Parker David: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Parker David: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1104. Text is incorporated into the Bound Volume.] 
Hon DAVID PARKER (Labour) 
: 
 I will just follow that issue through a bit with the Associate Minister of Justice because clause 57(1) of the Search and Surveillance Bill says that a declaratory order can be made by a judge only when he or she is satisfied that the activity is reasonable and lawful. The  
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 decision said that trespassory search and surveillance that did not have express legislative authority is unlawful. That is the effect of the  
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 decision. So this can never work in respect of a method of search and surveillance that involves trespass on private property be it a car or a house in a way that was being envisaged when the bill was at the Justice and Electoral Committee. This whole thing has turned round because one of the ways in which this was justified at the Justice and Electoral Committee was that we were told where there was no express authorisation of a surveillance technique that required it to be warranted that surveillance technique was as a consequence of common law decisions legal because it was not required to be warranted. The  
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 decision said that that proposition was wrong. So when this declaratory order provision was being thought through it was being seen as a way to protect civil liberties by perhaps encouraging the police to go for some sort of judicial oversight of what was lawful but might be unreasonable if done a certain way but done another way might be both lawful and reasonable. We now know that in respect of trespassory search and surveillance that is not expressly authorised by legislative authority for the enforcement officer it is unlawful and therefore clause 57(1) cannot apply. So I think Minister that that can never apply except in respect of non-trespassory surveillance where  
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 says that you can have non-trespassory surveillance that is not expressly authorised and that does not infringe the New Zealand Bill of Rights Act. So that is my first point. 
My second point develops the theme that Charles Chauvel was developing. I listened to Charles and I thought that that was right and I am convinced by that argument that we ought not to have this advisory role for the courts. He was referring to the effect of a higher court decision on in practice the decision that is subsequently taken by a lower court. But let us just consider the actual case in point. Let us say that the evidence was gathered and then was challenged by the accused at trial. Are we saying in respect of the later decision as to whether that evidence ought to be admitted under the judicial discretion to admit illegally obtained evidence that is so serious as to warrant being admitted despite the fact that it is illegal evidence—and that discretion does exist as law as we have seen in respect of Tame Iti and others in the Tuhoe case—that we are so naive that we think that that exercise of discretion at trial will not be influenced by the declaratory order? Well I think it would be naive to say that and if it is naive and if it would influence it well that is wrong. We have an adversarial system but here on an ex parte basis just one side is being heard. In this case the police telling the judicial officer what they think without the other side of the case being put on behalf of the accused—who may be innocent; they are an accused not a guilty party; merely an accused—would be wrong. 
The Labour Party has prepared an amendment—and we would encourage the Greens New Zealand First the ACT Party and others to consider it carefully—to expunge these particular provisions from Part 3 so that declaratory orders are not carried forward. This will cause no great hole in our justice system. There have never been declaratory orders in existence until now. Declaratory orders were not needed in order to preserve the admissibility of the evidence in respect of some of the serious offences alleged in the Tuhoe case. Illegally obtained search and surveillance evidence was none the less admitted to court under the discretion that the court has to admit evidence even though it has been illegally obtained. So there are lots of protections for the public out there already. We do not need this one as well to confer additional powers on State agencies to embark on search and surveillance measures. So I would ask the Minister in the chair the Associate Minister of Justice to address this issue as to what is the effect of this in light of  
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 when it is not lawful.