Hon SIMON POWER (Minister of Justice)
: I move,
That the Search and Surveillance Bill be now read a first time. At the appropriate time, I intend to move that the Search and Surveillance Bill be referred to the Justice and Electoral Committee for consideration. The previous Government introduced the Search and Surveillance Powers Bill late last year, but it was decided to extend the procedural provisions to a wider range of law enforcement and regulatory agencies, including the Inland Revenue Department, the Ministry of Fisheries, and the Reserve Bank of New Zealand. The new Government took the decision that, rather than amending the existing bill at select committee, it would introduce a new bill and withdraw the existing bill from the Order Paper.
The Search and Surveillance Bill before the House today is, like its predecessor, largely based on the Law Commission’s 5-year review of search and surveillance powers, which culminated in its 2007 report. The main finding to emerge from the commission’s report was clear: reform of New Zealand’s search and surveillance laws was well overdue. Current core police search powers are scattered through a complex array of statutes, some of which are up to 50 years old. Furthermore, search powers have been granted to non-police law enforcement and regulatory agencies in an ad hoc and piecemeal manner. The result of this fractured development is inconsistent and inadequate law that does not always meet law enforcement or regulatory needs, or, just as importantly, does not adequately provide protections to those who may be subject to search—something I will come back to shortly.
The bill will reform our search and surveillance laws to provide a coherent, consistent, and certain approach that balances law enforcement, and, equally significantly, human rights. The bill will bring the law relating to search and surveillance together into one coherent and comprehensive statute, thereby making the law easier to find, understand, and interpret. In addition to the consolidation of core police search powers, the bill provides for, firstly, an examination power that compels a person to answer relevant questions in particular circumstances; for example, where the investigation relates to serious or complex fraud, or organised crime. The Serious Fraud Office currently has similar powers; however, under the bill an examination order can be granted only with the approval of a judge, creating a necessary safeguard in the application of the law.
Secondly, the bill provides for a single production and monitoring order, which will be available to law enforcement agencies where they are able to obtain a search warrant. Thirdly, a residual warrant regime is introduced for the use of devices, procedures, techniques, or activities that may constitute an intrusion into reasonable expectations of privacy. Next, there is clarification of the law relating to consent searches and plain-view seizures. There are standardised procedural provisions relating to the application for, issuing of, and execution of search warrants, to post-execution procedures, and to the treatment of privileged and confidential material.
The bill also introduces a coherent framework for reporting on the exercise of search and surveillance powers, and a surveillance device regime that regulates the use of visual surveillance, interception devices, and tracking devices. A surveillance device warrant will be available to law enforcement agencies where they are able to obtain a search warrant. The regime also clarifies when such devices may be used without a warrant in situations of urgency.
The Search and Surveillance Bill will complement other initiatives in the investigation of crime, most notably the Gangs and Organised Crime Bill, the Criminal
Investigations (Bodily Samples) Amendment Bill, and the Criminal Proceeds Recovery Act 2009. Through this legislation, the Government will provide the police and other law enforcement agencies with a more sophisticated set of tools to investigate drug offences, organised crime, and other offending.
The standardised procedural provisions of the bill relating to search warrants and searches will apply to all law enforcement powers, unless an exception has been justified. The law is also to apply to all regulatory powers where this is considered appropriate, following discussions with the agencies that exercise such powers.
Bringing law enforcement and regulatory agencies under the standardised procedural provisions of the bill will provide benefits such as access to a pool of issuing officers available on a 24/7 basis; the ability to submit warrant applications electronically; clarification of the actions searchers may take when exercising search powers, including what they may seize; the power to secure search scenes; the power to stop vehicles in order to conduct a search; and clear rules and procedures regarding items that have been seized during a search.
In short, the Search and Surveillance Bill makes the law more certain, accessible, and comprehensive. This reduces the scope for legal challenges to the admissibility of evidence obtained through searches.
The current law on search and surveillance needs modernisation and reform, and must take into account current and future technologies. Law enforcement officers must not trail behind criminals in using modern technologies. They must be able to use the most advanced technology available to tackle crime. The bill therefore enables law enforcement officers to retrieve evidential material that is stored electronically. It authorises remote access and search of Internet data, and storage facilities that are not situated at the physical location being searched. Provision is also made for the taking of forensic copies or clones of computer hard drives.
The provision of effective search and surveillance powers must not come at the expense of human rights. The bill ensures human rights are adequately protected, without impeding the ability of agencies to investigate offending, and enhances rights in areas where current protection is inadequate. Visual surveillance is currently not subject to legislative regulation. The bill brings visual surveillance within a single surveillance device regime, covering audio, visual, and tracking devices.
Search and surveillance powers are, by their nature, intrusive. Checks and balances to guard against their inappropriate use are essential, and they take the following forms: requiring a law enforcement officer to obtain a warrant and prior judicial authorisation before executing a search, except where the nature of the search requires it to be carried out immediately, and a detailed framework for reporting on the use of search and surveillance powers, both within the agency concerned and, more significantly, to Parliament.
Public safety is of paramount importance to this Government. The Search and Surveillance Bill and the Government’s other initiatives, such as legislation regarding organised crime and DNA testing, are important steps the Government has taken to create a safer New Zealand. I take this opportunity to thank the Law Commission and the Ministry of Justice for their work in getting this substantial legislation before the House this early in the life of the new Government. I commend the bill to the House.
Hon LIANNE DALZIEL (Labour—Christchurch East)
: I, too, would like to begin by congratulating the Law Commission for its excellent report, which really is the predecessor to the Search and Surveillance Bill we have in front of us today. A quote from the Law Commission’s report might be a very good way to begin my comments: “The Law Commission has set out to bring order, certainty, clarity and consistency to the sprawling mass of statutory powers of search and surveillance scattered throughout
the statute book. We have also addressed the glaring gaps where the law has failed to keep up with changes in modern society.” In that context, the legislation we have before us today is certainly worthy of our support for referral to select committee and further examination.
I am surprised, though, that the Minister of Justice, Simon Power, did not mention at any stage in his comments what is probably the most controversial aspect of this legislation, which is the examination powers the bill contains. I am surprised that he did not refer to it. That provision certainly was in the bill that the previous Government introduced, and in introducing it we knew it would be controversial, but we did so in the context of bringing the jurisdiction of the Serious Fraud Office into the framework of the New Zealand Police. The bill had a basis for bringing powers that sat within the Serious Fraud Office into the powers of the police more generally, but subject to some pretty strict controls. Given that the new Government is not proceeding with the transfer of the jurisdiction of the Serious Fraud Office to the New Zealand Police, I was surprised that those provisions are still contained within the bill, with no explanation whatsoever coming from the Government. I am a little disappointed that the Minister did not spend any time addressing that particular issue, and I look forward to other Government members picking it up as an issue and really trying to provide some substance about the matter, because it is a very serious matter.
