Search and Surveillance Bill

Part 3 of the Search and Surveillance Bill is an important part of the bill. It deals with the powers and the orders that enforcement officers are going to use. It looks at warrants for surveillance devices, and in particular it looks at the use of production orders.

I want to say, first of all, that Labour supported the introduction of this bill. In fact, it was introduced by Labour. When Labour looked at this bill, we did not take the steps that were included in our bill lightly. It was based on 6 years of work by the Law Commission, and it was based on a widespread view that comprehensive reform was necessary of a series of laws that had been subject to ad hoc changes, which had led to real confusion and a lack of coherence. Some of these laws were 50 years old and simply did not cover the technological changes that had occurred. So the first principle that Labour followed was that we recognised that in fighting crime we have to give our enforcement officers adequate tools and powers, particularly reflecting changes that have occurred technologically. But there was a second principle, which the National Party, when it took over the bill, did not seem as concerned about. That principle was that, equally, you must recognise that when you give coercive powers to enforcement agencies, you make sure you do not unreasonably undermine basic civil rights and liberties.

The thing that worries me about the way National has gone about this bill is that it had 2½ years to actually act on it and put in place Labour’s reforms, and it did nothing. National sat on it; it did nothing. Then at the last moment, as a result of a court decision in Hamed, National decided, in a panic-stricken way, to introduce new powers and not worry at all about how these powers could be misused. The fact was that in the legislation that came in last year, National was going to rush legislation through this House without reference to a select committee, without the ability of any individual or organisation to make submissions on it and to improve or change that legislation. Fortunately, National did not have the numbers to do so. It did not have the numbers to do so, so the changes were temporary.

When the Justice and Electoral Committee looked at these details, the select committee—and I am talking about the whole of the select committee; National as well as Opposition members—acknowledged that the bill that National had introduced went far too far. It had no balance, and it needed to be, and has been, significantly redrafted. Not only have changes been made in the select committee, but the Minister of Justice has come back to this House with 92 pages of a Supplementary Order Paper—92 pages. How badly wrong did the National Party get this legislation? The truth is that but for the work of the select committee and the insistence of Labour that the bill go to the select committee, that original bill would be on the statute book today and it would be wrong. National Party members on the select committee admitted that many of the powers went over the top, were disproportionate to the offending, went to too many agencies, and went too far.

I do acknowledge that some changes have been made that make this part of the bill more palatable. We have reduced the surveillance period without warrant. I think that is an important safeguard. We have limited the retention of surveillance data on people who are quite innocent of any offending. It is absolutely repugnant that you would be keeping on tape video surveillance of people, intruding on their privacy, who were doing nothing wrong. It is really important that we protect the privacy of individuals who are innocent of any offending against the law and against other people. And the bill imposes more stringent reporting requirements. But this still does not go far enough, which is why Labour is not supporting the part.

There are amendments in the name of my colleagues Charles Chauvel and David Parker, which we will be supporting, but in particular we want to focus in this debate on the use of production orders. Production orders are orders that require a person to produce information or documents. That is, in effect, overriding what we would regard as the right to silence. No person is normally forced to produce documents that might or might not be incriminating against them. In fact, it is only the Serious Fraud Office that has the power to issue production orders prior to this legislation coming into effect. When we looked at how those powers were being used by the Serious Fraud Office, we found—in fact, the Law Commission commented on it—that there was a tendency, because we gave these powers to the Serious Fraud Office, for it to overuse them. It did not use conventional investigation techniques. Its first instinct was to use these extraordinary powers, regardless of whether or not they were appropriate in the circumstances.

This brings me to the point that I think is most important in this debate, and that point is this: in this country, Parliament acts to hold a Government accountable, but there is also the fourth estate, the media, which has the vital role of holding a Government to account. For the media to be effective in the use of its authority, then people who give information to the media must be confident that the information they provide will be made and kept confidential. It is vital to protect that confidentiality and the freedom of the press. That is why we are concerned that the Serious Fraud Office used production orders against the National Business Review during its inquiry into South Canterbury Finance. Serious Fraud Office staff went into the news room and seized the documents. Is it any wonder that an international rating agency saw New Zealand’s rating in terms of media freedom drop from eighth in the world to 13th? That is a significant drop. We are talking about international agencies that no longer regard New Zealand as a country that will protect the freedom of the media. And, by God, have they not got information to back that up?

During the election campaign, what did we see? The Prime Minister using a complaint over the teapot affair to get the police to go into news rooms again. We saw the Prime Minister misusing his power in terms of going on a Radio Live programme, even though he was advised by the Electoral Commission not to. We saw the appointment of the Prime Minister’s electorate chairman, a direct political and politicised appointment, on to New Zealand On Air, and his opposing documentaries that might show the Government in a bad light. It is against that backdrop that these powers available to the Serious Fraud Office and the police have got to be met with concern.

