Search and Surveillance Bill

This is debate on clauses 87AA to 173, and includes the schedule.

What I want to do in my contribution on this part is speak to the amendment I have put forward that would amend clause 139. I think it is tolerably clear from the debate that members on this side acknowledge that the Minister of Justice has, in many ways, tried to accommodate a number of the concerns that we have put forward. Unfortunately, we are not there on the Serious Fraud Office, and that is going to prevent Labour members from voting for the legislation, but it is the case that the amendments contained in Supplementary Order Paper 12 do allay a number of concerns that we have expressed over the course of a year or two to National.

The relevant difference here is what should happen in a case where the police are concerned that a member of the news media has information that might assist them in the investigation of criminal offending. Under the original provisions of the bill as reported back, what would happen in that situation would be that the police would apply to search and seize the material concerned, the media organisation would have the power to file an objection to the application to search and seize the material on the basis of the privilege or confidence of the news medium’s source, and that objection would be heard by a District Court judge and resolved either way. The judge would either uphold the privilege and protect the source—and we all know how important it is that journalists have a degree of protection under the law for their sources in order to be able to conduct proper investigative reporting; it is a key element of the freedom of the media—or the confidentiality would not be upheld, according to the judge’s assessment of the legal position. That was the bill as reported back from the Justice and Electoral Committee.

The problems with that regime were twofold, in my view. First of all, the forum in which the objection would be determined was a District Court. Frankly, questions of journalistic privilege can involve complicated issues of law. They often involve questions relating to the application of the New Zealand Bill of Rights Act 1990. Because of the way that the Act is drafted, it is often increasingly the practice to refer to North American cases on, in the case of the United States, the first amendment, and, in the case of Canada, their protections relating to the media. The provisions of our New Zealand Bill of Rights Act are essentially drawn from the United States Bill of Rights and from the Canadian Charter of Rights and Freedoms, the documents that are often influential in assisting our judges to interpret what exactly our New Zealand Bill of Rights Act means on any particular occasion, but also what common law privileges such as journalistic privilege might actually amount to in any particular circumstance. So there can be difficult, complex arguments involving often sophisticated overseas authorities.

It is clearly better, from the point of balancing journalistic freedom on the one hand with the interests of law and order on the other, for those competing interests to be weighed in the High Court rather than a District Court. I thank the Minister for agreeing to that. That is a request that David Parker originally put to Simon Power. It was rejected by him, but acceded to by Judith Collins.

The second problem with the bill as reported back on this score was this: the police have the material from the journalistic source while they are arguing about whether or not privilege should apply to it. Even the most virtuous member of law enforcement on the planet is going to find it difficult not to want to take a peek at the material while they hold it, and there was nothing in the bill as reported back to stop them from doing that. They might not be able to use the material in a legal case, they might not be able to admit it in evidence before a court, but they would know its content, because they had seized it and they had read it.

So, again, in response to a concern that we had raised about this particular point, the Minister was at pains to try to accommodate the concern, and she has, via Supplementary Order Paper 12, sought to deal with that concern via a proposed provision that would prevent the material being searched while it was in the custody of law enforcement. It would effectively be surrendered into the custody of the court while the privilege claim was being determined one way or the other.

We are still concerned about whether or not the provisions are sufficiently robust, so the amendment in my name to clause 139 would go one step further and make it an offence punishable by up to 1 year in prison for anybody to breach the provisions inserted by the Supplementary Order Paper that the Minister has proposed. So there would be teeth—symbolic teeth, admittedly, not teeth that are likely to be used in any particular case. But it would be a signal we could send as a legislature that we think that these provisions are sufficiently important.

Other speakers have spoken eloquently about the importance of journalistic freedom. It is an absolute bedrock of our free and democratic society. It is a matter of concern that in the world press freedom rankings New Zealand has fallen from eighth to 13th in the space of a year. All of us who believe in living in a free and democratic society, and in the importance to us of that, should be concerned about it. What Supplementary Order Paper 12, taken with the amendment that I have lodged, would do is rebalance the issue here to make sure that there was sufficient protection in place where a journalist really felt that it was important to protect a source and material supplied by the source, and it would ensure that we were sending a sufficient signal that we thought it was important, and that it was a freedom that was worth upholding.

