O'Rourke Denis: Search and Surveillance Bill — Third Reading 
O'Rourke Denis: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1256] 
DENIS O’ROURKE (NZ First) 
: 
 New Zealand First would have wished to support the Search and Surveillance Bill as a whole because New Zealand First is strong on law and order and wishes to see as I am sure everyone in this House does effective enforcement of law and order in this country. But that does not mean that anything goes.  
New Zealand First says that the most serious problem with this bill and the fundamental reason why it cannot be supported by New Zealand First is the loss of the right to silence in some circumstances. Of course I refer to the examination order clauses 31 and 32—police powers in a business context where the offences may be punishable by 5 years or more—but more particularly to the examination order clauses 33 and 34 relating to a non-business context and offences punishable by 7 years or more.  
The questions that New Zealand First asks and that I ask are these. First of all is the loss of the right to silence even in these limited ways justified by the gains expected for law enforcement? Secondly are we as law-abiding citizens willing to lose these rights in this incremental kind of way as the price for a dubious improvement in the collection of evidence for crimes of serious fraud? The answer to that has to be especially in relation to the second question no. Unlike ACT for example New Zealand First wants effective law enforcement without unnecessarily wide losses of such rights.  
New Zealand First has special concern over clauses 33 and 34 relating to the non-business context. Of course “business context” as defined in the legislation means “in relation to the acquisition of any information by a person … in the person’s capacity as—(a) a provider of professional services or professional advice in relation to a person who is being investigated … or (b) a director manager officer trustee or employee of an entity that is being investigated”. So when it comes to the non-business context—anyone not in the categories I have just read out—the net is very very wide indeed. I suggest it is far far too wide. The loss of the right to silence for people who are not professionals in that way or not officers or employees of the organisation being investigated is completely unacceptable and a very very serious reduction in our hard-won right to silence in this country.  
The seriousness of removing that right should not be underestimated. It is an important part of due process and as we know that started way back in 1352 under Edward III where due process was first regarded as an important part of the legal system. Then came the Star Chamber and its abuses in the 16th century after which the right to silence was developed and has become a very important part of our legal system. That culminated in Miranda in 1966 in which people had to be told that they had the right to silence. Now we are looking at reducing it again. We should not abrogate such important rights unless we exercise great caution in doing so. Not enough has been shown in this bill especially in respect of those sections to which I have referred.  
In practical ways we should remember that it is not necessarily the person who is being accused which is something that Mr Banks did not seem to appreciate. It is not necessarily the person who is being accused who will be required to speak under this legislation. So we are not just targeting criminals here; we are targeting people who are regarded as being able to assist the police. They will have a trilemma. Either they will have to speak and perhaps risk perjuring themselves and be punished for that or they can refuse to speak and be punished for that or they can speak and potentially incriminate themselves. I do not accept for example that the simple statement in clause 132 is sufficient to protect those people from self-incrimination. A simple statement does not do it in practice. What is the real value of the evidence sought in this way? It is not very great indeed. So we lose some important rights and get very little back for it and that is the point. This is especially so in relation to the non-business context.  
I would also say this: why do the police have similar powers to the Serious Fraud Office yet the Serious Fraud Office is not covered in the bill? I have been persuaded by the arguments from the Labour Party in that respect. I think they are quite correct: it is simply illogical that the Serious Fraud Office is not included with the safeguards that are provided in this bill. We should also in fact go a little bit further and require the police in conjunction with the Serious Fraud Office to pursue the objectives of law and order in these ways.  
I also think that clauses 33 and 34 may go too far in respect of who will ultimately get those powers and that has been referred to by my friend in the Green Party. How many people will ultimately get these powers? Where will it all end up? Are we step by step moving towards a police State? I think that maybe we are. Clauses 33 and 34 especially enable abrogation of the right to silence in too many cases. The power to do that is far too wide and should not go that far.  
In going too far perhaps those promoting this bill are unwittingly building a police State step by step. I say “unwittingly” to be charitable because I think that they do know what they are doing here and are simply not willing to accept the fact that they are going too far.  
The Government—and I would say especially the ACT Party—is generally opposed to excessive Government legislation and excessive regulation. But here we see them doing a lot more than that: willingly moving towards the loss of important rights in the way I have described. Those rights as Mr Banks correctly said are hard fought and they are now reduced for very little gain. These provisions are not required for good law and order and are of dubious value especially in the non-business context.  
New Zealand First has a strong policy on effective law and order. However we think that is completely compatible—unlike the Minister of Justice from listening to some of her speeches—with the requirement for the protection of basic democratic rights in this country. I understand that effective law and order is necessary and we need to use effective modern methods to achieve it. The balance is very important. But balance is one thing. The abrogation of important rights is another and that is what has not been addressed properly here. The right to silence is one of those rights.  
I will repeat: the problem is not that the right is lost in cases where it is justified—perhaps where professionals are giving advice and need to answer questions perhaps where officers of a company can give information and should do so—but that beyond that it is going too far. That is the problem that New Zealand First fundamentally sees with this legislation in addition to the other reservations that I have expressed. The price asked therefore for a dubious improvement in effectiveness of law enforcement is far too high. The value of the right to silence should be given much more attention than the Government is willing to and for those reasons New Zealand First has no option but to oppose this bill.