Parker David: Search and Surveillance Bill — In Committee 
Parker David: Search and Surveillance Bill — In Committee 
[Volume:678;Page:954] 
Hon DAVID PARKER (Labour) 
: 
 The irony of this is that the Minister of Justice has just listed a large number of protections in the Search and Surveillance Bill that surround the use of examination order powers that are being conferred to the police. The first point Mr Bridges is that those powers do not currently exist in respect of production orders for the police. This is a very very significant new power being conferred to the police. It is a very important exception to the right to silence. At the moment in New Zealand we have a right to silence. We do not have to cooperate with the police and answer their questions. There are lots of reasons why that historically has been the case. There are lots of societal reasons why it is that you do not want to compel people to give evidence against their friend. They often choose to do so but you do not force them to because you create tensions in society that amongst other things bring the police into conflict with the population and therefore the population is less likely to cooperate with the police in the future. There is an overriding objective that we want to maintain cooperation with the police. That is but one reason. You do not want to be pushing members of the family against another member of the family. So we do not compel people to talk to the police. We encourage them to do so but we do not compel them to. 
Another reason is that if you compel people to talk to the police it does not mean to say that you can compel them to tell the truth. You are more likely to get fictitious evidence if people are forced to talk to the police or to the other authorities than if they do so voluntarily. So those are the reasons why we do not normally compel people to talk to the authorities. Those are some of them; I do not have time to go into all of them. 
But there are occasions when it is important that the police release people from obligations of confidence that they owe to their principal. For example an accountant who is involved quite innocently in a money-laundering operation for a drug ring cannot disclose that information voluntarily to the police and some of it might not be recorded in a way that can be obtained through a search warrant getting documents. So you release the accountant or the lawyer from their obligation of confidence and they will be willing to talk but they cannot talk without being released from that obligation of confidence. That is why on occasions it is appropriate to have examination orders. 
This can be justified in some circumstances but you have to be very careful that you are not opening this gate too wide as we found with the Serious Fraud Office. What are we doing here? Well the bill came to the Justice and Electoral Committee already with more protections than exist in respect of the Serious Fraud Office but the select committee added even more. The Minister’s Supplementary Order Paper adds more protections still in respect of the police which is a good thing. What did we add? We were already saying that it had to be through a warrant. It had to be through a warrant. It is now made clear that the warrant can be issued only by a judge not by a registrar. The Serious Fraud Office does not even have to get a warrant. It is done by internal administrative acts. What a nonsense—what a nonsense! 
I come to the second protection. The bill came to the select committee saying that the offence that was being investigated had to be imprisonable. We upped that in the business case to something that had a period of imprisonment of 5 years or more. So it is a lot more serious than when it came to the select committee. There is no equivalent provision in the Serious Fraud Office legislation. The next thing the select committee did is in respect of a non-business situation. The threshold is even higher: it has to be 7 years or more of imprisonment as the penalty under the offence before you can get an examination order. 
Then as the Minister said if this is ever used against the media—and it should not be generally but if any of it was—you have to close off the potential that it could be. You cannot have an absolute prohibition because actually it is possible that members of the press can be corrupt and involved in criminal conduct themselves. It is very rare but it can happen so you have got to leave that possibility open. You have got to put protections around it so that it is not abused. How do you do that? Well you actually say that anything that comes of it can be objected to through this process that the Minister referred to. By relying upon privilege they can claim that they should not be forced to give evidence. We have heard reference from the Minister that there are various sorts of privilege that could be claimed—legal professional privilege I think was one of them. Was medical privilege mentioned? I do not know that it was. There was legal professional privilege and also the interests of media freedom. How do you assess that? You actually put it in front of a judge to make that assessment rather than letting the police make the assessment themselves. How is that different from the Serious Fraud Office? The Serious Fraud Office does not have to do that. It does not have to do that. So at the moment we have got the Serious Fraud Office being able to go to the media force them to answer questions and put the journalists and the news media company at risk of criminal prosecutions because their refusal to answer questions—unless they are claiming the privilege against self-incrimination—and their protection of a source is illegal. It is illegal in terms of the Serious Fraud Office legislation and that exposes them to criminal penalties. 
How can that be right? It is not right for the police. The select committee the Government and the Minister have already agreed that we need protections and more protections but the Government will not move on this protection for the media. Why will it not? There is no principle behind this. Ask yourself why it will not. The answer is that it is trying to position the Opposition—and we heard the Minister in the chair the Hon Judith Collins say this in her second to last contribution—and say that because we oppose this bill we are soft on crime. That is what the Government is trying to do here. That is what it has been trying to do for 2 years. It has been trying to say that because we are taking a principled position for the protection of the media through making sure that the same protections that are in the bill in respect of examination orders for the police and media protection also apply in respect of Serious Fraud Office actions. The Government says that because we are taking that principled position we are soft on crime. No Minister what we are doing is protecting civil liberties. 
One of the most important civil liberties is maintained through a free media—a free media who are unconstrained in their ability to investigate things that have gone wrong to investigate corruption and to make sure that corruption does not happen again. That is what happens if you investigate and shed light on it: people get prosecuted Governments fall and there is a disincentive to corruption. That is how you keep a clean democracy. If you cannot investigate corruption properly because the media sources will not speak up because that source could be disclosed under an examination order by the media or be forced to be disclosed by the Serious Fraud Office you undermine democracy and that is precious to me. 
That is really precious to me and that is why I am quite happy to say that the existing law is wrong and that the Law Commission was right to recommend to the prior Government that this power be constrained. In fact the Law Commission originally recommended that it be taken away completely from the Serious Fraud Office. After it considered again and there were submissions it actually got to the point where the Law Commission and the department—I should not forget the Ministry of Justice—agreed that there should be a constrained version of this power eventually. But this Government will not do it. This Government says that it is not going to. It is not going to because for political advantage it is trying to position the Labour Opposition which is trying to protect media freedoms and our democratic institutions and trying to say that that makes us soft on crime. What is soft on crime Minister is your Government which does not see that this sort of law exposes our democratic institutions to the risk of corruption to the risk of negligent behaviour not being exposed and to the risk of losses such as we had with South Canterbury Finance when hundreds of millions of dollars in extra money was lost because of according to the Auditor-General Government inaction in terms of letting the loan book grow and that sort of thing. 
That sort of thing cannot be as well investigated by the media if their sources are at risk. That is why this bill is so important. The amendment that is in my name extends the same protections that are there for the media in respect of the police—now that they are getting this additional power—and says that those same controls should be on the Serious Fraud Office. I think it is patently clear that they should be. I think that most people think that. The media freedom committee thinks they should be all of the newspapers think they should be the radio thinks they should be and the TV thinks they should be. That is why this game that the Government is playing trying to say that our actions on this are soft on crime is actually not working for it. Instead the Government looks shady as it is. This lines up— 
Simon Bridges 
: Every time you say it David people at home think you’re soft on crime. 
Hon DAVID PARKER 
: Mr Bridges’ contribution is to say that this does show us to be soft on crime. This is the man who just told this House there was no extension to police powers in this legislation which was completely wrong.