I really do not want to say any more than that on this point. The provisions of Part 4 are significantly improved by Supplementary Order Paper 12. Journalistic freedom is better protected, and I do acknowledge, as I have said, that the Minister has been amenable to listening to the concerns that have been raised on that point.

💬 Hon Nathan Guy: A great Minister.

Yes, well, it is a shame that we have not quite got to the Serious Fraud Office being included, but I will not bang on about it. I will just make the point that, if we were to make the amendment that would actually give teeth to the provision around the need to not search material that was seized until the court had determined the question of journalistic privilege, we would have much better legislation than what sits on the Table at the moment and is under debate.

At the risk of banging on about it, to use my colleague Charles Chauvel’s words, I am going to return to the issue of the Serious Fraud Office, because it is a serious issue, and it comes up again in relation to clause 106 of the Search and Surveillance Bill. Clause 106 sets out the people whom the Attorney-General may authorise to issue warrants, and it sets out various protections that either were in the bill or were added by the Justice and Electoral Committee. The select committee said there were some provisions that needed to be added to the rules relating to who could issue a warrant—who could authorise the issue of a warrant to an enforcement officer.

Warrants are necessary for most search and surveillance procedures by the police. In fact, for all search and surveillance procedures that are trespassory, unless they are in an urgent situation during the commission of a crime, effectively you need prior authorisation from a justice of the peace, judge, community magistrate, registrar, deputy registrar, or other person. This is clause 106. At the select committee we heard submissions on this and we thought that it needed tightening because the words “or other person” meant that the class of persons who could authorise the issue of a warrant was too broad. We tightened that up by making it clear in clause 106(1A) that the Attorney-General may not authorise an enforcement officer to act as an issuing officer. So a policeman cannot authorise the issue of a warrant to another policeman.

Further, we added clause 106A to say that “An issuing officer who is employed or engaged by a law enforcement agency must not consider, or perform any function in relation to, any application made by a law enforcement officer employed or engaged by the same law enforcement agency as the issuing officer.” That is to get around the situation where someone might be a justice of the peace working for the fisheries department, for example. They ought not to be able to authorise the issue of a warrant to the fisheries department, because clearly a justice of the peace, who could be in quite a junior role in the fisheries department, could come under the influence of a more senior person in that same organisation. Again, the Government has agreed that that is an appropriate limitation on who can issue warrants.

Contrast that with the position of the Serious Fraud Office. The Serious Fraud Office is its enforcer. It does not have to go to someone who is not an enforcement officer to exercise its powers; it does it by an internal administrative act. So again, Minister, I ask you to justify why clause 106 is proper in respect of all of the enforcement agencies in New Zealand except two. All of the arms of the Crown except two will be covered by this. One exception is the Security Intelligence Service. It has separate legislation, and its actions, if it is going to exercise search and surveillance operations, have to be approved by the—what is the—

💬 Charles Chauvel: Commissioner of Security Warrants.

—the Commissioner of Security Warrants, Charles Chauvel tells me—I had forgotten the exact term myself—who is generally a retired High Court judge. So it has a specialist High Court judge who oversees the issue of warrants to the Security Intelligence Service. The other exception is the Serious Fraud Office, and it does not have to go to anyone; it does it internally. So, Minister, where is the principle that underlines what I think is the stubborn refusal of the Government to bring the Serious Fraud Office into line with the processes that have to be followed by every other State agency before they exercise some of these intrusive powers?

Can I also turn to how this links into the recognition of privilege, because the recognition of privilege that is provided for in Subpart 4 of Part 4 of the bill, at clauses 130 onwards, lists the sorts of privileges that people can claim: legal professional privilege, privilege with legal advisers, privilege for the preparation of materials for proceedings, privilege for settlement negotiations or mediation, privilege for communications with ministers of religion, privilege for information obtained by medical practitioners and clinical psychologists, privilege against self-incrimination, privilege for informers, and rights conferred on journalists under section 68 of the Evidence Act. Those are the different classes of people who can sometimes claim privilege. Behind that privilege lies a public interest in non-disclosure that outweighs the public interest in the police being able to get the information. Can those sorts of claims of privilege ever be made in respect of the Serious Fraud Office? No, because the Serious Fraud Office provisions are not subject to this part of the Act.

