Search and Surveillance Bill

I move, That the Search and Surveillance Bill be now read a third time. The Search and Surveillance Bill modernises and condenses the laws found in over 69 different Acts relating to search, surveillance, and seizure. The bill remedies deficiencies in current search powers, which is particularly important in relation to technological developments, where the current laws are outdated and do not reflect the high tech environment in which criminals are operating.

The bill provides a new declaratory order regime, recognising that criminals are beginning to evade detection in new ways. The declaratory order regime allows enforcement officers to ask the court to examine the new technique, device, or activity for its reasonableness prior to using it to investigate criminal activity.

The ASSISTANT SPEAKER (H V Ross Robertson): Order! Would members leaving the Chamber please show some courtesy to the member who is trying to address the business of the House.

Thank you, Mr Assistant Speaker. The Labour Party believes that the declaratory order regime within the bill is redundant because of the Supreme Court decision of Hamed and Others. That decision makes any use of trespassory surveillance devices without statutory authority unlawful. The provisions in the bill provide the legislative authority called for by Hamed and, therefore, supersede that decision.

The bill specifies when agencies must obtain a warrant for trespassory surveillance. In those cases, trespassory surveillance will be lawful only where a warrant has been obtained. There are limited exceptions to the warrant requirement in cases of emergency or urgency. Declaratory orders could never be used to give an agency using a new surveillance device or technology the authority to trespass. The value of the declaratory order regime relates primarily to situations not involving trespass where the reasonableness of the use of a new technology or device should be considered.

In this fiscally tight environment the declaratory order regime is also extremely prudent. The regime ensures that new technologies or devices will be independently assessed prior to use and before agencies invest large amounts of money.

The Labour Party has also asserted that declaratory orders are unconstitutional and are not contemplated in any other common law country. In fact, the declaratory order provisions are derived from the Canadian regime, although that regime is written in slightly different terms.

The bill also introduces other innovations to enhance law enforcement powers. The production order regime formalises a common police practice of executing search warrants against people who are willing to assist. The courts have held that a search warrant can be executed by the police sending a copy of the search warrant to the person, or by that person providing the document sought. This avoids the need for the police to enter the premises and to disrupt businesses or occupiers. The production order regime accurately reflects this process.

The bill also regulates powers that are not currently regulated under New Zealand law, including tracking devices where they are used by enforcement agencies other than the police or the Customs Service, and restricts the use of visual surveillance devices where no trespass is involved.

The Justice and Electoral Committee made various changes to the bill to enhance the balance of law enforcement powers and human rights concerns. This includes restricting the application for an examination order to appropriately serious offences; restricting trespassory surveillance, visual surveillance, and audio surveillance to offences carrying a penalty of 7 years’ imprisonment or more; and reducing the time warrantless surveillance may be undertaken in circumstances of urgency from 72 hours to 48 hours.

Privileges under the Evidence Act 2006 have been expressly carried over to the Search and Surveillance Bill for examination orders, production orders, and all searches. This includes the right of a journalist to protect his or her source, and means a journalist presented with an examination order or a production order may refuse to answer questions or produce documents that would reveal the identity of his or her source. Any document or information subject to a claim of privilege cannot be viewed by anyone. Where privilege is claimed and it is subsequently disputed by an enforcement officer, the informational document cannot be viewed by the enforcement officer unless a judge has made a determination that the privilege should not be upheld. The judge may require the informational document to be confidentially produced to him or her so that the judge can determine the application. If the privilege is upheld by the judge, the informational document will not be permissible in any proceeding. It is expected that privileges in the Evidence Act 2006 and the broader right to freedom of expression will be considered by judges in determining whether an examination order or production order should be made.

The Committee of the whole House made further changes via Supplementary Order Paper 12 and amendments tabled by me. Although most of the amendments to the bill through the Supplementary Order Paper and amendments were technical, there were some important policy announcements. One of the most crucial changes to the bill at the Committee stage provided for all claims of journalistic privilege to be determined by the High Court. This change serves to strengthen journalistic privilege—a journalist’s right to protect their sources in recognition of the media’s important role in a free society.

Further changes were made to the bill to allow the police to search someone if a police safety order is in force against that person and they are suspected of carrying arms. Police safety orders did not exist when the bill was introduced, and this amendment helps provide protection to victims of domestic violence. The police are also permitted to seize firearms licences and dealers’ licences when authorised to seize firearms.

One further change, and one of the most important changes, was to amend the bill to allow parts of it to commence on 18 April 2012. This will prevent a number of ongoing investigations utilising covert surveillance from being endangered by the expiry of the Video Camera Surveillance (Temporary Measures) Act 2011.

I know that the Labour Party members opposite have expressed their concerns that the Serious Fraud Office’s examination order and production order powers have not been brought under the regime established by the bill. These extraordinary powers granted to the Serious Fraud Office are justified by the great complexity of many fraud investigations. The Serious Fraud Office has noted that any ad hoc changes to its powers could have an adverse impact on its investigations. This is not desirable at a time when the Serious Fraud Office is investigating fraud and the collapse of several finance companies. The Minister responsible for the Serious Fraud Office, my colleague the Hon Anne Tolley, has agreed that the Serious Fraud Office will include information in its annual report about the use of examination orders and productions orders. This additional information will give Parliament confidence that the powers are being used properly.

This bill reflects a balance between the need for enhanced, updated, and comprehensively regulated law enforcement powers and appropriate human rights safeguards. I welcome the changes made by the select committee and the Committee of the whole House. I would like to take the opportunity to thank those parties that have been involved in bringing about changes to the bill, including the Labour Party, the ACT Party, and United Future, for the work that they have done. I am confident that this bill will make a very clear and coherent statement. I commend this bill to the House.

It has been known for many years that search and surveillance powers in this country are inadequately provided for by law. There has been a combination of patchwork provisions across a number of statutes—I think the Minister of Justice referred to some 69 Acts of Parliament upon which those seeking to invoke search or surveillance powers have had to rely in order to do so—and there are big holes in the patchwork, which were previously thought by some to be filled by the common law powers of constables. But any reading of the Law Commission report in 2007 on search and surveillance powers and, more directly, any reading of the decision of the Supreme Court in Hamed v R in September last year shows that even that view relating to the common law powers and their adequacy is wrong. So, as we read this 330-page Search and Surveillance Bill for a third time, the question today before the House is whether it will make adequate provision for State search and surveillance powers in New Zealand.

It is true that there are many positives in the bill, thanks to the extensive process of consideration that the legislation has undergone. The Law Commission developed a Search and Surveillance Powers Bill as far back as September 2008 based on the report to which I referred from 2007. That bill was replaced by a much wider regime in the Search and Surveillance Bill introduced by the National Government in September 2009. The bill had an extensive gestation at the Justice and Electoral Committee between September 2009 and October 2010, and the select committee made significant changes and added a number of safeguards to the much wider generic regime that was proposed by the Search and Surveillance Bill.

