Fraud Office from the coverage of this particular piece of legislation we are unfortunately in a situation where the introductory comments on the commentary of the Government bill do not match the reality of the bill. That is why we have made it absolutely our position from start to finish—and it has not just been a recent position; it has been our position throughout—that this legislation should extend to cover the role of the Serious Fraud Office. 
The recent examples that we have had in relation to the  
National Business Review 
 are not the only examples. As I said quoting from the letter from David Parker to Simon Power back in November 2010 the Law Commission advised Cabinet then that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders and if we are going to have this comprehensive reform then it is important that the Serious Fraud Office is included within its framework. 
I think that with regard to the Minister’s point I understand that it might have been a position that could have been adopted if it had not been addressed at the select committee but it was addressed at the select committee and there were submissions received on it. In fact the question went back to the Government from the select committee to ask specifically whether that addition could be made. At the time our Standing Orders would not have allowed for this debate to occur at the Committee stage— 
Hon David Parker 
: But we could have agreed at the Business Committee. 
Hon LIANNE DALZIEL 
: —but we could have agreed through the Business Committee to do it. There was willingness I think right around the House with one exception and really the grounds for the exemption for the Serious Fraud Office simply do not stack up when one looks at the intention of this particular legislative reform. So even at this very late stage I know that members on this side of the Chamber would really like to see the Minister come to the party on this particular provision because we would have agreement then. 
If we were to have legislation like this where you have got substantive agreement across the House—I know that some Ministers might think that it is not important to have that level of agreement on such fundamental legislation—I think it actually stands in really good stead the weight that is given to legislative change when you can see the range of support that it gathers across the House. I think in measures such as these we should be looking at gaining pretty much universal support in the House where we possibly can. We were so close to getting that achieved in the discussions that we have had; I think it is not too much to ask for that further step to be taken. 
STEFFAN BROWNING (Green) 
: 
 This bill the Search and Surveillance Bill has outrageous powers and many parts of it if it is to go ahead need to be withdrawn. I notice one of the Government members suggested that protesters would not be caught up in this bill. We have just had very very recently Lucy Lawless up the top of a ship and she has been charged with burglary. She would have been eligible under this bill to come totally under it in terms of search and surveillance. So would members of this House who have had something to do with Greenpeace in the past; so would members who have had something to do with her family her friends. They would all be open to the powers of this bill. 
It is good to see that false applications of this bill would be penalised. However failing to comply with an examination order or a production order as in clauses 165 and 166 would give an individual up to 1 year’s imprisonment and would give a body corporate—which I would imagine would be Greenpeace—something like a $40000 fine. If they did not give the password or whatever for their computers there would be potentially 3 months’ imprisonment if they were not compliant with that. 
This bill does go right down. We are talking about media here quite often but what about the non-governmental organisations which actually do hold this Government this Parliament to account on a continuous basis? The outrageous search powers also go to persons called in to assist whoever that might be. Does that also go to businesses such as Thompson and Clark Investigations Ltd the private investigators that Solid Energy and others would use on people like Greenpeace Lucy Lawless and other protesters? 
This bill needs to be biffed. It goes far too far. We have seen how the terrorism legislation was attempted to be used. This bill comes in to try to do the surveillance that was illegal. The Green Party can only oppose this bill when powers such as this go right into the core organisations and community organisations that try to keep this country free and democratic and that also look after the environment. So the Green Party will continue to oppose this bill as it stands. 
Hon DAVID PARKER (Labour) 
: 
 Perhaps you are right in the Green Party to oppose the Search and Surveillance Bill Mr Browning but I hope you do not do it on the basis that this would affect Lucy Lawless because she was actually there publicly waving to be seen and there was no covert surveillance or search involved in that case. 
I want to further reply to the Hon Judith Collins’ statement about this being a late change and some assertion that there would somehow be a vacuum of powers in the meantime. Well there would not have been a vacuum of powers because until the bill was passed amending the powers of the Serious Fraud Office its existing powers would have carried on and there would have been not one iota of a vacuum. So that is with respect a vacuous argument rather than arguments about vacuums. 