I want to make it clear that if there is a dishonest purpose—and you see it in those famed cases in America where you have crooked lawyers or crooked journalists who are part of some Mafia conspiracy—those sorts of cases, where the journalists or the lawyer are actually part of the dishonest purpose, are expressly excluded from privilege. So we are not protecting bad people here; we are actually just protecting the public interest in the privilege that traditionally—or which has grown in common law and is recognised in statute—protects certain sorts of information and relationships. This is where there is a public interest in those communications being kept private that outweighs the public interest in the police being able to get at that information. I invite the Minister to say what the difference is for the Serious Fraud Office.

Thank you very much for the opportunity to speak in the Committee stage of this bill, the Search and Surveillance Bill. First I would like to thank the members who have spoken on this part, Mr Chauvel and the Hon David Parker. They have been good contributions, and I would like to thank them for the work they have been doing to try to get as much agreement as we can on this. There are a couple of issues that have been raised by them.

Mr Chauvel has raised an issue around the safety, or security really, of documents that have been seized by police under a warrant where a claim of privilege has been raised. There has been some concern that once the documents are in the possession of the police or the court they are effectively disclosed. I do not agree with that. The police or other agency must not search the thing secured, and that is in clause 139(c) in the bill itself.

The courts are generally trusted with highly sensitive matters on a very regular basis—for example, with details that are suppressed. If we do not trust our courts with this information then we would be in a very sorry state, and I am pleased to say that we do trust the courts. In all cases a hearing would be held to determine whether the claim of privilege should be upheld. If it is not upheld the police or other agency could use the document or computer file containing the name, or the journalist would be required to tell the police the name in the case of an examination order.

If the police or other agency did search the document computer file, this would itself be a breach of the law. Of course, as we know with electronic footprints, it is pretty easy to tell these days exactly who has been looking in what and where things have come from, and I believe very much that that would be disclosed. In addition, it is an offence under the bill to disclose information acquired in the exercise of a search or surveillance power production order or examination order other than in the course of a person’s duties, functions, or powers.

There are also other avenues of redress, including complaints to the Independent Police Conduct Authority, and police also conduct internal investigations when officers breach procedure. For many officers, if they undertook that work they would, in fact, essentially lose their jobs. So I do not think that we should think that police officers cannot comply with the law. In fact, they do all the time.

Another issue that the Hon David Parker has raised, and I think it is a valid issue, is around the Serious Fraud Office, and I am happy to address that. There are a couple of issues here. He wrote, as he told us before, to the former Minister of Justice about the Serious Fraud Office, and he wanted the Serious Fraud Office included in this bill. One of the issues with that is that the Serious Fraud Office has never been included in this bill, and I understand the reason why, which was that the Labour Party was committed to bringing the Serious Fraud Office into part of the police, so, in fact, it would actually receive the powers under this bill when it went through.

But let us be frank here. This bill has been hanging around since 2007. It has been a long time. This Government is being quite committed to the bill, and we are now in year 4 of the term. If we had, in fact, waited for this bill to come into force and got rid of the Serious Fraud Office, as the Labour Party wanted us to do, we would have spent 3 or 4 years—4 years in this case—waiting for some of these powers to be available for the police.

So we would have had the police not being able to undertake examination orders or production orders, and if the Serious Fraud Office was not there, it would not have been doing it either, at the very time when we have had disclosed some of the worst financial crimes that we have seen since the 1980s. So I think, really, to say “Get rid of the Serious Fraud Office.” at that time was somewhat premature, given that search and surveillance legislation and the production orders and examination orders regime were not actually in place. I understand what those members are doing, and there is a lot of logic in what they are saying, but it is about having things in the right order. It would have meant that we would not have had that power available to police.