There was, in addition, extensive correspondence over a year between my colleague the Hon David Parker in his former role as shadow Attorney-General and the previous Minister of Justice, the Hon Simon Power, as to ways in which the bill could be further improved, once it became clear that the select committee process had produced all the agreement that it was going to be able to produce. Then, finally, there has been correspondence between Judith Collins and me going down as far as this month. We have also met and sought to reconcile outstanding differences between our parties on the provisions of the legislation.

When the bill went into the Committee of the whole House stage there were only two outstanding differences of any note between National and Labour. There had been three in the correspondence but Judith Collins did meet the third concern relating, largely, to general journalistic privileges, and we are pleased that she responded to the concerns we raised in that regard. As she said, those changes involved ensuring that it was the High Court rather than a District Court that heard a claim of journalistic privilege and also that protections were inserted around the custody of things desired to be searched and seized in respect of which there was maintained a claim of journalistic privilege. The two outstanding concerns at the beginning of the Committee stage related, first, to the thresholds that should apply before certain new powers should be available to be exercised under the Act, but, more important, as the Minister has said, to the failure to include the Serious Fraud Office’s extraordinary powers concerning the answering of questions and the production of documents, despite the fact that, leaving the Security Intelligence Service regime aside, this bill would codify every other search, surveillance, production, and examination power on the statute book and in the laws of New Zealand.

We had an extensive debate about these matters, and, in particular, the inclusion of the Serious Fraud Office in the general regime of this bill, when we discussed it at Committee. I am still very concerned, as are my colleagues on this side of the House, about the failure to embrace the Serious Fraud Office in the general regime that will be created by this legislation. The powers that the Serious Fraud Office has under its legislation were criticised by the Law Commission itself in the report that led to this legislation. The powers have been exercised in a way that has been chilling to media freedom, and so our concerns, partially met by the Minister, concerning journalistic privilege remain at large as far as these extensive powers in section 5 and section 9 of the Serious Fraud Office Act 1990 are concerned when it comes to the fourth estate.

And these are not abstract questions. We live in an environment at the moment where our media freedoms, as far as world rankings are concerned, have fallen from eighth best in the world to 13th best in the world in the space of one year. We do not want to be further undermining media freedoms in this country, and yet the failure to embrace the powers of the Serious Fraud Office within this legislation contributes to just such an undermining, and it will be a matter of interest—and, I suspect, great regret—when it is time to examine next year’s media freedom rankings for New Zealand, as a result of the failure that I have described to include the Serious Fraud Office powers in this general legislation.

It is not as if there are procedural objections that can be sustained to the inclusion of those powers in the bill. There was originally a Standing Order ground that might have stood in the way, because the Serious Fraud Office Act was not one that was originally proposed to be amended by the original introduction copy of this legislation. That Standing Order was done away with before the beginning of this Parliament, and so it no longer stands as an objection to dealing with the powers that I have described.

It is not as if this matter was not raised way back at the select committee. It is not as if submitters did not speak to the question. It is not as if the report itself of the select committee does not speak to the desirability of, at least as far as the Labour minority view is concerned, the inclusion of the Serious Fraud Office in the legislation. In fact, greater changes than this were made by the Minister herself in her Supplementary Order Paper 12, tabled and passed by the Committee of the whole House. It is an enormous anomaly to leave section 5 and section 9 of the Serious Fraud Office Act 1990 on the book while regulating virtually every other search and surveillance power in the way that the bill will.

We were also moved by a number of objections that were raised by other parties during the Committee stage debate, including objections raised by the New Zealand First member Denis O’Rourke. There is a real question around the breadth of the incursions into the right to silence and against self-incrimination that will be made by this legislation. Certainly they should exist in the area of fighting organised crime, with the protections proposed by this bill. Certainly they should exist in respect of serious and sophisticated white-collar offending. But doing away with the right to silence in the way that the bill proposes across the board, and requiring the production order to be available in the circumstances that it will, is something that we are increasingly troubled about as a result of having heard the Committee stage debate.

I think the fact that this is an unsatisfactory way to deal with the search and surveillance powers of the New Zealand State in 2012 is amply demonstrated by the fact that the substantive votes in the Committee stage, and presumably today, were of the narrowest margins: 59 to 61 votes. They would have been even narrower if the Māori Party had voted at full strength. We remain very concerned about this legislation, and, for the reasons I have articulated, we will continue to oppose this bill.

Some of us have been very concerned about this Search and Surveillance Bill for as long as it was suggested that it was going to arrive on the floor of this Parliament. Ten Parliaments ago, my views on these matters would have been easily dismissed with the narrative: “Well, nothing to fear, nothing to hide.” But as you grow a little bit older, there is plenty to fear if you are not vigilant.

So there are some very important principles on the line with this legislation. Firstly, we accept that we live in a free and democratic country. It is only free and it is only democratic because brave men and women have fought long and hard for these two pillars of a modern New Zealand. The State’s primary role, of course, is the security and freedom of its citizens—our security and our freedom to go about our lives fulfilled and safe.

To give the State the mandate to protect us, it inevitably needs powers—legislative powers. Sometimes, it could be argued, and I would not argue, that these powers could be seen as Draconian. But those who seek to do harm to us have all the power. They have all the power and the only way we are going to protect good people from bad people is to give the State the necessary powers and the balance required to protect us from the bad.

I rise on behalf of the ACT Party to support the third reading of the Search and Surveillance Bill. This bill is well overdue and will provide much-needed consistency and much-needed oversight of the way that the police and other agencies use search and surveillance, because the framework around their legislative ability to do that in the past has been at the very least woolly, and sometimes illegal. It has been a long time coming, but that is only fitting for a bill that required so much intense scrutiny and consideration. I want to thank the Minister of Justice for allowing me to earbash her at every opportunity about the importance of the matters that the ACT Party raised on day one, alongside the Labour Party and others.

ACT believes that it is important to strike the right balance between protecting individuals from the power of the State, while at the same time ensuring the State has the ability to protect individuals from people who may want to do harm. That means making sure agents of the Government—often faceless agents of the Government—cannot just walk into your house and search it for no good reason, while also making sure that with the correct oversight the police can search and carry out surveillance against those who may be committing serious crimes against us. That balance is hard to get right. But after much scrutiny and many changes, ACT believes that this bill has managed to get that fine-line balance about right.

