Parker David: Search and Surveillance Bill — In Committee 
Parker David: Search and Surveillance Bill — In Committee 
[Volume:678;Page:940] 
Hon DAVID PARKER (Labour) 
: 
 Can I first respond to something that the Green Party member David Clendon said. You know it is actually wrong to say except in respect of production and examination orders that this Search and Surveillance Bill extends Crown powers. For the Green Party member to stand here and tell New Zealanders that it does is wrong because it actually undermines public confidence in important democratic institutions including the police. So please do not make wrong accusations in respect of what I think is important law. You can say that you do not think the Crown should have those powers and that therefore they should not be carried forward but please do not pretend that these are new powers except in respect of the powers of examination orders and production orders for the police. 
Everything else is a carry-over and indeed there are areas in which powers are being constrained that were not previously constrained. The police gave up some of those powers. One example is that at the moment the police when they pull over a vehicle have got a right to search the vehicle even if they were pulling the driver over for a traffic offence. That is wrong. You should not have unreasonable search and surveillance and the police going on a fishing expedition in respect of a car. If my memory serves me right—and the Minister of Justice will correct me on this one—my recollection is that the police gave up that power which they currently have because they thought it was not appropriate. They agreed with the Justice and Electoral Committee that it was not appropriate. 
There is one other general thing I will say and that is that at the select committee we were told that there were new technologies pursuant to which search and surveillance powers were being exercised. The advice we had at the select committee was that the use of those powers was unregulated because they were not covered by old search and surveillance laws that were promulgated or passed by this Parliament before those new technologies came along. Between that time and now we have had the  
Hamed 
 decision of the Supreme Court which said that the advice that we were getting from officials was wrong and that in the absence of specific statutory authority the exercise of those new technologies was illegal. What the process threw up was that there are new technologies that I think everyone in this House agrees should at times be available to the police—for example video surveillance technologies. And the example that was used at the select committee by the Law Commission which was in favour of the extension of this power to the police was in respect of drug syndicates who draw the blinds and do not talk when they are describing where they are going to distribute their drugs. The only way that the police can get evidence of that activity is through video surveillance and that video surveillance technology is a form of technology that was not properly covered by prior technology. So either you do not have these powers at all or you have them and you regulate them properly so as to safeguard civil liberties and to protect the public from inappropriate intrusions by State agencies into their privacy. And what this bill tries to do is get that balance right between those two competing objectives. 
I would like to thank the select committee. I thought Chester Borrows was a very very good chair. He brought the experience of policing as well as his legal experience as a lawyer plus his experience in life. Together with other members of the select committee we sorted through a very very complex series of issues. We actually went to the extent of producing another draft of the bill. It was so complex that we thought we should put it out to a second round of consultation after we fixed up some of the things that were of particular concern to submitters because you do not want people having unnecessary concerns that the State is getting unwise powers of search and surveillance. So I would thank the Government for that. But there is one glaring issue in this and in all of these pious talks about how we are rationalising the powers of search and surveillance for all agencies. Well we are generally for the police and most other agencies but not for the Security Intelligence Service which has got separate legislation which was tidied up last year. 
The other glaring anomaly is the Serious Fraud Office. The Serious Fraud Office has got broader powers than any other State agency. It does not have to get a warrant to exercise its powers to issue a production order or an examination order. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
Hon DAVID PARKER 
: I had just turned to the issue of the Serious Fraud Office just before the dinner break and I was responding to one of the claims made by Mr Macindoe from National that this law was standardising rules relating to different arms of the State whether it is the Pork Industry Board—I think that was one of those listed—Housing Corporation New Zealand or the many statutory bodies that are listed at the back part of this schedule where the different powers of the Meat Board and the board for health practitioners’ competence assurance are allocated the different powers that arise from the bill. They do not all get the same powers but one way or another all of the powers of these various arms of the State are regulated through this legislation. Of course the most important of all of those for most investigative processes is the police but excluded from this is the Serious Fraud Office. 
The reason that Part 1 has got an amendment in my name to add the Serious Fraud Office director into the interpretation section is that we need to have the Serious Fraud Office brought into this. As my friend Charles Chauvel has said this was blocked by Government members and by the then Minister of Justice’s refusal to cooperate through alternative processes that could have fixed this under the old Standing Orders. Those Standing Orders said that a matter was outside the scope of the bill even if it was within the scope of the subject matter if the Act that was to be amended by the bill was not listed in the bill that was before us. We could not have an amendment that effected that other Act that is not listed even though it was within the scope of what we were talking about. That silly rule within the Standing Orders has not been carried forward into the Standing Orders for this Parliament. That is a good change and can I thank members from all sides of the House for cooperating on that change in the Standing Orders. What it effectively means is we can now fix it in this bill. We actually do not need to have any special process other than a vote in this House to say we can fix the Serious Fraud Office powers at the same time because it is within scope. 
Why should we be concerned about this? Media freedoms are absolutely essential to the health of democracy. Media freedoms are necessary to maintain public institutions. Countries that do not have media freedoms have more corruption they have less public confidence in public institutions they have poorer outcomes they have poorer societies and they have more human rights abuses. So we must be very very careful to protect media freedoms. 
In New Zealand there is one glaring exception to pretty good laws in terms of media freedoms and that relates to the Serious Fraud Office. The Serious Fraud Office can issue a production order or an examination order against the press from its own office. It does not need any judicial oversight which was one of the things that was referred to by Cam Calder in his contribution when he was saying why people should have confidence in this law and that people had to have judicial oversight to get a warrant. The Serious Fraud Office does not have to. It has got two routes it can go: a warranted route or a production order examination route. What does it do in practice? It takes the easy route and it does not get a warrant. 
By an internal administrative act of the Serious Fraud Office it can tell the media that it wants them to hand over their documents—that is what a production order does. It did not happen since the Serious Fraud Office legislation was passed until 2 years ago when under this Government the Serious Fraud Office issued a production order against the  
National Business Review 
 ordering it to produce its documents in respect of the  
National Business Review 
 inquiry into the failure of South Canterbury Finance. The  
National Business Review 
 was then faced with the situation that if it refused to comply with that production order then it would be in breach of the law and committing a criminal offence. It would be subject to fines plus other criminal penalties both the journalists if they were the ones who got the production order and the owner of the  
National Business Review 
. So immediately the  
National Business Review 
 is put in breach of the law. What did it want to do? It just wanted to protect its source. Why should it protect its source? Because if the sources of the media are not protected they do not talk to the media and there is a public interest in the media being able to report things that are adverse to governments or to politicians. We might not like the times when we think the media’s criticisms of us are wrong when we think they are a bit superficial or where they are a bit hurtful. We might not like it but we must always defend the right of the media to do that because that is what protects the health of our democratic institutions—rooting out corruption and rooting out mistakes when they are found. In the case of the  
National Business Review 
 there were hundreds of millions of dollars of wasted money.