The other issue they have raised is this: why can I not bring the Serious Fraud Office in now? For a start, I actually think process is relatively important on things like this. The Serious Fraud Office has never been part of the bill, and therefore the public have never been asked to submit on whether or not the Serious Fraud Office should be under this regime, or whether or not it should remain with the powers it has had since 1990. I think to suddenly, at this late stage—and I acknowledge that the Hon David Parker wrote to my predecessor about this—

💬 Hon David Parker: A year and a half ago. At a late stage—a year and a half ago.

The member says it was a year and a half ago, but I would also ask whether the member followed it up.

💬 Hon David Parker: I did, on a number of occasions.

Since I have been in? I think it is fair to say, though, that at this late stage and as the new Minister of Justice I am not prepared, overnight or even over a month, to decide to change the powers of the Serious Fraud Office without that matter having first gone to a select committee. It is the sort of thing where we have discussed what we should do with the Serious Fraud Office over the powers. We have had allegations made, and I think we have heard those, around alleged misuse of the powers by the Serious Fraud Office. The only example given to me was when the Serious Fraud Office served production orders on the National Business Review, once, last year.

Just on that one issue I do not think we should be completely changing the law that has been in place since 1990, and which, by the way, was brought in by the then Labour Government to deal exactly with the same issue that we have just dealt with over the last few years, which is massive financial crimes that were discovered as a result of the financial meltdown in the 1980s. Let us not kid ourselves. These crimes were happening before. They were simply discovered, and the discovery really came about because there was, in fact, a run on money and therefore they got discovered.

We have also now got the Financial Markets Authority in place, which I think is doing a far better job than its predecessor, the Securities Commission. So we do know we have some better processes in place. But I do not think it is right for me to come along and make a decision to rein in the powers of the Serious Fraud Office without some serious debate in public in the select committee.

The other issue in relation to those Serious Fraud Office powers is that they are very, very refined in terms of whom they serve the orders on. We are not talking about everybody who has contact with the New Zealand Police. We are talking about a very select group of people. I believe that the same reason that these powers were brought in, in the first place, is still there now—the same need.

But also, a production order is essentially a bit like a search warrant, except that instead of having a police officer charging through, looking at everything that you have got in your property, they ask you for what it is that you have. So, in other words, it might be something like: “I want these reports from this, this, and this.”, and for a person subject to it, that is a whole lot different from, and a lot less onerous than, a full search warrant where everything can be looked at.

So I think just because lots of the public do not know that there are production examination orders, that does not mean to say that they necessarily are very scary and difficult things. It is simply that most people, thankfully, have never had to be subject to them because they are not the people whom the Serious Fraud Office is after.

I would like to take a call just to reflect on some clauses in Part 4 of the Search and Surveillance Bill that support our proposition that this bill is intended and designed to maximise the powers of the police and other agencies—an extraordinary number of agencies—to delve into people’s privacy. There is very little in this bill, clearly, that seeks to maximise the opportunity for people to protect their privacy. This is a catch-all bill. It is a sledgehammer bill seeking to cover every eventuality.

A simple example of that is in some of the definitional clauses. Clause 87AD talks about what is actually a computer for the purpose of this particular part, which is very much the nitty-gritty. This is how various agencies will go about the matter of delving into people’s private matters. For the purpose of this part, it talks about computers. We know that computers are a primary target where search warrants or production orders or whatever are being executed. It goes to great lengths to include anything that might possibly be deemed to be part of a computer system, and defines a computer system as “a computer; or … 2 or more interconnected computers; or … any communication links between computers or to remote terminals … or … 2 or more interconnected computers combined with any communication links … to any remote terminals or any other device; and … includes any part of the items … and all related input, output, processing, storage, software, or communication facilities, and stored data”.

That is quite a remarkably adept attempt to think about how we can possibly broaden the definition of what is a computer. Clearly, any electronic device—a computer, an iPad, a telephone, a smartphone, a smart drive, a data stick—any and all of these items, which are perfectly legitimate items for anybody to own, become accessible to a search and to an investigation. There is no effort in this bill to minimise the scope of what might be legally investigated if this bill passes.

