Search and Surveillance Bill

The first part of this bill contains the preliminary and interpretation provisions and provides that the Act will bind the Crown. One of the most important aspects of lawmaking is to ensure that any bill is consistent with human rights values, particularly when there is some concern about the powers that a bill may grant.

The purpose clause was inserted in the bill by the Justice and Electoral Committee, which acknowledged that the bill required clarification as to how it interacted with the New Zealand Bill of Rights Act 1990 and other Acts that conferred rights. The insertion of the purpose clause ensures that the rights affirmed in the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006 are recognised in conjunction with the law enforcement powers granted under the bill. The inclusion of this purpose clause highlights the importance of human rights values in the context of search and surveillance powers.

The purpose of the bill also makes the necessity of this bill clear by recognising that investigative tools must be effective and adequate for law enforcement needs and the need for modernisation. Search and surveillance powers were spread across the statute book in 69 different statutes, and the powers these statutes authorised did not take into account technological developments in methods for the high-tech environment within which criminals now operate.

Law enforcement must be able to combat offenders by using methods that are able to overcome evasive techniques that criminals use. The bill allows the police and regulators to do this, provided that the techniques used are reasonable and regulated. In the light of the Supreme Court decision in the Hamed case last year, which questioned the lawfulness of covert surveillance, Parliament passed the Video Camera Surveillance (Temporary Measures) Act 2011. I appreciate the way in which members from the other side of the House worked with the Government to pass that Act.

The expiry of the temporary legislation on 17 April this year means that the Search and Surveillance Bill must be enacted by then to prevent a number of ongoing investigations from being jeopardised. To that end, I have tabled a Supplementary Order Paper to provide for the relevant parts of the bill to commence on 18 April 2012, as well as a number of other amendments.

I would just like to take the opportunity to thank those members of the House who worked on this bill in the select committee. Also since then I have been working with Charles Chauvel from the Labour Party, and I thank him for his cooperative manner. I have also been able to send to each party a copy of the major Supplementary Order Paper that I have tabled. I would like to hope that people now feel far more at ease with some of the amendments that have been made. So, thank you, and I will enjoy hearing everyone else’s contributions.

I would like to begin by agreeing with something that the Minister of Justice said, and that is that the process by which parliamentarians have sought to make this a better bill is to be commended by the Committee at this point. In my second reading speech I recounted the history of this measure, and I think nobody could dispute the proposition that the Justice and Electoral Committee, chaired by Chester Borrows at the time, with the Labour team led by my colleague David Parker, paid exhaustive attention to improving this bill. The select committee members really did take their parliamentary duties very seriously in trying to fashion a better measure, so I think what the Minister says in that regard is correct. This bill has had a long gestation period. We can see from the amendments to Part 1 of the bill that the select committee did not simply take a once-over-lightly approach. It did look long and hard at how it could make a better bill.

I think one of the best examples of that is the purpose clause that the select committee inserted, clause 4A, where the select committee clearly thought it needed to provide some guidance to the courts. Members will know that courts look increasingly at purpose clauses, when Parliament inserts them, for guidance about how the rest of the Act should be construed. The purpose clause here is instructive. It speaks about “(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies;”—I think the next paragraph is the most important paragraph—“(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006;”—and, lastly—“(c) ensuring investigative tools are effective and adequate for law enforcement needs.”

The primary importance of this purpose clause, as I have noted, is paragraph (b), because the importance of the specific freedoms that are affirmed by the New Zealand Bill of Rights Act, the Privacy Act, and the Evidence Act are repeated. The courts are to have regard to these freedoms when construing the rest of the legislation, and this is of cardinal importance.

The Minister in her introductory remarks mentioned that this is a Law Commission - prompted attempt to bring into line the search and surveillance powers of the State that are currently scattered across nearly 70 pieces of legislation—69 I think was the number that the Minister mentioned. With that being the status quo, if the Committee reflects for a moment on how difficult it is for enforcement agencies let alone the courts, let alone any other participant in the system, to know just what search and surveillance powers exist in respect of any particular Act or any particular agency, it will become apparent that it is a generally desirable exercise to bring those powers together in one statute, and that is what this legislation will do if it passes.

But there is one omission in the bill—one significant agency that is not brought within the purview of the legislation—and a number of speakers on the Labour side tonight intend to do their best to persuade the Committee that this is an omission that ought to be rectified. We will be tabling amendments as we go through the debate, part by part, where those amendments relate to the parts under discussion, and we will be attempting to bring into the legislation the Serious Fraud Office. This is a matter that I have had some discussions with the Minister about. David Parker has had extensive correspondence with the Minister’s predecessor about it. The reason that it is relevant to the debate in this part is that David Parker intends, if he has not already done so, to table an amendment—

💬 Hon David Parker: It’s done.

—he tells me he has—that brings the definition of the Serious Fraud Office and its director into the interpretation provisions of the bill.

My understanding of the reason that the Serious Fraud Office was not originally brought into the bill is that there was previously a Standing Order that provided that if a bill was not amended by the introductory version of a bill, then it was very difficult without, for example, suspension of the Standing Orders or the unanimous leave of the House to deal with that legislation by way of amendment in later stages. That Standing Order has not been re-enacted in the current version of the Standing Orders. So what I am really putting to the Minister in the chair, the Minister of Justice, is that, given that this procedural difficulty was said to be the prime reason for not being able to bring the powers of the Director of the Serious Fraud Office into line with the 69 other agencies that are going to be dealt with by this bill, it seems that we in the Committee stage now have a last opportunity to do that, and to standardise this one last great standout of enforcement powers. The amendments that my colleagues and I will table during the course of the debate will seek to do that.