 As to the point as to abuse of powers the only time that I am aware that the Serious Fraud Office has abused its powers in respect of the issue of a production order against the media is in respect of the  
National Business Review 
. But its abuse of its powers by using this short cut route where it whacks out a production order or an examination order rather than seeking a warrant or using normal investigative techniques is a more widespread abuse of its powers according to the advice that we received from the Law Commission when we were in Government and the advice that I received when concerns were raised about these issues. I visited Queen’s Counsel who were acting both for the Serious Fraud Office at times and for accused persons. They said whether they were Serious Fraud Office lawyers on occasions or defence counsel that the Serious Fraud Office was abusing its powers by using them when they ought not to or by using them too broadly. It is very easy for them to whack out a broad production order or an examination order and effectively go on a bit of a fishing expedition to see what is around rather than have a more specific production order or pursue normal investigative techniques. 
As to the suggestion that this would be a late on the hoof amendment this issue was raised at the Justice and Electoral Committee and the Hon Lianne Dalziel has already outlined that by reading from the select committee report. It was raised by me in communications with the Hon Simon Power with constant reminders and there was a somewhat cynically late reply designed not to be received until the days following the election. 
But also I note that the issue was raised with the now Minister of Justice in her role as the Serious Fraud Office Minister by the  
National Business Review  
and I read from the  
National Business Review  
of 9 March 2012 page 1 its article “Bill retains ‘draconian’ SFO Powers”: “Mr Gibson”—who is the editor of the  
National Business Review— 
“recalled that in 2010 he asked then SFO Minister Judith Collins to amend legislation empowering the SFO’s rights of seizure of media dossiers.” 
So the suggestion that this was raised late in the piece is wrong. The suggestion that it could not be fixed even though it is late in the piece is wrong because we put forward amendments that would fix it. The suggestion that this would be poor process is made to look pretty thin when we consider that there is a 100-page Supplementary Order Paper that the Minister brought forward which was produced and tabled I think the day before the Committee stage began—is that right Mr Chauvel? It was the day before this Committee stage began. The idea that even a week ago even the week before this they could not tidy up this particular part of the legislation and apply the same rules to the Serious Fraud Office as applied to other agencies of the Crown is nonsense and it ought not to be given any credibility. 
Dr CAM CALDER (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 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 following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 4 be agreed to: 
to replace in clause 124(b) “circumstances” with “circumstances; and”; and 
to delete the amendment to clause 169(2)(a). 
Amendments to the amendments agreed to. 
The question was put that the amendments as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to Part 4 and the following amendments in her name to Part 4 be agreed to: 
to replace in clause 126(6)(b) “subsection (1)(b)(i)” with “subsection (1)(b)”; 
to replace in clause 127(1)(b) “section 126(1)(b)(i)” with “section 126(1)(b)”; and 
to replace in clause 127(3) “section 126(1)(b)(i)” with “section 126(1)(b)”. 
A party vote was called for on the question  
That the amendments as amended and the further 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 as amended and further amendments agreed to. 
The question was put that the following amendments in the name of Charles Chauvel to clause 139 be agreed to: 
to insert in paragraph (c) “; and” after “determining the claim of privilege”; and 
to insert after paragraph (c):  
(d)commits an offence punishable by a term of imprisonment not exceeding one year if the person breaches the provisions of this section. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Noes 63 
New Zealand National 59; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
A party vote was called for on the question  
That Part 4 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 4 as amended agreed to. 
Part 5 Amendments repeals and miscellaneous provisions 
Hon DAVID PARKER (Labour) 
: 
 In this part of the Search and Surveillance Bill I am going to speak in favour of some of the standardisation of rules that apply to different agencies. There are as the Minister of Justice has previously said a large number of slightly different legal tests that apply to the search and surveillance powers under various pieces of legislation. To give you an idea of the breadth of the legislation I will just read out a few of the different Acts that we are amending: the Agricultural Compounds and Veterinary Medicines Act the Animal Products Act the Animal Welfare Act the Antarctic Marine Living Resources Act the Antarctica (Environmental Protection) Act the Aviation Crimes Act and the Boxing and Wrestling Act 1981 which I had completely forgotten about until I read it in the schedule. The list goes right through: the Driftnet Prohibition Act the Land Transport Act and the Trade in Endangered Species Act. The list is of Acts being amended so that the powers and the protections that are surrounding the powers that these different organisations have are standardised. The list runs to eight pages from page 11 to page 19 of the description at the start of the bill. That is just the list of sections in the Acts that are being amended and the relevant sections that are being amended run to a large part of this very long bill. 
It is good that we are standardising these protections and rules that surround the use of search and surveillance powers that have been conferred by Parliament on all these difference agencies; I think that is a good thing. But it does again highlight the fact that we have this inconsistency that we are not doing it for the Serious Fraud Office. 