Similarly, I think it is interesting to put on the record the range of bodies and individuals who might be empowered to conduct searches, to exercise search warrants, and so on, under this bill. Indeed, in clause 87AC we learn that an enforcement officer, in relation to the provisions in this part, includes a constable—yes; logically it would. A constable is defined as any sworn police officer, of no matter what rank. That is as we would expect. It also goes on to say that an enforcement officer can be any persons authorised in column 3 of the schedule of this bill.

It is quite interesting to go and have a look at the individuals or the people who might be described as enforcement officers. The first person you see pop up in the schedule is an “ACVM officer”. I had to go away and discover that that is actually a person empowered under the Agricultural Compounds and Veterinary Medicines Act. We go on to discover that it includes animal welfare inspectors, high-seas fisheries inspectors, special inspectors with some sort of power under the Antarctica (Environmental Protection) Act, anti-personnel mines officers, people executing powers under the Anti-Personnel Mines Prohibition Act and the Biosecurity Act—people exercising authority under that Act. Designated persons may search for evidence of offences against the Commodity Levies Act. I struggled to find anybody, any Government agency, that might be excluded from the right to exercise the extraordinarily invasive powers that are given by the various provisions of this bill.

In clause 130 and the following clauses there is this question of privilege, and this has been referred to in various contexts. I would just like to highlight, as Mr Parker made mention of in another context, the question of privilege. It encompasses the relationship between a person and their lawyer, medical practitioner, minister of religion, or clinical psychologist, and it encompasses journalists. The Minister has assured us that information that is privileged will be protected, because no police officer acting honourably will search or investigate material if they believe privilege might—

I appreciate the opportunity to take a brief call on the Search and Surveillance Bill, on Part 4 particularly. It is worthwhile recognising that Part 4 is to do with the general provisions in relation to search and surveillance powers, and possibly to remind the previous speaker, David Clendon, of the purpose of this bill. I crave the indulgence of the honourable member Charles Chauvel, because I am actually going to take a couple of words from the introduction here, just to remind Mr Clendon that we are dealing with search and surveillance powers and inspection powers amended by the bill, which go across 69 Acts—69 Acts. It is obviously going to deal with arcane officers to do with veterinary medicine and fisheries, etc., as he pointed out. It is intended as a comprehensive reform of search and surveillance legislation.

Part 4 is a good case in point. It deals with consent searches, application for search warrants, issuing of search warrants, search powers, detention of persons at the search scene, and, of course, we have heard that it deals with examination orders, production orders, and surveillance. I would like to come back briefly to examination orders. This bill does have an examination order regime. We have heard quite exhaustively from the Opposition about how the Serious Fraud Office currently has the power to apply for an examination order. We heard from the Minister of Justice that this, in fact, is a power that it has had since 1990. The bill will also allow the police to apply for them.

We know that examination orders are recognised as a serious power and that additional safeguards will be in place. What will these safeguards be? The police may apply for an examination order in a business context to investigate an offence punishable by 5 years’ or more imprisonment. Examination orders allow the police to require people who acquire information in the course of business, such as accountants, to cooperate with the police without being guilty of breaching professional or fiduciary obligations. In a non-business context, the examination orders may be applied for to investigate serious fraud punishable by 7 years’ or more imprisonment.

It is important to respond to some concerns—and I do acknowledge how open-minded the Minister has been to concerns that have been raised; she has specifically mentioned the Hon David Parker and Charles Chauvel for some of the help that they have given on this bill—raised concerns about the impact of this on civil society and the right to protest. The 7-year threshold in non-business contexts means that examination orders are not available to investigate such crimes as protesting, trespass, disorderly behaviour, or unlawful assembly—a very good point, I thought.

In addition, only a judge can make an examination order upon application from a police officer of the rank of police inspector or above. This is a tangible acknowledgment of the seriousness of this. This ensures that examination orders do not become a routine tool for investigation.