Here is why this is important. The Director of the Serious Fraud Office, by sections 5 and 9 of the Serious Fraud Office Act, has the most extraordinary powers. He can, without a warrant, without the permission of any other official, politically or otherwise appointed, require the production of any document, and he can require any person to come before him and answer questions. These are very, very wide powers. The Minister will tell us later in the debate about her Supplementary Order Paper 12, which is designed to try to overcome some of the concerns we have raised about media freedoms, and the reason why unfortunately her Supplementary Order Paper does not quite get there is because the powers of the director remain untrammelled and unfettered. So what I am really asking the Minister and the Committee to do in this debate is to use this final opportunity to bring those powers into the standardised regime that we are considering tonight.

What the amendments that we will deal with later, starting with the amendment to the interpretation clause that David Parker has tabled, would do is do away with the powers that I have described. They would retain the powers that the director has currently under sections 6 and 9 of the Serious Fraud Office Act 1990 to go to court and seek by warrant the extensive range of powers that he needs to do his job—we all acknowledge that—and those powers would be then controlled by Part 4 of this bill. In other words, they would be brought into line with all the other enforcement powers that we are conferring on every other agency by every other statute. That means not only that the media freedom issue that we have raised, which is a very serious one, would be comprehensively dealt with pretty much by the amendments put forward by the Minister in Supplementary Order Paper 12 but also that media freedom would not be threatened by the standout Draconian powers that would be left with the Serious Fraud Office if we do not deal with them in the way that I have suggested.

My concluding plea to the Committee is to have a good think about this as we remind ourselves that the only reason that the Serious Fraud Office is not in the legislation, apart from the Standing Orders accident that I referred to earlier, is that there was a proposal by the last Labour Government to merge the Serious Fraud Office and the police. Because that proposal, as I understand it, was on foot when the Law Commission considered this issue, it did not deal with the powers of the director. Well, that is a historical anomaly. It is one that we have the chance to rectify, and if we do, it will go a long way towards meeting our concerns.

It is a pleasure to rise and take a brief call in this Committee stage of the Search and Surveillance Bill. I would like to compliment the Minister of Justice, the Hon Judith Collins, on the work she has done and her collaborative approach to this very important legislation. I have in my hand a 93-page Supplementary Order Paper that has been created to update the amendments necessary in the numerous statutes covered by this bill. The amendments take into account the developments since 2010, when the bill was reported back to the House.

I was speaking briefly earlier on protecting human rights. It has been a concern in respect of the discussion around this bill. The Search and Surveillance Bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights, and there are a number of safeguards in the bill to achieve this. First of all, we all realise that the bill adheres to the basic concept that independent authorisation is needed before exercising search warrants—independent authorisation is needed before exercising search warrants and search powers. Enforcement officers must justify the exercise of the search powers to neutral issuing officers. They must justify these powers to neutral issuing officers, which is an important safeguard. There are detailed reporting requirements to the issuing officer, the chief executive of the relevant agency, and to Parliament on the exercise of the search and surveillance powers, and these thus allow the search powers to be monitored to ensure that they are used properly and not being abused. The Act, of course, as is noted, will be reviewed in 2016 to ensure that it is operating properly. Thirdly, and also very importantly, this bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act to be free from unreasonable search and seizure.

Other safeguards are also important. Enforcement officers who make false search warrant or surveillance warrant applications will be penalised. More serious powers, like examination orders, may be authorised only by judges, and that is an important thing—

💬 Charles Chauvel: I raise a point of order, Mr Chairperson. I apologise for interrupting Mr Calder. I wonder whether he might be giving the speech that he intended to give about the short title and commencement, rather than about the provisions that are under debate at the moment.

The CHAIRPERSON (Lindsay Tisch): I just remind members we are on Part 1, and to concentrate on Part 1.

I just make the final point that issuing officers may be removed from office for neglect or misconduct. Thank you.

I am pleased to speak in this Committee to this bill, the Search and Surveillance Bill, which the Greens are opposing. We have opposed up to now and will continue to oppose—no surprises there, I am sure.

💬 Simon Bridges: Name some bills you’ve supported, David.

It would take a great deal for the Greens to support this bill. I think it would require amendments to the extent that it would no longer be the same bill.

The reason we are opposing, clearly, is that this bill goes far too far in terms of compromising people’s reasonable expectations of privacy in the name of apparently protecting our rights as citizens, enabling the police and other agencies—many other agencies—to go about their business. We recognise, yes, there is a legitimate requirement for surveillance, for observation, for recordkeeping, for being quite intrusive in the interests of us all, but this bill goes many, many steps too far in terms of what it allows.

This bill clearly is written to be as inclusive as possible. One only has to begin with Part 1, “General provisions”. The interpretations, which are clearly modelled, are designed to enable rather than to restrict or to control. They are quite simple things. In clause 3, in paragraph (b) of the definition of “business context”, the definition of some of the people who may be investigated includes an employee. An honest, innocent employee of an entity being investigated can find themselves subject to the provisions of this bill. A person’s private personal information may be compromised simply because they are an employee of an organisation, an entity, that may for some reason be of interest to one of the many State agencies that get powers under this bill. “Evidential material”, again in the interpretation clause, includes “evidence or any other item, tangible or intangible, of relevance”. That is an extremely broad-brush interpretation. It allows for virtually anything tangible or intangible—we assume that means, of course, electronic data—that may be of relevance. Who makes that test of relevance?

With regard to the definition of what constitutes or may constitute an “interception device”, I do not think it will give much comfort to any of us to know that hearing aids are specifically excluded and may not be used to spy upon us.

💬 Charles Chauvel: And spectacles.

Or spectacles—yes. It includes “any electronic, mechanical, electromagnetic, optical, electro-optical instrument, … [any] other device that is used or is capable of being used to intercept or record a private communication”. These are incredibly broad, wide-ranging, inclusive interpretations. There is no reasonable effort made here to limit the powers that are offered by this legislation; to the contrary.

We heard a reference by the previous speaker, Dr Cam Calder, to the issuing officer role. It is interesting to note that clause 106 allows the Attorney-General to nominate—to empower—people like judges and justices of the peace as issuing officers. It also allows the Attorney-General to nominate any other person for a period of 3 years, meaning issuing officers may be virtually anybody. The Attorney-General of the day decides who would be an appropriate person to sit in that role. I will speak more in this context later when we consider the Minister of Justice’s very substantial Supplementary Order Paper in terms of the inclusiveness and the broad-ranging nature of the definitions, the interpretations.