Labour wanted the Government to tighten the use of production and examination orders by the Serious Fraud Office at the same time as similar powers were being conferred on the police under this bill. Regrettably, the Government was not prepared to show the flexibility and the common sense to agree to that. If it had agreed to that, then in all likelihood this piece of legislation, which is controversial and which risks intruding on the privacy of individuals, could have gone through with the overwhelming support of this House. That would have been a sign that we have got the balance right: the balance between giving enforcement agencies the powers they need and protecting the privacy of innocent individuals. We offered cooperation to get that consensus support. It is not too late now for the Minister in the chair, Chester Borrows, although he might be reluctant to override the Minister in charge of the bill, Judith Collins, to say “Minister, come to your senses on this legislation. We can get the overwhelming support of the House for it, but let us protect the role of the fourth estate in making sure that the Government is held to account and that people’s privacy is being protected.”

That is what Labour is asking for. It is not unreasonable, and if the Government finally makes the decision to make that compromise, to show that flexibility, to have that common sense, to respect the role of the media in our society, and to get the balance right between giving police and other enforcement agencies the powers they need and protecting the right of New Zealanders, ordinary New Zealanders, to privacy in their life, then we could give support to this bill. I urge the Government to make that change.

The CHAIRPERSON (Lindsay Tisch): There is too much noise coming from the Government benches. If you want to have discussions, go out into the lobbies. That is what the lobbies are for. It is difficult to concentrate and to hear what members are saying.

I am pleased to take another call on the Search and Surveillance Bill, and on Part 3, to once again affirm the Greens’ opposition to this bill. There is a very slim margin majority—or has been up to now—in the House for this bill. It is becoming very obvious in the media and in public generally that people understand what this bill is intending to do, and that the majority in the street and in the public domain are very much in opposition to this bill. We are very happy to join that opposition and to voice it in this Committee.

We have no problem with some of the stated intentions of this bill, which are to rationalise what is admittedly a very convoluted, complex array of legislation. We recognise, of course, that the police and other bodies need investigative powers and, on occasion, they need covert investigation powers. But as has been very eloquently stated by the previous speaker, Phil Goff, this bill simply goes too far. This bill sets out deliberately to be a catch-all bill. It sets out to give the maximum possible powers to State agencies, rather than taking the view that we should give the State agencies the fewest powers that they need to fulfil their obligations, to do their job, and to ensure public safety.

I will move directly to some of the clauses of the bill, specifically under clause 44, the part of the bill that talks about surveillance warrants, devices, and so on. The focus in this particular part of the bill is on the ability of State agencies—be it police or any other—to install surveillance devices on private property without warrants for a defined period of time. Yes, that time has been reduced from 72 to 48 hours, but it is extraordinary that agents of the State should have the power under this legislation—and indeed under the proposed Supplementary Order Paper in the name of the Minister of Justice—to enter people’s houses; to break into people’s premises, areas, or vehicles; to interfere with vehicles; to install, using whatever force is necessary, covert surveillance devices; and, to add insult to injury, to even plug into the electricity of somebody’s home or business premises to power up these devices.

It is extraordinary that the State, a police officer, or other State agencies should have the power to actually break into people’s homes and steal their vehicles and then return them, or to put in these devices, unknowing, on suspicion—reasonable suspicion, which is a reasonably low bar, we must say—that a crime has been committed, is being committed, or indeed might be committed. Those are very, very low bars to protect the right to privacy. Basic civil liberties are at stake here, and we think it is important that people are aware of the very, very considerable powers in this part that would be given for warrantless intrusion into people’s homes, their business premises, and their vehicles—places where people ought to feel that they have a reasonable level of security and privacy. The fact that this can be done without a warrant, even for a shorter period of 48 hours, we think is simply a step too far.

There is absolutely no proven necessity for these quite Draconian measures that this bill proposes and that this part of the bill proposes. We are in a place where we are not under immediate threat from major terrorist groups, despite the best efforts, on occasion, to paint certain individuals in that light. The need simply does not exist for these extraordinarily powerful provisions in this bill—for example, around the warrantless insertion of surveillance devices, even in people’s homes.

The issue of production orders has excited considerable interest in the media, among other places, and I think that is appropriate. The editorial in the New Zealand Herald—which is not noticed as the most radical media outlet that has ever been seen, and which enjoyed the appellation “Granny Herald” at one time—acknowledges that this bill simply goes too far.

There is a clear indication in the provisions around production orders about self-incrimination, and this was referred to by a previous speaker. Within the provisions of this bill, a person who is absolutely a person under suspicion—so-called reasonable suspicion—can be obliged to incriminate themselves or to involve other people in incriminating themselves. For a very, very long time—for centuries—there has been a common law assumption, a belief, a convention that people ought not to be obliged to incriminate themselves.