The privilege against self-incrimination is something that was raised by a number of speakers. This has been the subject, as we have heard, of a particular Supplementary Order Paper 12, where we have dealt with this. We are particularly keen to defend media impartiality and media sources. A key change has been to significantly improve journalists’ ability to protect the identity of their sources and enhance their journalistic privilege. This has been made in recognition of the media’s role in a free and democratic society and the need to protect that role and preserve the important principle of media freedom.

At the moment, the media cannot prevent material from being seized during the search and therefore viewed and accessed. This Supplementary Order Paper will make that a lot less likely to occur. The bill will allow a journalist to claim privilege over information contained in documents, preventing the documents from being searched. The documents would then be secured and taken to the High Court for safe keeping, where the claim of privilege can be determined. Effectively, the Search and Surveillance Bill recognises journalistic privilege and provides greater protection for journalists’ sources. Journalists can also refuse to answer questions.

I could not really resist joining the debate after listening to that contribution from Mr Calder. I am sure it was well meaning, but unfortunately it was somewhat misleading. The reason it was misleading is that it completely missed the point that we have been kind of banging on about ever since this debate got started on this particular bill, the Search and Surveillance Bill, which is that these provisions about requirements to get a warrant do not apply to the Serious Fraud Office. What we have been asking for consistently throughout this is to have the bill extended to cover the Serious Fraud Office. I thought it was a bit unfortunate that the member concerned commented about the provisions in relation to police and then implied that they also applied to the Serious Fraud Office when, in fact, they do not—and that is exactly our point.

I want to traverse some of the history of this, because I also heard the Minister of Justice make the point in her contribution that this had been raised very much at the last minute. Well, actually, the only thing that has been raised at the last minute has been the opportunity to address this problem in a way that could have been addressed at the Justice and Electoral Committee if we had the Standing Orders then that we have now. That is all that has changed. We have the opportunity to put right a wrong that was done not, I think, deliberately, but simply by reason of the fact that the select committee was given the advice—correctly at the time—that it could not make the amendments to bring the Serious Fraud Office within its ambit, because at the time it was not within the scope of the legislation.

In fact, if one refers specifically to the commentary and to the Labour minority view in this report, one sees that it states: “The Labour Party enquired of the Government via select committee members and officials whether the Government was willing to tighten the use of production and examination orders by the SFO at the same time as similar powers were being conferred upon the police under this bill. Officials advised that the Government was not willing to do so.” That was when it was reported back from the select committee, which I think was actually some time ago, probably—

💬 Charles Chauvel: November 2010.

In November 2010 the bill was reported back to the House, with an interim report back having been made on 6 August 2010. The position of the Labour Party on this particular part of the bill has been well known for a long time.

But let me talk about the letter to the then Minister of Justice, the Hon Simon Power, signed off by our then shadow Attorney-General, the Hon David Parker, who has already contributed a lot to this particular debate. In this letter, which he wrote on 9 November 2010, he made it very clear about the Serious Fraud Office, and he talked about why it had not been included in either the Law Commission’s report or, in fact, our legislation that we were going to be introducing at the time when we were in Government.

He states the history quite clearly. He states: “The genesis of this lies in the proposal by the last government to merge the Serious Fraud Office … into a new Organised Crime and Serious Fraud Unit within the Police.” That is exactly what the Minister herself, from the chair, accepted was the case. The letter continues: “At the time the Law Commission advised the then cabinet that the SFO was in the habit of routinely using their powers to use production and examination orders.” So her statement that this was just a one-off event involving the National Business Review is simply not accurate. It does not reflect the history, nor does it reflect what we were advised by the Law Commission.

We were advised that, in fact, this was a routine habit of the Serious Fraud Office. The point was made in this letter that “These orders do erode the right to silence, and should be used sparingly. They were never intended to be a substitute for normal investigative practice, but rather were intended as a reserve power to be used to unpick serious fraud when normal investigative means will not suffice.”