One of the principles of our criminal law is the right to remain silent. Some people have been somewhat disconcerted by the reality of somebody who has exercised that right to remain silent, and who has successfully used the provocation defence, as we saw in the earlier of the two cases that have recently concerned our headline news. It is very important that we think very carefully about why certain protections exist in our criminal law. To set them aside requires very good debate, consultation, and working through all the issues. I am not saying that this is the wrong approach to take. I simply say that I am surprised that the introduction of such a major change, which was not the subject of the Law Commission’s report at all, had no mention whatsoever by the Minister himself. I think that is rather disappointing.
In respect of the broader issues within the bill, I think it is important to acknowledge that it is of no use to anyone to have all our search and surveillance powers essentially spread throughout a multiplicity of different statutes. I was interested to hear the Minister say the reason the Government had withdrawn the bill and presented it again to Parliament was to ensure it could cover additional, different Government agencies and statutes. I guess that when we are dealing with an omnibus bill such as this one, it is important to get all the statutes within the context of the bill. In that context, it is easier to withdraw provisions than to add them. Certainly, we are very pleased to work through the detail of the additional search, seizure, and surveillance powers that are covered by this particular bill.
Just as a rough aside though—because I have an absolute abiding interest in regulatory impact statements—it would be really good if the regulatory impact statement was not just lifted out of the Cabinet paper and stuck within the bill. It would be really good if the regulatory impact statement was—
Paul Quinn: At least we’ve provided one.
Hon LIANNE DALZIEL: There was a regulatory impact statement in the previous bill, as well. The point that I make in respect of this particular matter is that the regulatory impact statement states: The recommendations made in this Cabinet paper, if agreed to, will allow a new Bill to be drafted …”. All I am saying is, there is no point taking the phrasing out of the Cabinet paper and just putting it in the bill; it is better to just make a tidy-up adjustment to it so that we are reading off the same page. As the regulatory impact statement states, this legislation does not have significant costs for
business. There will be additional costs for new forms, new ways of doing things, and, of course, the massive amount of training that will be part of the implementation of the legislation.
One of the things I really like about the new bill—and I am sure the Government members will be very pleased to know there are things about it that I really like and that have improved it, in my view—is the mechanism for introducing the law over a longer period of time. This bill will be brought into force by an Order in Council, with any provisions not already in force by 1 April 2011 to come into force on that date. The explanatory note states: “The reason for having the commencement date for the Bill set by Order in Council is that considerable administrative change, including the training of all affected law enforcement and regulatory officers, will be required before the Bill can be brought into force. It will also be necessary to promulgate regulations dealing with a range of matters. It is not possible to determine precisely how long this will take.” I think that is a very, very worthy approach for the Government to take and it is one that I support. It is really important when a Government is making huge changes, as proposed in this bill, that sufficient time for their implementation is allowed.
The point the Law Commission made when it looked at the issue was that essentially the state of the present law was a mess. It highlighted—and this is an important thing for people to consider when the bill goes to the select committee—that there has been a significant variation in the tests laid down for the exercise of search and surveillance powers that stem from an accident of legislative history, which is the way I think the commission described it. It essentially said that sometimes non-police agencies, for no apparent reason, have more powers than police have in very similar sets of circumstances. So it is really important to bring all of those powers together, whether they are powers of the police, statutory officers, or other agents. The Law Commission made the important point that legislation frequently does not tell law enforcement officers what coercive powers they have, or how to exercise them, and it leaves a lot to individual discretion and judgment. That means that we hear about the exercise of those powers when the matter comes before the court, and an individual court has to decide whether the particular action was legal, and whether the individual acted reasonably—but it is always after the event. The intention of this bill is to set out the rules in advance, so there is certainty and consistency of application of those important principles on all occasions, no matter the agency that is acting.
The Law Commission, when it originally started looking at this matter, decided that the rationalisation of the statute book—the commission’s original ambition—was not sufficiently ambitious. It became very apparent to the commission that that approach would not cure the problem. The law simply has not kept pace with technology or with changing trends in crime. One particular area, I guess, is that much of the law relating to search and seizure is still framed as if most information was contained in hard copy. Those of us who walk around with mini computers—our BlackBerrys—will, of course, know that a lot of information is now stored electronically, and that the old rules are therefore simply not keeping up to date with modern technology.
The Opposition welcomes the introduction of the bill. We do think there are challenging issues for the select committee to consider, but I recommend that people take the time to make a submission to the select committee. I commend the bill to the House.
CHESTER BORROWS (National—Whanganui)
: As the chair of the Justice and Electoral Committee, which will be considering the Search and Surveillance Bill, I rise to take a call on its first reading. It will be very interesting legislation to have a look at and to consider over time. I want to reiterate a number of points that have been made by the previous speaker, the Hon Lianne Dalziel, especially as they relate to fairness in
justice and access to justice within our community. The point she made around the law changing over time and getting out of step with where the community is, is very real. It bothers me that we live in an age where whoever squawks the loudest can tend to have an effect on things that impact on access to justice and that have been held as tenets of the rule of law. It bothers me that we may see, over time, justice attrit for those who are most vulnerable to that.
I am drawn to a comment made in the explanatory note under the heading “Objectives”. It states: The principal objective of the proposals contained in the suite of Cabinet papers is to provide coherent and effective powers of search and surveillance which will increase certainty in law enforcement and allow use of available technologies to tackle crime in the 21st century, while at the same time recognising human rights values.” I believe that the principles of certainty and clarity that will inevitably come from dragging together all those powers of search, seizure, and surveillance, which are right across our legislation at the moment and some of which, as has been said earlier, are up to 50 years old, are very important.
I recall sitting in the back of a court one day in New Plymouth and listening to a prosecution of a person we had had a number of problems with over many years, who was a burglar and a thief. He preferred to break into veterinary clinics and doctors’ surgeries to obtain hard drugs, and he had been tipped out on to Broadway, Stratford with six police. He was prosecuted for possession of a firearm, possession of cannabis, possession of burglary tools, for being disguised by night, and a number of other charges that related to his activity and behaviour that night. But the thing that was comical at the time, and gives me pause for thought now, is that the six different officers who gave evidence in the court case all gave a different reason for searching the car and a different source for their powers. One was searching without warrant pursuant to the Misuse of Drugs Act. One was searching without warrant pursuant to the Arms Act. One was searching with consent, although he found difficulty in explaining how the defendant could continue to give his consent while he was across the bonnet of the car with his arm up his back. One was searching pursuant to the Transport Act. One was searching in respect of the burglary tools and one was searching because he believed it was just good police work.