That is the job of the police and the courts. The role of the police is to bring evidence, to accuse, and to deliver evidence of wrongdoing, and, of course, the courts’ role is to judge on that. The notion that people should be obliged to be complicit in their own conviction is simply anathema. Yes, we understand that we want to prevent the commission of crime. We want to ensure that people who undertake criminal activities should be taken to task and should suffer the penalty. But going against a centuries-old convention, for what reason? For reasons that are not adequately described in this bill. We do not have a situation where we ought to be compromising these very, very long-held conventions that protect people against being obliged to incriminate themselves. There is no justification given in this bill.

For what this bill does—and, in particular, in this part, in the warrantless surveillance provisions, in the issues around production orders, and in the provisions that are made explicit in terms of production orders—the case has not been made that we need these sorts of provisions. They are major assaults on civil liberties, on the privacy of individuals and of businesses, in fact. The expectation of most New Zealanders is that they can go about their business with a reasonable assurance of privacy. This bill does go too far. These provisions go far beyond the pale, and we will continue to oppose them. Thank you.

New Zealand First does not oppose the intent of Part 3 of the Search and Surveillance Bill relating to surveillance powers and declaratory orders. But New Zealand First certainly does have some reservations about the manner in which those powers will be used, and those have been referred to already by some of the previous speakers.

As some previous speakers have already said, there does need to be a balance between enforcement, especially using modern techniques—and bearing in mind some of the crime that today the community is facing—on the one hand, and also the right to privacy, on the other. That is a very difficult balance to reach and requires very careful consideration. In particular, this is necessary where trespass surveillance is to be authorised, and of course the bill takes some trouble to address that. However, I note that only offences punishable by a period of imprisonment of 7 years or more will be subject to those provisions. So, on balance, the New Zealand First position would be that, subject to some of the reservations that have been expressed and which I express here as to the methodology by which these powers are to be enforced, New Zealand First would say that in respect of this part of the bill the balance has probably been correctly arrived at. So we would not, for that reason, oppose that part of the bill.

We note also that the bill now provides some protection for the freedom of the press, especially by confirming the privilege to protect sources contained in clause 130, but I would have to ask, does that really in practice provide a significant protection? It is all very well for clause 130 to simply state that that privilege exists. However, the reality is that if a search was conducted of a news media organisation and information about the sources of information was uncovered, there would have to be a period of time within which the news media organisation could challenge that search and the use of that information.

I am not satisfied that in practice, therefore, the bill actually does protect the freedom of the press in respect of the media’s need to protect their sources, and I would like to have seen the bill go somewhat further than it does. So I would have to agree with some of the previous speakers when they say that the bill goes too far in some of the methods it authorises and some of the agencies that it authorises to have some of these powers.

However much New Zealand First supports the need for effective enforcement, we cannot agree with the bill overall simply because, as I have said in previous speeches, it includes a very serious issue, which is examination orders and production orders that seriously breach the ancient right to silence. That is not something that New Zealand First could agree with. That has compromised the whole bill and, as a result, New Zealand First is unable to support it overall.

You see, it is not just a matter of balance when it comes to the protection of very important democratic rights, such as the right to silence. No form of balance, no consideration of balance, is relevant to that. It is quite simple: rights of that magnitude must be protected. People have fought wars to protect rights of that kind and our democracy as a whole, and there is no way that this should be chipped away at in the form it is in this bill and in similar sorts of legislation. I would remind the Committee that in clauses 31 and 32 a senior police officer is given the right—

The CHAIRPERSON (Lindsay Tisch): Order! That is Part 2. We are on Part 3. You cannot—

I was just moving on to that, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): Just stay on Part 3. That is what we are debating—Part 3.

Well, Part 3 cannot be agreed to, simply because the bill as a whole cannot be agreed to. I would have to repeat that in a non-business context, where those rights—

The first issue I would like some clarification on from the Minister in the chair, the Associate Minister of Justice, relates to clause 57 of the Search and Surveillance Bill and the effect on declaratory orders of the Hamed decision, which came out after the drafting of this legislation. This point became unclear to me when I heard an address from Charles Chauvel when the Committee stage of the bill was in process during a previous sitting of Parliament, when he asked what the proper role is for declaratory orders.

We heard from the Minister of Justice in earlier stages in the debate that a declaratory order might be used when the police want to carry out some activity that is not specifically able to be authorised through a warrant because it might not have been using a technology that was thought of at the time when this legislation was passed. They could go to the court and seek a declaratory order, which is a statement by a judge that he or she is satisfied that the use of the device specified in the order is, in the circumstances, reasonable and lawful—to paraphrase the clause.

Charles Chauvel quite rightly raised the question as to whether this was an appropriate power at all, which made me think about the effect of Hamed on this. This bill was drafted at a time when the advice that we had at the Justice and Electoral Committee—and the Hon Chester Borrows, who is in the Minister’s chair, will remember this, because he was chair of the select committee at the time—was that where there was no express power because the technology was not in existence at the time the statutory provision conferring the warranted powers was enacted, there was a residual power arising from common law for the police to do it anyway. Well, that was thought by the Law Commission to be a bit loose, and so officials in the Law Commission came up with a precursor to this declaratory order form—and now this form—to give some process to try to cause some judicial oversight of these new processes.

