Parker David: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Parker David: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1122. Text is incorporated into the Bound Volume.] 
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.