Dalziel Lianne: Search and Surveillance Bill — In Committee 
Dalziel Lianne: Search and Surveillance Bill — In Committee 
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Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I kind of want to thank the member for attempting to put some history on the record but he is actually quite wrong. I think it is important to highlight the major difference. He said that a Labour Government had introduced the Serious Fraud Office and had given it extended powers or had increased its powers. We established the powers for the Serious Fraud Office and we did not give it powers that were currently held by the police. It had a special status in the legislation because it was dealing with such high-level fraud. 
When a Government establishes a new agency with significant powers as we did with the Serious Fraud Office it does actually pay to have a look at how that has operated in practice. Actually I do not think that anyone was very satisfied with how the Serious Fraud Office had utilised some of its powers. We have heard some discussion around the media which is why— 
Hon David Parker 
: Law Commission said take them off them. 
Hon LIANNE DALZIEL 
: We will deal with that when we get to the wider part of the bill but the reason we can focus on the Serious Fraud Office is my colleague’s amendment where he brings this into the definition section. I think that what the Law Commission actually recommended—and I think Simon Bridges might do well to reflect on what he tried to advise the Committee—was taking the powers away from the Serious Fraud Office. It was not saying to extend the powers to the police; it was saying to take them away from the Serious Fraud Office. 
But as it turned out there was a very simple solution to all of this because the previous Government which was the initiator of this legislation actually wanted to re-merge the Serious Fraud Office into the police. 
Simon Bridges 
: Disband—disband. 
Hon LIANNE DALZIEL 
: Disband the Serious Fraud Office and put all of its functions within the police. And I will tell you what: there are a lot of people in the police force who believe the decision to separate it off from the police should never have occurred in the first place. 
Simon Bridges 
: They don’t want to be dealing with white-collar crime. They can’t be bothered. 
Hon LIANNE DALZIEL 
: I am getting chipped by the member across the way that the police do not want to be involved with that sort of crime. I think a former chair of a select committee who is a former police officer and a former lawyer will actually tell you exactly what I am telling you and that is that the police never recommended it. I can tell the member that the amount of concern that was expressed to a previous Labour Government when Richard Prebble was the Minister of Police was extraordinary. The point that I want to make is that it was made very clear by the Law Commission that there was no need to expand these powers. In fact it recommended that they not be carried over. That was the decision that we made. 
Let me just read this out. This is the history as written to the previous Minister of Justice by our own shadow Attorney-General at the time: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office (“SFO”) into a new Organised Crime and Serious Fraud Unit within the Police. At the time the Law Commission advised the then cabinet that the SFO was in the habit of routinely using their powers to use production and examination orders. These orders do erode the right to silence and should be used sparingly. They were never intended to be a substitute for normal investigative practice but rather were intended as a reserve power to be used to unpick serious fraud when normal investigative means will not suffice. They enable information to be gathered from mainly third parties who hold information as agents who owe their principals a duty of confidence but who are able to cooperate given the legal authority of a production or examination order. … Largely because these powers had been overused by the SFO the recommendation was not to carry these powers over into the new combined agency. The proposal to completely remove these powers was criticised.”—and I actually think members of the then Opposition were among the chief critics—“In response I with the approval of my then cabinet colleagues went to see various Queen’s Counsel in Auckland who worked on SFO cases. I met with various prosecution and defence counsel. All of those I met with agreed the SFO was overzealous in its use of their powers but all but one also thought it would be wrong to remove the power entirely.” 
I hear members asking when this letter was written. It was written on 9 November 2010. It then went on to say: “There was in the end widespread agreement that the power for the SFO should be constrained but carried forward. We then in cabinet concluded that if the powers were necessary in a constrained form for the SFO then a constrained version of the powers was justified for Police investigations of serious organised crime some of which bears similarities with the complexity of serious fraud and can be more pernicious.” The point was made that the National Opposition at that time campaigned against the merger of the Serious Fraud Office into the police and upon election halted that merger. The letter then continued: “The proposal to confer upon the Police powers to obtain production and examination orders when investigating serious organised crime continued and is being given effect to by the SSB.”—this Search and Surveillance Bill. 
That is where I totally disagree with Simon Bridges. This is extending the power of search and surveillance the production and examination orders. It is for the police and they are matching it with a power that has been overused and abused by the Serious Fraud Office. That is this Opposition’s objection to this part of the bill going through without reintegrating the Serious Fraud Office into the legislative framework. The way that the legislation was originally framed was based on our assumption that there would be a merger between the two organisations and those powers would be carried forward but in a modified form. But what has really happened is that the Government has said “Well these are the Serious Fraud Office powers; we will just give those powers to the police.” 
Hon David Parker 
: More constrained. 
Hon LIANNE DALZIEL 
: They are more constrained for the police. 
Hon David Parker 
: Which makes a nonsense of not— 
Hon LIANNE DALZIEL 
: It does make a nonsense of bringing the whole thing together. 
So it is really important that the Serious Fraud Office is included as part of this legislation. It is important because I think that the Government has agreed simply to subject the Serious Fraud Office to reporting conditions. But the bottom line is that that does not solve the problem we have got in terms of the way the Serious Fraud Office has been operating. And to have it excluded from the operation of the bill actually prevents us from using this one opportunity to resolve the outstanding issue which is that the Serious Fraud Office has been using the examination orders that were supposed to be used in a relatively rare environment in a way that was totally unexpected by the Government of the day and it was expedient too in terms of its real obligations to investigate matters. 
And if people think this does not matter I point out that it does tie back into this whole question of access to information that has been collected for example by the media. The one thing that protects people from being ripped off by finance companies and things like that is when the media is threatened with defamation suits if they are to expose these goings-on. If they know that information they have received in confidence can in fact be disclosed to the Serious Fraud Office and held by it then that will make it very very difficult for people to come forward and be as open with them as they possibly can. 
So I think that this is a very simple amendment that was not possible when the bill was in front of the Justice and Electoral Committee essentially without an instruction from the House to the select committee to make the amendment. That is no longer the case and I therefore think that there is really nothing standing in the way of making the expansion to cover the Serious Fraud Office as mentioned in the amendment put forward by my colleague the Hon David Parker and then also at that point of addressing the anomaly that then exists between the two. I think there is an important reason why we need to have a uniform approach in this particular area and the Serious Fraud Office approach is not the one that we in this House want to see continued. That is why we are not supporting the passage of the bill. I do agree that there is not much left that divides us but this is a critical point of division. If we could find a resolution to this and the other matter that is standing before us but is not subject to this particular part of the bill then I believe we would be able to get the level of passing in this House that we should find acceptable in this arena.