Search and Surveillance Bill

In this part of the Search and Surveillance Bill I am going to speak in favour of some of the standardisation of rules that apply to different agencies. There are, as the Minister of Justice has previously said, a large number of slightly different legal tests that apply to the search and surveillance powers under various pieces of legislation. To give you an idea of the breadth of the legislation I will just read out a few of the different Acts that we are amending: the Agricultural Compounds and Veterinary Medicines Act, the Animal Products Act, the Animal Welfare Act, the Antarctic Marine Living Resources Act, the Antarctica (Environmental Protection) Act, the Aviation Crimes Act, and the Boxing and Wrestling Act 1981, which I had completely forgotten about until I read it in the schedule. The list goes right through: the Driftnet Prohibition Act, the Land Transport Act, and the Trade in Endangered Species Act. The list is of Acts being amended so that the powers and the protections that are surrounding the powers that these different organisations have are standardised. The list runs to eight pages, from page 11 to page 19 of the description at the start of the bill. That is just the list of sections in the Acts that are being amended, and the relevant sections that are being amended run to a large part of this very long bill.

It is good that we are standardising these protections and rules that surround the use of search and surveillance powers that have been conferred by Parliament on all these difference agencies; I think that is a good thing. But it does, again, highlight the fact that we have this inconsistency, that we are not doing it for the Serious Fraud Office.

One of the benefits of the Committee stage of the debate is that as members we all learn things. I found this debate quite interesting. I have learnt some things. It has helped me and my colleagues in our thinking as to where we think the line should be drawn in respect of production and examination orders, not just for the Serious Fraud Office but for the police as well. We have also listened to the debate that has been outside of this Parliament, including the opinions that have been expressed by the media freedom committee. I thought that the editorial from the New Zealand Herald, which I suspect was written by Tim Murphy—I do not know that to be the case, but I know he is chair of the media freedom committee on behalf of the members of the media, and he will have had a hand in—was quite persuasive.

I think I have got to the position where I can accept that we need the Serious Fraud Office to have some of these powers that undermine the right to silence, by allowing them in situations relating to commercial transactions and business records that show complex fraudulent transactions. They need to be able to unpick them by going to the people who hold those records and saying: “Please give us those records. Please explain what those records mean.” It effectively allows those people to be released from their duty of confidence. I agree that that is appropriate. I also think that the police should have that power in that same context.

I am uncomfortable with the police having that power in respect of the criminal investigation of the primary suspects in a crime, because it undermines the right to silence. The people who are forced to give evidence are likely to lie anyway, so the reliability of the evidence they gather is not good. That is one of the reasons why traditionally we have not forced people to answer, because when they are forced to answer, rather than when they answer voluntarily, they are more likely to lie. As well as that, we undermine this relationship between the police and the public if we force members of the public to give evidence against their loved ones, which can be very difficult. In fact, it is not that long ago when in respect of charges against a spouse, the other member of the family, the husband or wife, was not even competent to give evidence, even if they wanted to. The public interest in that was that it was a ridiculous law, and eventually Parliament changed that and said that the spouse should be competent to give evidence against their husband or wife or partner, but they should not be forced to. Yet what we are doing with production orders and examination orders is going that step further and saying that people must answer, and that undermines the relationship between the public at large and our enforcement officers. In the end it places those enforcement officers in one place or another in greater danger as they go about their duties, which they go about in order to protect us.

I do not want to undermine the relationship of trust and confidence and cooperation that lies behind the way in which we have public interaction between law enforcement officers and members of the public. Most information that law enforcement officers get is through that relationship of cooperation, because people know and see it as their civic duty to ordinarily cooperate with the police authorities or the other arms of the State, whether it is the Ministry of Agriculture and Forestry looking into foot-and-mouth allegations, or whoever it is. The public feel an obligation to cooperate with the police. That sense of obligation is undermined and that sense of social duty is undermined if people lose confidence in the police because they are forced to answer questions about their loved ones. They are put into the difficult position of telling the police information about their son or their daughter, their husband or their wife, their partner, or their best friend. At the moment, people can say: “No, I’m not going to say anything.” They cannot lie, but they can say that that are not going to say anything.

I listened to some of the contributions from New Zealand First and the Greens in this debate, but particularly the contributions from New Zealand First, and I have been quite moved that they are aware that this right to silence that we have in New Zealand is really important. Where I have got to in this debate is that my own understanding of these issues has improved. I have got to the point where in the business context, fine, I think these powers are at times necessary. But outside of the business context, I do not think they are appropriate and I do not think we should be conferring them in that context.