There are already very significant powers available in terms of electronic investigation, particularly. I was in a court earlier in the week, and without needing to comment on the substance of that hearing—

💬 Simon Bridges: What were you up on?

No, I was observing, Mr Bridges. I was simply observing, as one does. It was interesting listening to the evidence of a computer forensics specialist, who was revealing some of the capacity that already exists within existing law and legislation to investigate what has gone on on people’s computers. This legislation, if it is passed in the form the Minister wishes, will capture not only computers; it will capture phones, it will capture iPads. Virtually any electronic device will be fair game for any person who wants to investigate. These are extraordinarily broad-ranging powers.

We are told clause 4A, “Purpose” clearly defines the purpose of the Act. “The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences”—it certainly does that—“in a manner that is consistent with human rights …”, and there is specific mention in paragraph (b): “providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act …”.

I take issue with that. It is good, yes, as Mr Chauvel noted, that reference to the New Zealand Bill of Rights Act is in there, but we need to concede that the New Zealand Bill of Rights Act in itself is an extremely weak document in terms of—if you do any sort of international comparison—a section of the existing New Zealand Bill of Rights Act that denies any court the right to overturn or annul any enactment that may be at odds with the provisions of the New Zealand Bill of Rights Act. We routinely see reports to this House that say particular proposed legislation is at odds with the New Zealand Bill of Rights Act, does not meet those provisions, and yet we are able to enact those provisions. That is a fundamental weakness in the New Zealand Bill of Rights Act. Reliance on it is clearly not sufficient, nor indeed with other privacy legislation, the Evidence Act, and so on. We can take very little comfort from the fact that the New Zealand Bill of Rights Act, for example, is referenced in this bill. We know that this House can very readily—and routinely does—subvert the good intention of that Act. We tend to wear our freedoms very lightly in New Zealand.

We have a history, I guess, of trusting Governments and legislation, and indeed enforcement agencies. The provisions of this bill, I believe, play on that trust in a very unhelpful manner. I think people will be astonished when they discover just what the level of intrusion is that this bill will allow, that these parts of the bill will allow. There is very little in this bill that increases the protection, the rights of citizens to be secure in their homes, in their privacy, and in their private communication, even between family members, between spouses, and certainly in a business context. There is virtually nothing that will be sacrosanct, that will not be amenable to the intrusive powers given to such a wide range of agencies within this bill.

There are later parts, as I said, but I do think that right up front in the bill, the purpose of the bill is spelt out very clearly. It is intended to make it easier for New Zealanders’ privacy, for their private communications, for their private business, and their day-to-day activities to be observed, recorded, and imposed upon. There is very little, if anything, in this bill that we see that adds appropriate balance to the protection of our civil liberties and human rights. Thank you.

I am happy to assure the previous speaker, David Clendon, that the rights of law-abiding citizens are not infringed by the Search and Surveillance Bill. In fact, on the contrary, this represents a very elegant solution to a significant problem and one that is of considerable public interest. I too would like to join my colleague Dr Calder in commending our new Minister of Justice for the considerable body of work that she has done on this bill since she assumed her new portfolio, and for the very detailed Supplementary Order Paper that she has produced to respond to some concerns that had been made apparent to the Justice and Electoral Committee when it looked at the earlier version of it. The important thing is to ensure that we get it right so that the provisions and the impact of the bill are appropriate in the modern context.

I am very happy to speak on Part 1 of the bill. The previous speaker has just referred to clause 4A, which is the purpose of the bill. It is important to have that purpose clearly understood—that the Search and Surveillance Bill will provide a comprehensive regime of search and surveillance powers under a single statute. Let us not underestimate how important that is, because the many bills that have existed and have come together in a piecemeal fashion over five decades now have become, as the Law Commission pointed out, a bit of a jumbled mess. It was the Law Commission that recommended—in fact, it urged in 2007, during the period of the previous Government—that there should be one bill “to bring order, certainty, clarity and consistency to the sprawling mass of statutory powers of search and surveillance scattered throughout the statute book.” And the Law Commission identified a need to address the glaring gaps where the law has failed to keep up with changes in modern society; we all know that it is a vastly different society even from 10 years ago with the rapid speed of technological development. It seems that every year there are new gadgets that open new possibilities for things that could be—

💬 Simon Bridges: Evil—evil-doing.

—as Mr Bridges is pointing out, in the wrong hands used to ill effect. So we need to ensure that our laws are relevant, but also, as Dr Calder has pointed out, that we are mindful of the human rights provisions—the important human rights of all law-abiding citizens. I have to say I do not have a lot of interest in the human rights of those who are not interested in obeying the laws, because quite often they threaten our safety, our security, our homes, our elderly, and the vulnerable in our society. Everything that we can do within lawful means to give our law enforcement agents the ability to apprehend them is vital.

The Search and Surveillance Bill consolidates police powers from several different pieces of legislation, as well as case law. There are also some new powers, such as examination orders, production orders, surveillance device warrants, and a warrantless power to preserve evidence of serious offences punishable by 14 years’ imprisonment or more. Those are very serious offences that we are considering here, and we need to be mindful of just how important it is for us to deal with them, to provide our law enforcement agents with the ability to apprehend such significant criminal offending.

But these new powers are balanced by safeguards to protect human rights and the right to privacy. How does it do that? Well, my colleague Dr Calder began to speak about that. The bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights values. There are a number of significant safeguards in the bill to deal with that, and I am sure that those who are listening will be reassured by this. First, the bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. Secondly, there are detailed reporting requirements to the issuing officer, to the chief executive of the relevant agency, and to Parliament on the exercise of search and surveillance powers. These allow search powers to be monitored to ensure they are being used properly and not being abused. And, as Dr Calder mentioned, the Act will be reviewed in 2016 to ensure it is operating properly. So there are quite a number of reassurances and safeguards there. Thirdly, the bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act, which was mentioned by Mr Clendon a few minutes ago, to be free from unreasonable search and seizure.