But, of course, Hamed came along and said that there is no such thing as an unwarrantable legal trespassory power of surveillance. So you cannot get a declaratory order, I would say to the Minister in the chair—and I ask him to respond—because how can you get a declaratory order in respect of something that is now illegal in light of Hamed? I would say, then, that the only way in which the declaratory order process can be of any utility is in respect of non-trespassory procedures, because trespassory procedures that are not authorised expressly in any form of legislation are, according to Hamed, illegal. They are in breach of the New Zealand Bill of Rights Act. So except to the extent that there might be some exercise of judicial discretion not to exclude evidence because of the seriousness of the crime, it seems to me that in respect of trespassory surveillance operations this is a useless clause, because Hamed has overtaken our understanding of the law as it was explained to us at the select committee. I ask the Minister in the chair to advise me whether I am correct in that analysis—and he being a learned man and a former policeman I think he might agree with me.

The other issue I want to address relates to the amendment in my name, which is an amendment to clause 69(1A) of the bill. It suggests that the Serious Fraud Office director be made, by this amendment, “an enforcement officer for the purposes of obtaining a production order.”, which would then mean that all of the protections, such as they are in this legislation, relating to production orders that are sought by the police would flow through to production orders sought by the Serious Fraud Office. I do not know whether you were in the Chair at the time when we were last having this debate, Mr Tisch—I think you were. You will be aware that there is a residual concern of the Opposition that even if you accept—and I heard the New Zealand First contribution in respect of production orders and examination orders in this context—that production orders might be justified sometimes, they are never justified without appropriate protections of media freedoms. And that is what this amendment seeks to address by making the same protections that apply in respect of production orders sought by the police also apply in respect of production orders sought by the Serious Fraud Office.

Since we have had those early stages in the debate, we have had some editorials come out from the major newspapers in New Zealand that have been considering these issues. I would like to reflect again on what a production order does. A production order effectively requires the person who is served with the production order to hand over documents. They do not have a discretion; they must hand over the documents to the police and also, at the moment, to the Serious Fraud Office along with the police. The police have to get a warrant, the warrant has to be from a judge, the person can claim media privilege, and there are certain protections—inadequate in the view of the press—in respect of police actions, but none of those protections arises in respect of the Serious Fraud Office.

What does the New Zealand Herald editorial of 8 March say? I will read just a couple of extracts: “The rights of reporters to protect confidential sources will be seriously restricted.” So it is saying that this legislation, if passed, seriously restricts the ability of the press to protect their sources, and I think we in this House should be worried about this. Then it refers to the fact that “It is proposed that when the media invoke that essential right (which lawmakers call a privilege),”—here it is talking about media privilege—“a High Court judge will decide whether they can withhold identifying material.” As the media note: “Worse, media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material.”

The Minister can clarify for me whether the effect of the Minister’s amendments is to make it a requirement that those materials must be held in a secure place before the judge reviews the claim to privilege. But, even then, the newspapers make the point that you are trusting the police not to copy the information on the way past, and we are also trusting that the media know their rights—and they will not all know their rights—to demand that that information be secured in the meantime.

The media then make a wider point and say: “Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part, requiring external authorisation before any agency’s officers can search private property or set up surveillance devices. Examination orders”—and production orders are the same—“are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times, their concerns might not come to light.” So they are saying that there is a special case to be made for the media because there is a public interest in preserving the confidentiality of media sources and because there is a public interest in those bad stories—they might reflect poorly on Governments or other powerful people in society—but they none the less ought to come to light for the long-term protection of the health of our democracy.

Then they go on to say—look, there’s another thing here—“News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights.” Can I pay tribute to the comment that we had before from the New Zealand First speaker Denis O’Rourke, because this is effectively what he is saying. I am going to repeat that, because I think it is quite an important point: “News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.” That is what the New Zealand Herald says.

This bill goes too far, according to the New Zealand Herald, in respect of police powers, even with the protections around them, and I am sure it would agree that in respect of the Serious Fraud Office the issue is even worse, because those protections that exist in respect of the police exercise of powers with production orders are not there for the Serious Fraud Office. That is what my amendment tries to make a little bit better. It does not take away the power of the Serious Fraud Office to get a production order, but it does say that for the purposes of this legislation, when obtaining a production order, the Serious Fraud Office director is an enforcement officer, and all of the provisions in the bill that apply to the commissioner in respect of production orders apply to the Serious Fraud Office director.

