Parker David: Search and Surveillance Bill — First Reading 
Parker David: Search and Surveillance Bill — First Reading 
[Volume:656;Page:5412] 
Hon DAVID PARKER (Labour) 
: 
 As has been stated by earlier speakers on behalf of the Labour Party we are supporting the Search and Surveillance Bill’s referral to a select committee. Search and surveillance legislation is a necessary part of the laws of any modern democratic country. Either one has rules that regulate the extent of police powers or one has no rules. If there are no rules then the only way to effectively do these things is by diktat. In democratic countries we rely upon getting the balance right between the powers of the State to search and seize and the right of individuals to freely go about their lives without interference through having appropriate legislation. When we design this kind of legislation we always have to be mindful about powers that can be abused. 
When I come to considering legislation like this I do not think about the current Government or the previous Government both of which are relatively benign on these matters; I try to think about what could be the worst-case scenario in which these powers could be abused. We ought not to pretend that the risk of governmental excess or executive excess does not exist in New Zealand. We are lucky to have long proud traditions of pretty moderate ways in which Governments be they Labour-led or National-led have approached these matters over the years but we ought not to be lulled into a false sense of security that on that basis we should be giving Governments of any persuasion wider powers than they really need. Because of the complex issues to be balanced reforming law in this area is something that we in New Zealand are good at depoliticising. 
I think it is easier for parties and for the public to have confidence in this legislation because the Law Commission has been central to the reports that led to the drafting of this legislation. The Law Commission is made up of some pretty wise men and women including very senior members of the judiciary who have been in their careers for a long long time. They understand the balance required between having civil liberty and giving appropriate powers to the police to apprehend and prosecute criminals. In addition the Law Commission has people who have been politicians as well as academics like Sir Geoffrey Palmer. 
The Law Commission brings considerable wisdom to bear on these issues. If members ever have the chance to read its reports as most members of Parliament do they will see that it approaches these things in a considered way. It shows both sides of the argument before balancing the different interests to be weighed and coming up with recommendations to Parliament that we in Parliament generally find that we are able to agree with. That does not mean to say that we delegate our decision-making role to the Law Commission; we do not. In the end it is our responsibility to decide whether the law changes proposed by the Law Commission go forward but generally we pay great heed to its endeavours because it takes time and goes into the detail of these matters in a way that is really impossible for us to do as politicians. 
In this case the legislation that is being reformed by the search and surveillance legislation is sometimes over 50 years old. That legislation was designed primarily with a view to the powers that the police needed 50 years ago given the technology of the time. A number of things have changed since then often in a piecemeal way as we in Parliament have grappled with new issues that were not around when the original police powers were last legislated for. The piecemeal additions include things like the Biosecurity Act 1993 the Fisheries Act in various incarnations the Health and Safety in Employment Act the Reserve Bank of New Zealand Act the Tax Administration Act the Electricity Act and the Gas Act. All of these different Acts of Parliament for good reason give different arms of the State powers of search and seizure. Because a somewhat ad hoc development of powers has been given to different agencies inconsistencies have crept into the law in some of the finer provisions. 
This legislation attempts to standardise some of the legal tests that apply as a prerequisite to people being able to exercise powers of search and seizure. It does that in a number of ways. For a start it states that some things cannot be done except in the most exceptional circumstances. I take considerable comfort that my personal liberties are being protected by this proposed legislation. Clause 5 states that internal searches are generally prohibited so a policeman or a policewoman or any other official of the Government in another department cannot just come along to me and say that he or she wants to give me a personal invasive body search—and that should be the case. There are only very limited exceptions to that prohibition and those exceptions are so limited that they ought to be expressly set out in law. Members will not be surprised to see that the express exception relates to the Misuse of Drugs Act because of course it is possible to secrete drugs upon one’s body and an internal search can be deemed necessary in cases dealing with the Misuse of Drugs Act. 
The other thing that is made clear in this bill is the legal test that applies as a prerequisite to being able to get a search warrant. The person who is seeking the warrant has to satisfy the person who is granting the search warrant that he or she is satisfied that there are reasonable grounds to suspect that an offence punishable by imprisonment has been committed is being committed or will be committed and to believe that the search will find evidential material in respect of that offence. That is a paraphrase but it is the essence of it. That wording has had a lot of work done on it. A lot of consideration has gone into the exposition of the proper wording of the prerequisite threshold that has to be met before someone gives a warrant. That standard currently differs across different statutes and it is desirable that it be standardised in the way that is being proposed here. 
There are some limited circumstances where someone can carry out a search without first getting a warrant. The warrant protection is appropriate. One needs to convince a judge that the police should have the power to infringe someone else’s rights to privacy rather than just giving the police the power to use their warrant powers. 
If members or listeners want an illustration of how people given excessive powers can use them excessively the Serious Fraud Office is an example. It has two ways in which it can gather evidence. The first is that it can go through the normal process and get a warrant and the second is that it can exercise some additional powers and do things because it can. Despite the fact that in probably 90 percent of cases the Serious Fraud Office could use the warrant route because it has had the power to use the short-cut route it has chosen to use that instead. In the majority of cases it has used its short-cut route rather than the warrant route. That is an illustration of why we need to take care that we have judicial oversight of these things because I have no doubt that in some of those situations the breadth of the information the Serious Fraud Office sought through the warrantless process was probably wider than what would have been agreed to by a judge or some other body that had oversight. So I for one think that generally the Serious Fraud Office should have to have a warrant. I also recognise that there are exceptions. Those exceptions are properly set out in the legislation. 
One final thing that I think should be looked at by the select committee is the power to require people to answer. We have a right to silence in New Zealand. There are exceptions for Serious Fraud Office investigations. They might be valid but the granting of wider powers to require people to answer questions is something that the select committee needs to consider quite seriously.