It was hugely embarrassing to be sitting in the back of the court and listening to those six policemen giving six different reasons—all very colourful—that could all be applied to the circumstances: a sawn-off firearm, a pistol, was found; ammunition was found; drugs were found; a gas torch and tools for burglary were found; and the person was disguised during the period of night.
Jo Goodhew: Was he speeding?
CHESTER BORROWS: No, he was not speeding. In fact, he was doing all he could to remain within the speed limit but it did not help him. Eventually he went down for all the right reasons. But that example explains very clearly why we need to have some certainty and clarity around our law, not only for those who may have the force of the law impacted upon them as those charged before the court but also so that those who have to enforce the law can have some clarity and certainty around what they are doing as they exercise their duties on behalf of the rest of us.
I look forward to hearing the submissions that come before the select committee and exploring the bill’s powers as they take account of where we are at this stage in our development and the technologies that are available to us. It is also important to note that the bill extends surveillance powers to those regulatory agencies that already have the ability to inspect and search a person’s home. Most regulatory agencies can search homes, as a number of small businesses in New Zealand keep business records in individual homes and enter the regulated industry with the full knowledge of the
regulators’ powers. So there is a mixture of what would be the minutiae, I suppose, that will affect people’s ability to withhold records that may be sought under a number of different provisions—some criminal, some administrative—and using various technologies. It is interesting legislation. A lot of excellent work has been done by the Law Commission over an extended period of time, and I look forward to the select committee process. I commend the bill to the House.
CHARLES CHAUVEL (Labour)
: The House will already know that the Labour Party supports sending the Search and Surveillance Bill to a select committee for public submissions. Perhaps what I should do is foreshadow an area where the party is quite keen to see discussion of some potential amendments. The first amendment that we feel it would be in order for consideration is around whether the bill should have a sunset clause stating a time by which a review of its provisions should be conducted by an independent agency. Given that there is a degree of novelty around the powers that are to be enacted by the legislation and given that we are in this bill standardising what are, after all, intrusive powers of the State, it does seem to be a useful exercise for this House to put in place that sort of safeguard so that we can have a look at how the unified search and surveillance powers have been carried out in practice by the police and other enforcement agencies after a reasonable period of time. It does seem appropriate during the bill’s first reading to foreshadow the desirability, in our view, of that exercise.
As other speakers have noted, this legislation began life out of a Law Commission report in 2007. The present bill has had an interesting history. It is a new bill, rather than the original legislation, which was based on the Law Commission report and was introduced by the previous Government. That legislation, the Search and Surveillance Powers Bill, was withdrawn. Notwithstanding the fact that it was reinstated in the forty-ninth Parliament, it was discharged on 2 July and replaced with the current measure under the name of the Minister of Justice, Simon Power.
My colleague Lianne Dalziel has spoken a bit about the differences, at least on our initial analysis, that appear to exist between the Labour Government’s bill and the present bill. As far as I can see, the major differences relate to the ability to procure warrants electronically. That seems to be a relatively sensible provision, given the availability of technology these days. There is a proposal to extend the powers of the bill to a whole host of administrative provisions: the Biosecurity Act, the Commodity Levies Act, the Dairy Industry Restructuring Act, the Driftnet Prohibition Act, the Fisheries Act, the Health and Safety in Employment Act, the Major Events Management Act, the Meat Board Act, the Pork Industry Board Act, the Reserve Bank of New Zealand Act, the Social Security Act, and the Tax Administration Act. It would be, I think, useful to have a good look at whether it is justifiable to extend the uniform provisions of this legislation to that host of administrative provisions, and we would expect that to occur during the select committee process.
I want to say a couple of general words about measures that originated as Law Commission recommendations. When I was a new member of Parliament, 2 or 3 years ago a conference about law reform in general was held in the Legislative Council Chamber. One of the very interesting presentations came from, as he now is, retired Justice Kirby of the High Court of Australia; at that point he was a sitting member of the court. He started his judicial career as the inaugural president of the Australian Law Reform Commission, so he does know a bit about law reform. One of the phenomena he commented on at that conference was the propensity for reports of law reform commissions to gather dust on the shelves when legislatures such as ours and those of the states of Australia, the Commonwealth, and the territories turned their minds to more exciting and populist ventures, as we are sometimes wont to do.
It is true that at that time there was a bit of a backlog of reports from the Law Reform Commission awaiting action, and I think that one of the good things that came out of that conference was that the Government of the day recognised that that was not a desirable state of affairs. So it searched for some mechanism by which to make sure that the very good work of the Law Commission—there is no doubt, I think, in the minds of anyone in this House that it is an excellent body that produces very useful and desirable work—is not ignored by Parliament. It was announced some months after the conference that a default procedure, effectively, would be incorporated into the
Cabinet Manual whereby when the commission produced a report, unless there was some violent objection to the recommendations of the report by the Minister responsible for the area that the report touched on, drafting instructions based on the report would be issued and followed in the event that legislation was not already proposed as an appendix to the report, and that would go through the official process and effectively come to the House as legislation. I am paraphrasing the terms of the
Given that this afternoon we have debated the first reading of the Limitation Bill and we are now concerned with the Search and Surveillance Bill, and I see that there are other measures originating from the Law Commission on the Order Paper, it would be useful, I think, for the House to learn in a formal sense from the Attorney-General, the Leader of the House, or some other responsible Minister whether that is still the procedure that is followed by the current Government, because it does seem to be a very sensible procedure, and it is one that worked well under the previous administration. My friend David Parker referred in his speech on the Limitation Bill to the very good progress that was made in the last triennium on getting Law Commission bills through the process. That progress does owe a lot to the fact that the
Cabinet Manual was reformed in the way I have described. It would be useful to know whether, as I say, that procedure still exists. It would also be useful, I think, for the House to hear why on this occasion it was thought that rather than simply amending the bill introduced by the previous Government, and heavily based on the Law Commission report, it was thought necessary to withdraw the legislation and then reintroduce the bill that we are currently debating, given that, as I have said, the particular differences, at least on the analysis we have been able to conduct on a preliminary basis, do not seem to be terribly significant.
The Labour Party supports the referral of the Search and Surveillance Bill to a select committee, as it normally supports bills based on Law Commission work. The Labour Party is keen to see some sort of review mechanism built into the legislation so that we can have a mechanism by which Parliament can have a look at whether this venture has been successful after a period of time. Subject to those comments, I commend the legislation to the House.
