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:1124. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 I want to commend what David Parker said. I think it is true that as the debate has progressed our understanding of this very complex legislation has greatly improved. I think the interplay of Supplementary Order Paper 12 which dates from Tuesday 6 March—so it is just over 2 weeks old—with Part 5 of the Search and Surveillance Bill is a pointer to the complexity of the legislation. The complexity was brought home to me when I worked with David Parker to try to come up with some amendments to achieve the aim that we had discussed with the Minister the Hon Judith Collins but not managed to get agreement on which was the inclusion of the Serious Fraud Office. Part 5 is the part of the legislation that deals with all the other Acts of Parliament and all the other agencies that we are conferring a standardised set of rights and duties on in the search and surveillance area and David Parker mentioned some of them. We are amending legislation as complex as the Dairy Industry Restructuring Act 2001 and as banal as the Dog Control Act 1996. That is a pointer to the complexities here. 
But the other complexity relates to the interplay of the bill itself with the substantive Supplementary Order Paper 12 the 93-page set of amendments to the bill itself. I do have to say this in passing Minister: although I have praised you for your willingness to negotiate it would be in my view a little bit over the top to claim too much regard for process as an excuse not to deal with the Serious Fraud Office in this context. Given that your Supplementary Order Paper makes a series of pretty significant amendments to the substantive Act which have never been near a select committee or a public consultation process let us just not make too much of that point if it is to be used as a reason for not dealing with the Serious Fraud Office itself. 
 The Supplementary Order Paper itself basically makes most of Part 5 of the Act redundant. What it does is replace many of the references to the various agencies and powers with a new schedule to the legislation. In order to try to fit the Serious Fraud Office into the bill my amendment first of all would insert a new clause clause 276A into the bill. The reason that it would appear there is all due to the alphabet. It would insert amendments to the Serious Fraud Office Act 1990 between amendments to the Resource Management Act 1991 and amendments to the Sale of Liquor Act 1989 in alphabetical order. 
The amendments would be these. We would start off by repealing sections 5 and 9 of the Serious Fraud Office Act. Again to correct a point that the Minister made from the chair a little earlier this would not create any vacuum or lacuna in the powers of the Serious Fraud Office. It would happen on the enactment of this legislation and not before. So it would not lose any of its present powers. It would continue with its present powers up until this legislation got the Royal assent. But what the amendment would do would be to repeal sections 5 and 9 of the Serious Fraud Office Act. We have canvassed what those sections do but I think it was obvious from an exchange between Dr Calder and my colleague Ms Dalziel that we still have not managed to get this across. Section 5 of the Serious Fraud Office Act as it is framed now allows the Director of the Serious Fraud Office to require the production of any piece of paper. This requirement does not need to go before a court and it does not need a warrant. It does not need any safeguards. He can just say: “I want this piece of paper.” 
Hon David Parker 
: Or all these pieces of paper. 
CHARLES CHAUVEL 
: Or “All these pieces of paper.” or “This electronic version of the piece of paper or pieces of paper.” The director does not have to go to a court. He does not have to make a case. He does not have to undergo any process or safeguard in order to do that. He simply—and it is a he at the moment—issues this requirement and it must be complied with. So that is the first section that would go under this proposed amendment. The second section that would go is section 9 which gives a further power to the director again without any safeguard and without any need to persuade a judge or to get a warrant: “I want you in my office to answer questions at this time.” He can say that to anyone on any occasion and again there are very limited opportunities to object and certainly no requirement for prior judicial approval for the exercise of that power. So those sections would go and they would be replaced by two very simple provisions. Basically they would be replaced by existing sections 6 and 10 which would each be amended as follows. They would have the following words put in: “the provisions of Part 4 of the Search and Surveillance Act 2012” as it will be “apply.” 
So all that happens is that exceptional powers would be repealed and the Serious Fraud Office would be brought into the same regime that would apply to every other State agency bar the SIS once this legislation comes into force. It is a very simple surgical exercise and as David Parker told the Committee in his previous contribution this was something that was raised and discussed at the select committee. It was raised as I understand it by submitters as a desirable thing to be done. It was raised with the officials certainly by David Parker as something that he would like advice about it and as we know from the news media source he quoted it is something that was canvassed with him as the previous Minister and has now been canvassed with his successor the Hon Judith Collins. We have her response. 
It is OK that that response is no. We understand that. We do not like it and we do not agree with it but OK it is no. But let us not dress it up as a no that is based on any particular respect or regard for procedure or process. Let us just understand that it is a no. What members on this side of the Chamber are trying to do in this debate—and we have tried to do it in a civilised and restrained way—is point out that yes Dr Calder it makes a lot of sense to provide all these safeguards across the board in this bill. What it does not make sense to do is to leave the Serious Fraud Office out from the time that this bill starts to apply because you have one major agency of the State probably in light of what David Parker said the major agency that we need to have working well in this area. 
We want organised financial crime to be prosecuted and dealt with appropriately but it will stand out from the regime that we are putting in place in this bill. So all the good stuff all the protections all the procedures that you rightly praised Dr Calder still will not apply to this major agency. Those Draconian powers under section 5 and section 9 will continue to apply outside the framework of this bill. No dressing up of any arguments around process and procedure can hide the fact that that just does not make any sense. It is not logical. It leaves a major hole in the code that this Parliament now intends to enact relating to search and surveillance powers. Everyone else has protection. Everyone else must go to the court. Everyone else must get a warrant. Every one else must make a case to a judge—except the Director of the Serious Fraud Office. Again we can hear general claims about how important it is for these powers to continue but it does not make any sense within the scheme of this legislation.