The decision was reached by our Government that we would proceed with providing these powers to the police, but at the same time, with the decision to fold the Serious Fraud Office back into the framework of the police, that it would be picked up by those powers. So those appropriate restrictions that would operate around the use of those powers would apply to the Serious Fraud Office, as they would to the police, for that reason. That is a point that the Minister really has not, I think, responded to fairly, because she has sort of implied that this has been raised so late in the piece that there was nothing that she could do about it.

Well, I want to refer to the Hon Simon Power’s response. The Hon Simon Power sent his response to the letter of 9 November 2010 on 25 November 2011.

💬 Hon David Parker: The day before the election.

The day before the election.

💬 Hon David Parker: Received after the election.

It was actually received after the election, because it was received on 28 November 2011. I do not know what that then Minister of Justice was doing, but I do not think this Minister of Justice would have let a letter lie around for that long before it got a response.

She is actually mentioned in this particular letter, and I will just read the section in relation to the Serious Fraud Office examination order powers: “I have consulted with the Minister responsible for the SFO, Hon Judith Collins, on this matter. The SFO’s view”—the Serious Fraud Office’s view; not the Minister’s view, but the Serious Fraud Office’s view—“is that their powers were enacted in the SFO Act with agreement by both sides of the House 20 years ago, and have operated with relatively little controversy since.” Well, I can probably find legislation that was agreed to all around the House 20 years ago that none of us would want to have a bar of today. I am sure there are plenty of examples of where things have changed over 20 years. The letter went on to say: “Accordingly, the SFO does not consider that an ad hoc change to one very specific provision in its Act is desirable and could potentially have an adverse impact on the effectiveness of its wider operations.”

Well, I think I just want to return to what Mr Calder said earlier, because he said that this bill was “intended to implement a comprehensive reform of search and surveillance legislation, both as regards the core substantive law enforcement powers, and the way search powers are exercised across the statute book.” This bill does not live up to its expectation, at all, and it does not live up to it for this very reason. Having absented the Serious Fraud Office from the coverage of this particular piece of legislation, we are unfortunately in a situation where the introductory comments on the commentary of the Government bill do not match the reality of the bill. That is why we have made it absolutely our position from start to finish—and it has not just been a recent position; it has been our position throughout—that this legislation should extend to cover the role of the Serious Fraud Office.

The recent examples that we have had in relation to the National Business Review are not the only examples. As I said, quoting from the letter from David Parker to Simon Power back in November 2010, the Law Commission advised Cabinet then that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders, and if we are going to have this comprehensive reform, then it is important that the Serious Fraud Office is included within its framework.

I think that with regard to the Minister’s point, I understand that it might have been a position that could have been adopted if it had not been addressed at the select committee, but it was addressed at the select committee and there were submissions received on it. In fact, the question went back to the Government from the select committee to ask specifically whether that addition could be made. At the time, our Standing Orders would not have allowed for this debate to occur at the Committee stage—

💬 Hon David Parker: But we could have agreed at the Business Committee.

—but we could have agreed through the Business Committee to do it. There was willingness, I think, right around the House, with one exception, and really the grounds for the exemption for the Serious Fraud Office simply do not stack up when one looks at the intention of this particular legislative reform. So even at this very late stage I know that members on this side of the Chamber would really like to see the Minister come to the party on this particular provision, because we would have agreement then.

If we were to have legislation like this, where you have got substantive agreement across the House—I know that some Ministers might think that it is not important to have that level of agreement on such fundamental legislation—I think it actually stands in really good stead the weight that is given to legislative change when you can see the range of support that it gathers across the House. I think in measures such as these, we should be looking at gaining pretty much universal support in the House where we possibly can. We were so close to getting that achieved in the discussions that we have had; I think it is not too much to ask for that further step to be taken.

This bill, the Search and Surveillance Bill, has outrageous powers, and many parts of it, if it is to go ahead, need to be withdrawn. I notice one of the Government members suggested that protesters would not be caught up in this bill. We have just had very, very recently Lucy Lawless up the top of a ship, and she has been charged with burglary. She would have been eligible under this bill to come totally under it in terms of search and surveillance. So would members of this House who have had something to do with Greenpeace in the past; so would members who have had something to do with her family, her friends. They would all be open to the powers of this bill.