KEITH LOCKE (Green)
: The Search and Surveillance Bill highlights the dilemmas we face in catching criminals without intruding in an unjustified way into the privacy of ordinary citizens. I say at the outset that there are several good provisions in the bill, flowing from the 2007 Law Commission report on search and surveillance measures. The provisions include requiring warrants for visual surveillance, which were not previously required, and systematic reporting procedures after surveillance has taken place.
However, the bill goes too far towards intruding on privacy. Much of the public discussion has so far, rightly, been on examination order requirements forcing people to answer questions when the police and other agencies have “reasonable grounds to suspect” that a crime punishable by imprisonment has been committed or will be committed and that that person has evidential material. This undercuts the citizen’s traditional right to silence outside of when a person is a witness in the courtroom. The bill allows these examination powers to be extended beyond the business environment,
where the Serious Fraud Office previously had extra powers for dealing with complex white-collar crime.
These new examination powers will apply for any investigation of an imprisonable offence, as long as three or more people are deemed to be involved in committing that offence. People can now be forced to produce documents under production orders for any offence qualifying for a search warrant. Owners of computers will also be required to assist in providing passwords in order to allow their computers to be accessed during searches. The traditional provision against self-incrimination effectively goes out the window. Even if a person does not, under these provisions, have to tell the enforcement officers anything that will incriminate him or her, under clause 125(4)(a) he or she has to provide access to computer data that “contains or may contain information tending to incriminate the specified person”—the specified person being the one who is in control of the computer. Accessing computers also opens up a serious privacy problem. Police and other enforcement officers are specifically allowed, by clause 108, which governs search powers, to take a forensic copy of computer material.
The Law Commission report goes into some detail of the problems here, particularly as evidential material is mixed up with all sorts of private material—in fact, much of the private and intimate parts of a person’s life. Basically, the bill does not put any controls on intrusions into people’s legitimate privacy via computer searches. Computer searching is also very useful if the police want to go on fishing expeditions for evidence of other offences committed by the person, particularly if the police cannot get the original charges to stick or have a grudge against the person or the organisation he or she might belong to. That might not sound like much of a danger at the moment, but it could become more so if the political or policing environment in New Zealand became a little more oppressive, as it was in Mr Muldoon’s day. Clause 119 enables the police to gather evidential material on offences other than those specified in the search warrant, if that material is in “plain view”. That could perhaps cover data seen while searching a computer, which could well come into plain view.
The bill contains a clause 101(4)(k), which allows police to remotely access people’s computers, or hack in to them, to use the common parlance. The illustration given in the provision relates to things on servers and on the Internet, but it could include ordinary computers. It is a scary provision. As civil liberties lawyer Michael Bott says, it could give the police power to read someone’s email.
The Law Commission report goes into some detail on remote-access problems, including the need for more explicit controls and reporting procedures. The problem we have is that the technology of surveillance is developing so fast that there is greater and greater potential for the State to intrude on our privacy in the name of law enforcement. That is why we need strong controls and no-go areas.
The bill provides some useful authorisation and reporting procedures regarding surveillance warrants, which cover visual surveillance, interception of communications, and tracking. It is good that there will be annual reports on the number of surveillance warrants issued, the number of times surveillance was conducted without a warrant, the duration of the surveillance, and whether convictions ensued. It is good that there is some provision for subsequently telling the targets of surveillance that surveillance has been conducted, but on this matter there are also opt-out clauses that the police will be tempted to use.
One thing that is quite worrying is the provision for residual warrants for surveillance—that is, surveillance not of a visual, electronic interception, or tracking variety. But that could be anything, because the definition in clause 57 covers any “technique, procedure, or activity that may constitute an intrusion into the reasonable expectation of privacy of any person.” It could, for example, cover the covert entry of
premises and the copying of materials therein of the sort already done by the Security Intelligence Service. The provision is dangerous.
Just in case people think that this is all just theoretical and that the Greens might be overstating the problem, let us look at what the police did in Operation Eight, at the end of which some Māori and Pākehā activists were arrested and charged with arms offences. Nearly 2 years later the cases have not come to trial. Operation Eight involved massive surveillance and search, culminating in the 15 October 2007 lockdown of much of Tūhoe country and the raids of houses across the North Island. Although I am not privy to the evidence, my information is that thousands of communications were intercepted and recorded. Bugs were put in cars, and phone calls and texts were intercepted. The privacy of thousands of New Zealanders—virtually anyone who communicated with those charged—was breached. That would probably include emails from MPs in this Parliament, because some of those arrested were working with MPs, such as myself, on peace and environmental issues.
It might sound good and proper when surveillance warrants are granted, but we are now so reliant on electronic communications, which can be intercepted so easily, that lots and lots of innocent people can be caught in the electronic surveillance net. That is a big downside of the surveillance authorised in the bill.
Then we have police special investigation group agent Rob Gilchrist being paid $600 a week for infiltrating peace, environment, and animal rights groups and monitoring others, including the Green Party. He collected hundreds of emails from internal exchanges within the groups he spied on, and forwarded them to the special investigation group—all, presumably, without any surveillance warrants. Gilchrist’s then partner, Rochelle Rees, engaged in counterintelligence and took what the bill would call a forensic copy of the data from Gilchrist’s computer and made public that information.
It is disturbing that the police will not publicly admit to the interception activities of the special investigation group through Rob Gilchrist. It illustrates one of the likely shortcomings regarding the surveillance reporting procedures in the bill, which is that the police will regularly use the opt-out clauses and refuse to tell people what surveillance they have been under because the investigations are deemed to be ongoing and could be compromised. The Police Commissioner told the Law and Order Committee that the surveillance of animal rights and other lobbying groups is ongoing.
Operation Eight also involved the searching of many homes. Often computers were taken away for checking—even, in one case, the computer of an overseas speaker who was briefly visiting New Zealand to speak at an environment conference. The seizure of a person’s computer is disabling, particularly when someone relies on it for work. If we are worried about what the police might do with their new powers, we should be just as worried about what other agencies granted extended search powers under this bill might do. These agencies range from the Commerce Commission, the Reserve Bank, the Civil Aviation Authority, and the Ministry of Agriculture and Forestry. The granting of such extended search powers beyond the police force is causing serious concern in business communities and in the law firms that serve them.
