Search and Surveillance Bill

Part 2 of the Search and Surveillance Bill contains a number of powers specifically for the police. One of the most contentious of these powers is examination orders. Examination orders are included as a police-only power to reflect the need for the police to have similar powers to the Serious Fraud Office, as both agencies investigate very serious and complex offences.

The powers in the bill were examined closely by the Justice and Electoral Committee, which made a number of recommendations, ensuring that rights and protections available to people were maintained. It is expected that privileges such as a journalist’s right to protect their sources, legal privilege, religious privilege, medical privilege, and privilege for informers will be considered by judges and issuing officers in determining whether an examination order should be made. This is consistent with the balancing of interests currently undertaken by judicial officers when issuing a search warrant on media premises or other premises where privileged information and material are likely to be found.

Examination orders may be made in the business context only where there are reasonable grounds to suspect that an offence punishable by imprisonment for a term of 5 years or more has, is, or will be committed. In the non-business context, the use of examination orders has been further restricted to reflect the special relationships at risk in this context. Examination orders in the non-business context may be used only when the offending in question is a serious or complex fraud offence punishable by imprisonment for a term of 7 years or more, or the offence has, is, or will be committed wholly or partly by an organised criminal group. The application process further restricts the use of these powers, as examination orders may be applied for only by an inspector or more senior officer, and the making of the application must be approved by a deputy commissioner, assistant commissioner, or the district commander of police. These restrictions ensure that this power will not be used on a regular basis.

Protection offered under section 68 of the Evidence Act 2006, whereby a journalist cannot be required to reveal their source except under restricted circumstances, is carried across to the Search and Surveillance Bill, as is the privilege against self-incrimination. Examination orders may be issued only by a judge, who will consider rights, including freedom of expression, when assessing whether an examination order should be made. A journalist who is presented with a production order or an examination order can refuse to reveal their source by claiming this protection. Any person can refuse to answer a question or produce documents if it would incriminate them.

If the police dispute any claim of privilege, they may apply to a judge for a determination of its validity. A judge will require a source’s name to be provided only if the name itself is required to assess whether the claim is valid. Similarly, the judge will require this evidence only if it is necessary in order for them to assess whether self-incrimination is reasonably likely. If the judge upholds a claim of privilege, the privileged material, such as the source or name, is inadmissible in any proceedings.

The examination order powers have been subject to careful consideration by the Justice and Electoral Committee and to robust controls governing their use. This provides protection to those subject to these orders, and restricts utilisation of the power to offending that warrants their use. Examination orders are also subject to a strict reporting regime in order to track the use and effectiveness of the power.

The irony of this is that the Minister of Justice has just listed a large number of protections in the Search and Surveillance Bill that surround the use of examination order powers that are being conferred to the police. The first point, Mr Bridges, is that those powers do not currently exist in respect of production orders for the police. This is a very, very significant new power being conferred to the police. It is a very important exception to the right to silence. At the moment in New Zealand we have a right to silence. We do not have to cooperate with the police and answer their questions. There are lots of reasons why that historically has been the case. There are lots of societal reasons why it is that you do not want to compel people to give evidence against their friend. They often choose to do so, but you do not force them to, because you create tensions in society that, amongst other things, bring the police into conflict with the population, and therefore the population is less likely to cooperate with the police in the future. There is an overriding objective that we want to maintain cooperation with the police. That is but one reason. You do not want to be pushing members of the family against another member of the family. So we do not compel people to talk to the police. We encourage them to do so, but we do not compel them to.

Another reason is that if you compel people to talk to the police, it does not mean to say that you can compel them to tell the truth. You are more likely to get fictitious evidence if people are forced to talk to the police or to the other authorities than if they do so voluntarily. So those are the reasons why we do not normally compel people to talk to the authorities. Those are some of them; I do not have time to go into all of them.

But there are occasions when it is important that the police release people from obligations of confidence that they owe to their principal. For example, an accountant who is involved quite innocently in a money-laundering operation for a drug ring cannot disclose that information voluntarily to the police, and some of it might not be recorded in a way that can be obtained through a search warrant getting documents. So you release the accountant or the lawyer from their obligation of confidence and they will be willing to talk, but they cannot talk without being released from that obligation of confidence. That is why on occasions it is appropriate to have examination orders.

This can be justified in some circumstances, but you have to be very careful that you are not opening this gate too wide, as we found with the Serious Fraud Office. What are we doing here? Well, the bill came to the Justice and Electoral Committee already with more protections than exist in respect of the Serious Fraud Office, but the select committee added even more. The Minister’s Supplementary Order Paper adds more protections still in respect of the police, which is a good thing. What did we add? We were already saying that it had to be through a warrant. It had to be through a warrant. It is now made clear that the warrant can be issued only by a judge, not by a registrar. The Serious Fraud Office does not even have to get a warrant. It is done by internal administrative acts. What a nonsense—what a nonsense!

I come to the second protection. The bill came to the select committee saying that the offence that was being investigated had to be imprisonable. We upped that in the business case to something that had a period of imprisonment of 5 years or more. So it is a lot more serious than when it came to the select committee. There is no equivalent provision in the Serious Fraud Office legislation. The next thing the select committee did is in respect of a non-business situation. The threshold is even higher: it has to be 7 years or more of imprisonment as the penalty under the offence before you can get an examination order.