One of the benefits of the Committee stage of the debate is that as members we all learn things. I found this debate quite interesting. I have learnt some things. It has helped me and my colleagues in our thinking as to where we think the line should be drawn in respect of production and examination orders not just for the Serious Fraud Office but for the police as well. We have also listened to the debate that has been outside of this Parliament including the opinions that have been expressed by the media freedom committee. I thought that the editorial from the  
New Zealand Herald 
 which I suspect was written by Tim Murphy—I do not know that to be the case but I know he is chair of the media freedom committee on behalf of the members of the media and he will have had a hand in—was quite persuasive. 
I think I have got to the position where I can accept that we need the Serious Fraud Office to have some of these powers that undermine the right to silence by allowing them in situations relating to commercial transactions and business records that show complex fraudulent transactions. They need to be able to unpick them by going to the people who hold those records and saying: “Please give us those records. Please explain what those records mean.” It effectively allows those people to be released from their duty of confidence. I agree that that is appropriate. I also think that the police should have that power in that same context. 
I am uncomfortable with the police having that power in respect of the criminal investigation of the primary suspects in a crime because it undermines the right to silence. The people who are forced to give evidence are likely to lie anyway so the reliability of the evidence they gather is not good. That is one of the reasons why traditionally we have not forced people to answer because when they are forced to answer rather than when they answer voluntarily they are more likely to lie. As well as that we undermine this relationship between the police and the public if we force members of the public to give evidence against their loved ones which can be very difficult. In fact it is not that long ago when in respect of charges against a spouse the other member of the family the husband or wife was not even competent to give evidence even if they wanted to. The public interest in that was that it was a ridiculous law and eventually Parliament changed that and said that the spouse should be competent to give evidence against their husband or wife or partner but they should not be forced to. Yet what we are doing with production orders and examination orders is going that step further and saying that people must answer and that undermines the relationship between the public at large and our enforcement officers. In the end it places those enforcement officers in one place or another in greater danger as they go about their duties which they go about in order to protect us. 
I do not want to undermine the relationship of trust and confidence and cooperation that lies behind the way in which we have public interaction between law enforcement officers and members of the public. Most information that law enforcement officers get is through that relationship of cooperation because people know and see it as their civic duty to ordinarily cooperate with the police authorities or the other arms of the State whether it is the Ministry of Agriculture and Forestry looking into foot-and-mouth allegations or whoever it is. The public feel an obligation to cooperate with the police. That sense of obligation is undermined and that sense of social duty is undermined if people lose confidence in the police because they are forced to answer questions about their loved ones. They are put into the difficult position of telling the police information about their son or their daughter their husband or their wife their partner or their best friend. At the moment people can say: “No I’m not going to say anything.” They cannot lie but they can say that that are not going to say anything. 
I listened to some of the contributions from New Zealand First and the Greens in this debate but particularly the contributions from New Zealand First and I have been quite moved that they are aware that this right to silence that we have in New Zealand is really important. Where I have got to in this debate is that my own understanding of these issues has improved. I have got to the point where in the business context fine I think these powers are at times necessary. But outside of the business context I do not think they are appropriate and I do not think we should be conferring them in that context. 
It is interesting that when former Commissioner of Police Howard Broad first came before the select committee and indeed before that to Cabinet—and I was in Cabinet at the time—I can remember Mr Broad saying that he did not think that the powers of compulsion that are conferred by production orders and by examination orders are necessary for the police. He thought normal investigation techniques which have stood the test of time through the 100 years that they have been in existence—those are the powers that they have operated under until now—sufficed. I think that is the position that I am getting to. Having said that I do agree that the standardisation of powers across these various agencies is desirable. It is too confusing for everyone involved to have legal tests that are in tiny little ways different from one agency to another. 
CHARLES CHAUVEL (Labour) 
: 
 I want to commend what David Parker said. I think it is true that as the debate has progressed our understanding of this very complex legislation has greatly improved. I think the interplay of Supplementary Order Paper 12 which dates from Tuesday 6 March—so it is just over 2 weeks old—with Part 5 of the Search and Surveillance Bill is a pointer to the complexity of the legislation. The complexity was brought home to me when I worked with David Parker to try to come up with some amendments to achieve the aim that we had discussed with the Minister the Hon Judith Collins but not managed to get agreement on which was the inclusion of the Serious Fraud Office. Part 5 is the part of the legislation that deals with all the other Acts of Parliament and all the other agencies that we are conferring a standardised set of rights and duties on in the search and surveillance area and David Parker mentioned some of them. We are amending legislation as complex as the Dairy Industry Restructuring Act 2001 and as banal as the Dog Control Act 1996. That is a pointer to the complexities here. 
