Serious Fraud Office Amendment Bill

Committee of the whole House

I just have a quick question on the commencement date. The Act comes into force the day after Royal assent; presumably it’s because, based on what we see with Crown and Pikia, that this is something that the Serious Fraud Office (SFO), I’m assuming, already has the capacity in doing. However, the question I have is: does SFO actually have to the capacity to implement this right away, considering we have seen, for example, some cuts to SFO and there’s been talks of mergers, etc., as a part of the broader changes? So that’s, essentially, my question: does SFO have the capacity to undertake this now?

Committee of the whole House

Yes. I’d like to address a couple of those things. So firstly, just want to acknowledge our director of the Serious Fraud Office (SFO), Karen Chang, who, quite simply, is outstanding, and the entire SFO team. Yes, they have a lot of work on their plate, that’s no doubt about that, and they’re a relatively small agency, but they definitely know how to triage and prioritise. They are very good at that. Are they being absorbed or is there any changes to the SFO? Absolutely not. It’s important for us as a country. I think that your colleague made a very good speech earlier in the night about the fact that we have dropped behind a bit, in terms of corruption, and we want to reverse that; we are starting to reverse that. We are starting to head in the right direction and the SFO have played an important part of doing that in some of the pilots that they’ve rolled out over the course of the term of this Government.

So, yes, they are more than capable of being able to immediately adopt—in fact, they need this legislation because it’s made it very difficult for them to operate at the moment. So this is going to be a huge enabler for them.

Committee of the whole House

Thank you, Madam Chair. My question’s around commencement as well. A lot of that makes perfect sense: if you’re going to execute a search warrant the day after it comes into force, you’ve got a new set of rules; that’s fine. My question, though, is about commencement of clause 8, section 22 of the Act amended. This is the legal search section, right? So if there was a search conducted yesterday, which was illegal under the current law, the evidence cannot be used and the guy gets off.

So my question—you can see where I’m going with this.

Hon Mark Mitchell: Yes—yeah.

Hon Dr DUNCAN WEBB: So my question is about retrospectivity, because any person charged, the generic rule is you’re entitled to be charged with the offence as it was at the time it was committed. I don’t know what the rule is about the changing of what’s, essentially, arguably, a procedural rule, but also quite a substantive rule. I know that lawyers who are more detail oriented than me get really tied up whether the evidence is procedural or substantive. But it strikes me that it would be quite wrong for this legislation to validate a search and make evidence admissible. If it’s not admissible today, then it shouldn’t be admissible tomorrow. So I’d be interested to get your views on that.

Committee of the whole House

Yeah, thank you, Madam Chair. I think that’s a good question. But, look, to the first part of the question is that the reality of it was the Pikia case highlighted the fact that the Serious Fraud Office (SFO) didn’t have the legislation—like we were saying, it’s over 30 years old—and so the court ruled that some of the warrants and the notices were unlawful.

The SFO didn’t continue to operate in an unlawful way; they took notice of what the court ruling was and they had to change the way they were doing their work, but it made their work much more difficult. That’s why we’ve got this bill coming through the House now. The SFO have been working on this, they’ve been aware that it’s coming, and so they’ve been getting ready to operationalise and understand exactly what the new powers are and how they’re going to use them.

Hon Dr Duncan Webb: Are you going to be able to respond on the retrospectivity point?

Hon MARK MITCHELL: Well, the legislation is not retrospective, no.

Hon Dr Duncan Webb: So it’s not intended to be retrospective?

Hon MARK MITCHELL: No.

Clause 1 agreed to.

Clause 2 agreed to.

Bill to be reported without amendment.

House resumed.

CHAIRPERSON (Barbara Kuriger): Mr Speaker, the committee has considered the Serious Fraud Office Amendment Bill and reports it without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

ASSISTANT SPEAKER (Teanau Tuiono): This bill is set down for third reading immediately.

Third Reading