It is interesting that when former Commissioner of Police Howard Broad first came before the select committee, and, indeed, before that to Cabinet—and I was in Cabinet at the time—I can remember Mr Broad saying that he did not think that the powers of compulsion that are conferred by production orders and by examination orders are necessary for the police. He thought normal investigation techniques, which have stood the test of time through the 100 years that they have been in existence—those are the powers that they have operated under until now—sufficed. I think that is the position that I am getting to. Having said that, I do agree that the standardisation of powers across these various agencies is desirable. It is too confusing for everyone involved to have legal tests that are in tiny, little ways different from one agency to another.

I want to commend what David Parker said. I think it is true that as the debate has progressed, our understanding of this very complex legislation has greatly improved. I think the interplay of Supplementary Order Paper 12, which dates from Tuesday, 6 March—so it is just over 2 weeks old—with Part 5 of the Search and Surveillance Bill is a pointer to the complexity of the legislation. The complexity was brought home to me when I worked with David Parker to try to come up with some amendments to achieve the aim that we had discussed with the Minister the Hon Judith Collins but not managed to get agreement on, which was the inclusion of the Serious Fraud Office. Part 5 is the part of the legislation that deals with all the other Acts of Parliament and all the other agencies that we are conferring a standardised set of rights and duties on in the search and surveillance area, and David Parker mentioned some of them. We are amending legislation as complex as the Dairy Industry Restructuring Act 2001 and as banal as the Dog Control Act 1996. That is a pointer to the complexities here.

But the other complexity relates to the interplay of the bill itself with the substantive Supplementary Order Paper 12, the 93-page set of amendments to the bill itself. I do have to say this in passing, Minister: although I have praised you for your willingness to negotiate, it would be in my view a little bit over the top to claim too much regard for process as an excuse not to deal with the Serious Fraud Office in this context. Given that your Supplementary Order Paper makes a series of pretty significant amendments to the substantive Act, which have never been near a select committee or a public consultation process, let us just not make too much of that point, if it is to be used as a reason for not dealing with the Serious Fraud Office itself.

The Supplementary Order Paper itself basically makes most of Part 5 of the Act redundant. What it does is replace many of the references to the various agencies and powers with a new schedule to the legislation. In order to try to fit the Serious Fraud Office into the bill, my amendment first of all would insert a new clause, clause 276A, into the bill. The reason that it would appear there is all due to the alphabet. It would insert amendments to the Serious Fraud Office Act 1990 between amendments to the Resource Management Act 1991 and amendments to the Sale of Liquor Act 1989, in alphabetical order.

The amendments would be these. We would start off by repealing sections 5 and 9 of the Serious Fraud Office Act. Again, to correct a point that the Minister made from the chair a little earlier, this would not create any vacuum or lacuna in the powers of the Serious Fraud Office. It would happen on the enactment of this legislation, and not before. So it would not lose any of its present powers. It would continue with its present powers up until this legislation got the Royal assent. But what the amendment would do would be to repeal sections 5 and 9 of the Serious Fraud Office Act. We have canvassed what those sections do, but I think it was obvious from an exchange between Dr Calder and my colleague Ms Dalziel that we still have not managed to get this across. Section 5 of the Serious Fraud Office Act, as it is framed now, allows the Director of the Serious Fraud Office to require the production of any piece of paper. This requirement does not need to go before a court, and it does not need a warrant. It does not need any safeguards. He can just say: “I want this piece of paper.”

💬 Hon David Parker: Or all these pieces of paper.

Or “All these pieces of paper.”, or “This electronic version of the piece of paper or pieces of paper.” The director does not have to go to a court. He does not have to make a case. He does not have to undergo any process or safeguard in order to do that. He simply—and it is a he at the moment—issues this requirement and it must be complied with. So that is the first section that would go, under this proposed amendment. The second section that would go is section 9, which gives a further power to the director, again without any safeguard and without any need to persuade a judge or to get a warrant: “I want you in my office to answer questions at this time.” He can say that to anyone on any occasion, and, again, there are very limited opportunities to object and certainly no requirement for prior judicial approval for the exercise of that power. So those sections would go and they would be replaced by two very simple provisions. Basically, they would be replaced by existing sections 6 and 10, which would each be amended as follows. They would have the following words put in: “the provisions of Part 4 of the Search and Surveillance Act 2012” as it will be “apply.”

So all that happens is that exceptional powers would be repealed and the Serious Fraud Office would be brought into the same regime that would apply to every other State agency bar the SIS, once this legislation comes into force. It is a very simple, surgical exercise, and as David Parker told the Committee in his previous contribution, this was something that was raised and discussed at the select committee. It was raised, as I understand it, by submitters as a desirable thing to be done. It was raised with the officials, certainly by David Parker as something that he would like advice about it, and, as we know from the news media source he quoted, it is something that was canvassed with him as the previous Minister, and has now been canvassed with his successor, the Hon Judith Collins. We have her response.