Then, as the Minister said, if this is ever used against the media—and it should not be, generally, but if any of it was—you have to close off the potential that it could be. You cannot have an absolute prohibition because, actually, it is possible that members of the press can be corrupt and involved in criminal conduct themselves. It is very rare but it can happen, so you have got to leave that possibility open. You have got to put protections around it so that it is not abused. How do you do that? Well, you actually say that anything that comes of it can be objected to through this process that the Minister referred to. By relying upon privilege they can claim that they should not be forced to give evidence. We have heard reference from the Minister that there are various sorts of privilege that could be claimed—legal professional privilege I think was one of them. Was medical privilege mentioned? I do not know that it was. There was legal professional privilege and also the interests of media freedom. How do you assess that? You actually put it in front of a judge to make that assessment rather than letting the police make the assessment themselves. How is that different from the Serious Fraud Office? The Serious Fraud Office does not have to do that. It does not have to do that. So at the moment we have got the Serious Fraud Office being able to go to the media, force them to answer questions, and put the journalists and the news media company at risk of criminal prosecutions, because their refusal to answer questions—unless they are claiming the privilege against self-incrimination—and their protection of a source is illegal. It is illegal in terms of the Serious Fraud Office legislation, and that exposes them to criminal penalties.

How can that be right? It is not right for the police. The select committee, the Government, and the Minister have already agreed that we need protections and more protections, but the Government will not move on this protection for the media. Why will it not? There is no principle behind this. Ask yourself why it will not. The answer is that it is trying to position the Opposition—and we heard the Minister in the chair, the Hon Judith Collins, say this in her second to last contribution—and say that because we oppose this bill we are soft on crime. That is what the Government is trying to do here. That is what it has been trying to do for 2 years. It has been trying to say that because we are taking a principled position for the protection of the media through making sure that the same protections that are in the bill in respect of examination orders for the police and media protection also apply in respect of Serious Fraud Office actions. The Government says that because we are taking that principled position we are soft on crime. No, Minister, what we are doing is protecting civil liberties.

One of the most important civil liberties is maintained through a free media—a free media who are unconstrained in their ability to investigate things that have gone wrong, to investigate corruption, and to make sure that corruption does not happen again. That is what happens if you investigate and shed light on it: people get prosecuted, Governments fall, and there is a disincentive to corruption. That is how you keep a clean democracy. If you cannot investigate corruption properly because the media sources will not speak up, because that source could be disclosed under an examination order by the media or be forced to be disclosed by the Serious Fraud Office, you undermine democracy, and that is precious to me.

That is really precious to me, and that is why I am quite happy to say that the existing law is wrong and that the Law Commission was right to recommend to the prior Government that this power be constrained. In fact, the Law Commission originally recommended that it be taken away completely from the Serious Fraud Office. After it considered again and there were submissions, it actually got to the point where the Law Commission and the department—I should not forget the Ministry of Justice—agreed that there should be a constrained version of this power eventually. But this Government will not do it. This Government says that it is not going to. It is not going to because, for political advantage, it is trying to position the Labour Opposition, which is trying to protect media freedoms and our democratic institutions, and trying to say that that makes us soft on crime. What is soft on crime, Minister, is your Government, which does not see that this sort of law exposes our democratic institutions to the risk of corruption, to the risk of negligent behaviour not being exposed, and to the risk of losses such as we had with South Canterbury Finance, when hundreds of millions of dollars in extra money was lost because of, according to the Auditor-General, Government inaction in terms of letting the loan book grow and that sort of thing.

That sort of thing cannot be as well investigated by the media if their sources are at risk. That is why this bill is so important. The amendment that is in my name extends the same protections that are there for the media in respect of the police—now that they are getting this additional power—and says that those same controls should be on the Serious Fraud Office. I think it is patently clear that they should be. I think that most people think that. The media freedom committee thinks they should be, all of the newspapers think they should be, the radio thinks they should be, and the TV thinks they should be. That is why this game that the Government is playing, trying to say that our actions on this are soft on crime, is actually not working for it. Instead, the Government looks shady, as it is. This lines up—

💬 Simon Bridges: Every time you say it, David, people at home think you’re soft on crime.

Mr Bridges’ contribution is to say that this does show us to be soft on crime. This is the man who just told this House there was no extension to police powers in this legislation, which was completely wrong.

I am very pleased to speak to Part 2 of the Search and Surveillance Bill. I was not part of the previous Justice and Electoral Committee in the last Parliament—I am a new member on this committee—but it is clear from the bill and the Supplementary Order Paper that this is an incredibly substantial bill. I must compliment the previous select committee and also the officials.

When you look through and see what changes the select committee made, and then the changes the Supplementary Order Paper makes, you can see that a really painstaking process has gone on to ensure that there is clarity and certainty for New Zealanders so that they can feel safe, that the police have the right powers, that it is appropriate, that there are safeguards, and that there are checks and balances. So my congratulations go to the select committee, which everyone seems to be acknowledging as having done a wonderful job, and to the officials. I am sure on this bill that common sense will prevail, as the Minister said, and that other parties will support this bill through the different stages.