Before I talk about a few of the more controversial aspects of the bill, following on from the Labour spokesman on these matters, the ACT Party played last term a very important role in the due process that was followed on the Video Camera Surveillance (Temporary Measures) Bill. We clearly understand why that was necessary, and we enabled the Government to get that in place. A Supreme Court decision last year meant that Parliament had to take swift action to ensure important police investigations into serious crimes were not jeopardised. ACT insisted that the bill go to the Justice and Electoral Committee for robust scrutiny, and I agree with the Minister that the select committee did a great job in scrutinising that bill, as did Charles Chauvel, the well-educated member on the legal front from the Opposition. I would like to also acknowledge the ACT Party’s former deputy leader in this House, John Boscawen, for his work on this bill.

The ACT Party will continue to play a vital role in ensuring due process is followed and executive power is managed and wielded properly. This Parliament is going to hear a lot from me in my 10th term here about the balance between the rights of the individual and the responsibilities of the State. When you have been around as long as I have, and witnessed what I have in 10 terms of this Parliament, you can clearly understand that this Parliament’s responsibility is to make sure that agents of the State have only the necessary executive powers to do the work to deliver protection, which is the foremost responsibility of the Government—protecting us all from bad people. For instance, I will have plenty to say about the arms amendment legislation as it slowly winds its way through the backroom processes of this Parliament. Again, the ACT Party will be carefully weighing the philosophy, concepts, and principles of good arms-control legislation against the rights of lawful gun-ownership.

This is precisely the same balance that we are dealing with today in this bill, the balance that the select committee on the Search and Surveillance Bill had to put in place, and the slide rule that it used on every clause of this bill. My observation of these matters is that the select committee did a first-class job. The Minister Judith Collins showed first-class leadership in opening her mind to the views of the minority in this House about some good ideas that she said, on balance, will be incorporated to get something good and sustainable.

The Justice and Electoral Committee received an overwhelming number of submissions on the bill, and you should not be surprised. It took into account the views of the public and the legal community, and it is thanks to the submitters’ hard work that the bill now strikes a much, much better balance between civil liberties and police powers—civil liberties in their most simple expression, and police powers.

I want to congratulate the chairman of the Justice and Electoral Committee at the time, the Hon Chester Borrows, on his effort. He is a first-class member of Parliament, a lawyer by training, a policeman by profession, and someone who believes that we should have the right to go about our lawful endeavours without being interrupted by agents of the State.

I also want to pay tribute to the work of the Labour Party member Charles Chauvel. As I said, it is unfortunate, even churlish, that Labour will not be supporting the bill today, as most of its concerns have been adequately addressed by the select committee through the Supplementary Order Paper. I am surprised that Labour did not come into the House this afternoon and deliver a similar narrative, that on balance, in the interests of safety and security for the citizens of this country, we have probably got it about as good as we can get. When we look deep into our souls, we have got it about as good as it can get.

The Labour members have talked a lot about the need for media freedom, and we agree with that. The bill now allows journalists’ claims of privilege following the execution of a search warrant, a production order, or an examination order to be heard by a High Court judge.

The ACT Party is not in the business of supporting changes to complex bills at the last moment, and that is why, after extensive consultation with the ACT Party, we now have this. Finally, it is now Parliament’s duty to keep a watching brief on how the powers enshrined in this new law are wielded, and to ensure that we always balance the rights between privacy and surveillance. This bill, I think, on balance achieves that.

I am pleased that I have the opportunity to follow on from the Hon John Banks, because I think I should respond to his challenge to the Labour Opposition as to why it is not supporting the passage of the Search and Surveillance Bill despite the fact that there have been some negotiated changes that were resolved in discussions with the Minister of Justice, who I believe has gone, certainly, a long way to addressing a number of the concerns that we shared with the ACT Party. However, there is a very strong dividing line between ourselves and the ACT Party on this point, and that is that if this is as good as it gets, then it is not enough for such a far-reaching bill.

I want to remind this House, yet again, what the introductory comments from the commentary from the Justice and Electoral Committee actually stated, because I think these words identify the true problem with the legislation that is about to pass into law: “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. Many of the proposed changes are based on the Law Commission’s Search and Surveillance Powers report (NZLC R97). Currently, the search and inspection powers to be amended by the bill are spread across 69 different Acts, with many inconsistencies in the procedures applying to the exercise of powers. Some of these statutes are up to 50 years old, and do not cover technological advancements adequately. The bill codifies existing case law in some areas, while in other areas it clarifies aspects of the law that are unclear. Some of its provisions are entirely new and reflect technological developments or reforms carried out in other jurisdictions.”

That is a worthy aim, but it has not been met, and the reason it has not been met is the absence of the Serious Fraud Office from its ambit. I want to traverse the history of why the Serious Fraud Office has not found its way into this legislation. We have to go back to a former Government, back to a period when there was a Labour Government, and a decision was taken by that Government to fold the Serious Fraud Office into a part of the police that was to be known as the Organised Crime and Serious Fraud Unit. That decision was taken by a Labour Government prior to the reference to the Law Commission, which was asked to look at those 69 different statutes and to try to bring about some semblance of consistency and principle to the issue of search and surveillance across all of the agencies.

So instead of having individual search and surveillance provisions across the individual departments that have search and surveillance provisions—we are talking about fisheries, we are talking about immigration, we are talking about all sorts of different departments of State—the idea was to give the Law Commission the important task of not only looking at the current framework but actually looking at how that might be made sense of in an integrated, comprehensive way. But because the then Government had already decided that the Serious Fraud Office functions would be collapsed back within the police and a special unit set up within the police to take on organised crime and serious fraud, the Law Commission itself did not include the Serious Fraud Office within the ambit of its consideration with that Law Commission report.

That meant that the report of the Law Commission was not adequate to address a situation where we had a change of Government, and the new Government had a change of policy and did not stand by that earlier decision but in fact wanted to retain the Serious Fraud Office as a separate agency. It was at that point that the problem arose, because if the Government of the day had not changed after the 2008 election, then we would have had a bill that implemented a comprehensive reform of search and surveillance legislation, as the select committee has reported this bill back to represent. But it does not represent that now, because, of course, the Government coming into office did not proceed with the bill we had in front of the House. It in fact introduced its own—this bill that we see before us today—and, of course, the absence of the Serious Fraud Office means that it is not the comprehensive piece of legislation or piece of reform that we would have hoped to see.

I think it is very important that the Serious Fraud Office is included within this legislation, and I do want to mention just briefly the provision in the legislation that requires the Act to be reviewed within a period of 5 years. I am little bit concerned about that, and I am actually going to be quite optimistic about what it could mean. The particular provision I am referring to is clause 316, which says: “(1) The Minister of Justice must, not later than 30 June 2016, refer to the Law Commission and the Ministry of Justice for consideration the following matters: (a) the operation of the provisions of this Act since the date of the commencement of this section: (b) whether those provisions should be retained or repealed: (c) if they should be retained, whether any amendments to this Act are necessary or desirable. (2) The Law Commission and the Ministry must report jointly on those matters to the Minister of Justice within 1 year of the date on which the reference occurs. (3) The Minister of Justice must present a copy of the report provided under this section to the House of Representatives as soon as practicable after receiving it.”

