Chauvel Charles: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1102. Text is incorporated into the Bound Volume.] 
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  
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 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  
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. Notwithstanding  
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 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  
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. 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  
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 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.