DAVID GARRETT (ACT)
: I rise to take a call on the first reading of the Search and Surveillance Bill. Let me say first that ACT will support this bill going to a select committee, but not necessarily beyond that point. It is always pleasant as a new member—one who is still somewhat wet behind the ears—to find oneself in agreement with members on other sides of the House. To take the comments of the previous speaker, Keith Locke, first, though, I will make the point that the removal of the right to silence, which is one of the bogeys that are often brought up, is often misunderstood. It is not, and never will be, in my view, a situation where the police or anyone else can tie
persons to racks, or Taser them, or put them in a choker hold, and force them to speak. No, it is about inferences to be taken. But other than that, a great deal of what my colleague Keith Locke said is worthy of further examination. When I was much younger than I am now, I believed that the police were always right. But I am of that generation who remembers the Arthur Allan Thomas case, and I am probably one of the very few people who have read the 1981 royal commission report on the Thomas case. After that, I never believed again that the police were always right, that they always acted with integrity, and that they always told the truth. So I share with Mr Locke some of those concerns, as do many members of our party.
The speaker before Mr Locke, Charles Chauvel, raised the very good point, in my view, of the possibility of a sunset clause applying to all or some of the provisions of this bill. Again, I am conscious of being wet behind the ears in this House, but it seems to me that a sunset clause could be of great benefit, perhaps, not in all but in many if not most pieces of legislation that come through this House. Then we would not have, perhaps, the situation described by Chester Borrows whereby six policemen gave six different reasons under six different Acts. In one case, simply police practice was used as justification for what was being done. It would not lead to lawyers having to conduct extensive searches through both paper and electronic formats to work out just what the law was.
This bill is lengthy. Its powers are extensive and serious, and it certainly requires extensive scrutiny at select committee, which is why we support it to that point. As other speakers have noted, it arises from a Law Commission report in 2007, which identified a number of weaknesses and issues contained in laws relating to search and seizure. The Law Commission found that powers of not only the police but also non - police agencies had been granted in an ad hoc, piecemeal, and scattered fashion, through various Acts, as several prior speakers have noted. This dog’s breakfast of legislation in case law has led to inconsistencies and a lack of coherency. It is no wonder that the commissioners in their careful and considered way found the situation to be quite simply a dog’s breakfast. I join the two previous speakers, or at least Mr Chauvel in particular, in noting with reverence the work of the Law Commission in this kind of legislation. I venture to say that this is exactly the kind of role that the Law Commission should play.
The commission identified worrying anomalies, for example, whereby non - police agencies have greater powers than the police to investigate offences for which those agencies are responsible. To take just one non - police agency, let us look at the powers of the Inland Revenue Department. As I understand the law, the Inland Revenue Department can bust into any New Zealander’s home, business, or farm. Unlike the police, it can do so without a warrant. After requiring a person to answer every question that it puts—which is another power the police do not have, as most or all members are aware—the Inland Revenue Department can allege that the person in question or the person subject to its scrutiny owes a debt, and that person has to prove otherwise. Therefore, there is reversal of the long-cherished presumption of innocence, and such a person becomes guilty until proven innocent. Even with a change of Government, that situation—the piecemeal nature of powers—seems to be getting worse, as our Parliament passes more and more legislation. In my very short time here, I have wondered how many of my colleagues in the law would have any idea as to just what has been passed in 7 months. But to return to the Inland Revenue Department, this bill, as I read it, will give it and others even more power; the powers that agency has, and will have, are a perfect illustration of the mess referred to by the Law Commission.
ACT has a number of concerns with the bill as drafted. We feel that some of the provisions are overly Draconian. I note that many sections refer to warrantless searches,
which vest, arguably, too much trust and control with State agencies—including the police, I am sad to say—who have shown themselves, and not just in recent times, to be far from up to the task. Other aspects that are troubling for the younger generation—and here I am surprised to differ from Mr Chauvel, who, if I am not mistaken, is somewhat younger than me—are the provisions about the electronic use of warrants. That sounds sensible, but members’ attention has been drawn, indeed, in my time here, to the perils of the Internet. Phantom Twitter and Facebook pages have been set up with the appearance of being legitimate pages of MPs from both sides of the House. One of our concerns is that this bill will open the door to allow what we have seen abroad, whereby warrants have been issued via these very social networking sites, such as Facebook, among other things.
ACT will support the passage of this bill to a select committee solely for the purpose of a comprehensive review of the law in this area. As it has been said, legislation in respect of search, seizure, and surveillance as it stands is a hodgepodge of thrown-together statutes and case law. At best, it is outdated; at worst, it contains glaring and dangerous anomalies. I will take this opportunity to urge the many people who have contacted our party, and, I am sure, other members of Parliament, with concerns about this bill to make those concerns known by making a submission to the select committee. That is the place to do it; that is the way to do it. Writing to or emailing one’s MP is one thing, but making a formal submission to a select committee is the correct process, and we will be following the deliberations of the select committee with interest. Thank you, Mr Deputy Speaker.
Hon TARIANA TURIA (Co-Leader—Māori Party)
: Two years ago in the magazine
LawTalk, the context of the Search and Surveillance Bill was laid out fairly and squarely. When the Law Commission president, Geoffrey Palmer, has described the present laws providing for powers of search and surveillance as a mess, it is a pretty good indication that something needs to be done. And just how big a mess the laws were in was evident in the range of deficiencies outlined by Mr Palmer. Existing statutory powers are sometimes too restrictive.
- Sitting suspended from 6 p.m. to 7.30 p.m.
The ASSISTANT SPEAKER (Eric Roy): Before the dinner break the Hon Tariana Turia was speaking and has about 9 minutes and 40 seconds remaining.
Rahui Katene: Could I speak on her behalf?
The ASSISTANT SPEAKER (Eric Roy): I am not sure whether we have established the process for this, but I am expected to accept the call. I think it is a good call to inform the Speaker before he arrives in the Chamber. Please proceed.
RAHUI KATENE (Māori Party—Te Tai Tonga)
: When the Law Commission president, Geoffrey Palmer, has described the present laws providing for the powers of search and surveillance as a mess, that is a pretty good indication that something needs to be done. Just how big a mess the laws are in was evident from the range of deficiencies outlined by the Law Commission. Existing statutory powers are sometimes too restrictive and unduly limit the ability of the police and other enforcement agencies to gather evidence and prosecute offenders. At the same time, current legislation contains insufficient safeguards to ensure that the rights of citizens are adequately protected. The importance of being able to achieve a balance between human rights and increased powers of search and surveillance is made even more complex by the fact that core police powers are scattered throughout the statute book, with some enacted up to 50 years ago. The law has also failed to keep pace with technology. Existing legislation sanctioning the law enforcement use of interception and tracking devices is
cumbersome and outdated, yet silent in respect of the use of visual surveillance devices. Something had to be done, and this bill is the response.