There are other safeguards in the bill, which include the provisions that enforcement officers who make false search warrant or surveillance warrant applications can and will be penalised, that more serious powers such as examination orders may be authorised only by judges, not just by any issuing officer, and that issuing officers from an agency cannot issue warrants to enforcement officers from the same agency, to ensure neutrality and impartiality.

Can I first respond to something that the Green Party member David Clendon said. You know, it is actually wrong to say, except in respect of production and examination orders, that this Search and Surveillance Bill extends Crown powers. For the Green Party member to stand here and tell New Zealanders that it does is wrong, because it actually undermines public confidence in important democratic institutions, including the police. So please do not make wrong accusations in respect of what I think is important law. You can say that you do not think the Crown should have those powers and that therefore they should not be carried forward, but please do not pretend that these are new powers, except in respect of the powers of examination orders and production orders for the police.

Everything else is a carry-over, and, indeed, there are areas in which powers are being constrained that were not previously constrained. The police gave up some of those powers. One example is that at the moment the police, when they pull over a vehicle, have got a right to search the vehicle, even if they were pulling the driver over for a traffic offence. That is wrong. You should not have unreasonable search and surveillance and the police going on a fishing expedition in respect of a car. If my memory serves me right—and the Minister of Justice will correct me on this one—my recollection is that the police gave up that power, which they currently have, because they thought it was not appropriate. They agreed with the Justice and Electoral Committee that it was not appropriate.

There is one other general thing I will say and that is that at the select committee we were told that there were new technologies pursuant to which search and surveillance powers were being exercised. The advice we had at the select committee was that the use of those powers was unregulated, because they were not covered by old search and surveillance laws that were promulgated or passed by this Parliament before those new technologies came along. Between that time and now we have had the Hamed decision of the Supreme Court, which said that the advice that we were getting from officials was wrong, and that, in the absence of specific statutory authority, the exercise of those new technologies was illegal. What the process threw up was that there are new technologies that I think everyone in this House agrees should at times be available to the police—for example, video surveillance technologies. And the example that was used at the select committee by the Law Commission, which was in favour of the extension of this power to the police, was in respect of drug syndicates who draw the blinds and do not talk when they are describing where they are going to distribute their drugs. The only way that the police can get evidence of that activity is through video surveillance, and that video surveillance technology is a form of technology that was not properly covered by prior technology. So either you do not have these powers at all or you have them and you regulate them properly so as to safeguard civil liberties and to protect the public from inappropriate intrusions by State agencies into their privacy. And what this bill tries to do is get that balance right between those two competing objectives.

I would like to thank the select committee. I thought Chester Borrows was a very, very good chair. He brought the experience of policing as well as his legal experience as a lawyer, plus his experience in life. Together with other members of the select committee we sorted through a very, very complex series of issues. We actually went to the extent of producing another draft of the bill. It was so complex that we thought we should put it out to a second round of consultation after we fixed up some of the things that were of particular concern to submitters, because you do not want people having unnecessary concerns that the State is getting unwise powers of search and surveillance. So I would thank the Government for that. But there is one glaring issue in this and in all of these pious talks about how we are rationalising the powers of search and surveillance for all agencies. Well, we are generally for the police and most other agencies but not for the Security Intelligence Service, which has got separate legislation, which was tidied up last year.

The other glaring anomaly is the Serious Fraud Office. The Serious Fraud Office has got broader powers than any other State agency. It does not have to get a warrant to exercise its powers to issue a production order or an examination order.

Sitting suspended from 6 p.m. to 7.30 p.m.

I had just turned to the issue of the Serious Fraud Office just before the dinner break, and I was responding to one of the claims made by Mr Macindoe from National that this law was standardising rules relating to different arms of the State, whether it is the Pork Industry Board—I think that was one of those listed—Housing Corporation New Zealand, or the many statutory bodies that are listed at the back part of this schedule, where the different powers of the Meat Board and the board for health practitioners’ competence assurance are allocated the different powers that arise from the bill. They do not all get the same powers, but one way or another all of the powers of these various arms of the State are regulated through this legislation. Of course, the most important of all of those for most investigative processes is the police, but excluded from this is the Serious Fraud Office.

The reason that Part 1 has got an amendment in my name to add the Serious Fraud Office director into the interpretation section is that we need to have the Serious Fraud Office brought into this. As my friend Charles Chauvel has said, this was blocked by Government members and by the then Minister of Justice’s refusal to cooperate through alternative processes that could have fixed this under the old Standing Orders. Those Standing Orders said that a matter was outside the scope of the bill even if it was within the scope of the subject matter, if the Act that was to be amended by the bill was not listed in the bill that was before us. We could not have an amendment that effected that other Act that is not listed, even though it was within the scope of what we were talking about. That silly rule within the Standing Orders has not been carried forward into the Standing Orders for this Parliament. That is a good change, and can I thank members from all sides of the House for cooperating on that change in the Standing Orders. What it effectively means is we can now fix it in this bill. We actually do not need to have any special process, other than a vote in this House, to say we can fix the Serious Fraud Office powers at the same time, because it is within scope.

Why should we be concerned about this? Media freedoms are absolutely essential to the health of democracy. Media freedoms are necessary to maintain public institutions. Countries that do not have media freedoms have more corruption, they have less public confidence in public institutions, they have poorer outcomes, they have poorer societies, and they have more human rights abuses. So we must be very, very careful to protect media freedoms.

In New Zealand there is one glaring exception to pretty good laws in terms of media freedoms, and that relates to the Serious Fraud Office. The Serious Fraud Office can issue a production order or an examination order against the press from its own office. It does not need any judicial oversight, which was one of the things that was referred to by Cam Calder in his contribution when he was saying why people should have confidence in this law and that people had to have judicial oversight to get a warrant. The Serious Fraud Office does not have to. It has got two routes it can go: a warranted route or a production order examination route. What does it do in practice? It takes the easy route and it does not get a warrant.