It is good to see that false applications of this bill would be penalised. However, failing to comply with an examination order or a production order, as in clauses 165 and 166, would give an individual up to 1 year’s imprisonment and would give a body corporate—which I would imagine would be Greenpeace—something like a $40,000 fine. If they did not give the password or whatever for their computers, there would be potentially 3 months’ imprisonment if they were not compliant with that.

This bill does go right down. We are talking about media here, quite often, but what about the non-governmental organisations, which actually do hold this Government, this Parliament, to account on a continuous basis? The outrageous search powers also go to persons called in to assist, whoever that might be. Does that also go to businesses such as Thompson and Clark Investigations Ltd, the private investigators that Solid Energy and others would use on people like Greenpeace, Lucy Lawless, and other protesters?

This bill needs to be biffed. It goes far too far. We have seen how the terrorism legislation was attempted to be used. This bill comes in to try to do the surveillance that was illegal. The Green Party can only oppose this bill when powers such as this go right into the core organisations and community organisations that try to keep this country free and democratic, and that also look after the environment. So the Green Party will continue to oppose this bill as it stands.

Perhaps you are right in the Green Party to oppose the Search and Surveillance Bill, Mr Browning, but I hope you do not do it on the basis that this would affect Lucy Lawless, because she was actually there publicly waving to be seen and there was no covert surveillance or search involved in that case.

I want to further reply to the Hon Judith Collins’ statement about this being a late change, and some assertion that there would somehow be a vacuum of powers in the meantime. Well, there would not have been a vacuum of powers, because until the bill was passed amending the powers of the Serious Fraud Office, its existing powers would have carried on and there would have been not one iota of a vacuum. So that is, with respect, a vacuous argument, rather than arguments about vacuums.

As to the point as to abuse of powers, the only time that I am aware that the Serious Fraud Office has abused its powers in respect of the issue of a production order against the media is in respect of the National Business Review. But its abuse of its powers by using this short cut route, where it whacks out a production order or an examination order rather than seeking a warrant or using normal investigative techniques, is a more widespread abuse of its powers, according to the advice that we received from the Law Commission when we were in Government and the advice that I received when concerns were raised about these issues. I visited Queen’s Counsel, who were acting both for the Serious Fraud Office at times and for accused persons. They said, whether they were Serious Fraud Office lawyers on occasions or defence counsel, that the Serious Fraud Office was abusing its powers by using them when they ought not to, or by using them too broadly. It is very easy for them to whack out a broad production order or an examination order, and, effectively, go on a bit of a fishing expedition to see what is around, rather than have a more specific production order or pursue normal investigative techniques.

As to the suggestion that this would be a late, on the hoof amendment, this issue was raised at the Justice and Electoral Committee and the Hon Lianne Dalziel has already outlined that by reading from the select committee report. It was raised by me in communications with the Hon Simon Power, with constant reminders, and there was a somewhat cynically late reply designed not to be received until the days following the election.

But also I note that the issue was raised with the now Minister of Justice in her role as the Serious Fraud Office Minister by the National Business Review, and I read from the National Business Review of 9 March 2012, page 1, its article “Bill retains ‘draconian’ SFO Powers”: “Mr Gibson”—who is the editor of the National Business Review—“recalled that in 2010 he asked then SFO Minister Judith Collins to amend legislation empowering the SFO’s rights of seizure of media dossiers.”

So the suggestion that this was raised late in the piece is wrong. The suggestion that it could not be fixed even though it is late in the piece is wrong, because we put forward amendments that would fix it. The suggestion that this would be poor process is made to look pretty thin when we consider that there is a 100-page Supplementary Order Paper that the Minister brought forward, which was produced and tabled, I think, the day before the Committee stage began—is that right, Mr Chauvel? It was the day before this Committee stage began. The idea that even a week ago, even the week before this, they could not tidy up this particular part of the legislation and apply the same rules to the Serious Fraud Office as applied to other agencies of the Crown is nonsense and it ought not to be given any credibility.

I move, That the question be now put.