Search and Surveillance Bill

I am not going to take a long call on this. The points that have been made as to our objection to the Search and Surveillance Bill have been made in respect of the various parts that have been discussed previously, particularly our concerns about production orders and examination orders, generally, but also in relation to the Serious Fraud Office version of those powers, which is without the protections that are in this legislation in so far as the police have been conferred similar powers. I think it is sad that a piece of legislation that is so fundamental to the balance of power between individuals and the State is being passed tonight on a majority of 61 to 59. I think it is pretty clear that if there had been some movement of the Government on the part of Serious Fraud Office powers, you would have had a very big majority for this legislation. This sort of legislation ought to enjoy large parliamentary majorities, rather than slip through at a majority of 61 to 59.

The introductory note in the commentary from the Justice and Electoral Committee says: “This bill is 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.” As my colleague Charles Chauvel said when he quoted that same provision earlier in the debate, the fact that this is not doing that is, I think, lamentable. We have one institution in New Zealand that can exercise its powers without needing to get a warrant from a judge in respect of the exercise of serious powers, including powers that override the right to silence, and that one institution is the Serious Fraud Office. Not the Security Intelligence Service; it has to get a warrant from the retired High Court Judge who oversees its processes. Not the police; they have to get a warrant. Indeed, for production and examination orders they cannot just get a warrant from a registrar; they have to get a warrant from a judge. Yet we have this exception for the Serious Fraud Office, which does not need to get a warrant from anyone. It has abused its powers in the past by using them against the media, and has abused its powers more often by utilising the production order and examination order route, which is easier for the Serious Fraud Office, because it can do it by internal administrative act rather than going for a warrant or using normal investigative processes. Those orders can be quite broad and put quite a lot of administrative costs on the people who are in receipt of those production and examination orders.

I am not going to say anything more than that. I think, other than that, broadly this legislation does strike the right balance between the civil liberties that we should be protecting for people and the powers that the police, on occasions, need to investigate crimes so as to keep our public safe.