By an internal administrative act of the Serious Fraud Office, it can tell the media that it wants them to hand over their documents—that is what a production order does. It did not happen since the Serious Fraud Office legislation was passed until 2 years ago when, under this Government, the Serious Fraud Office issued a production order against the National Business Review, ordering it to produce its documents in respect of the National Business Review inquiry into the failure of South Canterbury Finance. The National Business Review was then faced with the situation that if it refused to comply with that production order then it would be in breach of the law and committing a criminal offence. It would be subject to fines plus other criminal penalties, both the journalists, if they were the ones who got the production order, and the owner of the National Business Review. So immediately the National Business Review is put in breach of the law. What did it want to do? It just wanted to protect its source. Why should it protect its source? Because if the sources of the media are not protected, they do not talk to the media, and there is a public interest in the media being able to report things that are adverse to governments or to politicians. We might not like the times when we think the media’s criticisms of us are wrong, when we think they are a bit superficial, or where they are a bit hurtful. We might not like it, but we must always defend the right of the media to do that, because that is what protects the health of our democratic institutions—rooting out corruption and rooting out mistakes when they are found. In the case of the National Business Review, there were hundreds of millions of dollars of wasted money.

I want to take, I hope, a reasonably short call just in regard to Part 1 of the Search and Surveillance Bill, and really elaborate on the commonality National members have with Labour members, but also, I suppose, underscore some of the differences. I want to start, as I say, by really agreeing with what the Hon David Parker said at the start of his contribution before the dinner break, where he said that actually the Greens are entirely wrong to say that we are not united on most of this. The fact of the matter is that there was an exceptional select committee process. I know that this is the kind of thing that is often said in this House, perhaps by some somewhat insincerely, but it is true to say that when members of the Justice and Electoral Committee sat around—and I agree with David Parker on this and commend the then chair, the now Hon, Chester Borrows for the way it was handled—we went into it very much with a view that we were not going to increase the powers of the State. I remember sitting down with charts and diagrams and we went through the various agencies and their powers before and after, and I think we were scrupulous in that regard to have here a bill that does not—and contrary to what the Greens say—essentially increase the powers of the State. To some extent—

💬 Hon David Parker: Except for production.

I will come to the Hon David Parker’s point; I am not going to short-change him on that.

💬 Hon Lianne Dalziel: Because you are actually nailing the point.

I am going to come to that. The basic point still holds, though, that, actually, in relation to the vast majority of this bill, most of this Parliament is united. We are not trying to increase powers. We are trying to bring this law into the modern day, to, as Cam Calder has spoken about, keep up with this ever increasing flow of technology.

I do want to deal with the Serious Fraud Office, because, yes, there is some disagreement. David Parker, and I do not criticise him for this, has given, can I say, a Labour version of the history of the Serious Fraud Office. That is fine, but the fact of the matter is the Serious Fraud Office was, originally, as I understand it, set up by a Labour Government, by Sir Geoffrey Palmer.

💬 Hon Lianne Dalziel: Actually, it was Richard Prebble.

Back then, they gave—OK, Richard Prebble, good friend of Lianne, I am sure.

💬 Hon Lianne Dalziel: He is—we’re very close.

Lianne and Richard share the same sort of general philosophy of politics and life in general. Coming back to the point, it was set up by a Labour Government. The powers that were given then were generally seen as right, and they increased the powers for the Serious Fraud Office. They gave the Serious Fraud Office more powers—to do the sorts of things that David Parker was talking about—than were given to other authorities. I accept that Labour perhaps had a change of heart in Government, and we know that David Parker’s Government with, I think, the assistance of New Zealand First, wanted to disband the Serious Fraud Office. I am not going to go into the reasons for that, but that is—

💬 Hon David Parker: No, to merge it.

Well, they wanted to disband—they say merge with the police, I say disband—the Serious Fraud Office and have the police running this sort of thing, and, as I recall it, with the same powers that the Serious Fraud Office have, actually. But, in any event, the point is that is the history. So I think we do need to be clear on the history.

But I want to say this: there are actually very good reasons—there is a strong rationale—for giving the Serious Fraud Office different and, in fact, increased powers than a whole lot of other State agencies such as the police have. And the reason for that is this. Day in, day out the Serious Fraud Office is dealing with exceptionally complex white-collar crime that cannot easily be solved. It is being perpetrated by very sophisticated customers, and the Serious Fraud Office does need, I am sorry to say, when it is dealing with these people, the sorts of powers that it has had and, I think, should continue to have.

I do not want to become a legal historian, but I know that earlier, when we debated, I think, the second reading of this bill, Denis O’Rourke talked about the Star Chamber. I think it is right to remember that the rationale for the right to silence and many of the, I suppose, now fundamental tenets of our legal system came from a system where, in the United Kingdom, illiterate people could not defend themselves. They were being bamboozled, they did not understand what was going on, and from that we got a right to silence so they would not have words put in their mouths, and they would not be signing things that they did not understand. That is a world away from what the Serious Fraud Office is dealing with day in, day out. It is dealing with sophisticated white-collar criminals, and the rationale for the right to silence and many of those things just does not hold up at quite the same level, when we are talking about those kinds of people, as it does when we are talking about the sorts of people Denis O’Rourke was talking about in his speech in the second reading.

In summary, what I am really saying to this Committee is that, actually, the vast majority of members in this Committee agree with most of this bill. They believe that we are not increasing vastly the powers of the State. I accept there are differences when it comes to the Serious Fraud Office’s powers, but what I am saying is that when you look at the history, you see that Labour, in fact, was the one that signed us up to a Serious Fraud Office with increased powers. The rationale for giving the Serious Fraud Office powers that other State agencies do not have is pretty strong.

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.

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.

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.

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.

They are more constrained for the police.

💬 Hon David Parker: Which makes a nonsense of not—

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.