Part 2 is about police powers, and, as I say, it is disappointing that we have not got the support of other parties at this stage, because it is very serious. I mean, if we do not get this bill passed by the middle of April, surveillance cameras will go off and police powers will be seriously curtailed. Quite frankly, criminals are going to get away with crime, and I am sure none of us wants that, so I really hope that common sense prevails.

There are in fact about 12 subparts to Part 2, all describing very different situations where the police can act and how they can act. It is prescriptive. It covers a lot of different situations. It is very thorough. I will go over just some of them, but I will not go into detail. Subpart 1 is about internal searches, search warrant powers in relation to places, vehicles, and other things. Subpart 2 is about warrantless powers, when you do not have a warrant but you need to go into a place or search someone to effect an arrest, and that includes vehicles, and so forth.

Subpart 3 is about when you do not have a warrant but you need to actually search someone who is going to be locked up in police custody. And, of course, Subpart 4 is about warrantless powers when you have an urgent situation. There are a number of subparts, all going right through to Subpart 12. So I am really impressed with the comprehensive nature, and the detail that the Supplementary Order Paper has brought out of the select committee.

The Minister touched on examination orders, and these are clearly a very serious power that will be given to police. It is something that the Serious Fraud Office has the ability to use—examination powers. But because it is quite serious it has been carefully laid out that there need to be safeguards so there will not be an abuse of power. Obviously the Serious Fraud Office has this ability to use examination orders, but this bill will allow police to apply for them. Other members have talked about it, but it will mean that those people can cooperate with the police without in any way compromising their own situation, without any adverse consequences.

In a business context, examination powers can be used only in offences punishable by 5 years’ imprisonment or more, and in a non-business context, examination orders can be used to investigate serious fraud punishable by 7 years’ imprisonment or more. So there are really quite defined situations where examination orders can be used. There are safeguards; there are checks and balances. It has been very thorough and painstaking, and, again, my compliments go to the select committee and the officials. Importantly, only a judge can make an examination order and that has to be on the application of a high-ranking police officer. So, again, there are criteria as to when the examination order can be asked for, and only a judge can provide one.

I just want to talk about the journalists. I am sure that this part of the bill will be welcomed by journalists. We are a democratic society. People who feel they should be speaking out under cover of anonymity should have that ability, and journalists often have sources they wish to protect. I know we have the ability to have free media and reporting in our country, and long may that continue. I am sure this part of the bill will be welcomed by journalists and media. The bill will improve journalists’ ability to protect the identity of their sources. Thank you.

I just want to respond to some of the comments that were made by the previous speaker, Jackie Blue, because a lot of what she said was absolutely right, but there is a falsehood woven through the debate, and it is this: that the Serious Fraud Office already has production and examination powers, so it is all right for it to keep those powers and it is all right for us to give those powers to the police and other enforcement agencies. What Jackie Blue just said was “It’s all right because of all the safeguards that are in the Search and Surveillance Bill.” The problem with that argument is that the Serious Fraud Office continues right outside the parameters of this legislation, and it does not have any of the safeguards that are being put in place for the other agencies.

I agree that the Minister of Justice has done a good job—she knows that; I have told her that and I have said it publicly—in terms of putting safeguards in Supplementary Order Paper 12 that are better than what was there in the past. She knows that I think that is a forward step, and I am pleased that we are where we are with that. But before I come to explain why it is fallacious to pursue the argument that the member did, I do want to respond to another point that she made, and that is for her to somehow be critical that we are where we are and yet the Labour Party, the major Opposition party, retains its objection to the legislation because of its failure to deal with the Serious Fraud Office. This is an objection that has been known and on the record now for more than a year, and it has been the subject of many attempts, from our point of view, to resolve the matter in good faith. We tried with the Minister’s predecessor and we were stonewalled. So notwithstanding the progress that the Minister and I have managed to make on a host of issues, responsibility for the fact that we are now at the threshold and still cannot agree does not lie with the Labour Party, and that is an important point to put on the record.

I want to explain, once and for all I hope, why it is not accurate to say “Oh well, the Serious Fraud Office has already got extensive powers, but the bill puts safeguards in place, so everything is all right.” As I said before, the safeguards do not apply to the Serious Fraud Office. We have already heard from David Parker that there is concern, real concern, about the way in which the Serious Fraud Office has used its powers in the past, particularly in respect of the media. Mrs Tolley can smile and scoff all she likes, but that is the case, and we are serious about making sure that the media can do their job in this country. This is a Government that has presided over declining media freedoms—we are 13th now internationally, whereas we were eighth the year before. She has sat on the Treasury benches, in senior ministerial positions, while that has happened. This is our opportunity as a House of Representatives to fix the matter, and I would have thought we might have actually had a bit more good-faith debate across the House in the sort of spirit that I have tried to have with the Minister.

Here are the powers that the Serious Fraud Office has got now, which it will keep because we are not dealing with the Serious Fraud Office powers in this legislation. Under section 5(1) of its Act the director may write to any person and, at the time and place specified in the notice that the director writes, require that person (“(a) to produce for inspection any documents which are specified in the notice and which the Director has reason to believe may be relevant to any suspected case of serious or complex fraud: (b) to answer, to the best of that person’s knowledge and belief, questions with respect to the whereabouts or existence of any further documents that may be relevant to the investigation.” So there we are. This is the only example that we are going to have, assuming that this bill passes, in our law and on our statute book of an official, an appointed official, accountable politically to no one, able to write to anybody and say: “You must appear at my office at 2 o’clock tomorrow and you must produce the following documents.” There is nothing anybody can do about it. That has to happen. There is no way to meaningfully object to it, and there are no safeguards around it in the way that there will be when this bill, if it becomes law, is enacted.

