Faafoi Kris: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Faafoi Kris: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1105. Text is incorporated into the Bound Volume.] 
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.