I want to begin by thanking my colleague for taking the Committee through the history and the context of clause 57 and the subsequent parts of the Search and Surveillance Bill. I spoke a little earlier in the debate about this particular part of the legislation. I found it puzzling and I now have some context for the provisions. But I would, notwithstanding the fact that the Minister in the chair, the Associate Minister of Justice, is not the Minister with carriage for the bill, be very grateful if he could ask the officials for some advice on whether, particularly in light of what we have heard from the Hon David Parker, it makes any sense to retain clause 57 and the clauses that follow relating to declaratory orders.

Clearly what appears to have happened, just following the text of the bill, is that there was an original proposal for what were called residual warrants. I know that the Minister in the chair was on the Justice and Electoral Committee—I was not, but he and David Parker were—and clearly what happened here is that there is a recommendation from the Justice and Electoral Committee to strike out the provisions relating to residual warrants and a decision to replace those provisions with one relating to declaratory orders. This was a set of provisions that will allow, if we enact this legislation, law enforcement to go to the High Court or a District Court and ask for an opinion from the court about the legality of any particular type of surveillance.

This drafting has not changed since the Hamed decision was handed down and Parliament applied what we might colloquially call a temporary fix last year to this situation, which we were alerted to because of Hamed. Notwithstanding Hamed, we have still got provisions around getting these declaratory orders in place. As David Parker has pointed out, these provisions are now virtually redundant, except in respect of one type of surveillance, thanks to Hamed. So I think we need to hear from the Minister in the chair about whether it is desirable to still retain clauses 57 through to 61, because we are really in danger, I think, of enacting provisions that do not have any meaning, as a result of a judicial decision that we have now had some time to consider.

I said that it was helpful to have had the history and the context of the legislation explained, because I think it does show that we probably do not need these provisions, and I think that if we are taking our responsibilities seriously as a Committee of the whole House, we should be looking at the question of whether to retain these provisions.

I have some more serious concerns about them, and I alluded to them in my previous remarks on Part 3. I am going to just reiterate those concerns for the Minister in the chair. We do not, as a rule, in common law countries put the courts in the position of giving opinions. Our system, as the Minister knows, is one where there is a dispute of facts that goes before the courts, and the courts pronounce definitively by applying the law to it. That is the way things are done. In New Zealand we have never constitutionalised that, but in Australia, for example, the Commonwealth constitution makes it very clear that that is the judicial role; it would be unconstitutional in Australia to enact this sort of provision, where the courts are put in the position of being advisers to the executive. I still have a major reservation about the propriety and wisdom of doing this here.

Independently of the fact that we have now learnt in this debate that the provisions are probably redundant in any event, what happens if an abstract request for an opinion goes before the High Court, and the High Court, under these provisions, delivers itself of an opinion, as it would be obliged to do on the face of the clauses, and then the opinion from the court, being expressed as advisory only, is brought up in a subsequent real case, a real dispute, over the legality of a particular type of surveillance in a District Court? What sort of position would the District Court judge be put in in that real-life dispute situation? What sort of discretion would that judge have in any real sense in the face of a High Court advisory opinion on similar hypothetical facts? The reality is the judge would have none. Thanks to our doctrine of stare decisis, even though this is all expressed to be advisory, the judge would not in reality have any freedom to do anything other than apply the so-called advisory opinion given on a previous occasion in a hypothetical situation by the High Court.

That is an indication of why we do not generally enact law in this way, why we do not put the courts in the position of trying to give advice to the executive. We have a Crown Law Office and we have Crown solicitors. They are perfectly capable, and, as the Minister knows, every day they give this sort of advice in practice to the police and to prosecuting authorities. We should not ask the courts to somehow become advisers to the executive. That violates the notion of the separation of powers, and, as I have tried to show, it will result, if these powers are ever used in any extensive way, in embarrassing and uncomfortable situations as far as the courts are concerned.

Finally, as the Minister knows, the courts have enough to do at the moment. We are constantly trying to find ways in this House of easing their burden and their workload, rather than adding to it. I just do not understand, particularly given what we have heard about the Hamed decision and the fact that these provisions are now, largely, moot anyway, why we would then legislate in this way. I appreciate that it is difficult for the Minister in the chair, because he has to take carriage of this legislation temporarily, but—I think this is important enough, and it is certainly not an attempt to spin the debate out—this is a very serious question. I would not be taking time on it unless I thought it was well worth the consideration of removing these provisions from Part 3, which we are now debating. In fact, if there is time in the debate, I think I ought to move formally that the Committee do that, because it seems to me, as I say, given what we have heard, that clauses 57 to 61 are not only moot but actually undesirable.

Just in response to the points that have been made, it is pertinent to note that where the genesis of this provision came from was the fact that technology had moved faster than the law had. So law enforcement agencies were able to draw on new abilities that were given by new technologies, and they were using those in investigations where it was questionable as to whether or not there was the ability to do so.

In response to the query raised in respect of declaratory orders, the point has been made that they are advisory, and I understand the point that the member has made. It is up to the courts to determine the impact of the Hamed decision in respect of that declaratory judgment, and then in subsequent matters as they are raised before them, case by case.