Section 9 goes even further. It actually does away with the right to silence when it comes to—

New Zealand First still does not support this bill, the Search and Surveillance Bill, in its present form, nor the amendments that have been put forward, which we do not think have addressed the fundamental issues. It has been somewhat amusing to observe the jousting between the members of the Labour Party and the members of the National Party, especially over the Serious Fraud Office. However, New Zealand First does not regard that issue as being central to this legislation. It is rather peripheral and is not something that we wish to deal with at this stage, although I think it is something that needs to be considered at some other time.

New Zealand First does acknowledge, however, that the process has been comprehensive for this bill. Unfortunately, many of us in New Zealand First were not here for most of that process. However, we do think that the Justice and Electoral Committee, in particular, has done a good job of considering the safeguards to some of the personal rights and freedoms that are actually attacked by this bill. In particular, I refer to the fact that it is good that the bill does consolidate and improve the powers that are current in 69 different Acts. It removes many inconsistencies. It is good that it codifies the existing law and clarifies powers that are often unclear, it provides a regulatory regime for high-technology devices used in surveillance, it seeks to ensure judicial oversight where it is needed, it places issuing functions for warrants in experienced hands, and it provides for public reporting. But none of that really is enough to ensure that New Zealanders’ fundamental rights are preserved, and I refer in particular to the police powers for examination orders in the bill, which are of particular concern to New Zealand First.

Apart from the current Serious Fraud Office powers, the law has protected the right to silence for a very long time, and that right should continue to be protected. We do not want to move in New Zealand towards a police State. I refer to what I said in my earlier speech on this, which is that requiring people to answer questions puts them in a difficult position—what has in the past been referred to as a cruel trilemma—because they may be punished for their silence, they may be punished for perjury if they do not tell the truth, or, if they do tell the truth, they may find themselves incriminating themselves or breaching the confidentiality of others. It is not right that that will not happen; even though the bill says that their right to avoid self-incrimination is protected, the practical effect is not that.

Apart from those powers of the Serious Fraud Office, I read that clauses 31 and 32 of the bill would allow senior police officers to apply for examination in a business context on reasonable grounds if they believe that there is an offence punishable by more than 5 years’ imprisonment. Those are similar powers to the Serious Fraud Office’s powers in serious fraud cases, but it is a serious step, we think, to extend those powers to the New Zealand Police. Clauses 33 and 34 extend the police powers even further, to non-business cases involving serious or complex fraud punishable by imprisonment for a term of 7 years or more, or if the offence has been committed by an organised criminal group as defined in the Crimes Act. This opens up a very wide area for police use of compulsory examination, and for that reason, it really does go too far to achieve the desired balance that many have talked about between the need for better police and agency enforcement of the law and the right to silence and other important rights.

The line may already have been crossed, with the Serious Fraud Office having rather Draconian compulsory examination powers, but at least the Serious Fraud Office is experienced and is specialised in the area of serious fraud. The police are not as experienced in those areas, and I believe there should be a distinction between the powers of the two. There are requirements in the bill of course for reporting on the use of these powers, but I do not believe that they are likely to be a serious brake should the police, over time, get into the habit of using those powers.

Mr Chairman—

💬 Hon Member: He’s been waiting, as well.

I certainly have. I would like to just begin by reflecting on a couple of comments from the Government speakers, who have referred to the timing of this debate. The fact is, yes, we understand that on 17 April the police lose the powers they currently have under the Video Camera Surveillance (Temporary Measures) Act. Apparently, if that happens, anarchy will run loose in the world and it will be a tragic thing.

I think it is worth commenting on the fact that this Government set the timing for this shift—for the 17 April changeover—but this Search and Surveillance Bill has been around in some form or other for quite a number of years. I do not suggest it is not a complex bill—it is. We absolutely support the notion of bringing together what has been described as a jumble of legislation. Bits and pieces of rules and provisions spread across, what, 50-odd pieces of legislation is seldom helpful. Nevertheless, there has been significant time available to the Government, and I think I object to the fact that, somehow, the Opposition speakers are having blame sheeted home to them because this Government now has only a couple of weeks to sort itself out and get some legislation in place. I do not personally feel any responsibility for that. This Government has been in control of the House programme for over 3 years, and I think it would do well to recall that.

This part deals substantially with police powers—the powers the police will have under this legislation. A great deal of this part refers to the actions that the police may perform without warrants. It is entirely appropriate that the police should of course be able to conduct some activities to act on the spur of the moment. Crime and offending does act in real time and it is inappropriate to constrain the police too much, but it is all about the question of balance. How much is too much? As I have said all the way through, this bill seems to lean towards enabling the diminishing of people’s rights, rather than having a clear sense that there are some absolute limits to that.