But the other complexity relates to the interplay of the bill itself with the substantive Supplementary Order Paper 12 the 93-page set of amendments to the bill itself. I do have to say this in passing Minister: although I have praised you for your willingness to negotiate it would be in my view a little bit over the top to claim too much regard for process as an excuse not to deal with the Serious Fraud Office in this context. Given that your Supplementary Order Paper makes a series of pretty significant amendments to the substantive Act which have never been near a select committee or a public consultation process let us just not make too much of that point if it is to be used as a reason for not dealing with the Serious Fraud Office itself. 
 The Supplementary Order Paper itself basically makes most of Part 5 of the Act redundant. What it does is replace many of the references to the various agencies and powers with a new schedule to the legislation. In order to try to fit the Serious Fraud Office into the bill my amendment first of all would insert a new clause clause 276A into the bill. The reason that it would appear there is all due to the alphabet. It would insert amendments to the Serious Fraud Office Act 1990 between amendments to the Resource Management Act 1991 and amendments to the Sale of Liquor Act 1989 in alphabetical order. 
The amendments would be these. We would start off by repealing sections 5 and 9 of the Serious Fraud Office Act. Again to correct a point that the Minister made from the chair a little earlier this would not create any vacuum or lacuna in the powers of the Serious Fraud Office. It would happen on the enactment of this legislation and not before. So it would not lose any of its present powers. It would continue with its present powers up until this legislation got the Royal assent. But what the amendment would do would be to repeal sections 5 and 9 of the Serious Fraud Office Act. We have canvassed what those sections do but I think it was obvious from an exchange between Dr Calder and my colleague Ms Dalziel that we still have not managed to get this across. Section 5 of the Serious Fraud Office Act as it is framed now allows the Director of the Serious Fraud Office to require the production of any piece of paper. This requirement does not need to go before a court and it does not need a warrant. It does not need any safeguards. He can just say: “I want this piece of paper.” 
Hon David Parker 
: Or all these pieces of paper. 
CHARLES CHAUVEL 
: Or “All these pieces of paper.” or “This electronic version of the piece of paper or pieces of paper.” The director does not have to go to a court. He does not have to make a case. He does not have to undergo any process or safeguard in order to do that. He simply—and it is a he at the moment—issues this requirement and it must be complied with. So that is the first section that would go under this proposed amendment. The second section that would go is section 9 which gives a further power to the director again without any safeguard and without any need to persuade a judge or to get a warrant: “I want you in my office to answer questions at this time.” He can say that to anyone on any occasion and again there are very limited opportunities to object and certainly no requirement for prior judicial approval for the exercise of that power. So those sections would go and they would be replaced by two very simple provisions. Basically they would be replaced by existing sections 6 and 10 which would each be amended as follows. They would have the following words put in: “the provisions of Part 4 of the Search and Surveillance Act 2012” as it will be “apply.” 
So all that happens is that exceptional powers would be repealed and the Serious Fraud Office would be brought into the same regime that would apply to every other State agency bar the SIS once this legislation comes into force. It is a very simple surgical exercise and as David Parker told the Committee in his previous contribution this was something that was raised and discussed at the select committee. It was raised as I understand it by submitters as a desirable thing to be done. It was raised with the officials certainly by David Parker as something that he would like advice about it and as we know from the news media source he quoted it is something that was canvassed with him as the previous Minister and has now been canvassed with his successor the Hon Judith Collins. We have her response. 
It is OK that that response is no. We understand that. We do not like it and we do not agree with it but OK it is no. But let us not dress it up as a no that is based on any particular respect or regard for procedure or process. Let us just understand that it is a no. What members on this side of the Chamber are trying to do in this debate—and we have tried to do it in a civilised and restrained way—is point out that yes Dr Calder it makes a lot of sense to provide all these safeguards across the board in this bill. What it does not make sense to do is to leave the Serious Fraud Office out from the time that this bill starts to apply because you have one major agency of the State probably in light of what David Parker said the major agency that we need to have working well in this area. 