I am actually very keen about these kinds of review clauses. I think they are important in major law reform bills, because they do put a requirement, essentially, on a Minister to undertake a course of action to ensure that our legislation remains up to date. So the review provision of this legislation is welcomed, and we may—in fact, we probably will—be in a position to make that reference ourselves. Charles Chauvel, as the future Minister of Justice, I am sure, will be responsible for that. But I am thinking that it does not actually preclude the question that we have remaining from being looked at ahead of the review required under the legislation. That is because looking at the operation of the provisions of the Act will not identify in itself the effect of the absence of the Serious Fraud Office. So I think it would be very useful, even as this bill passes into law, if the Minister of Justice would indeed take the opportunity in the next wee while to start a review of the fact that the Serious Fraud Office is outside the bill.

During the debate in the Committee stage I got the sense, from both the Minister’s contribution and the contributions from some of the members in the Chamber, that they felt that the Serious Fraud Office issue was an issue only because of the recent action in respect of it seeking material from the National Business Review. But I want to remind this House that we were informed by the Law Commission when we were in Government that in fact it was a regular occurrence and that the extent of the Serious Fraud Office’s use of its powers was somewhat alarming.

So I believe it is important that the Minister takes on board those concerns and has a further conversation with her colleague Anne Tolley, who is now the Minister of Police, about whether this is something that ought to be addressed. I just make this point. We advised the Government in November 2010 that when we were in Government the Law Commission had advised the Cabinet that the Serious Fraud Office was in the habit of routinely using its powers to use production and examination orders. These orders do erode the right to silence and should be used sparingly. As we said over and over again during the Committee stage, they were actually designed for organised crime, for serious fraud—the white-collar crime we see in finance company failures—to enable the Serious Fraud Office to get the accountants who would otherwise be tied up with confidentiality to explain and produce documents in a way that would assist it in its cause. So it is unfortunate that we cannot support the passage of this bill, but I hope the Minister has heard our concerns.

Tēnā koe, Mr Assistant Speaker Robertson. Tēnā koutou. We think it is a sad day that this Search and Surveillance Bill is passing through the House. It is passing in some haste in order to meet the deadline set by the passing, in equal haste last year, of the video surveillance legislation that was required to correct an obvious shortcoming in the legislation. We know what upset that caused.

This bill has one or two small redeeming features. It does bring together legislation. It brings together provisions that are currently spread around a lot of legislation—a lot of it quite old legislation. It is entirely appropriate that we should routinely update and rationalise pieces of legislation. This bill does, to some extent, achieve that. It does put some constraints around surveillance and other activities of agencies, where currently there are no such constraints, and that is a good thing. But we have heard a little bit about balance in relation to this bill—about achieving a balance between enabling the State to go about necessary work to detect criminal behaviour and other undesirable behaviour and the protection of human rights and civil liberties—and, frankly, we see this bill as failing very badly in achieving that appropriate balance.

This bill is overwhelmingly negative, in that it clearly seeks to give the widest possible powers to the police, to the Customs Service, to the Department of Internal Affairs, to the Ministry of Agriculture and Forestry, and to a whole swathe of other Government officials who hereafter will be enabled to make the most extraordinary intrusions into the private business of New Zealand citizens, who may well simply be going about their legal and honest business. There is simply no justification for such a wide-ranging, all-encompassing, enabling approach. We simply do not have the political climate or the legal or social context that requires the level of intrusion that this bill will allow. This is far beyond the reasonable needs of the police or any other Government enforcement agency. The argument that this level of intrusion need concern only criminals, and that honest people may rest assured that their privacy and the integrity of their homes, business, and indeed their person will not be compromised, simply does not wash.

It was interesting to hear a contribution from a Government member in an earlier debate, who made a comment along the lines that he did not have a lot of interest in the human rights of those who are not interested in obeying the law. That statement, to me, reflected the underpinning—dare I say it, the ideological or philosophical underpinnings—of this bill, which would willingly undermine the civil liberties and human rights on a very weak and a very poor justification. The onus is absolutely on the State in a liberal democracy to maximise the protection of, and give the greatest possible protection to, human rights and civil liberties. Any tendency to move away from that initial premise is the beginning step down a very slippery slope. It is a step towards a situation where the State is enabled to intervene and intrude in an inappropriate way. It is a step towards a New Zealand that none of us would seek to live in and that none of us would want. If we saw it happening, it would be recognised as a very unfortunate move for a country that does pride itself on civil liberties and on being a truly democratic State.

This bill, for example, goes a very long way to breaking down some very long-held legal conventions such as the right to silence. This bill clearly removes, in many instances, the right of individuals to avoid self-incrimination. People can be obliged to hand over documents and other forms of storage of data and to make statements that are very likely to incriminate them if they have been guilty of some criminal act. That right not to self-incriminate is a very long-held tradition and a convention with some centuries of history. It is very unfortunate that this bill breaks that convention with so little real justification or need.

This bill chips away at the integrity and the status of information that is shared in confidence—information that we consider to be privileged and that individuals may have shared with their lawyers, with their ministers of religion, with their medical doctors, with their psychologists, and indeed with the media. There is no legitimate reason. These communications, this privileged information, should be sacrosanct, except in the most extreme circumstances. This bill enables those forms of communication and those forms of privilege to be compromised and to be broken on some very, very weak underpinnings and on some very weak suspicions. The apparent safeguards contained in this bill are clearly inadequate. Once information is out of the box and has been seen, it cannot be unseen. It is known to authorities and is very likely to be used in some way, and that is simply inappropriate.

I think it is worth going back to considering the numbers, and the strength, should I say, of organisations that found fault with this bill, that made objection to it, that made commentaries on it, and that objected to many of the provisions in the bill—organisations like some of our major law firms, which are concerned about the powers that the bill gives to State agencies and others and about the breaking of some of those long-held legal conventions. There were statements from the New Zealand Law Society, the Human Rights Commission, the Privacy Commissioner, the Council for Civil Liberties, the Council of Trade Unions, the New Zealand College of Clinical Psychologists, and Telecom, which had a major concern, clearly, about the transmission of electronic data and information. These are not organisations that operate without giving some reasonable thought to their statements. They all found fault with this bill. This is the purpose, clearly, of a select committee process, and we acknowledge that the Justice and Electoral Committee did wind back some of the most extreme provisions of the initial drafting, but it was not able to go far enough. Clearly, there was not the will within the majority on that committee to put in place the provisions of this bill in a way that would protect rather than compromise civil liberties and human rights in New Zealand.