I was concerned by an earlier speaker from the Government who made a comment in passing to the effect that he did not have a lot of interest in the human rights of those who are not interested in obeying the law. A similar sentiment seems to pervade this bill—that somehow people who offend, or even who are accused of offending, should have their basic human rights compromised. Of course when people have offended or are accused of serious offences, we do put limits on their liberties. We collectively exercise the right to restrain them and, in some cases, to imprison them—take away their personal liberty—and that is as it should be. But the notion that somehow even people who are imprisoned do not retain human rights is absolutely anathema to me and, I suspect, to most other people in this House. I suspect that if we found ourselves one day in a society where people’s rights are diminished simply because they have committed crime, I think that is a society none of us would actually want to live in. Human rights are fundamental to being human. We need to recognise that and understand that, and act accordingly in all of these legislative measures that we are putting through.

I would like briefly to reflect on one particular clause in this part—clause 5—which is a couple of paragraphs. The heading of clause 5 is “Internal searches generally prohibited”, and then subclause (1) goes on to say: “A constable must not conduct an internal search of any part of the body of any person, except for, with the person’s consent,” the constable may look into the person’s mouth when looking for, presumably, concealed drugs or whatever it may be. I note that the Minister of Justice’s Supplementary Order Paper omits that clause in its entirety. It takes away the general prohibition on internal body searches, and I would be very interested in finding out from the Minister why she has chosen to do that. I would hope it is for the reason that the prohibition on internal searches is covered off in some other provision. I would hope that she has found it is unnecessary. I sincerely hope the Minister is not proposing that constables should have the right to conduct internal searches of people in the way that is prohibited currently in the bill, and I would be very interested in hearing some commentary on that.

The extent of the warrantless provisions in this section is extensive. They are comprehensive. There is reference to issues about weapons—about knives, guns, and all the rest of it—and I think generally, yes, we can accede to that.

I would just like to return to the contribution from the New Zealand First member who spoke a few minutes ago, Denis O’Rourke, and put two things on the record. The first thing is that I emphatically reject the idea that this Search and Surveillance Bill in any way moves New Zealand towards the concept of becoming a police State. That is an utterly ridiculous suggestion and the member said nothing at all to substantiate that claim.

The second thing I would like to point out to that member is that through successive elections the party that he represents, New Zealand First, has lectured the electorate continuously on law and order issues and consistently told the rest of us that we are not strong enough on law and order; that we need to give the police more powers; and that we need to crack down on this, that, and the other thing. And when they get their first opportunity in the new Parliament to demonstrate their convictions, what happens? They run the other way. They completely turn tail on it and I hope that the electorate is listening to them, because when they get given the chance to demonstrate the courage of their convictions they are shown not to have it.

We have had a number of Opposition speakers this evening, especially those from Labour, telling us that they are concerned about what New Zealanders will perceive of their stance on this bill. They are particularly concerned that they might be portrayed as being soft on crime. Well, I want to make a point that if there are intelligent people listening, they will reach their own conclusions about that without us having to tell them. But what is really significant is that this was a bill that largely originated on Labour’s watch and they suddenly turn out now and are distancing themselves as far as possible from it. They forget that this originated as a result of a very clear recommendation from the Law Commission back in 2007 while Labour was in Government and that much of the work we are seeing through to its completion now originated on its watch.

I want to correct David Parker’s assertion that the member for Tauranga, when he was speaking earlier, suggested that the bill does not extend police powers. In fact, the point that Mr Bridges was making was that the Government has been at pains throughout this process and in the Justice and Electoral Committee to avoid extending police powers unjustifiably and without adequate constraints. That is a very different position from the one that Mr Parker was trying to pin on to Mr Bridges, because that is exactly what Part 2 of this bill is all about.

I want to place on record, for those who are listening, what some of those powers are and to return to Mr Parker’s concern about the examination orders. I think that when New Zealanders understand what the powers in Part 2 are, they will be very supportive of them. Let me just give you a few examples. Clause 6 provides that an issuing officer may issue a search warrant for a place, vehicle, or other thing, on application by a constable if satisfied that there are reasonable grounds to suspect offending punishable by imprisonment, and reasonable grounds to believe that the search will find evidential material related to the offending.

Clause 7 specifies that a constable who has reasonable grounds to suspect a person is unlawfully at large may enter any place or vehicle without a warrant in order to search for and arrest that person if they have reasonable grounds to believe that that person is there.

💬 Denis O’Rourke: Get on to the real issues.

Clause 8—Mr O’Rourke, I am dealing with the clauses of this part. That is what we are debating at this stage in the debate. That is what you have just spoken in opposition to, and I am letting New Zealanders know what you have just opposed.

Clause 8 authorises a constable to enter a place or vehicle without a warrant, to search for and arrest a person if they have reasonable grounds to believe that the person is there and reasonable grounds to suspect that the person has committed an imprisonable offence, and believes that immediate entry is necessary to prevent the person from leaving or interfering with evidential material. And so it goes on. That is what this part is all about. That is what we are debating at this point in the debate.

New Zealanders will welcome these measures as sensible and appropriate for public safety and the effective administration of justice. So let me turn to the examination orders that Mr Parker was so concerned about. The bill has an examination order regime that allows the police to apply for a court order requiring a person to answer questions where they have previously refused to do so. Examination orders are intended for use to investigate particularly complex crimes, and we have had some discussion of what some of those are in our recent history and just how important that issue is. The Serious Fraud Office currently has the power to apply for examination orders and the bill will also allow police—

Thank you for the opportunity to take another call on Part 2, because what I want to do is just finish, briefly, the point that I was making earlier, and it has just actually been reinforced by Tim Macindoe. The point about the orders regime in this part is, as he says, that it involves going to the court and applying for an order from a judge that somebody ought to be compelled to do something. A judge is going to have to think very, very carefully about issuing a compulsive order, because, obviously, when you think about the consequences of defying a compulsive order in these circumstances, they are extreme.

