Dalziel Lianne: Search and Surveillance Bill — Third Reading 
Dalziel Lianne: Search and Surveillance Bill — Third Reading 
[Volume:678;Page:1251] 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I am pleased that I have the opportunity to follow on from the Hon John Banks because I think I should respond to his challenge to the Labour Opposition as to why it is not supporting the passage of the Search and Surveillance Bill despite the fact that there have been some negotiated changes that were resolved in discussions with the Minister of Justice who I believe has gone certainly a long way to addressing a number of the concerns that we shared with the ACT Party. However there is a very strong dividing line between ourselves and the ACT Party on this point and that is that if this is as good as it gets then it is not enough for such a far-reaching bill. 
I want to remind this House yet again what the introductory comments from the commentary from the Justice and Electoral Committee actually stated because I think these words identify the true problem with the legislation that is about to pass into law: “This bill is intended to implement a comprehensive reform of search and surveillance legislation both as regards the core substantive law enforcement powers and the way search powers are exercised across the statute book. Many of the proposed changes are based on the Law Commission’s  
Search and Surveillance Powers 
 report (NZLC R97). Currently the search and inspection powers to be amended by the bill are spread across 69 different Acts with many inconsistencies in the procedures applying to the exercise of powers. Some of these statutes are up to 50 years old and do not cover technological advancements adequately. The bill codifies existing case law in some areas while in other areas it clarifies aspects of the law that are unclear. Some of its provisions are entirely new and reflect technological developments or reforms carried out in other jurisdictions.” 
 That is a worthy aim but it has not been met and the reason it has not been met is the absence of the Serious Fraud Office from its ambit. I want to traverse the history of why the Serious Fraud Office has not found its way into this legislation. We have to go back to a former Government back to a period when there was a Labour Government and a decision was taken by that Government to fold the Serious Fraud Office into a part of the police that was to be known as the Organised Crime and Serious Fraud Unit. That decision was taken by a Labour Government prior to the reference to the Law Commission which was asked to look at those 69 different statutes and to try to bring about some semblance of consistency and principle to the issue of search and surveillance across all of the agencies. 
So instead of having individual search and surveillance provisions across the individual departments that have search and surveillance provisions—we are talking about fisheries we are talking about immigration we are talking about all sorts of different departments of State—the idea was to give the Law Commission the important task of not only looking at the current framework but actually looking at how that might be made sense of in an integrated comprehensive way. But because the then Government had already decided that the Serious Fraud Office functions would be collapsed back within the police and a special unit set up within the police to take on organised crime and serious fraud the Law Commission itself did not include the Serious Fraud Office within the ambit of its consideration with that Law Commission report. 
That meant that the report of the Law Commission was not adequate to address a situation where we had a change of Government and the new Government had a change of policy and did not stand by that earlier decision but in fact wanted to retain the Serious Fraud Office as a separate agency. It was at that point that the problem arose because if the Government of the day had not changed after the 2008 election then we would have had a bill that implemented a comprehensive reform of search and surveillance legislation as the select committee has reported this bill back to represent. But it does not represent that now because of course the Government coming into office did not proceed with the bill we had in front of the House. It in fact introduced its own—this bill that we see before us today—and of course the absence of the Serious Fraud Office means that it is not the comprehensive piece of legislation or piece of reform that we would have hoped to see. 
I think it is very important that the Serious Fraud Office is included within this legislation and I do want to mention just briefly the provision in the legislation that requires the Act to be reviewed within a period of 5 years. I am little bit concerned about that and I am actually going to be quite optimistic about what it could mean. The particular provision I am referring to is clause 316 which says: “(1) The Minister of Justice must not later than 30 June 2016 refer to the Law Commission and the Ministry of Justice for consideration the following matters: (a) the operation of the provisions of this Act since the date of the commencement of this section: (b) whether those provisions should be retained or repealed: (c) if they should be retained whether any amendments to this Act are necessary or desirable. (2) The Law Commission and the Ministry must report jointly on those matters to the Minister of Justice within 1 year of the date on which the reference occurs. (3) The Minister of Justice must present a copy of the report provided under this section to the House of Representatives as soon as practicable after receiving it.” 
I am actually very keen about these kinds of review clauses. I think they are important in major law reform bills because they do put a requirement essentially on a Minister to undertake a course of action to ensure that our legislation remains up to date. So the review provision of this legislation is welcomed and we may—in fact we probably will—be in a position to make that reference ourselves. Charles Chauvel as the future Minister of Justice I am sure will be responsible for that. But I am thinking that it does not actually preclude the question that we have remaining from being looked at ahead of the review required under the legislation. That is because looking at the operation of the provisions of the Act will not identify in itself the effect of the absence of the Serious Fraud Office. So I think it would be very useful even as this bill passes into law if the Minister of Justice would indeed take the opportunity in the next wee while to start a review of the fact that the Serious Fraud Office is outside the bill. 
During the debate in the Committee stage I got the sense from both the Minister’s contribution and the contributions from some of the members in the Chamber that they felt that the Serious Fraud Office issue was an issue only because of the recent action in respect of it seeking material from the  
National Business Review. 
 But I want to remind this House that we were informed by the Law Commission when we were in Government that in fact it was a regular occurrence and that the extent of the Serious Fraud Office’s use of its powers was somewhat alarming. 
So I believe it is important that the Minister takes on board those concerns and has a further conversation with her colleague Anne Tolley who is now the Minister of Police about whether this is something that ought to be addressed. I just make this point. We advised the Government in November 2010 that when we were in Government the Law Commission had advised the Cabinet that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders. These orders do erode the right to silence and should be used sparingly. As we said over and over again during the Committee stage they were actually designed for organised crime for serious fraud—the white-collar crime we see in finance company failures—to enable the Serious Fraud Office to get the accountants who would otherwise be tied up with confidentiality to explain and produce documents in a way that would assist it in its cause. So it is unfortunate that we cannot support the passage of this bill but I hope the Minister has heard our concerns.