As the member Charles Chauvel noted, the declaratory order regime was recast from the residual warrant regime by the Justice and Electoral Committee when it considered the bill. I should note that declaratory orders do not give the police or any other enforcement officers new powers. However, and I will come back to this in a moment, the regime futureproofs the bill by enabling enforcement agencies to undertake investigation of a crime in the modern era while keeping pace with technological advancement, which is a provision that has not been available in the past.

Declaratory orders will be made ex parte—in other words, as with application for warrants on the papers and without notice to another party—and there will be no adversarial process. The only respondent in a case involving declaratory orders would be the person against whom the proposed device or technique or procedure was going to be used. So by giving them the opportunity to speak, obviously, the police or the courts would be forewarning them of the interest, and so would be stymying the whole need for the application for the declaratory judgment.

As noted by the member, declaratory orders are advisory in nature and can be made by either a District Court judge or a High Court judge. However, they are persuasive. It is inappropriate that declaratory orders should be binding, as at a later date a court will have the benefits of all the facts and the context in relation to the actual use of the device as used at an earlier stage. That is the point that was made by the honourable member Charles Chauvel. The declaratory order is around a hypothetical matter, but the later, subsequent court case will be about actual facts for which the courts will have to make their own decision, albeit in light of the declaratory judgment made on the earlier application.

I will just follow that issue through a bit with the Associate Minister of Justice, because clause 57(1) of the Search and Surveillance Bill says that a declaratory order can be made by a judge only when he or she is satisfied that the activity is reasonable and lawful. The Hamed decision said that trespassory search and surveillance that did not have express legislative authority is unlawful. That is the effect of the Hamed decision. So this can never work in respect of a method of search and surveillance that involves trespass on private property, be it a car or a house, in a way that was being envisaged when the bill was at the Justice and Electoral Committee. This whole thing has turned round, because one of the ways in which this was justified at the Justice and Electoral Committee was that we were told where there was no express authorisation of a surveillance technique that required it to be warranted, that surveillance technique was, as a consequence of common law decisions, legal because it was not required to be warranted. The Hamed decision said that that proposition was wrong. So when this declaratory order provision was being thought through, it was being seen as a way to protect civil liberties by perhaps encouraging the police to go for some sort of judicial oversight of what was lawful but might be unreasonable if done a certain way, but done another way might be both lawful and reasonable. We now know that, in respect of trespassory search and surveillance that is not expressly authorised by legislative authority for the enforcement officer, it is unlawful, and therefore clause 57(1) cannot apply. So I think, Minister, that that can never apply, except in respect of non-trespassory surveillance where Hamed says that you can have non-trespassory surveillance that is not expressly authorised and that does not infringe the New Zealand Bill of Rights Act. So that is my first point.

My second point develops the theme that Charles Chauvel was developing. I listened to Charles and I thought that that was right, and I am convinced by that argument that we ought not to have this advisory role for the courts. He was referring to the effect of a higher court decision on, in practice, the decision that is subsequently taken by a lower court. But let us just consider the actual case in point. Let us say that the evidence was gathered, and then was challenged by the accused at trial. Are we saying in respect of the later decision as to whether that evidence ought to be admitted under the judicial discretion to admit illegally obtained evidence that is so serious as to warrant being admitted despite the fact that it is illegal evidence—and that discretion does exist as law, as we have seen in respect of Tame Iti and others in the Tūhoe case—that we are so naive that we think that that exercise of discretion at trial will not be influenced by the declaratory order? Well, I think it would be naive to say that, and if it is naive and if it would influence it, well, that is wrong. We have an adversarial system, but here, on an ex parte basis, just one side is being heard. In this case, the police, telling the judicial officer what they think without the other side of the case being put on behalf of the accused—who may be innocent; they are an accused, not a guilty party; merely an accused—would be wrong.

The Labour Party has prepared an amendment—and we would encourage the Greens, New Zealand First, the ACT Party, and others to consider it carefully—to expunge these particular provisions from Part 3 so that declaratory orders are not carried forward. This will cause no great hole in our justice system. There have never been declaratory orders in existence until now. Declaratory orders were not needed in order to preserve the admissibility of the evidence in respect of some of the serious offences alleged in the Tūhoe case. Illegally obtained search and surveillance evidence was none the less admitted to court under the discretion that the court has to admit evidence even though it has been illegally obtained. So there are lots of protections for the public out there already. We do not need this one as well to confer additional powers on State agencies to embark on search and surveillance measures. So I would ask the Minister in the chair, the Associate Minister of Justice, to address this issue as to what is the effect of this, in light of Hamed, when it is not lawful.

I move, That the question be now put.

Thank you very much, Mr Chair, for the call as we debate Part 3 of the Search and Surveillance Bill. I do feel slightly inadequate following my two learned colleagues in the legal sense, but I do have some experience in the—

💬 Hon Member: We know that; you don’t have to tell us about it.