There are safeguards and there is a judicial procedure and that is the very point that I was trying to make in response to Dr Jackie Blue’s contribution. Those safeguards just do not exist in respect of the Serious Fraud Office regime, and I just would like some indication, if it is possible, that that is understood on the other side of the Chamber, because we are not saying the regime proposed by this Search and Surveillance Bill is wrong. We are not saying—

💬 Denis O’Rourke: Yes we are!

Well, some people may be; the Labour Opposition is not. What we are saying—as the Minister of Justice knows, because I have said it to her myself—is that there is an insufficiently broad and comprehensive regime here, because it is very obvious that one agency remains outside it. It is not good enough, frankly, to say “Well, it’s all OK, because the regime’s protective.” It is protective, but the Serious Fraud Office is outside it, and, until it is actually included, that is a problem.

David Parker has amendments that he has spoken to. I think he spoke quite eloquently about the consequences of being compelled to produce a document or to forgo the right to silence. What he has done through proposed amendments to clauses 31, 33, 37, 38, and 40 is simply apply the regime, with all the protections that Dr Blue described and that Tim Macindoe was speaking about, to the Serious Fraud Office’s exercise of powers. We have simply taken the time to go through the bill and to work out how it is that you would bring the Serious Fraud Office in, and it is actually not a complicated exercise. As I said in my earlier contribution, the Standing Orders now do not bar it—and that has been throughout the correspondence with Simon Power and with Judith Collins the reason advanced, largely, for not doing it in this bill. So, again, I simply ask that Government members turn their mind to the problem that we are going to be left with if we do not use this opportunity.

I have amendments that address some issues in this part as well. Again, they deal with an issue that I have talked to the Minister about, and that is whether or not having a 5 and a 7-year threshold in respect of the orders that can be given either in a business or a non-business context is sufficient. I have suggested a couple of solutions. One is that the Minister might have a power where she could specify offences that were sufficiently serious, they could go in the schedule to the Act, and we could have a look at them at the Regulations Review Committee, so there would be parliamentary scrutiny of the proposals rather than having this blunt instrument of, basically, a numerical test—5 or 7 years it is in, otherwise it is not.

One of the other proposals, which was advanced by David Parker in the correspondence, then by me, and which I put up by way of amendment, is to raise the threshold to 10 years. What I want to say is that I have had a look at the Crimes Act in this regard. There is, in New Zealand, a technique that is used with sentencing. If you have a look at, for example, perjury—the sort of offence you might want to have included—for very serious perjury in respect of an offence punishable by over 3 years of imprisonment, punishment is 14 years. For lesser perjury, it is 7 years, for mere false oaths, it is 5 years, for judicial corruption under section 100, it is 14 years, but for simply trying to corrupt a registrar or a non-sworn officer with tenure, it is 7 years.

Likewise for Ministers of the Crown it is 14 years, and for mere MPs or officials, 7 years. So this is the way in which we have crafted our sentencing science, if you like. And what I am asking is for the Minister to consider this sort of flexibility.

I just want to answer a few of the questions that have been raised. The first one I need to deal with straightaway is the contribution from the member from the Green Party, who, as I recall, stated that the Supplementary Order Paper was removing the general prohibition for internal searches. Actually, that could not be further from the truth.

I refer the member to page 15 of Supplementary Order Paper 12 in my name, which makes it very clear that it does not in fact do that; it in fact ensures that now a general prohibition on internal searches applies to all enforcement officers, not just police constables. So it actually extends it. This is the sort of nonsense that I think we have heard from the Green Party tonight, and I do not normally say that sort of thing, but, frankly, it is the sort of scaremongering that one would expect.

I am, however, appalled by New Zealand First, the new “soft on crime” party, after that contribution. I say that for a reason. I note that the new member Mr O’Rourke said that they are new members, and they have not been through the select committee process. I took that into account when I offered that party a full briefing on the bill. I said they could come along to my office and hear from the officials anything they wanted to know. Did they take that up? No. I guess they were too busy.

However, Mr Chauvel was very happy to come and talk to me about the proposed changes, and we brought some of those changes through and we discussed them. They are not everything that Labour wanted, but I will say this for Mr Chauvel: at least he came and talked. At least we could talk about what we could do, and I think that is a very responsible thing to do.

That, however, does not deal with the fact that we will still not agree with everything that he talks about. This evening, Mr Chauvel suggested that we might want to change the level of seriousness of offence for which an examination order, for instance, could be applied for. One of the issues was around maybe making it a 10-year penalty for it to apply. But the advice that I have is that if we had anything over the 5-year maximum, it would actually exclude, in the business context, possession of property with intent to engage in money laundering. It would exclude injuring with intent to injure. It would exclude being armed with a weapon with intent to commit aggravated robbery.