It is also instructive to go back to the departmental report to the select committee from August 2010, which summarised the nature of the many hundreds of submissions that were made and the concerns that were expressed by New Zealanders as individuals and as organisations—indeed, some very high-powered, well-researched, and thoughtful organisations. A common complaint was that the bill expands the powers of police and other agencies in a dangerous manner, and that word, “dangerous”, came through quite routinely, if you scan the submissions. People see real danger to themselves, to their communities, to the integrity of private information, and indeed to people’s private lives in some of the provisions in this bill. This bill was seen as a threat to political activism. We, and, I am sure, members on all sides of this House, value the fact that New Zealanders have the right to object, to demonstrate, to be politically active, and to oppose the Government of the day. I think that when large numbers of New Zealanders are seeing this bill as a threat to their ability to be politically active, to protest, and to demonstrate we should give pause to think what is going wrong here.

Many commentators observed that this bill encroaches on human rights and that it contains insufficient safeguards. Having acknowledged, as I have, that the select committee process and the later drafting did put in place better safeguards, it is still clearly inadequate. This bill sets very, very low thresholds and very low standards for reasonable grounds to suspect, and it gives State agencies the right to intrude in the most extraordinary ways: to break into people’s houses and cars, without warrant under some situations, and to insert surveillance devices that may involve cameras, video recordings, and direct remote accessing of people’s electronic communications. These are extraordinary powers, given with completely insufficient concern for civil liberties and human rights.

I think the last word—unusually, perhaps—can go to the media and to a recent editorial in the New Zealand Herald that said that the “Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties.” The editorial said: “The right to silence is a cornerstone of civil liberties. This bill goes too far.” Thank you.

It is a pleasure to rise and make a brief contribution to the third reading of the Search and Surveillance Bill. The first responsibility of the State is to protect its citizens, and this bill is our attempt, through the work of a number of years and contributions from all sides of the House, to do that. I want to acknowledge the work done by the Hon Chester Borrows as the chairman of the Justice and Electoral Committee when the first version of this bill was considered. I would like to pay credit to the contribution from the other side of the House by the Hon David Parker and Charles Chauvel, who contributed to this bill, and, of course, to the work done by the Hon Judith Collins in being open-minded to the concerns that had been brought to her attention from various quarters. The size of the Supplementary Order Paper that we had at the Committee of the whole House attests to her flexibility in being responsive to these concerns.

The bill is designed to bring consistency, clarity, and certainty to an area that we have heard from members’ contributions has been somewhat torpid and difficult to ascertain a way through, because of the plethora of statutes concerned with search and surveillance across all levels of society. The bill seeks to strike a balance between effective law enforcement and the protection of the rights of citizens as set out in the New Zealand Bill of Rights Act, and I would like to make the point that we believe we have been successful in doing that. The bill explicitly states that its purpose is to balance law enforcement and investigation powers with human rights values, and there are a number of safeguards in the bill to achieve this. First of all, there has to be independent authorisation. The bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. There are detailed reporting requirements to the issuing officer, to the chief executive of the relevant agency, and to Parliament on the exercise of search and surveillance powers. So we believe that the human rights concerns are being met. Thirdly, and also extremely important, the bill does not affect New Zealanders’ right under the New Zealand Bill of Rights Act to be free from unreasonable search and seizure.

One of the key changes to the bill, and Mr Clendon just alluded to it, is to have it commence before 18 April. The reason why this is necessary is that the Video Camera Surveillance (Temporary Measures) Act 2011 is due to expire, and there would be a gap in significant and serious criminal investigations if this bill did not come into play before then.

Another concern that has been raised is media freedom. A key change to the bill, in response to concerns raised—and they were addressed in the Supplementary Order Paper—enhances media freedom. It has been made in recognition of the crucial role of the media in a free and democratic society, and to preserve the important principles of media freedom. At the moment, the media cannot prevent material from being seized in a search, but, as Mr Chauvel observed, the custody of documents has been tightened up under this bill until a claim for privilege has been determined. So any documents that are seized are held by the High Court until a claim for privilege has been determined. This is extremely important.

I will just finish with a comment about political activism, because on all sides of the House we believe in New Zealanders’ right to make their points without fear or prejudice. The 7-year threshold in the bill means that examination orders are not available to investigate such crimes as protesting, trespass, disorderly behaviour, or unlawful assembly, which are the sorts of crimes at the lower end of the scale that you would expect a normal political activist might get involved in at some time or another. I commend this bill to the House.

New Zealand First would have wished to support the Search and Surveillance Bill as a whole because New Zealand First is strong on law and order and wishes to see, as I am sure everyone in this House does, effective enforcement of law and order in this country. But that does not mean that anything goes.

New Zealand First says that the most serious problem with this bill, and the fundamental reason why it cannot be supported by New Zealand First, is the loss of the right to silence in some circumstances. Of course, I refer to the examination order clauses 31 and 32—police powers in a business context where the offences may be punishable by 5 years or more—but, more particularly, to the examination order clauses 33 and 34, relating to a non-business context and offences punishable by 7 years or more.

The questions that New Zealand First asks, and that I ask, are these. First of all, is the loss of the right to silence, even in these limited ways, justified by the gains expected for law enforcement? Secondly, are we, as law-abiding citizens, willing to lose these rights in this incremental kind of way as the price for a dubious improvement in the collection of evidence for crimes of serious fraud? The answer to that has to be, especially in relation to the second question, no. Unlike ACT, for example, New Zealand First wants effective law enforcement without unnecessarily wide losses of such rights.

New Zealand First has special concern over clauses 33 and 34, relating to the non-business context. Of course, “business context”, as defined in the legislation, means “in relation to the acquisition of any information by a person … in the person’s capacity as—(a) a provider of professional services or professional advice in relation to a person who is being investigated, … or (b) a director, manager, officer, trustee, or employee of an entity that is being investigated,”. So when it comes to the non-business context—anyone not in the categories I have just read out—the net is very, very wide indeed. I suggest it is far, far too wide. The loss of the right to silence for people who are not professionals in that way, or not officers or employees of the organisation being investigated, is completely unacceptable and a very, very serious reduction in our hard-won right to silence in this country.

The seriousness of removing that right should not be underestimated. It is an important part of due process, and, as we know, that started way back in 1352 under Edward III, where due process was first regarded as an important part of the legal system. Then came the Star Chamber and its abuses in the 16th century, after which the right to silence was developed and has become a very important part of our legal system. That culminated in Miranda in 1966, in which people had to be told that they had the right to silence. Now we are looking at reducing it again. We should not abrogate such important rights unless we exercise great caution in doing so. Not enough has been shown in this bill, especially in respect of those sections to which I have referred.

