O'Rourke Denis: Search and Surveillance Bill — Second Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Search and Surveillance Bill — Second Reading 
[Sitting date: 01 March 2012. Volume:677;Page:772. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 The people of New Zealand need to ask themselves a very important question in relation to the Search and Surveillance Bill: are they willing to give up some important personal rights and freedoms in exchange for better law enforcement? Few would agree I think because the price is too high. People do not know that it is happening. It is up to us in this House to see that it does not. New Zealand First strongly opposes the bill. It does not protect personal rights and the benefits of better law enforcement cannot be bought at the cost of compromising important personal rights and freedoms. Parts of the bill will start New Zealand down the road to a police State. It is no exaggeration that the bill will do that. Some accuse the previous Labour Government of wanting a nanny State. Does this National Government want to move from a nanny State towards a Nazi State? If the Government is careless about compromising personal rights and freedoms then this House cannot be.  
The purposes of the bill for what it was intended are right and proper but it goes much too far. It partially abrogates some very important personal rights and freedoms. Reform of search and surveillance was needed. It consolidates and improves these powers which are current in 69 different Acts; it removes many inconsistencies; it codifies existing case law; it clarifies powers that too often are unclear; it provides regulation for high-technology devices used in surveillance; it seeks to ensure judicial oversight where it is needed; it places issuing functions for warrants in experienced hands; and it provides for public reporting of the use of powers and other safeguards. But these are not enough especially given the intrusive nature of some of the powers; the scope for abuse of personal privacy; the limitation on the right to silence; the scope for abuse of the use of private information and access by a great number of State agencies not just the police—and this can be extended further by Order in Council—and the lack of sufficient and effective objection procedures.  
The bill is a very large one but there are four areas of particular concern. In my view the most important of these is the provision for examination orders in a non-business context. Currently only the Serious Fraud Office can require a person to answer questions compulsory examination in serious fraud cases—a business context. But apart from the Serious Fraud Office power the law has protected the right to silence since the abuses of the Star Chamber in the 16th century. The right to force people to talk or face prosecution is a short distance from interrogation with force. I want to remind the House about the origin of the right to silence because it is an extremely important right that we must keep in mind here. In the Star Chamber in the 16th century people were forced to make an oath in which they were required to swear truthfully to answer questions put before them without knowing what they were being accused of. This created a “cruel trilemma” as it was described and the accused were forced to choose between on the one hand perjury if they lied to protect themselves contempt of court if they refused to answer or thirdly betraying their natural duty of self-preservation if they were forced to speak. The rejection of the procedures of the courts of Star Chamber eventually resulted in this right to silence principle and that right has remained enshrined in the common law tradition inherited from England and in the United States it is expressed in the Fifth Amendment to the constitution.  
These rights evolved and operate in Anglo-American jurisprudence—through rights expressed in one case in an entrenched constitution and in the other in Acts of Parliament which unfortunately as in this case can easily be changed. In Australia and New Zealand where police officers are still required at common law to inform an arrested person that they do not have to answer questions but that whatever they say can be used in court in evidence it is a very important right. The right is recognised in key international human rights documents such as the International Covenant on Civil and Political Rights. The European Court of Human Rights has held that “the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure”. In France the French code of criminal procedure makes it compulsory that when an investigating judge hears a suspect he must warn him that he has the right to remain silent to make a statement or to answer questions. In the United States the Fifth Amendment to the constitution codifies the right to silence and following  
Miranda v Arizona 
 in 1966 the Supreme Court has ruled that suspects questioned while in police custody must be told of their right to silence including during the execution of a search warrant.  
Clauses 31 and 32 of the bill would allow a senior police officer to apply to a judge for an examination order in a business context on reasonable grounds where there is reason to believe that an offence punishable by more than 5 years’ imprisonment has been committed and that is similar to the Serious Fraud Office right in serious fraud cases. So the police could then question a person and require answers. It is arguable whether even the Serious Fraud Office should have such a right even with judicial overview but it is a serious step to extend this to the police. But clauses 33 and 34 extend the police powers even further to any non-business case that as clause 34(a) states: “(i) involves serious or complex fraud that is punishable by imprisonment for a term of 7 years or more;” or “(ii) … an organised criminal group as defined in … the Crimes Act …”.  
This opens up a wide area for police for the use of compulsory examination and it should be opposed for that reason. It goes too far and fails to achieve the desired balance between the need for police powers to fight serious crime and the need to protect personal rights and freedoms. It is easy to lose those rights incrementally in these ways. The line may have already been crossed with the Serious Fraud Office having compulsory examination rights but at least the Serious Fraud Office is specialised; the police are not. There are requirements in the bill for reporting but they are not likely to be effective and we are likely to get on to a slippery slope so that the use of these powers becomes routine. Nor is the fact that the police would have to apply to a judge for an order a sufficient limitation either.  
Another area of concern is the power to be granted to enforcement officers for production orders. This is OK as far as it applies to a requirement by police for a person to produce a document in the same circumstances that apply to search warrants. If the circumstances are sufficient for a search warrant then they should be sufficient also for the production of a document. But one concern arises in cases involving telecommunications network operators who would be able to obtain call-associated data as well as the content of the message or document itself if it is stored in the normal course of business. Clauses 69 and 70 provide for an enforcement officer having the right to apply for a search warrant to apply for a production order and an enforcement officer is one listed in the schedule to the bill. The concern there of course is that there are a lot of those agencies referred to in the schedule of the bill and more may be added by Order in Council.  
So you have to ask the question: when will it stop? How many people ultimately will get those sorts of powers? It really just goes way too far. The freedom of the press is also an issue. Clause 130 recognises privilege for many groups of people and the rights of journalists are protected amongst them but— 
The ASSISTANT SPEAKER (Lindsay Tisch) 
: I am sorry to interrupt the honourable member but his time has expired.