This bill, then, is designed to improve laws that have developed in a piecemeal fashion and are out of date; real people have been disadvantaged by these flawed laws. There would be no stronger example of a flawed process than the search and surveillance methods used in the police terror raids in 2007, which have already been referred to this afternoon, and the subsequent human rights breaches. This shameful episode in our history unfolded with police marching into Ruātoki armed with search and arrest warrants, issued under the Summary Proceedings Act and the Arms Act, while all the time the public perception was that evidence was being sought under the Terrorism Suppression Act. When people are remanded into legal custody, they need to be given reasons for the deprivation of their liberty, as stated in part of the Magna Carta. But no reasons were given at Ruātoki, despite being asked for repeatedly. At the time, the fact that people were being held in custody without reason led to comparisons with Guantánamo Bay. The jury is out as to whether the Tūhoe raids would have been carried out differently had this bill on search and surveillance been part of the statute when Operation Eight took place. What it would have achieved, however, was a more legislatively defined process for police action and, subsequently, a better ability to mount a clear legal challenge against it.
The Māori Party has entered into the debate around this proposed new law on search and surveillance mindful that there needs to be adequate provision in the law and in practice for human rights and privacy. Any such review needs to be undertaken through a tikanga and human rights framework. It is important that in enhancing the law to provide certainty for agencies in their application of search and surveillance powers we balance any changes against the rights of people being searched. Law enforcement needs must be adequately met, but at the same time in a way that is consistent with human rights values.
I suggest that the Ministerial Review of the Foreshore and Seabed Act 2004, a case of recent occurrence, provides a positive framework for such an undertaking. Essentially, the foreshore and seabed issue resides around the displacement of mana. The previous Government chose to ride roughshod over the Treaty partner. Reconciliation of kāwanatanga and tino rangatiratanga was far from the Labour Party’s collective mind. When the new Government was formed, an understanding was developed that mana maintenance and enhancement for hapū, iwi, and whānau was central to the resolution of the foreshore and seabed issue. The ministerial review has now come back with a report that assumes that the Act will be repealed, and that the framework of the Treaty of Waitangi and international human rights helps to provide the basis for moving forward.
This, then, is the precedent being proposed from the review of the Foreshore and Seabed Act, and it is a precedent that leads us all to recommend that this bill on search and surveillance powers is especially important legislation to have a Treaty clause inserted. The Tūhoe raids have shown that search and surveillance powers and how they were interpreted by the police demonstrate the importance of legislation being administered and implemented in accord with the Treaty. To this end we will be hoping to see changes come through the select committee that will bring the concept of the Treaty obligations to the fore.
There are other crucial issues that we hope further debate will provoke. A key concern for the Māori Party is that the people’s voices are heard. The Government has stated that the bill complies with the principles of the Treaty, but there is no Treaty clause and no consultation with Māori in the development of the bill. The Government has also said that this bill complies with the Human Rights Act 1993 and the New
Zealand Bill of Rights Act 1990, although there is no mention of human rights in the bill and there has been no consultation with the Human Rights Commission. It is not enough to say that there are no human rights concerns under the New Zealand Bill of Rights Act, as this was not a sufficient check, as we saw with the Foreshore and Seabed Bill. The Government has also said that the legislation is consistent with the Privacy Act 1993, although the Assistant Privacy Commissioner has raised privacy and human rights issues. These are major issues for us, and we are certainly unprepared to guarantee support until we can gain access to a wider view.
I think it is very important to note that the scope of the generic and modernised provisions is mammoth in terms of the legislation it affects. Apparently over 50 separate Acts stand to be amended, including the Boxing and Wrestling Act, the International War Crimes Tribunals Act, and the Wine Act, to name a few. A wide range of regulatory schemes also come within the scope of the bill, ranging from the Commerce Commission to industry-specific regulatory bodies such as the Civil Aviation Authority, and the Meat Board. We want to be assured that in the rush to gain legislative commitment to the one-size-fits-all approach, we do not end up with some bodies accessing powers that significantly exceed those required or appropriate for their roles. We would be nervous if, in the creation of extraordinary powers for dealing with serious organised crime, these powers are then extended to investigate suspected lesser crimes simply because they can. The worst-case scenario would be if any manner of agency official can call upon disproportionately invasive search and surveillance powers or, worse yet, that unwarranted surveillance takes place, based on the provisions of this bill.
Perhaps the biggest concern of all is that nothing prevents a regulator from conducting surveillance on the homes of officers and staff. The bill introduces new covert surveillance and investigative powers, which might include installing recording devices to intercept calls, tracking devices to determine the movements of staff, hidden cameras, and the like. The Privacy Commissioner made the recommendation to look more closely at the New Zealand Bill of Rights Act, and in particular at section 21, which maintains that everyone has the right to be secure against unreasonable search and seizure. We are hopeful that this can be teased out further as the bill progresses.
Finally, one of the concerns we have raised with the Minister is that there is no purpose clause in the bill. It may well be that such a statement can give clarity about the balance of law enforcement values and human rights, and an interpretation to justify the use of particular powers for specific purposes. There are many issues raised, but we are prepared to let the bill go to the select committee at least, to enable the debate to occur. Thank you.
Hon NATHAN GUY (Minister of Internal Affairs)
: This is a great opportunity to take a call on the first reading of the Search and Surveillance Bill. My understanding is that it will be heading to the Justice and Electoral Committee, which is chaired by Chester Borrows.
This is a chunky bill of over 200 pages, and it has taken a while to get here.
Chris Hipkins: How many pages has the member read?
Hon NATHAN GUY: The existing police powers are up to 50 years old, and it is important that this bill addresses that point.
I should alert the member opposite, Mr Hipkins, to the Law Commission’s 2007 report; I am sure that he would be aware of it. It took about 5 years of public consultation, research, and discussion for this bill to get here, so that member needs to know that this bill has taken a long time. That is why it is of the nature that it is—a couple of hundred pages in length. I look forward to the member’s contribution in this debate this evening, if he is willing to take a call.
This bill does a couple of things. It corrects the inconsistencies in the way that search powers are framed and in how they may be exercised. Legislation does not always meet
law enforcement needs or adequately provide protections to those who may be subject to a search. Another significant point is that there is uncertainty as to the nature or extent of some existing search powers and procedures. So bringing law enforcement and regulatory agencies under the standardised procedural provisions of the bill will provide benefits.
I think it is important to go through some of those benefits, because members of the public might be interested, as, indeed, might some in the House, as well. There will be access to a pool of issuing officers, who will be available on a 24 hours a day, 7 days a week basis, and that is very important. There will be the ability to submit warrant applications electronically. Also there will be clarification of the actions that searchers may take when exercising search powers, including what they may seize. The power to secure search scenes is another important one, as is the power to stop vehicles in order to conduct a search. The final point is that this legislation will enable clear rules and procedures regarding items that may have been seized during a search.