In practical ways we should remember that it is not necessarily the person who is being accused, which is something that Mr Banks did not seem to appreciate. It is not necessarily the person who is being accused who will be required to speak under this legislation. So we are not just targeting criminals here; we are targeting people who are regarded as being able to assist the police. They will have a trilemma. Either they will have to speak and perhaps risk perjuring themselves and be punished for that, or they can refuse to speak and be punished for that, or they can speak and potentially incriminate themselves. I do not accept, for example, that the simple statement in clause 132 is sufficient to protect those people from self-incrimination. A simple statement does not do it in practice. What is the real value of the evidence sought in this way? It is not very great, indeed. So we lose some important rights and get very little back for it, and that is the point. This is especially so in relation to the non-business context.

I would also say this: why do the police have similar powers to the Serious Fraud Office, yet the Serious Fraud Office is not covered in the bill? I have been persuaded by the arguments from the Labour Party in that respect. I think they are quite correct: it is simply illogical that the Serious Fraud Office is not included with the safeguards that are provided in this bill. We should also, in fact, go a little bit further and require the police, in conjunction with the Serious Fraud Office, to pursue the objectives of law and order in these ways.

I also think that clauses 33 and 34 may go too far in respect of who will ultimately get those powers, and that has been referred to by my friend in the Green Party. How many people will ultimately get these powers? Where will it all end up? Are we, step by step, moving towards a police State? I think that maybe we are. Clauses 33 and 34, especially, enable abrogation of the right to silence in too many cases. The power to do that is far too wide and should not go that far.

In going too far, perhaps those promoting this bill are unwittingly building a police State step by step. I say “unwittingly” to be charitable, because I think that they do know what they are doing here, and are simply not willing to accept the fact that they are going too far.

The Government—and, I would say, especially the ACT Party—is generally opposed to excessive Government legislation and excessive regulation. But here we see them doing a lot more than that: willingly moving towards the loss of important rights in the way I have described. Those rights, as Mr Banks correctly said, are hard fought, and they are now reduced for very little gain. These provisions are not required for good law and order and are of dubious value, especially in the non-business context.

New Zealand First has a strong policy on effective law and order. However, we think that is completely compatible—unlike the Minister of Justice, from listening to some of her speeches—with the requirement for the protection of basic democratic rights in this country. I understand that effective law and order is necessary and we need to use effective, modern methods to achieve it. The balance is very important. But balance is one thing. The abrogation of important rights is another, and that is what has not been addressed properly here. The right to silence is one of those rights.

I will repeat: the problem is not that the right is lost in cases where it is justified—perhaps where professionals are giving advice and need to answer questions, perhaps where officers of a company can give information, and should do so—but that beyond that it is going too far. That is the problem that New Zealand First fundamentally sees with this legislation, in addition to the other reservations that I have expressed. The price asked, therefore, for a dubious improvement in effectiveness of law enforcement is far too high. The value of the right to silence should be given much more attention than the Government is willing to, and for those reasons New Zealand First has no option but to oppose this bill.

I am quickly developing a real taste, I have got to say, for the member Denis O’Rourke’s speeches. I may have to start a Denis O’Rourke fan Facebook page. We will see. But can I say in all seriousness to the member that I do hope New Zealand First is not going down the holier-than-thou, purer-than-pure road that the Greens have long been on, which is to say that if there is a clause out of place or something that just is not quite 100 percent perfect, then they oppose the whole lot. Although I am enjoying the member’s speeches, it seems that that is the approach he has taken on the last bill or two that he has spoken on.

That is not to say to the member that somehow one has to compromise one’s principles. Of course it is a difficult decision sometimes, where there are parts of a bill you do not agree with, whether to vote for it. But on the whole, where a bill makes a whole range of substantive improvements, rationalisations, to the law, one would have thought it would be good to support it, particularly as the member has said that his party is strong on law and order. Well, a party cannot consistently say that it is strong on law and order and then vote against stronger law and order enforcement measures. So I pose that to the member.

I will not speak for long. I have really said the things that I wanted to say on the Search and Surveillance Bill in the first reading and the second reading. But can I just say again that it is a very large bill, some 260 pages, and I think that the Justice and Electoral Committee, chaired by Chester Borrows, and with Lianne Dalziel and David Parker on it, showed select committees at their finest. It was an excellent process. I think there was give and take and real analysis, drilling down into the issues.

I just reiterate something else I have said in agreement with David Parker, I think it was, and that is that the vast majority of Parliament agrees with the vast majority of this bill. That is not to say that there are not some real disagreements. I appreciate that one of the particular areas is in regard to the Serious Fraud Office, but as a measure in total this bill is a very good one that does, as I say, modernise, rationalise, and bring clarity to this tricky, difficult area of law.

Just to finish, I note that the Hon John Banks made, I thought, a very good point when he talked about the tensions involved in this sort of area. He said that this is as good as we can get, and in a sense I agree with him. That does not mean that it is perfect, because frankly when you have got a bill of this size about to become law, even when one has a real eye for the detail, it is not going to be perfect. But on the continuum, where rights and liberties are at one end and security and safety of the public citizenry are at the other end, I think we have got the balance pretty well where it should be. I think we have tried faithfully, at the select committee and in this Parliament now, to get that balance right, and so I wholeheartedly commend this bill to the House.

Mr Bridges, in his criticisms of Mr O’Rourke and the New Zealand First Party, did exactly what the Minister of Justice, a former Minister with responsibility for the Serious Fraud Office, did in the Chamber the other night in the Committee stage, which was to try to suggest that parties who are opposed to the Search and Surveillance Bill are soft on law and order. It is a reprehensible claim to make, because it is not correct. It is using the artifice of this legislation to try to position Opposition parties on law and order issues for the political gain of National, to the detriment of our country. It has not worked, Mr Bridges, because that line has been played by your Minister, by you, and by lots of your fellow members of Parliament in an effort to position Opposition parties. What has happened is that National has positioned itself and has been criticised in editorials up and down the land for getting the balance wrong between protecting New Zealanders from inappropriate search and surveillance, protecting the long-term viability of our democracy by protecting those who keep our democracy clean, and protecting the long-term relationship between the police and other law enforcement agencies and the public. In the time I have got available I want to explain why it is that those principles are not being properly balanced in this legislation.

Before I go into the detail, which relates mainly to search and surveillance powers, I will acknowledge the general proposition—except in respect of examination orders and production orders and, perhaps to a lesser extent, residual warrants—that this legislation is good legislation. It does not create wholesale extra rights for State agencies, and it does regularise slightly different legal tests that applied to lots of different agencies across the statute book—and that updating was necessary.

It also brings up to date legislative control of new search and surveillance techniques that were not technologically available at the time of earlier legislation and that need to be covered with legislation now. The Labour Party does not have a problem with those parts of the bill—and they are 90 percent of the bill in volume, but not 90 percent of the bill in principle. The important principle, as my colleague Charles Chauvel and Denis O’Rourke have I think quite eloquently explained—as have other members in earlier stages of the debate, including the Greens—is that the problem lies in examination orders and production orders. I want to explain to the extent that I am able why, both in the context of the media and more broadly than the media, that is wrong.