I would like to add my voice to those of my learned legal colleagues who have spoken on this bill, the Search and Surveillance Bill, and to pick up Lianne Dalziel’s point that it would be a very good thing if this House could pass legislation of this nature, which finds a fine balance between the need to give powers to the State to carry out its task of crime fighting and the need to protect fundamental individual liberties. If we could find common ground on this and pass this legislation by an overwhelming majority, I think that would be good for the country.

Clause 4A sets out the purpose of the bill, and it sets out the need to balance those two factors. I would remind Simon Bridges that, of course, this legislation was introduced under a Labour Government. It was introduced for a very good cause and it was not done in haste. I think the Law Commission started looking at this issue in 2001 and finally reported in 2007. There was nothing rushed about that process and I think it did a good job. We recognise the need for comprehensive reform, and we recognise that you cannot have 69 different Acts, some of them up to 50 years old and out of date, and have a cohesive and coherent law on the very important areas of search and surveillance.

It is because we wanted a cohesive and coherent approach that it is really important that the Serious Fraud Office should not be left as an outlier in this area. The amendment in the name of, I think, my colleague David Parker is that we should apply the same controls on the Serious Fraud Office as this bill now applies to the police. It is impossible to make the argument that there should be a differentiation. Are the Government members really saying that the serious crimes being investigated by the police are less serious and less complex than those that the Serious Fraud Office is working on? I do not think you can sustain that argument.

💬 Hon David Parker: And the media should be protected in those cases.

The other issue I am going to come to in a moment, which my colleague remarks on, is the question of media freedom. All of us in this Committee probably have at some time in our career good cause to resent the media—I probably ahead of many in recent times. But I have to say, notwithstanding that, that I recognise the need absolutely to protect the role of the fourth estate. It concerns me hugely when a reputable international agency downgrades New Zealand in terms of its record of media freedom from eighth in the world to 13th in the world, as it did late last year. That is a bad reflection on what is happening with media freedom in this country, and we need to address that.

There are a whole range of things that have been done—and the Government has to bear a lot of the responsibility for this—as to why we have been downgraded. One is the teapot affair. To have, as we learnt from the police today in a select committee, three senior officers spending months investigating a public conversation done as a media hype in the election is crazy. But to have newsrooms subject to search to get information on that is something that damages our reputation internationally.

It is damaging, too, that the Serious Fraud Office, under its current powers, was able to exercise those powers against the National Business Review in terms of its own investigation of South Canterbury Finance. I do not think that any member of this Committee should feel at ease with the fact that New Zealand is now being seen by international experts as a country that does not value and protect media freedom. So what we are suggesting in the amendment is both to ensure that we can restore our reputation in that respect, that the newsrooms of this country—

There has been a very interesting debate tonight, and I would like to thank all participants for their contributions. I think there have been some intelligent contributions from both National and Labour, and I think they have been very helpful. However, there are a few things I want to talk about just to respond to some of the comments. The first is around the Serious Fraud Office and its powers. As has been rightly said, these powers have actually been in place for 22 years. This is not a recent phenomenon. It has been around for 22 years with wide-ranging powers. The previous Labour Government did, as has been noted, wish to merge the Serious Fraud Office into the police, and those members clearly thought that that was going to continue to happen, because that is the rationale, they tell us, for the way they first initiated this Search and Surveillance Bill that we are debating tonight. However, the National Party campaigned in 2008 on keeping the Serious Fraud Office, and, frankly, in hindsight that was a very good thing to do. We did not know at that time—I do not think anyone in this House would have known—that we were about to walk into one of the biggest financial messes in finance companies that we can remember since the 1980s; and, frankly, that was when the need for the Serious Fraud Office was first apparent. So it was in fact in hindsight a good thing to do.

In terms of issues around media freedoms, I think media freedoms are extremely important, and I actually was a little bit concerned to hear some contributors tonight talk about a couple of issues. The first was around the police investigating the so-called teapot inquiry. The Hon Phil Goff, who has just resumed his seat, was talking about that and using that as an example of something we should be concerned about. Well, actually, we should be concerned if a Government instructs police to do things like that, and we should be concerned if a Government instructs police not to do things like that. Under this Government—and I am sure under previous Governments—Ministers did not instruct police to do things like that. I note that when I was Minister of Police there was in fact—

💬 Hon Phil Goff: The Prime Minister laid the complaint.

Yes, and as any citizen can, and the police do not have to investigate it any further than they choose to. Just as when the Hon Darren Hughes was involved in media and police investigations, I was instantly accused by some in the Labour Party as being involved in it. I did not even know about it. I found out, like everyone else did, by gossip around the place. So let us be very clear here that this Government did not tell the Serious Fraud Office to go “charging into the National Business Review”, to use the words that have been used about it. We did not ask the office to do production orders. What we ask people to do is to actually perform in accordance with their obligations.

The Serious Fraud Office, at that time, was investigating South Canterbury Finance. Frankly, there has been one fraud after another, just recently shown in some guilty convictions, around South Canterbury Finance. This is a very difficult situation, and I would have thought that most people here would think about why we have those powers.

The other point I want to make, really, about this evening’s debate is that what I am hearing from the Labour Party is that it, in essence, agrees with this bill. That is what I am hearing, except for the fact it does not include the Serious Fraud Office. That is it, in essence. I have worked with Charles Chauvel to get some amendments through, which we are putting in our Supplementary Order Paper, to try to help the media freedoms and deal with some other issues. The Minister responsible for the Serious Fraud Office, the Hon Anne Tolley, has agreed to make sure that the Serious Fraud Office reports, in its annual report, about its examination orders, production orders, and what it does and when, so that we, as a Parliament, can have some confidence in that these are not being overused. I think that is a very good thing, and I thank the Minister for that.