That from the member who feels inadequate all the time when he stands to speak. I do have some experience in the media, which has been raised by Mr Parker in an earlier contribution. Part 3 does pertain to powers of officers, and the obtaining of warrants and production orders when enforcement officers are dealing with relatively serious cases. This is my first contribution at the Committee stage, and I just want to say that although we do agree with a number of the measures taken in Part 3, it is, as Mr Goff mentioned in his contribution, unfortunate that we have not been able to come to an agreement on a number of the issues we have raised in order for us as Labour members to give support to this bill and in order for a bill of such significance to have widespread support across the Parliament.

As a number of contributors have said during this debate, it is time for change in this area. The current legislation around the obtaining of search warrants for surveillance is a patchwork, and the Law Commission outlined that fact in its report some years ago. It is at least a positive move that some measures have been made, although we do highlight that a number of our concerns have not been addressed, even though I understand that during the select committee process some significant changes were made, and I do acknowledge the Minister in the chair, the Associate Minister of Justice, for his stewardship as chair of the Law and Order Committee.

I want to talk about two amendments that are pertaining to Part 3. The first is in the name of my colleague David Parker. It is an amendment to insert new clause 69(1A), and it will enforce that the Director of the Serious Fraud Office becomes an enforcement officer for the purposes of obtaining a production order. The Serious Fraud Office at the moment is an outlier in terms of the powers it has to get production orders. At the moment we do have a live case where the Serious Fraud Office did not have to seek permission to search the offices of the National Business Review, and a number of contributors on this side of the Chamber have mentioned that it is a very dangerous move when we give a law enforcement agency pretty much carte blanche to decide whether or not it can enforce a production order on our fourth estate. We did highlight this in our minority report from the select committee process, and I would like to point out that we said that the Serious Fraud Office is currently, as I said, the only agency with a power to issues examination orders and production orders without having to seek approval from a higher power. We do believe in a number of instances that the Serious Fraud Office has used that power on too many occasions. It was not the intent of this Parliament for the Serious Fraud Office to take the liberty to use those powers, especially against our media.

As I alerted earlier, having a free media is a very, very important part of a democracy. A healthy democracy absolutely relies on making sure we have a free media. I think that giving the Serious Fraud Office the power to compel media outlets to provide evidence, to provide documents, really goes to the core of media being able to protect their sources. Sources give information to the media hoping that they can stay as secret as possible. I know that around this place that is very important. When we speak to the media we want our communication with them to remain confidential. But giving the Serious Fraud Office that power to compel our media to produce documents, sources, and any other kind of technology—video or audio recordings—for its purposes really does go to the core of that main tenet of media freedom around the protection of sources. It will be a very, very sad day if people or organisations in this country do not feel that they can go to the media to highlight issues that are worthy of the media highlighting, whether it be us as parliamentarians who are being put in the spotlight or whether it be Government agencies, or whether it be—

💬 Andrew Little: ACC Ministers.

—ACC Ministers, yes, or whether it be private institutions. It will be a very sad day when we introduce, or let continue, legislation that puts at risk that freedom for individuals or agencies to go to the media to highlight things that we all would agree should not be happening. We need to have confidence that our media can carry out their job—to investigate, to expose, and to educate our communities, our society. But the Serious Fraud Office having the power to compel media to gather any piece of documentation would be a very, very sad move indeed. It is one that we do not support, and it is why we do not support this legislation as it stands, and it is why David Parker has introduced an amendment to Part 3, in order to see whether we can remove that power, which the Serious Fraud Office has on its own at the moment. The police do not have that power to go in and compel news media to supply documents, so why do we let the Serious Fraud Office go into an office—and this is a live issue, as I said, with the case of the National Business Review—and demand that they give up evidence? It is not as though the media will have the right to silence or to say no; that right will no longer be available to them. They will be forced, compelled, to give up that information.

I would also like to briefly touch on an amendment that Charles Chauvel has lodged, and that is an amendment to insert new clause 42AA(1)(a), if I am right—

The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the honourable member but the time has come for the dinner break.

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

Taloha ni, Mr Chairperson. I do not intend to take up too much more of the Committee’s time speaking to Part 3.

💬 Hon Lianne Dalziel: Oh please—you were great.

I do intend to complete the point I was making just prior to the dinner break, which was on clause 42AA, on which my colleague Charles Chauvel has presented an amendment to the Committee. Clause 42AA covers the approval of trespass surveillance in instances where material could be collected. At the moment, the bill says that it is for offences punishable by imprisonment of 7 years or more. The substance of Charles Chauvel’s amendment is that we seek to increase that imprisonment duration from 7 years to 10 years. The rationale simply is that we believe that because of the nature of the powers that are afforded to agencies in this bill, we should use it on the rare occasion and for only the more serious offences.