The right to silence has a number of reasons that lie behind it. Denis O’Rourke and, before him, Charles Chauvel have explained some of those in terms of the protection of the civil liberties of people who ought not to have to answer and incriminate themselves. There are other reasons that I will go into. One is that, long term, the relationship between law enforcement agencies and the public relies upon cooperative relationships. That might surprise us when we think about it—yes, you might have confrontational relationships between the police and the accused—but most of the evidence that the police get, or other arms of the State get, is because it is volunteered by people who think they should be cooperating with law enforcement agencies because they believe that law enforcement agencies have a proper role in society for enforcing laws. Those relationships between the public and the police on a cooperative basis are absolutely fundamental to the police being effective in their law enforcement work. Those relationships are also absolutely fundamental to minimising the physical risk that policemen and policewomen face as they go about their jobs, because most of the populace are on their side. You undermine the safety of the police long term and you undermine the effectiveness of their investigative procedures if you bring the population into conflict with the police by forcing them to give evidence against their loved ones. That is one of the really important reasons why we have a right to silence—so that we do not put people in the position whereby they have got to dob in their kids, or their husband, or their wife, or their partner, or their lover. That is a very important principle of law that is being undermined by these production orders and examination orders, which say to people they must give evidence.

Law enforcement agencies in New Zealand have existed for the last 150 years—with the exception of the Serious Fraud Office for the last few years—without those powers, and law enforcement in New Zealand is probably more effective than it is in 99 percent of the other countries around the world. We do not need these additional powers in order to have effective law enforcement, and we risk undermining effective law enforcement if we do that.

Further, we put at risk media freedoms, not so much in respect of these police powers but more in respect of the Serious Fraud Office, where even the protections that are found in this legislation are not present. At the moment it is an absolute outrage that the Serious Fraud Office, without any intervention from a judicial officer overseeing its conduct, does not need to get a warrant and can serve either a production order or an examination order on the media. We have catalogued previously in this debate the calculated way in which National has stopped that problem being remedied, including during the select committee. There have been delays of more than a year in responding to Labour Party entreaties that this needed to be fixed. National has ignored entreaties by the National Business Review, by the media freedom committee, and by other arms of the media to fix this problem during the 2 years that it has been around, since the National Business Review was raided by the Serious Fraud Office and was asked to disclose things that could have included its sources. We have seen the process by which National has abused that, but I am going to state again the principle of why it is so important that the problem be fixed.

The real example lies in the raid of the National Business Review by the Serious Fraud Office. What led to that? The National Business Review was doing its own inquiries as to what had gone wrong in the South Canterbury Finance collapse. Remember, that collapse has caused hundreds of millions of dollars of loss to taxpayers. Allegations have been made of incompetence or poor practice by Treasury increasing that liability by tens, if not hundreds, of millions of dollars as it let the risk grow, and of incompetence by the directors, who made some very shonky loans, including perhaps to related parties, during the period following the grant of the guarantee. The National Business Review did its inquiry. It no doubt relied upon confidential sources from within those organisations telling it, in confidence, what they knew, in order to bring this to light so that this could have light shone upon it. Why did we do that? Well, where you have incompetence and in other instance—and I am not suggesting there was corruption by the Government here—where you have corruption, how you protect democracy long term from corruption and from incompetence is by shedding light upon it and causing consequences for those who are involved in it, and the fourth estate has an absolutely fundamental role in doing that.

I am one of those who at times has felt like the criticisms that I have faced from the media have been ill-informed, or they have been a bit superficial, or they have been a bit hurtful, and I have not liked it, but I will defend until my last day in this place the media’s right to make those criticisms, because their role in keeping democracy clean is far more important than my sensitivities. Protecting the National Business Review sources from inappropriate use of powers by the Serious Fraud Office is absolutely essential if people are to have confidence to give information to the National Business Review in confidence. If they cannot be assured of that, they clam up, and the public interest is not served because these things are not brought to light. That is the essence of the problem.

The other problem with the Serious Fraud Office is that it does not just relate to the National Business Review; it uses its powers far more often than it needs to and far more broadly than it needs to, when it could use alternative techniques, including warrants and including normal investigative techniques.

The final point that I will make is that having listened to the debate, I think that the production orders we are conferring upon the police go too far and should be narrowed to organised crime in a business context.

I stand in support of the Search and Surveillance Bill, which has been significantly amended and improved. I want to acknowledge the work of the Justice and Electoral Committee and officials in addressing the broad, sweeping concerns. I too have just signed up to the Facebook page in regard to my colleague Denis O’Rourke and the comments that he has made, especially about the word “trilemma”. In quick researching, I found out that the word “trilemma” means a situation where it is difficult to make a choice. Three options can be chosen from, each of which is unacceptable and unfavourable. Further research shows that the earliest use of this term was by the British preacher William Henry in 1672—Denis—and then by Isaac Watts in 1725. But most important the word “trilemma” comes from the Greek philosopher Epicurus. Epicurus was a philosopher who was to attain a happy, tranquil life characterised by peace and freedom. I think the thing is that this word “trilemma” used by Denis reflects also some of the choices that were made and the comments made by the Labour Party as well—the Hon David Parker—when they were saying this: “This is a good bill, but maybe not a great bill.” So those members are in a difficult situation where they applaud the work of the bill, but at the same time they are not quite sure. So I would like to affirm for them that the fact is that we get to a point where we say it is good enough to serve the needs of the people of this community.

I want to just make this point. Recently I was facilitating a community session where we talked about the agenda for children and we talked about the rights of children in our communities. The adults in the room talked about the children’s right to a good education, the right to appropriate health care services, and the right to feel safe and secure in their own community. One of the children put their hand up and said: “Mr Ngaro, with all these rights, then who will be responsible?”. Out of the mouth of babes, wisdom abounds. Who will be responsible? This bill seeks to strike a balance between the need for responsibility of effective law enforcement tools, and the need to protect the rights of citizens and children as set out in the New Zealand Bill of Rights Act.

I love the way that children have a way of cutting through the complexity often created by adults and saying it simply. The current laws we have got on search and surveillance are messy, unclear, and outdated. This bill will provide what the Law Commission called for to bring order and what might be called the “CCCs” of the law: consistency, clarity, and certainty. It will put all our law about search and surveillance in one place, rather than being scattered throughout numerous statutes, as it currently is. This bill will take responsibility for effective law enforcement tools by consolidating police powers from several different pieces of legislation as well as case law, and by introducing some new powers such as examination orders, production orders, surveillance device warrants, and a warrantless power to preserve evidence of serious offences punishable by 14 years’ imprisonment or more.