We want organised financial crime to be prosecuted and dealt with appropriately but it will stand out from the regime that we are putting in place in this bill. So all the good stuff all the protections all the procedures that you rightly praised Dr Calder still will not apply to this major agency. Those Draconian powers under section 5 and section 9 will continue to apply outside the framework of this bill. No dressing up of any arguments around process and procedure can hide the fact that that just does not make any sense. It is not logical. It leaves a major hole in the code that this Parliament now intends to enact relating to search and surveillance powers. Everyone else has protection. Everyone else must go to the court. Everyone else must get a warrant. Every one else must make a case to a judge—except the Director of the Serious Fraud Office. Again we can hear general claims about how important it is for these powers to continue but it does not make any sense within the scheme of this legislation. 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 There are a couple of issues I want to deal with. The first is the issue around the  
New Zealand Herald  
editorial that Mr Parker praised so widely. I just want to share with the Committee something about that editorial. I thought that clearly whoever wrote it had not read the Supplementary Order Paper that I put forward and had not read the press releases that I had put out about what was in the Supplementary Order Paper. And I thought frankly that no matter what the sentiments it was actually just wrong on a couple of issues. 
I thought it would be a good idea to visit the editor and just go through the issues and find out what their concerns were. Well apparently freedom does not extend to me writing a letter to the editor. I wrote a letter to the editor saying “This is where I think you’re wrong. I’m sorry that you didn’t read the press releases. This is where there is actually an enhancement in the Supplementary Order Paper to protect press privileges.” I rang up the  
New Zealand Herald  
when they did not print my letter to the editor and they said they did not print it because they did not like it. I thought that was probably not that helpful. So then I thought I would go and see them and talk this thing through because I think it is important. They are a major arm of the media and it is important that they understand my Supplementary Order Paper which I thought was addressing the concerns. And I have to say I had worked on it with Charles Chauvel. We had tried to get some agreement and we thought we were doing well on that part. 
Charles Chauvel 
: And for the future you’re going to want the  
New Zealand 
Herald 
 on side! 
Hon JUDITH COLLINS 
: Yes we want the  
New Zealand Herald  
to understand what we are trying to do. I thought it would be a good idea and because I was in Auckland for 4 days last week I thought it was a good chance to do it. Well could we get an appointment? No. I have not given up though and the invitation is still there. 
There is also the issue that the Law Commission is currently looking at some of the media regulation. It is looking at those issues and I think it is really important to engage with the media particularly the let us say more mainstream media around these issues. We do not want to end up having legislation that does not get a broad agreement from the people who would be most interested if that is possible. So the invitation is still there to the  
New Zealand Herald  
editor. They are welcome to publish my letter to the editor which would not have changed from the last one I sent them which they would not publish because essentially they did not like it; they did not agree with it. I suppose I should have re-sent them a copy of my press release which might have explained again what I had already sent out. However less about me; let us get back to the Search and Surveillance Bill. But the invitation is still there and I am happy to go through those matters with them. 
Part 5 of the Search and Surveillance Bill is very much a technical part applying the bill’s general search powers outlined in Part 4 to search powers in other legislation and also repealing provisions that are being replaced elsewhere in the bill. It is a very technical part. However it also has a very important clause. That is the final one clause 316. Acknowledging that the bill represents a comprehensive reform of search and surveillance laws clause 316 provides for the Act to be reviewed approximately 4 years after it becomes law. The Minister of Justice must refer the Act to the Ministry of Justice and the Law Commission for review by 30 June 2016. The review must then be completed 1 year after the reference is made. The bill is based in large part on the Law Commission’s 2007 report on search and surveillance powers and it is therefore appropriate that the Law Commission be involved in the review of the bill. The review will consider how the provisions in the Act have operated in practice whether the provisions in the Act should be retained or repealed and whether any provision should be amended. I think this is an extremely important clause and I think it is something that many members in the House will take some comfort from. 
The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 5 be agreed to: 
to replace in clause 237A(2) in the heading to new section 239A “239A” with “293A”; and 
to insert in clause 267(3) and (4) “of Part 4” after “subpart 2”. 
A party vote was called for on the question  
That the amendments to 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 to the amendments agreed to. 
The question was put that the amendments as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins be agreed to. 
A party vote was called for on the question  
That the amendments 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. 
Amendments as amended agreed to. 
The question was put that the following amendment in the name of Charles Chauvel to Part 5 be agreed to: 
to insert the following new clause: 
276AAmendments to Serious Fraud Act 1990 
(1)This section amends the Serious Fraud Office Act 1990. 
