Collins Judith: Search and Surveillance Bill — Third Reading 
Collins Judith: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1245] 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 I move  
That the Search and Surveillance Bill be now read a third time 
. The Search and Surveillance Bill modernises and condenses the laws found in over 69 different Acts relating to search surveillance and seizure. The bill remedies deficiencies in current search powers which is particularly important in relation to technological developments where the current laws are outdated and do not reflect the high tech environment in which criminals are operating.  
The bill provides a new declaratory order regime recognising that criminals are beginning to evade detection in new ways. The declaratory order regime allows enforcement officers to ask the court to examine the new technique device or activity for its reasonableness prior to using it to investigate criminal activity.  
The ASSISTANT SPEAKER (H V Ross Robertson) 
: Order! Would members leaving the Chamber please show some courtesy to the member who is trying to address the business of the House. 
Hon JUDITH COLLINS 
: Thank you Mr Assistant Speaker. The Labour Party believes that the declaratory order regime within the bill is redundant because of the Supreme Court decision of  
Hamed and Others 
. That decision makes any use of trespassory surveillance devices without statutory authority unlawful. The provisions in the bill provide the legislative authority called for by  
Hamed  
and therefore supersede that decision.  
The bill specifies when agencies must obtain a warrant for trespassory surveillance. In those cases trespassory surveillance will be lawful only where a warrant has been obtained. There are limited exceptions to the warrant requirement in cases of emergency or urgency. Declaratory orders could never be used to give an agency using a new surveillance device or technology the authority to trespass. The value of the declaratory order regime relates primarily to situations not involving trespass where the reasonableness of the use of a new technology or device should be considered.  
In this fiscally tight environment the declaratory order regime is also extremely prudent. The regime ensures that new technologies or devices will be independently assessed prior to use and before agencies invest large amounts of money.  
The Labour Party has also asserted that declaratory orders are unconstitutional and are not contemplated in any other common law country. In fact the declaratory order provisions are derived from the Canadian regime although that regime is written in slightly different terms.  
The bill also introduces other innovations to enhance law enforcement powers. The production order regime formalises a common police practice of executing search warrants against people who are willing to assist. The courts have held that a search warrant can be executed by the police sending a copy of the search warrant to the person or by that person providing the document sought. This avoids the need for the police to enter the premises and to disrupt businesses or occupiers. The production order regime accurately reflects this process.  
The bill also regulates powers that are not currently regulated under New Zealand law including tracking devices where they are used by enforcement agencies other than the police or the Customs Service and restricts the use of visual surveillance devices where no trespass is involved.  
The Justice and Electoral Committee made various changes to the bill to enhance the balance of law enforcement powers and human rights concerns. This includes restricting the application for an examination order to appropriately serious offences; restricting trespassory surveillance visual surveillance and audio surveillance to offences carrying a penalty of 7 years’ imprisonment or more; and reducing the time warrantless surveillance may be undertaken in circumstances of urgency from 72 hours to 48 hours.  
Privileges under the Evidence Act 2006 have been expressly carried over to the Search and Surveillance Bill for examination orders production orders and all searches. This includes the right of a journalist to protect his or her source and means a journalist presented with an examination order or a production order may refuse to answer questions or produce documents that would reveal the identity of his or her source. Any document or information subject to a claim of privilege cannot be viewed by anyone. Where privilege is claimed and it is subsequently disputed by an enforcement officer the informational document cannot be viewed by the enforcement officer unless a judge has made a determination that the privilege should not be upheld. The judge may require the informational document to be confidentially produced to him or her so that the judge can determine the application. If the privilege is upheld by the judge the informational document will not be permissible in any proceeding. It is expected that privileges in the Evidence Act 2006 and the broader right to freedom of expression will be considered by judges in determining whether an examination order or production order should be made.  
The Committee of the whole House made further changes via Supplementary Order Paper 12 and amendments tabled by me. Although most of the amendments to the bill through the Supplementary Order Paper and amendments were technical there were some important policy announcements. One of the most crucial changes to the bill at the Committee stage provided for all claims of journalistic privilege to be determined by the High Court. This change serves to strengthen journalistic privilege—a journalist’s right to protect their sources in recognition of the media’s important role in a free society.  
Further changes were made to the bill to allow the police to search someone if a police safety order is in force against that person and they are suspected of carrying arms. Police safety orders did not exist when the bill was introduced and this amendment helps provide protection to victims of domestic violence. The police are also permitted to seize firearms licences and dealers’ licences when authorised to seize firearms.  
One further change and one of the most important changes was to amend the bill to allow parts of it to commence on 18 April 2012. This will prevent a number of ongoing investigations utilising covert surveillance from being endangered by the expiry of the Video Camera Surveillance (Temporary Measures) Act 2011.  
I know that the Labour Party members opposite have expressed their concerns that the Serious Fraud Office’s examination order and production order powers have not been brought under the regime established by the bill. These extraordinary powers granted to the Serious Fraud Office are justified by the great complexity of many fraud investigations. The Serious Fraud Office has noted that any ad hoc changes to its powers could have an adverse impact on its investigations. This is not desirable at a time when the Serious Fraud Office is investigating fraud and the collapse of several finance companies. The Minister responsible for the Serious Fraud Office my colleague the Hon Anne Tolley has agreed that the Serious Fraud Office will include information in its annual report about the use of examination orders and productions orders. This additional information will give Parliament confidence that the powers are being used properly.  
This bill reflects a balance between the need for enhanced updated and comprehensively regulated law enforcement powers and appropriate human rights safeguards. I welcome the changes made by the select committee and the Committee of the whole House. I would like to take the opportunity to thank those parties that have been involved in bringing about changes to the bill including the Labour Party the ACT Party and United Future for the work that they have done. I am confident that this bill will make a very clear and coherent statement. I commend this bill to the House.