Ardern Jacinda: Search and Surveillance Bill — First Reading 
Ardern Jacinda: Search and Surveillance Bill — First Reading 
[Volume:656;Page:5416] 
JACINDA ARDERN (Labour) 
: 
 It is my privilege to again follow my colleague opposite on this matter. He is obviously learned in this area. 
I want to reflect on the comments made by Mr Guy on the justification for the Search and Surveillance Bill. When giving the reasoning behind the bill he mentioned mostly that the existing legislation was old and therefore change was justified. Although the current legislation is 50 years old its being old is not reason enough to change it—and we could use Roger Douglas as an example of why that might be the case. Having said that there are very good reasons why we should look to review the current provisions for search and surveillance which are spread across a number of different Acts and which we would well benefit from pulling together. As has already been mentioned the bill will be referred to the Justice and Electoral Committee of which I am pleased to be a member. The committee has been particularly busy over this last period and obviously the area we are looking at here is a clear focus for the current Government. 
On bills such as this one it is really important that we go back to the first principles of what we are trying to achieve and on what it is important to retain at the end of the process. My colleague David Parker pointed that out really articulately. Firstly we have a responsibility to ensure that our law enforcement agents are given the powers required to do their job within certain boundaries. The second element concerns those boundaries and the need to ensure that we maintain the protection and rights of citizens. I believe that this House has already seen that tested. For instance the Criminal Investigations (Bodily Samples) Amendment Bill which is currently before the Justice and Electoral Committee is a test of the boundaries of some of those rights. There is a challenge to see as our modern crime-fighting tools move on how far we should allow those tools to be used in the investigation of criminal acts. 
I want to talk a bit more about that balance and to make an international comparison. Before I came into this House I had the opportunity to work on a review of policing in England and Wales under Sir Ronnie Flanagan who led Her Majesty’s Inspectorate of Constabulary in the UK. I guess one could say he was the equivalent of the Commissioner of Police. One of the areas in the UK that he wanted to look at was the rising amount of bureaucracy in the police force under that jurisdiction. He was interested in what had triggered the increase in bureaucracy and that was the element of the review I worked on. What became quite clear was that in the UK there had been an increase in the powers granted to the police but rather than testing whether those powers should have been granted in the first place the immediate response was to put layers of accountability checks which came in the form of bureaucracy on top of those powers. For instance keeping everything in writing was seen as a counterbalance rather than the questioning of principles at the time. 
Probably one of the best examples was the stop and search powers that existed in the UK. In the UK police officers are able to stop and search any individual or person they suspect of having committed a crime without there being much check on that. I will reflect again on how that is portrayed in this bill where at least we have a balance. In the UK in order to provide a counterbalance any police officer who exercised stop and search powers or who even questioned where an individual was going would then fill in a lengthy form. The consequence was that the individual who was stopped felt as though his or her details were being recorded for a massive database. One can see why people might assume that given that the UK is the most watched nation in the world and one might argue one of the most heavily bureaucratic as well. So that is a clear example of where powers went to a particular point and the assumption was that a layer of bureaucracy would be enough of a protection for citizens when in fact it was not and gathering of information in and of itself was seen as an invasion of people’s privacy. 
I reflect on that because in the Search and Surveillance Bill we see a quite lengthy discussion on the use of warrantless powers for the gathering of information that may be useful for tackling various criminal acts. These are set out in Subpart 4 through to Subpart 7 in Part 4. In each of these subparts I am pleased to see that the bill is very explicit and that although a police officer may have the right under particular circumstances to act without a warrant this is kept in check by the fact that it may be only for an imprisonable offence of 14 years or more. So already we see a counterbalance in there that is not bureaucracy-based but based on a standard that is recognised and understood in law and which means that an element of seriousness must first be present before a police officer may act in that way. I think it is a useful attempt at ensuring that we have balance. That provision applies for the gathering of evidence and material from a vehicle and in relation to the Misuse of Drugs Act. I think it would be useful for the select committee to spend a little bit more time on that area because it strikes me as being much more open-ended than some of the other subparts of the Search and Surveillance Bill in relation to warrantless searches. 
I want to refer quickly to the reporting mechanisms that have been added to the law itself. It is interesting that in drafting this bill it was obviously seen as important that we have the counterbalance of including the reporting procedures. We did not see that in the UK and that was another reason why the bureaucracy became out of control as a measure of accountability. I think it is useful for the Government to point out its expectations from the outset when it comes to reporting. Otherwise reporting can be a mechanism that is used on the job as an accountability measure and a way for individual law enforcement officers to say they have done what was required ticked a box and filled in a form and that the accountability does not need to go beyond that. 
 These reporting structures are much broader. They set out on an annual basis the information that the Government expects to be provided to this House on the use of warrantless searches and I think that is useful. Those provisions are contained in Subpart 7 in Part 4. In clause 162 it says explicitly: “Any person who exercises a warrantless entry power search power or surveillance power conferred by this Act or by a relevant enactment must provide a written report on the exercise of that power to an employee designated to receive reports of that kind by the chief executive …”. It also sets out the information that must be included within that report including a short summary of the circumstances surrounding the exercise of the power and the reasons why it needed to be exercised as well as statements on whether any evidential material was seized and whether any criminal proceedings have been brought or are being considered as a consequence of that evidential material. 
I point out that we must ensure that the putting of reporting mechanisms into this bill does not become an excuse or a justification for the broad use of what are very far-reaching powers. That is why I am pleased to see that clause 163 states that those reports must come to Parliament. It will be up to members of this House to ensure on an annual basis that the powers within this Act are being used in the way that this House intended are not being misused by law enforcement agents and are achieving the ends that were intended. 
As a member of the Justice and Electoral Committee I look forward to going into greater detail on the other aspects of this bill and to ensuring that we have struck the crucial balance between the individual liberties of members of the public whilst also ensuring that we adequately reinforce our law enforcement agents.