Because of the spirit in which the passage of this bill has gone through the House, we ask that the Minister in the chair, the Minister of Justice, give that amendment due consideration and, possibly, support. If we did pick up that amendment as well as the amendment that has been put forward by David Parker on the powers of the Serious Fraud Office, I think we will go some way to having pretty much solid support from Labour members in order for this bill to have significant support across the House, especially for such important legislation.

In finishing up, we do support the general thrust of what is happening and what is proposed in Part 3. There have been some changes, both at the select committee and also through the Supplementary Order Paper and amendments that are on the Table now. We do support a number of those, but we do, as I want to point out again, seek some changes via the amendment from Charles Chauvel on the length of imprisonment that we take into account when we are looking at trespass surveillance orders being granted, and also the powers of the Serious Fraud Office under the amendment being proposed by David Parker.

I just want to speak very briefly to clause 57, which has already been traversed well by both David Parker and Charles Chauvel, and talk about the uncertainty about the lack of declarations and opinion that is being sought by the judiciary around some of the new technology that may be afforded in some of the stranger situations that we might find ourselves in, where applications may be sought for surveillance. If those changes could be considered, I think that would go a significant way for this side of the Chamber to support this bill. We hope that the Minister in the chair might consider that. Thank you.

I move, That the question be now put.

I want to take over from where my colleague Kris Faafoi left off, which is to talk on the declaratory orders clauses, clauses 57 through to 61. I want to ask the Minister of Justice a few questions about this. It is not my area of expertise, so I may not necessarily have a good grasp of this, but I would really appreciate the Minister responding to this. The concern that I have is this whole area about requiring or enabling a court to give a declaratory order. It is not an expression that I am familiar with, and I do not know whether they appear in other legislation. Perhaps my more learned colleagues will know the answer to that question; it is new ground. The problem I have with a declaratory order is that it is not like a declaratory judgment. With a declaratory judgment, you have two parties who have a set of agreed facts upon which they ask the judge to adjudicate. It is the same as taking a case, essentially, because you have a set of facts that are put before you—

💬 Hon David Parker: Both sides argue.

Both sides argue their particular point. In fact, we had a declaratory judgment last year, where the Earthquake Commission basically lost to the insurance companies, and it is costing the country an absolute fortune. But that was a declaratory judgment that was taken, that was the outcome, and that is what we have to live with.

A declaratory order, though, is when the police are able to go to the court and basically ask whether something is lawful. Am I reading this in the correct way? Perhaps colleagues can again assist me. The problem with doing that is that the court makes a declaratory order, which is an advisory order telling them that, yes, it is within the law, but then a case is taken further down the track when the particular provision is utilised, and a defendant in a trial then challenges the very basis of the utilisation of the device, technique, or procedure, or the carrying out of an activity specified in the order. That, to me, sets up a really difficult situation, because, in fact, the court has been asked to predetermine a position against which counsel for the defence in that particular case will not have the opportunity to argue their cause. So I am really worried about the nature of these provisions and whether they are, in fact, appropriate provisions. I think this is why we have asked for these particular clauses to be removed from this part of the bill.

💬 Charles Chauvel: I’ve tabled an amendment for that.

You have tabled an amendment to do that. My colleague Charles Chauvel has tabled an amendment to do that. I think that that is a very reasonable step to take, because when we think about the circumstances that arose in the Hamed case—and I suspect this is the reason that the bill dealt with this in this particular way, without having taken into account the case, because, of course, the drafting of this bill preceded the case in question—I guess the law is probably more settled now than it was when this was being drafted. I think that it really does need to be reviewed.

In the current legal framework there will have to be sought a court order before particular surveillance can be undertaken. Therefore, the reason for seeking a declaratory order really does not make much sense in light of where technology has already come. So it may be something that we would have looked at several years ago, but it actually does not make any sense to me why we would have such a declaratory order provision.

When I read the report back from the select committee, it made the point—I think it was on page 14 of the commentary on the bill—that it was going to call it a “residual warrant regime”, and it changed that to the “declaratory order regime”. But I think in so doing it has identified the specific problem with it, and the problem is that a declaratory order regime is actually not appropriate. It is not appropriate for a judge to be making a decision on a particular regime such as this without, in fact, ensuring that—well, it is inappropriate to provide judicial clarification, as it has said, in such a manner—

I move, That the question be now put.

The question is that the question be now put. As many of that opinion will please say Aye, to the contrary No. The Ayes have it.

I raise a point of order, Mr Chairperson. I may have misunderstood a brief conversation with the Minister in the chair, the Hon Judith Collins, prior to the debate beginning, but she did indicate to me that she had had the officials have a look at this question over the dinner break and that she, as I understood it, was prepared to explain to the Committee whether or not the concerns raised by Labour members were correct. If there were that opportunity, I know that members on this side of the Chamber would be interested in hearing from her.

Thank you. I will just restate it. The question is that the question be now put. As many of that opinion will please say Aye, to the contrary No. The Ayes have it. A party vote is called for? Please conduct a party vote. Thank you.