Collins Judith: Search and Surveillance Bill — In Committee 
Text is incorporated into the Bound Volume 
Collins Judith: Search and Surveillance Bill — In Committee 
[Sitting date: 20 March 2012. Volume:678;Page:1113. Text is incorporated into the Bound Volume.] 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 Thank you very much for the opportunity to speak in the Committee stage of this bill the Search and Surveillance Bill. First I would like to thank the members who have spoken on this part Mr Chauvel and the Hon David Parker. They have been good contributions and I would like to thank them for the work they have been doing to try to get as much agreement as we can on this. There are a couple of issues that have been raised by them. 
Mr Chauvel has raised an issue around the safety or security really of documents that have been seized by police under a warrant where a claim of privilege has been raised. There has been some concern that once the documents are in the possession of the police or the court they are effectively disclosed. I do not agree with that. The police or other agency must not search the thing secured and that is in clause 139(c) in the bill itself. 
The courts are generally trusted with highly sensitive matters on a very regular basis—for example with details that are suppressed. If we do not trust our courts with this information then we would be in a very sorry state and I am pleased to say that we do trust the courts. In all cases a hearing would be held to determine whether the claim of privilege should be upheld. If it is not upheld the police or other agency could use the document or computer file containing the name or the journalist would be required to tell the police the name in the case of an examination order. 
If the police or other agency did search the document computer file this would itself be a breach of the law. Of course as we know with electronic footprints it is pretty easy to tell these days exactly who has been looking in what and where things have come from and I believe very much that that would be disclosed. In addition it is an offence under the bill to disclose information acquired in the exercise of a search or surveillance power production order or examination order other than in the course of a person’s duties functions or powers. 
There are also other avenues of redress including complaints to the Independent Police Conduct Authority and police also conduct internal investigations when officers breach procedure. For many officers if they undertook that work they would in fact essentially lose their jobs. So I do not think that we should think that police officers cannot comply with the law. In fact they do all the time. 
Another issue that the Hon David Parker has raised and I think it is a valid issue is around the Serious Fraud Office and I am happy to address that. There are a couple of issues here. He wrote as he told us before to the former Minister of Justice about the Serious Fraud Office and he wanted the Serious Fraud Office included in this bill. One of the issues with that is that the Serious Fraud Office has never been included in this bill and I understand the reason why which was that the Labour Party was committed to bringing the Serious Fraud Office into part of the police so in fact it would actually receive the powers under this bill when it went through. 
But let us be frank here. This bill has been hanging around since 2007. It has been a long time. This Government is being quite committed to the bill and we are now in year 4 of the term. If we had in fact waited for this bill to come into force and got rid of the Serious Fraud Office as the Labour Party wanted us to do we would have spent 3 or 4 years—4 years in this case—waiting for some of these powers to be available for the police. 
So we would have had the police not being able to undertake examination orders or production orders and if the Serious Fraud Office was not there it would not have been doing it either at the very time when we have had disclosed some of the worst financial crimes that we have seen since the 1980s. So I think really to say “Get rid of the Serious Fraud Office.” at that time was somewhat premature given that search and surveillance legislation and the production orders and examination orders regime were not actually in place. I understand what those members are doing and there is a lot of logic in what they are saying but it is about having things in the right order. It would have meant that we would not have had that power available to police. 
The other issue they have raised is this: why can I not bring the Serious Fraud Office in now? For a start I actually think process is relatively important on things like this. The Serious Fraud Office has never been part of the bill and therefore the public have never been asked to submit on whether or not the Serious Fraud Office should be under this regime or whether or not it should remain with the powers it has had since 1990. I think to suddenly at this late stage—and I acknowledge that the Hon David Parker wrote to my predecessor about this— 
Hon David Parker 
: A year and a half ago. At a late stage—a year and a half ago. 
Hon JUDITH COLLINS 
: The member says it was a year and a half ago but I would also ask whether the member followed it up. 
Hon David Parker 
: I did on a number of occasions. 
Hon JUDITH COLLINS 
: Since I have been in? I think it is fair to say though that at this late stage and as the new Minister of Justice I am not prepared overnight or even over a month to decide to change the powers of the Serious Fraud Office without that matter having first gone to a select committee. It is the sort of thing where we have discussed what we should do with the Serious Fraud Office over the powers. We have had allegations made and I think we have heard those around alleged misuse of the powers by the Serious Fraud Office. The only example given to me was when the Serious Fraud Office served production orders on the  
National Business Review 
 once last year. 
Just on that one issue I do not think we should be completely changing the law that has been in place since 1990 and which by the way was brought in by the then Labour Government to deal exactly with the same issue that we have just dealt with over the last few years which is massive financial crimes that were discovered as a result of the financial meltdown in the 1980s. Let us not kid ourselves. These crimes were happening before. They were simply discovered and the discovery really came about because there was in fact a run on money and therefore they got discovered. 
We have also now got the Financial Markets Authority in place which I think is doing a far better job than its predecessor the Securities Commission. So we do know we have some better processes in place. But I do not think it is right for me to come along and make a decision to rein in the powers of the Serious Fraud Office without some serious debate in public in the select committee. 
The other issue in relation to those Serious Fraud Office powers is that they are very very refined in terms of whom they serve the orders on. We are not talking about everybody who has contact with the New Zealand Police. We are talking about a very select group of people. I believe that the same reason that these powers were brought in in the first place is still there now—the same need. 
But also a production order is essentially a bit like a search warrant except that instead of having a police officer charging through looking at everything that you have got in your property they ask you for what it is that you have. So in other words it might be something like: “I want these reports from this this and this.” and for a person subject to it that is a whole lot different from and a lot less onerous than a full search warrant where everything can be looked at. 
So I think just because lots of the public do not know that there are production examination orders that does not mean to say that they necessarily are very scary and difficult things. It is simply that most people thankfully have never had to be subject to them because they are not the people whom the Serious Fraud Office is after.