But I think it is important to understand that if this bill does not get through, on 17 April all police covert surveillance is turned off—all of it; that is it. There is nothing else—that is it. It is gone. What we have is a major party like the Labour Party saying that, yes, it agrees with the bill and thinks it is a great bill, and in fact it started it, but because the Government is not including the Serious Fraud Office—which, by the way, this party has never intended to do and has never said it would—Labour will not vote for the bill. So I hope that, after this debate, common sense will reign and that this Parliament can come together with the major parties, which in my opinion are the parties that have to actually look to responsible Government, because they have in the past and they will in the future. I think that we need to actually come together and say what is really important here—and this bill is.

Frankly, the last comment from the Minister in the chair, the Hon Judith Collins, is straight scaremongering. It is the same sort of scaremongering that led National, in Government before the election, to attempt to ram through this Parliament, without even going to the select committee, the legislation regarding covert surveillance. The Minister must now surely admit that the National Government then got it wrong.

The Justice and Electoral Committee, with a majority of National people on it, explicitly said that the legislation was wrong and that the appropriate balance had not been found. If it was not for the Labour Party and other parties standing in the way of ramming the legislation through before the election, without any consideration from the select committee, then, as the select committee itself has acknowledged—and Mr Borrows has acknowledged, as chair—the Government would have got it wrong. The Government would have got it wrong, because it would not have found that appropriate balance.

Another red herring is that somehow we were accusing the Government of instructing or not instructing the police to do an investigation into the teapot affair. No member said that, Minister. No member did—but use your common sense. Why were the police investigating a case they would not normally have wasted their time on? Because the Prime Minister of New Zealand laid a complaint. And are the police going to ignore a complaint from the Prime Minister of New Zealand? Of course they are not.

Ask 90 percent of New Zealanders whether they think that when 21 percent of burglaries are resolved the police should be following up the teapot affair for the Prime Minister, which was just a media stunt, and they would say: “No, the Government has its priorities wrong, and the Government is asking the police to waste their time when they have far more important things to do.”

So Minister, do not come into this Chamber with that sort of nonsense—that somehow video surveillance is going to fall over tomorrow, because we are saying you should apply the same laws to the Serious Fraud Office as are applied in this bill to the police. Of course the Government should be applying the laws uniformly. The Minister was once the Minister of Police. She knows that the cases that they deal with are at least as serious, are at least as complex, and are at least as important as those dealt with by the Serious Fraud Office. So what the Minister has just said is absolutely wrong.

What we have had from the Labour Party tonight are three people who have spoken very eloquently, from a legal background, as to why we need to change this bill—backed up the Law Commission itself. And, Minister, please tell the Chamber why you think that we should ignore the recommendations of the Law Commission—that the Serious Fraud Office should be dealt with in exactly the same way as the police, that it should be constrained in order to find that very important balance between it having appropriate powers and protecting individual liberties. The Law Commission, after 6 or 7 years of looking at this, came to the conclusion that that should happen, but the Minister is saying that she knows best. The Minister is rejecting the opportunity to get the overwhelming majority of the Chamber to support an important, but contentious, piece of legislation, because she will not change her mind.

I urge the Minister to think seriously about what she said in her speech, to think seriously about what harm would be done and what good would be done if the amendment being put forward by the Labour Party in Opposition were adopted. We would create one law across the agencies in an appropriate way. We would be dealing with the problems that the Law Commission itself emphasised of the overuse by the Serious Fraud Office of powers that are unprecedented in this country compared with any other agency, including the police.

Yes, those powers may have been there for 22 years, and, yes, they have been overused in recent times, but being there for 22 years was never a good argument for not considering change. We are putting this bill through because some of that legislation, Minister, has been there for 50 years, and it has been proven to be inadequate, and so has that clause in terms of ensuring the proper rights of the media and not having another incident where the Serious Fraud Office can go in and demand the production of documents by an outlet from the news media in a way that challenges the role of the fourth estate.

I move, That the question be now put.

When the Minister in the chair, the Minister of Justice, spoke before, she talked about the powers of the Serious Fraud Office producing a result, because of the guilty plea in relation to South Canterbury Finance. But my reading of that, and I have had to look it up on my mobile phone, says that it is not the South Canterbury Finance case that has led to a guilty plea. It has an impact on the South Canterbury Finance case in that the director of a company called Datasouth Group pleaded guilty to charges brought by the Serious Fraud Office in relation to a $103 million fraud involving a Ponzi-style scheme. It had an impact of about $23 million on South Canterbury Finance, but the point that we were making was that the pursuit of National Business Review by the Serious Fraud Office for the production of evidence that it had was in relation to the South Canterbury Finance allegations of fraud. So that has not produced any guilty pleas. There is obviously a lot of water to go under the bridge yet on that particular issue.

But because the Minister is not the Minister of Commerce as well as the Minister of Justice, as her predecessor was, I just thought I would give her a little bit of history in relation to where my thinking developed on where the Serious Fraud Office powers should sit in relation to the changes that have been made under the Financial Markets Authority legislation. In fact, the Commerce Committee did an inquiry into the finance company failures, and one of the suggestions to look at was the question of whether these particular powers of the Serious Fraud Office, which the Minister sort of says require this very special set of powers to be continued, sit better within the framework of the Financial Markets Authority. The Financial Markets Authority process is actually a really good one. It has brought together a range of different agencies that all have a different function, and often one takes precedence over the others. But by not bringing the Serious Fraud Office function into that, firstly, the Financial Markets Authority is deprived, really, of the enormous investigative background and ability that the Serious Fraud Office function would bring to the agency and would give it real teeth, but, secondly, it has not resolved the precedence problem. That is that the Financial Markets Authority, like the Securities Commission before it, could not act until after the Serious Fraud Office had investigated and completed all that work. I know they work alongside each other with a degree of cooperation, but the truth is that there is a hamstring effect on both the, now, Financial Markets Authority and, previously, the Securities Commission.

I know that the Government campaigned on retaining the separate status of the Serious Fraud Office—

💬 Hon Anne Tolley: And we won.

OK, well, that is fine. You can say that you won. We know that. That is not the point. We are trying to actually have an intelligent debate about matters that really—

💬 Hon Anne Tolley: No, you’re not.