I think it is important to realise where technology has got to over the last 50 years and what this bill enables those who are very technologically skilled to do. We need to think about the advances that society has made over the last 50 years. The bill allows remote computer searches only where it is not possible to access a physical location to search, for example, a computer. That is important. It might be a situation where there is an email account at various Internet cafes, or where not all of the data is located in a particular hard drive or at the physical location. So the information could be stored at a variety of locations.
The other important contribution I will make this evening is to say that regulatory agencies that already have the power to physically search homes and individuals will have the ability to apply to carry out other, covert surveillance, as long as there is—and there are a couple of important points here—sufficient information to suspect an offence. The other important point is that the desired covert surveillance will have to produce evidence of that offending, and the surveillance will have to be reasonable as to whether it is proportionate to the offence being investigated. The other important point is the issue as to whether New Zealanders consider covert surveillance to be any more intrusive than physical searching of their homes or of themselves in person.
This is a very, very good bill. It has taken a while to get here, and the Justice and Electoral Committee looks forward to hearing submissions right across the board. I am sure there will be a great deal of people among the public who want to get involved in this bill. From listening to some of the speeches this evening, my understanding is that there is a great deal of support for this bill, and I look forward to seeing those people getting involved in making a submission and turning up to the Justice and Electoral Committee to be heard, if they so wish. The Government supports the very important first reading of the Search and Surveillance Bill.
Hon DAVID PARKER (Labour)
: As has been stated by earlier speakers on behalf of the Labour Party, we are supporting the Search and Surveillance Bill’s referral to a select committee. Search and surveillance legislation is a necessary part of the laws of any modern democratic country. Either one has rules that regulate the extent of police powers or one has no rules. If there are no rules, then the only way to effectively do these things is by diktat. In democratic countries, we rely upon getting the balance right between the powers of the State to search and seize and the right of individuals to freely go about their lives without interference, through having appropriate legislation. When we design this kind of legislation we always have to be mindful about powers that can be abused.
When I come to considering legislation like this, I do not think about the current Government or the previous Government, both of which are relatively benign on these
matters; I try to think about what could be the worst-case scenario in which these powers could be abused. We ought not to pretend that the risk of governmental excess or executive excess does not exist in New Zealand. We are lucky to have long, proud traditions of pretty moderate ways in which Governments, be they Labour-led or National-led, have approached these matters over the years, but we ought not to be lulled into a false sense of security that on that basis we should be giving Governments of any persuasion wider powers than they really need. Because of the complex issues to be balanced, reforming law in this area is something that we in New Zealand are good at depoliticising.
I think it is easier for parties and for the public to have confidence in this legislation because the Law Commission has been central to the reports that led to the drafting of this legislation. The Law Commission is made up of some pretty wise men and women, including very senior members of the judiciary who have been in their careers for a long, long time. They understand the balance required between having civil liberty and giving appropriate powers to the police to apprehend and prosecute criminals. In addition, the Law Commission has people who have been politicians as well as academics, like Sir Geoffrey Palmer.
The Law Commission brings considerable wisdom to bear on these issues. If members ever have the chance to read its reports, as most members of Parliament do, they will see that it approaches these things in a considered way. It shows both sides of the argument before balancing the different interests to be weighed and coming up with recommendations to Parliament that we in Parliament generally find that we are able to agree with. That does not mean to say that we delegate our decision-making role to the Law Commission; we do not. In the end it is our responsibility to decide whether the law changes proposed by the Law Commission go forward, but generally we pay great heed to its endeavours because it takes time and goes into the detail of these matters in a way that is really impossible for us to do as politicians.
In this case, the legislation that is being reformed by the search and surveillance legislation is sometimes over 50 years old. That legislation was designed primarily with a view to the powers that the police needed 50 years ago, given the technology of the time. A number of things have changed since then, often in a piecemeal way, as we in Parliament have grappled with new issues that were not around when the original police powers were last legislated for. The piecemeal additions include things like the Biosecurity Act 1993, the Fisheries Act in various incarnations, the Health and Safety in Employment Act, the Reserve Bank of New Zealand Act, the Tax Administration Act, the Electricity Act, and the Gas Act. All of these different Acts of Parliament, for good reason, give different arms of the State powers of search and seizure. Because a somewhat ad hoc development of powers has been given to different agencies, inconsistencies have crept into the law in some of the finer provisions.
This legislation attempts to standardise some of the legal tests that apply as a prerequisite to people being able to exercise powers of search and seizure. It does that in a number of ways. For a start, it states that some things cannot be done except in the most exceptional circumstances. I take considerable comfort that my personal liberties are being protected by this proposed legislation. Clause 5 states that internal searches are generally prohibited, so a policeman or a policewoman, or any other official of the Government in another department, cannot just come along to me and say that he or she wants to give me a personal, invasive body search—and that should be the case. There are only very limited exceptions to that prohibition, and those exceptions are so limited that they ought to be expressly set out in law. Members will not be surprised to see that the express exception relates to the Misuse of Drugs Act because, of course, it is
possible to secrete drugs upon one’s body, and an internal search can be deemed necessary in cases dealing with the Misuse of Drugs Act.
The other thing that is made clear in this bill is the legal test that applies as a prerequisite to being able to get a search warrant. The person who is seeking the warrant has to satisfy the person who is granting the search warrant that he or she is satisfied that there are reasonable grounds to suspect that an offence punishable by imprisonment has been committed, is being committed, or will be committed, and to believe that the search will find evidential material in respect of that offence. That is a paraphrase, but it is the essence of it. That wording has had a lot of work done on it. A lot of consideration has gone into the exposition of the proper wording of the prerequisite threshold that has to be met before someone gives a warrant. That standard currently differs across different statutes, and it is desirable that it be standardised in the way that is being proposed here.
There are some limited circumstances where someone can carry out a search without first getting a warrant. The warrant protection is appropriate. One needs to convince a judge that the police should have the power to infringe someone else’s rights to privacy rather than just giving the police the power to use their warrant powers.