If we took out the 7-year exclusion for non-business situations, that would also take out engaging in money laundering, dishonestly taking or using a document, obtaining benefit or causing loss by deception, accessing a computer system to dishonestly obtain a benefit or cause a loss. That would actually, by reducing the threshold, undermine the primary rationale for having the powers in the first place.

But I do take his point about whether we can have a schedule and add particular things to it. There is a reason not to go down that route, and the reason is this: this Parliament spends day in, day out changing laws. We make amendments to Acts like the Crimes Act. We constantly do so. If we were to amend any of the laws relating to these offences, we would need to make sure we carried it through to the next Act because otherwise, suddenly, these powers would fail.

That has happened in the past, where we have had Parliaments with the very best will in the world going through the select committee and something falls through the gap. I think, really, when we look at these levels of sentences available, they are all for serious offences. So that is why we are not going to support that. But I would say of Mr Chauvel that at least he talked to me about it, at least he put it down for me, and at least he did not turn up on the night and say that that party, like New Zealand First, is soft on crime—because, by goodness, they are now.

I was going to, on this call, address a different issue, and that was just to emphasise that the Justice and Electoral Committee has been careful to limit some of the powers that were proposed in this Part 2 of the Search and Surveillance Bill. I will mention a couple of examples.

As the Greens have acknowledged in one of their recent contributions, there are occasions where there are things that are going down that require the police to do things in a shorthand way without actually going through the formalities of getting a warrant. I thought that was a proper acknowledgment by the Greens. The bill allows warrantless surveillance in some situations. The bill came to the select committee recommending that it could happen for up to 3 days—72 hours. The select committee said: “No, that is too long; the police should be able to get a warrant within 48 hours. If they cannot get a warrant within 48 hours, they should desist.” So that was changed in the bill; it was shortened from 72 hours to 48 hours, and at the same time it was made clear that the 48 hours had to start from the time of the surveillance. That would mean that they could not have repetitious 47-hour periods. The way it was drafted when it came to select committee, you could monitor for 47 hours, turn the camera off for an hour, and you had not breached the 48-hour period. You could start again and do it for another 48 hours. The select committee really was alert to trying to limit these matters.

In terms of the retention of data, when you have a surveillance operation, you do not catch just the criminal—or the alleged criminal, he or she might not even be a criminal, they are an alleged criminal. You do not get just them on their tape; you gets lots of other people. So if this is in a private situation, or even if it is in a public situation, people have got a right not to be under surveillance by the State, and that sort of thing ought not to be kept for ever. So again the select committee—

💬 Hon Tau Henare: Wind it up, mate.

Wind it up, Mr Hayes says.

💬 John Hayes: It was Henare.

💬 Hon Tau Henare: It was Hayes.

Oh, Mr Henare. Oh well, wind it up.

💬 Iain Lees-Galloway: He wants to get on with his honeymoon.

That is right; he wants to get on with something that to him is more important than the proper balance between civil liberties and State powers. I suspect—

💬 Hon Tau Henare: I’m with you, bro.

Oh, you are with us? OK, I thought you might want to have a debate on the Sale of Liquor Act or something like that tonight instead. In terms of the retention on data, the select committee has said that there should be further limitations on the period for which that data can be kept. That is strengthened as well.

There are a number of other strengthening measures. The reporting requirements for surveillance device warrants have been strengthened by the select committee. Again, the Government cooperated on these things, and therefore I find it absolutely impossible to understand why it will not tighten up the Serious Fraud Office powers. Can I acknowledge the contribution from New Zealand First. I actually agree with a lot of what New Zealand First said there in respect of examination orders. It is a line call as to whether they should be permitted at all. I agree with that. I can actually argue both sides of that case, because it is a line call.

💬 Simon Bridges: That’s a flip-flop.

No, it is not a flip-flop. It is actually acknowledging that in this Parliament we have to draw very difficult lines on difficult issues, and we can actually agree to disagree as to where that line can be drawn. I respect the views, which I thought were quite principled, and I admire that principle. I could actually see the Minister coming out here and arguing for matters of principle that I would disagree with her on, and I could have a reasoned discussion with her. What I cannot understand is that in the case of media freedoms we are not protecting the media in respect of the issue of examination orders that require the media to talk to the police, but with protections. Why can we not have those same protections afforded to the Serious Fraud Office?

So, Minister, I ask you again to respond—because you were not in the chair when I took my last call. In your call prior to my last call, you accused us of, effectively, being soft on crime because we will not back these unprincipled changes to the law when you will not move on the tightening up of the Serious Fraud Office. I suggest to the Minister that it is inappropriate to make that accusation, because there is a serious debate going on here as to the proper balance between civil liberties and State powers.

I was going to comment on the Minister of Justice’s comments on the contribution from New Zealand First, because probably there was no one more surprised than me to hear the contribution. It did surprise me somewhat that that really strict line had been taken, particularly in relation to the Serious Fraud Office and the production of documents. I seem to recall that the leader of their party himself voluntarily produced documents, that the Serious Fraud Office did not want, in a wine box. Perhaps that is a long time ago, and it is something that may have been lost in the annals of time. But I was here in the House when those documents were finally tabled in Parliament after several attempts, and I know that there were some very interesting views expressed about the lack of use of particular powers at that stage.

💬 Charles Chauvel: A non-production order.

Yes, a non-production order might have been a little bit more on the mark in that particular case.