But these new powers are also about balancing the protection of human rights. The bill explicitly states that its purpose is to balance law enforcement and investigation powers, with human rights values. There are a number of safeguards in the bill to achieve this. First, the bill adheres to the basic concept that independent authorisation is needed before exercising search powers. Enforcement officers must justify the exercise of search powers to neutral issuing officers. Second, there are detailed reporting requirements to the issuing officer, the chief executive of the relevant agency, and to Parliament on the exercise of search and surveillance powers. These allow search powers to be monitored to ensure that they are being used properly and are not being abused. The most important thing is that the Act will be reviewed in 2016 to ensure it is being operated properly. Third, the bill does not affect the New Zealander’s right under the New Zealand Bill of Rights Act 1990 to be free from unreasonable search and seizure. Finally, safeguards include that enforcement officers who make false search warrant or surveillance warrant applications will be penalised. More serious powers like examination orders may be authorised only by judges and not by just any issuing officer. Issuing officers from any agency cannot issue warrants to enforcement officers from the same agency, to ensure neutrality and impartiality. Issuing officers may be removed from office for neglect or misconduct.

So not only do I support this bill but also I have full confidence that this bill will be well received through the law enforcement community, through the justice community, and, most important, through the residential community of New Zealand, where ordinary Kiwis, and especially our children, want to know that they can trust in the powers that be to ensure their safety and well-being.

Kia ora, Mr Assistant Speaker Tisch. Kia ora tātou katoa e te Whare. Yesterday I spoke about the devastation visited upon the people of Tūhoe by the police terrorism raids of 2007. Today I speak to a bill, the Search and Surveillance Bill, that may make the Tūhoe experience the norm for many other New Zealanders.

Last year Parliament rushed through the Video Camera Surveillance (Temporary Measures) Bill, which gave extraordinary powers to State agencies to invade the privacy of citizens without having to prove a good reason for doing so. The only submission received in support of it was—surprise, surprise—from the police. Everyone else, including the Law Society, Criminal Bar Association, civil rights groups, and hundreds of ordinary citizens opposed it, seeing it as an overreaction and expansion of the State, a breach of human rights, an assault on the right to privacy, a breach of the right to be free from unreasonable search and seizure, and a move to legalise illegal police activity.

This bill is even worse. It is meant to streamline search and surveillance by redefining the powers of more than 70 separate Government agencies, but what it actually does is give police powers to those agencies to gather information without a search warrant. Under this bill, your right to silence will effectively no longer exist. Police can make you report for questioning, not because they have any evidence but simply because they suspect you of being involved in a range of offences—even minor ones, like trespass or disorderly behaviour. Under this bill you can be made to tell a judge why, if you said anything, you might incriminate yourself—heads you lose; tails you lose. Under this bill, the police do not have to prove anything to find you guilty. Now they just have to order you to produce papers you are suspected of having, or may have in the future. And if you refuse to supply those papers, even if you do not have them, you can be sent to jail for 12 months. Under this bill, police will not need to get a search warrant to bug your phone, put a camera in your house, or put a tracking device on your car. Now all they will need is a surveillance device warrant, which can be obtained by any officer of 70 different agencies, based on their suspicion that what they find might be used in the prosecution of a crime.

This bill goes way beyond what they have in Europe, in Canada, and even in the US. Under this bill, there will be no restriction on the use of anything the police find during a search and surveillance operation. If the surveillance data shows evidence of a different offence than that for which the warrant was originally obtained, then that material can still be used in court. Under this bill, once you are detained enforcement officers can search your home, your workplace, your car, your friend’s home, or any place with which you are associated without a warrant if they believe they can find material related to an offence. You do not have to be guilty of anything, you do not even have to be arrested; you only have to be detained.

Mana opposes this bill, because it leads to a police State where the liberties and freedoms that most of us now enjoy will disappear, where the powers of the police will be extended without the approval of the judiciary, where the powers of Government agencies will assume more authority than the rights of ordinary New Zealanders, where there will be an assumption of guilt not only on an alleged offender but on anybody who knows that person, and where enforcement officers can bug your granddaughter’s phone, install a hidden camera in your daughter’s bathroom, download the files from your wife’s computer, and steal your files without even having to prove that a crime has been or will be committed. Mana opposes this bill, because it justifies the trauma and the damage inflicted unnecessarily on the people of Tūhoe in 2007. If that is what search and surveillance is meant to be in the future, then woe betide Tūhoe, woe betide Māoridom, woe betide people who dare to stand up for the things they believe in. Indeed, woe betide New Zealanders at large, because this bill will signal the end of free thinking, free association, and freedom itself. This bill is Draconian and dangerous, and Mana stands alongside all New Zealanders who support freedom in opposing this bill. Kia ora tātou.

The Greens oppose the Search and Surveillance Bill for many of the reasons that have just been put forward. The Greens also followed what happened with the Urewera trials, the ones known often as Operation Eight. Effectively, this bill puts those same sorts of powers into the hands of many agencies, but even in the hands of the police, which you might say is a justifiable use of search and surveillance, they can be taken too far. The extent of the bill—the evil of the bill, in fact—goes to looking at people’s texts, their voicemails, chatrooms, putting bugs in cars, and taking videos, and when it is set off one incident can actually affect thousands of people. Their communications can be caught up in it—thousands of people’s innocent communications.

Using the Urewera case as an example, I can tell members that Green Party members were caught up because some knew Val Morse, one of the defendants. Some knew others. Keith Locke had his communications caught up in it, and, no doubt, Gareth Hughes and others may have had their communications caught up. What reason and what right have the police or any agency got to go into the communications of such people, who are relatively obscure to the actual fundamentals of those who are potentially charged?

I would suggest we talk about Waihopai and the Government Communications Security Bureau. It has a load of powers in terms of intercepting communications to do with international issues and serious security issues—although it appears to be misusing those, as well. It has the ability to intercept electronics in a way that you cannot intercept or deal with a person. Electronics—communications—do not have a passport. This bill goes into that same area. Texts, another area, are often abbreviated and the language in them can be misconstrued, theoretically giving powers to the police because they suggest there might be some sort of crime. The police, as we have shown and as has just been discussed, can get very carried away in their work when they think there is something there that actually is not. But we have got here other agencies being given similar powers. We have people who have not had the training or the experience of the police being given similar powers.

I will use as another example of some of the excesses of the bill the fact that how many times a person carries out strip-searches, rub-down searches, and so on does not actually have to be reported in the annual report. Another one is some of the exclusions that are carried out in the bill in terms of the Food Bill, which will soon be the Food Act. The person who exercises the power to seize items as a result of a search does not even have to leave an inventory with the people who are affected. The person can take produce away, take material away, and it is gone and there is not even an inventory for those affected.

But that is almost minor relative to the level of invasion of human rights that this bill puts in. Human rights and civil liberties are out of the window. This is a police State type of bill. This is a Big Brother bill. I am looking forward to a day when it can be repealed and we can have more sense made out of it. The Greens will continue to oppose this bill.