It is OK that that response is no. We understand that. We do not like it, and we do not agree with it, but OK, it is no. But let us not dress it up as a no that is based on any particular respect or regard for procedure or process. Let us just understand that it is a no. What members on this side of the Chamber are trying to do in this debate—and we have tried to do it in a civilised and restrained way—is point out that, yes, Dr Calder, it makes a lot of sense to provide all these safeguards across the board in this bill. What it does not make sense to do is to leave the Serious Fraud Office out, from the time that this bill starts to apply, because you have one major agency of the State, probably, in light of what David Parker said, the major agency that we need to have working well in this area.

We want organised financial crime to be prosecuted and dealt with appropriately, but it will stand out from the regime that we are putting in place in this bill. So all the good stuff, all the protections, all the procedures that you rightly praised, Dr Calder, still will not apply to this major agency. Those Draconian powers under section 5 and section 9 will continue to apply outside the framework of this bill. No dressing up of any arguments around process and procedure can hide the fact that that just does not make any sense. It is not logical. It leaves a major hole in the code that this Parliament now intends to enact relating to search and surveillance powers. Everyone else has protection. Everyone else must go to the court. Everyone else must get a warrant. Every one else must make a case to a judge—except the Director of the Serious Fraud Office. Again we can hear general claims about how important it is for these powers to continue, but it does not make any sense within the scheme of this legislation.

There are a couple of issues I want to deal with. The first is the issue around the New Zealand Herald editorial that Mr Parker praised so widely. I just want to share with the Committee something about that editorial. I thought that, clearly, whoever wrote it had not read the Supplementary Order Paper that I put forward, and had not read the press releases that I had put out about what was in the Supplementary Order Paper. And I thought, frankly, that no matter what the sentiments, it was actually just wrong on a couple of issues.

I thought it would be a good idea to visit the editor and just go through the issues, and find out what their concerns were. Well, apparently, freedom does not extend to me writing a letter to the editor. I wrote a letter to the editor saying “This is where I think you’re wrong. I’m sorry that you didn’t read the press releases. This is where there is actually an enhancement, in the Supplementary Order Paper, to protect press privileges.” I rang up the New Zealand Herald when they did not print my letter to the editor, and they said they did not print it, because they did not like it. I thought that was probably not that helpful. So then I thought I would go and see them and talk this thing through, because I think it is important. They are a major arm of the media and it is important that they understand my Supplementary Order Paper, which I thought was addressing the concerns. And, I have to say, I had worked on it with Charles Chauvel. We had tried to get some agreement and we thought we were doing well on that part.

💬 Charles Chauvel: And for the future you’re going to want the New Zealand Herald on side!

Yes, we want the New Zealand Herald to understand what we are trying to do. I thought it would be a good idea, and because I was in Auckland for 4 days last week I thought it was a good chance to do it. Well, could we get an appointment? No. I have not given up, though, and the invitation is still there.

There is also the issue that the Law Commission is currently looking at some of the media regulation. It is looking at those issues, and I think it is really important to engage with the media, particularly the, let us say, more mainstream media, around these issues. We do not want to end up having legislation that does not get a broad agreement from the people who would be most interested, if that is possible. So the invitation is still there to the New Zealand Herald editor. They are welcome to publish my letter to the editor, which would not have changed from the last one I sent them, which they would not publish because, essentially, they did not like it; they did not agree with it. I suppose I should have re-sent them a copy of my press release, which might have explained again what I had already sent out. However, less about me; let us get back to the Search and Surveillance Bill. But the invitation is still there, and I am happy to go through those matters with them.

Part 5 of the Search and Surveillance Bill is very much a technical part, applying the bill’s general search powers outlined in Part 4 to search powers in other legislation, and also repealing provisions that are being replaced elsewhere in the bill. It is a very technical part. However, it also has a very important clause. That is the final one, clause 316. Acknowledging that the bill represents a comprehensive reform of search and surveillance laws, clause 316 provides for the Act to be reviewed approximately 4 years after it becomes law. The Minister of Justice must refer the Act to the Ministry of Justice and the Law Commission for review by 30 June 2016. The review must then be completed 1 year after the reference is made. The bill is based in large part on the Law Commission’s 2007 report on search and surveillance powers, and it is therefore appropriate that the Law Commission be involved in the review of the bill. The review will consider how the provisions in the Act have operated in practice, whether the provisions in the Act should be retained or repealed, and whether any provision should be amended. I think this is an extremely important clause, and I think it is something that many members in the House will take some comfort from.

The question was put that the following amendments in the name of the Hon Judith Collins to the proposed amendments set out on Supplementary Order Paper 12 in her name to Part 5 be agreed to:

to replace in clause 237A(2), in the heading to new section 239A, “239A” with “293A”; and

to insert in clause 267(3) and (4) “of Part 4” after “subpart 2”.