But I am possibly making light of what is an underlying serious issue—that is, why the Serious Fraud Office had the particular examination order powers. I think they were expressed quite well by a couple of colleagues who have commented on why the Serious Fraud Office was able to call upon these powers in circumstances that the police were not. In fact, the very best summary of the reason for it is in the letter that we received from the previous Minister of Justice, the Hon Simon Power, back in—when was it? It must have been November last year.

💬 Hon David Parker: Received the day after the election.

Oh, that is right—received the day after the election. That is right. But it was quite good. What he said was this: “One of the primary rationales for examination orders is that investigations involving complex financial transactions will benefit from requiring a person involved (such as an accountant) to assist Police in unravelling the documents that relate to those transactions.” The whole purpose of it is that in order to break some of those lines of accountability within organisations, where you have people with other obligations, such as an accountant, you can actually require them to explain the detailed transactions to the police—well, in this case, the Serious Fraud Office—in order to assist them with their investigations. The letter goes on to say: “It is also important that examination orders should be available in the business context to investigate offences committed by organised criminal groups. Offences that may be committed by such groups … are punishable by 5 years’ imprisonment”—and obviously there have been some changes in that regard in the bill; in the non-business context it talks about 7 years’ imprisonment. But it does actually identify in here what the history was for the use of examination orders, which are now being expanded to the police.

I acknowledge that both the Justice and Electoral Committee and the Minister herself, by way of a Supplementary Order Paper, have been open and able to address some of the concerns that we have raised. But it still leaves us with this sense of disquiet about why the Serious Fraud Office then sits outside the structure that is being put in place. It is an opportunity to get this right. I think it is important to remember that the Justice and Electoral Committee reported this bill back from the select committee back in 2010, so it actually sat on the Order Paper for months on end. In fact, we were going to go into the 2011 general election with it still sitting on the Order Paper with nothing having occurred in between. But then there was the Supreme Court decision, which required Parliament to take some action in order to prevent what would have been, well, a travesty, really, in that situation: existing cases could not proceed in those circumstances.

The law was basically suspended for a period of time—I think 6 months was the period—which is why we are under some pressure now to pass this bill by mid-April. So I think it is a bit unfair to say that the reason we are under pressure to pass it is because we will be exposing the situation where all the cameras will have to be switched off. Actually, all the cameras had to be switched off because of a court case.

I move, That the question be now put.

I was just going to give a very good quote from Justice Tipping, so I am pleased that—

💬 Hon Amy Adams: Well, in that case, carry on!

Yes, he is a very special individual. He was talking about the reason for the court case decision going the way that it did. He spoke of “a deliberate or, at the very least, a reckless disregard for the boundaries of legal power …”. You know, it was the correct decision to make on the basis of what had occurred. What I am worried about here is that when the bill was originally introduced into Parliament, we were going to fold the Serious Fraud Office into the police. There was going to be the Organised and Financial Crime Agency, or OFCANZ.

💬 Simon Bridges: The CIS.

It was not the SIS, was it? But it was a particular structure at the head of the police, and I know that the police were very pleased to be taking over that role, because of so much of the organised crime swaying into this financial area for a whole lot of different reasons.

But the point that I want to make is that that is why the legislation was framed as it was—without the Serious Fraud Office—and that is actually now why the Serious Fraud Office must be brought within the range. We are not objecting to the extension of powers to the police; we just believe that the powers for the Serious Fraud Office need to be brought within the framework of this legislation. The whole purpose of the Law Commission review of all of these matters—I cannot remember the exact words. I cannot imagine that Sir Geoffrey Palmer used the words “dog’s breakfast”, but all of the different laws that existed around the place made no sense. It needed some clarity brought to the picture so that we could get some consistency across the search and surveillance provisions. That was what the legislation was designed to do.

And I think that, unfortunately, at the time our Standing Orders prevented the select committee from doing the job that I actually believe it would have done. I believe that the Justice and Electoral Committee would have recommended the extension of this bill to the Serious Fraud Office. It would have dealt with that issue at the select committee, and it would have come back in that frame, except that it could not do that, simply because it was advised at the time that the Standing Orders prevented it because it was out of scope. But actually, if we fast forward to today, that out of scope question would not exist. The debate would have occurred in a much more robust way, and there would have been a decision made, not on procedural grounds, but on whether or not there was enough power of persuasion at that select committee to get that changed. I think that the process of the select committee has actually been extraordinarily good, and the ongoing engagement between the Minister and our spokesperson on justice has also been good. We have acknowledged how well the Minister has been prepared to engage on these issues, and we pay credit to her for adopting that approach. This is a good way for Parliament to do the right thing.

If we are not going to be back in this Parliament looking at this issue again for a long time, which is the Minister’s argument for not having a schedule of offences, then why would we let this opportunity go by, and not address the question of the Serious Fraud Office coverage? I am afraid the Serious Fraud Office has not served us well in terms of this Parliament’s expectations of its role, and the way that it has used that power on a far more frequent and, actually, spurious basis than it ought to have used it. I believe we almost would not be having this argument if it had not used its powers in the way that it had. That has been the primary objection that we have had: holding this back for another opportunity for the House to look at it some time in the future. I think this is the opportunity that the House has to fix this problem and to fix it now, and then we get agreement across the House.

I move, That the question be now put.