If you are suggesting that I am not trying to contribute to this debate in a genuine way, then I think that reflects more on the Minister than on me, because I am actually trying to contribute to this debate in a serious way. We all on this side of the Chamber would like to reach a point where we would get such a degree of support for such a major measure as this as we could easily achieve. There is only an element of difference between us, and I believe that with some goodwill and some contribution to the debate that would take into account these views we could get there.

It is not unreasonable for us to use the Committee stage of the debate in the Chamber to actually try to persuade the Government to finally reach that point of view. I have stood in this Chamber with a Minister of Justice from that side of the Chamber and pleaded a case in a particular matter, and the Minister of Justice has listened and overnight had his officials draft the instructions, and the amendment still stands today. The record will show that, except that in those days the Committee stage was not included in the Hansard recordings, which had only the votes on them. But the record speaks for itself, and the amendments that we achieved in the Births, Deaths, and Marriages Registration Bill all those years ago when I was a brand new member of Parliament. It was the Rt Hon Doug Graham who was sitting in the chair, as the Minister does today.

I move, That the question be now put.

The Search and Surveillance Bill is effectively an “anyone, anywhere, anyhow” bill. Privacy is actually cheated in a major cut in civil liberties, and later, as we get into the parts regarding production and examination provisions, that will be shown more fully. Many people whom I know are very concerned about this bill because of its very wide-ranging powers. These powers are an increase on anything that has been in legislation before, and I notice even through Supplementary Order Paper 12 just little bits more sneaking in. There have been some improvements, but I notice that, even on evidential material, there in the definition of it we now add in “or a suspected offence”. I have mentioned before that I have been involved in some activities that would theoretically possibly trigger this under the purposes—positive, societally helpful, environmentally helpful activities that are actually beneficial to this country. The purpose, in fact, as stated in Part 1, is actually a contradiction when you look through the rest of the bill. It says it “is consistent with human rights values”, and we will see clearly where it is not.

I will give just a little example of something that happened today of how actual people might feel if they are not actually involved in an offence but get hooked up in this. I noted in question time today, when that dear subject the teapot tapes was mentioned, that the Prime Minister, in response to the other side of the House around illegal taping, said: “How would you feel about it?”. Well, that was in terms of being recorded against his theoretical will, so that is just a hint of what numerous people engaged in far more positive activities could get caught up with.

So the Green Party will be opposing this bill, particularly on the basis of human rights and civil liberties.

I move, That the question be now put.

I speak, firstly, in respect of the many legal specialists who have preceded me here, and I aim only to provide a layperson’s view. It is a privilege to speak to the Search and Surveillance Bill, because it is one of those bills that go to the heart of our democracy. There are a number of ways in which we have seen media freedoms and the rule of law curtailed in recent months. We have seen the Serious Fraud Office use production orders against the National Business Review. We have seen the calculated refusal of the Government to address the Serious Fraud Office powers and media protections as part of the negotiations around this bill, despite media calls for protection and Opposition efforts. We have seen the Government’s attempt to overrule the Supreme Court decision in Hamed—that is, the Tūhoe case—rather than the more limited fix agreed by Parliament, after all other parties rebelled. Of course, as my colleague Phil Goff has very eloquently put it, we have seen the use of the police and the Solicitor-General by the Prime Minister over the teapot tapes, after a campaign media stunt went wrong. Priorities are all out of whack. Priorities are all out of whack.

💬 Simon Bridges: You’d be complaining.

The perma-tanned member opposite argues that this is a legitimate power of Government, but he flies in the face of the fact that 90 percent of New Zealanders would say that when only one in five burglaries is being closed by our boys and girls in blue—

💬 Hon Judith Collins: I raise a point of order, Mr Chairperson. I do not think it is appropriate for a member of this Committee to refer to a member who happens to be Māori as perma-tanned, and, frankly, I think it is offensive.

The CHAIRPERSON (Eric Roy): I nearly pulled the member up. It is out of order, and I would ask him to desist from using that kind of referencing to another member.

I withdraw and apologise, and it was absolutely nothing to do with the member’s ethnicity, of which I was henceforth unaware. So there we go. The appointment of the National Party electorate chairman of Helensville, Mr Stephen McElrea, to the board of NZ On Air—the Broadcasting Commission—is yet another consistent erosion of the freedoms of the media, which this bill once again keeps eroding.

Much of the debate so far has turned on the issue of the extension of the powers to the Serious Fraud Office. The importance of that has been seen in relation to South Canterbury Finance, the largest corporate failure in New Zealand history. We have to strike a balance in this Committee between the protection of public freedoms and the discharge of the responsibilities of public office. South Canterbury Finance has been a litany of failure by the current Government to address in any sensible and strategic way the need to have placed that company into a statutory management regime well before the problem blew out to the multi-hundred-million-dollar problem that it has become. To use that as cover for giving the Serious Fraud Office licence to exercise powers more akin to those of the Security Intelligence Service, without due checks and protections, is, frankly, an abuse of process. It has long been a protection afforded to mum and dad New Zealanders that the less well-known but most powerful organs of the State, such as the Security Intelligence Service, have needed to use in all but the rarest exceptions a judge’s warrant to execute their responsibilities in respect of phone taps and the like. It is extremely important that no lesser protections are afforded through the provisions of this bill.

Much of the bill is bipartisan, much hard work has gone on between our legally qualified colleagues on both sides of the House, and much of the bill is in conformity with those principles. But there are some remaining parts of the bill that are not, and it is upon those parts, such as those relating to the Serious Fraud Office, that this debate is now engaged. The Minister sniggers. Why are we debating this now? Because this part of the bill relates to the purpose of the legislation—the purpose of the legislation—and the fact that this will be an Act to bind the Crown. It must therefore responsibly bind all arms of the Crown, and there should be consistency of the public protections that are offered across all those arms. The average New Zealander, wherever they are, in the provinces or in the cities, is more interested in paying their mortgage, getting a job, keeping—

I move, That the question be now put.