(2)Sections 5 and 9 are repealed. 
(3)Section 6 is amended by repealing subsection (2)(a) and (3) and substituting the following subsection: 
“(3) The provisions of Part 4 of the Search and Surveillance Act 2009 apply.” 
(4)Section 10 is amended by repealing subsection (2)(a) and (6) and substituting the following subsection: 
“(6) The provisions of Part 4 of the Search and Surveillance Act 2009 apply.”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 34; Green Party 14; New Zealand First 8. 
Noes 63 
New Zealand National 59; Maori Party 2; ACT New Zealand 1; United Future 1. 
Amendment not agreed to. 
A party vote was called for on the question  
That Part 5 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 5 as amended agreed to. 
Schedule 
The CHAIRPERSON (Lindsay Tisch) 
: The amendment in the name of Charles Chauvel to Supplementary Order Paper 12 is ruled out of order as being inconsistent with a previous decision of the Committee. 
The question was put that the following amendment in the name of the Hon Judith Collins to the proposed amendment set out on Supplementary Order Paper 12 in her name to the item relating to section 68(1) of the Human Tissue Act 2008 be agreed to: 
in column 4 to insert “All” before “(except subpart 2 and sections 114 and 115)”. 
A party vote was called for on the question  
That the amendment to the amendment 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. 
Amendment to the amendment agreed to. 
The question was put that the amendment as amended set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to replace the schedule be agreed to. 
A party vote was called for on the question  
That the amendment 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. 
Amendment as amended agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: We now come to debate on the clauses. The question is that— 
METIRIA TUREI (Co-Leader—Green) 
: 
 I raise a point of order Mr Chairperson. I did not want to interrupt the voting process just to ask this question of clarification. Is it legit for National to vote on behalf of the ACT Party when the ACT Party member is in the Chamber and in his seat and available to vote? [ 
Interruption 
] 
The CHAIRPERSON (Lindsay Tisch) 
: Order! There is a point of order being dealt with. The answer to that is yes and I did seek advice on that matter. So that is in order. We have come to the debate on the clauses. 
Clauses 1 and 2 
Hon DAVID PARKER (Labour) 
: 
 I am not going to take a long call on this. The points that have been made as to our objection to the Search and Surveillance Bill have been made in respect of the various parts that have been discussed previously particularly our concerns about production orders and examination orders generally but also in relation to the Serious Fraud Office version of those powers which is without the protections that are in this legislation in so far as the police have been conferred similar powers. I think it is sad that a piece of legislation that is so fundamental to the balance of power between individuals and the State is being passed tonight on a majority of 61 to 59. I think it is pretty clear that if there had been some movement of the Government on the part of Serious Fraud Office powers you would have had a very big majority for this legislation. This sort of legislation ought to enjoy large parliamentary majorities rather than slip through at a majority of 61 to 59. 
The introductory note in the commentary from the Justice and Electoral Committee says: “This bill is intended to implement a comprehensive reform of search and surveillance legislation both as regards the core substantive law enforcement powers and the way search powers are exercised across the statute book.” As my colleague Charles Chauvel said when he quoted that same provision earlier in the debate the fact that this is not doing that is I think lamentable. We have one institution in New Zealand that can exercise its powers without needing to get a warrant from a judge in respect of the exercise of serious powers including powers that override the right to silence and that one institution is the Serious Fraud Office. Not the Security Intelligence Service; it has to get a warrant from the retired High Court Judge who oversees its processes. Not the police; they have to get a warrant. Indeed for production and examination orders they cannot just get a warrant from a registrar; they have to get a warrant from a judge. Yet we have this exception for the Serious Fraud Office which does not need to get a warrant from anyone. It has abused its powers in the past by using them against the media and has abused its powers more often by utilising the production order and examination order route which is easier for the Serious Fraud Office because it can do it by internal administrative act rather than going for a warrant or using normal investigative processes. Those orders can be quite broad and put quite a lot of administrative costs on the people who are in receipt of those production and examination orders. 
I am not going to say anything more than that. I think other than that broadly this legislation does strike the right balance between the civil liberties that we should be protecting for people and the powers that the police on occasions need to investigate crimes so as to keep our public safe. 
A party vote was called for on the question  
That clause 1 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. 
Clause 1 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 12 in the name of the Hon Judith Collins to clause 2 be agreed to. 
A party vote was called for on the question  
That the amendment 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. 
Amendment agreed to. 
Bill reported with amendment. 
Report adopted.