If members or listeners want an illustration of how people given excessive powers can use them excessively, the Serious Fraud Office is an example. It has two ways in which it can gather evidence. The first is that it can go through the normal process and get a warrant, and the second is that it can exercise some additional powers and do things because it can. Despite the fact that in probably 90 percent of cases the Serious Fraud Office could use the warrant route, because it has had the power to use the short-cut route it has chosen to use that instead. In the majority of cases it has used its short-cut route rather than the warrant route. That is an illustration of why we need to take care that we have judicial oversight of these things, because I have no doubt that in some of those situations the breadth of the information the Serious Fraud Office sought through the warrantless process was probably wider than what would have been agreed to by a judge or some other body that had oversight. So I for one think that, generally, the Serious Fraud Office should have to have a warrant. I also recognise that there are exceptions. Those exceptions are properly set out in the legislation.
One final thing that I think should be looked at by the select committee is the power to require people to answer. We have a right to silence in New Zealand. There are exceptions for Serious Fraud Office investigations. They might be valid, but the granting of wider powers to require people to answer questions is something that the select committee needs to consider quite seriously.
SIMON BRIDGES (National—Tauranga)
: Mr Assistant Speaker—
Chris Hipkins: This’ll be good!
SIMON BRIDGES: It will be. It is good to take a call on this bill. [Interruption] Members opposite are excited already. It is good to take a call on the Search and Surveillance Bill and make what I hope will be a few salient and pertinent points in relation to it. But first, can I just dwell for a moment on this afternoon, when we also had the Limitation Bill for its first reading before this House and now, as I say, we have the Search and Surveillance Bill. [Interruption] I do not want to dwell on the Leader of the Opposition’s limitation period of 3 years; we have already been there, done that—
Chris Hipkins: Because he will be Prime Minister after that.
SIMON BRIDGES: That is unlikely. The member Chris Hipkins says that the Leader of the Opposition will be Prime Minister after 3 years. I am sure he will not be putting money on that. In all seriousness, I will dwell on some of the similarities and the differences between the two—
Hon Darren Hughes: Will you resign if that happens?
SIMON BRIDGES: Will I resign if that happens? I suppose anything is possible at a theoretical level. It is highly unlikely, but possible.
I will say that both bills have really benefited from some significant work from the Law Commission: some weighty tomes by the commission in the case of the Limitation Bill, three reports, and in this case, as I understand it, one fairly hefty tome. I agree, really, with what Charles Chauvel has said on the Limitation Bill, and with what Mr Parker said just now about the Law Commission, and I commend its members for the good work they have done. I emphasise something Sir Geoffrey Palmer, I think, said to the Justice and Electoral Committee earlier this year—that the benefit of the Law Commission, the substantial benefit, is the research it does. The heavy workload of research that it has really aids our Parliament and our society. We have the Search and Surveillance Bill, which is a product of that work, as the Limitation Bill, which was debated before it, was.
Of course there are other similarities between these bills. They are very significant in their own way, one in the area of civil procedure and one in the area of criminal procedure. They both deal with—I suppose we could say—a rubbing against of principles. In the case of the Limitation Bill it is the principles of finality against the search for truth and justice. In the case of this bill—and to echo something the previous speaker said—the rights and liberties of an individual to be free from unnecessary and illegal searches and surveillance against the other really very important need for the State to fulfil its duty to keep citizens safe and to enforce laws and solve crime. Both are significant bills, one in the civil area and one in the criminal area. This bill, like the Limitation Bill, is one where there are important principles at stake.
I went over and asked my colleagues from both the ACT Party and the Māori Party about them, and I think I have it right. Anyone who has gone through law school will remember the case of
Entick v Carrington. It is a case going back several hundred years, and it really goes to the principle that a man’s—I suppose, these days, we should say a person’s—home is his castle. It was an initial piece of case law in the search and surveillance area. It established a very important principle, as I recall, going back now about 15 years to my law school year one class, that a man’s home is his castle and people should be free from unnecessary searches on their own property. I suppose today we would also say, in a general sense, on their person, and in all sorts of ways, as I think Nathan Guy said earlier, in the realm of computers, email, and the Internet. The limits on it are essentially endless.
Of course, I have had quite substantial experience arguing search and surveillance cases in court, and arguing the admissibility of evidence. I suppose the most common search cases to come before the courts every single day in the District Courts in this country are to do with drugs and searches of cars, real property, the bush out the back of someone’s property, and the legality or otherwise of what the police have done. Again, to emphasise the significance of this bill and the need to give it close examination at select committee, its purview—and the purview of this bill is much broader than that—extends to any crime one can envisage: any kind of property crime, pornography, child pornography, computers, obviously, a whole range of sexual offences, frauds—you name it, this bill will have application to it.
In starting to talk about
Entick v Carrington, where it all started, and the heavy workload that search and surveillance puts before the courts, the point I make is that a lot of ink has been spilled in this area of law, and a lot of trees have been killed. I do not think we will ever do away with that entirely. Often these cases turn on the facts: do we believe the policeman or do we believe the accused as to what actually happened when the search took place, or in relation to the surveillance and the evidence? Nevertheless, my point is that it is entirely possible that this bill will free up some court resource and
streamline the process by codifying the laws in relation to search and surveillance in one essentially omnibus bill that runs to 197 pages and has 316 clauses. We will not see the to-ing and fro-ing that we saw, certainly in the District Court, but also in the High Court and the Court of Appeal, with numerous cases, such as,
Grayson v Taylor,
R v Shaheed, and, more recently, the case of
R v Williams. Those are cases that will be very familiar to criminal lawyers in this country. Hopefully under this bill things will settle down as a result of the codification of the law in one place.
If anyone is in any doubt that that is what this bill does, it is instructive and interesting to look at the explanatory note of the bill where it lists the dozens and dozens of bills that are amended by this new bill. If I deal with just the As, there is 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, and the Aviation Crimes Act. My hope is that this bill will lead to more certainty and to a less movable feast in relation to search and surveillance. As the explanatory note states, the bill, I hope, will provide a coherent, consistent, and certain approach in balancing the complementary values of law enforcement and human rights.
JACINDA ARDERN (Labour)
: It is my privilege to again follow my colleague opposite on this matter. He is obviously learned in this area.
I want to reflect on the comments made by Mr Guy on the justification for the Search and Surveillance Bill. When giving the reasoning behind the bill, he mentioned mostly that the existing legislation was old and therefore change was justified. Although the current legislation is 50 years old, its being old is not reason enough to change it—and we could use Roger Douglas as an example of why that might be the case. Having said that, there are very good reasons why we should look to review the current provisions for search and surveillance, which are spread across a number of different Acts and which we would well benefit from pulling together. As has already been mentioned, the bill will be referred to the Justice and Electoral Committee, of which I am pleased to be a member. The committee has been particularly busy over this last period, and obviously the area we are looking at here is a clear focus for the current Government.
On bills such as this one it is really important that we go back to the first principles of what we are trying to achieve, and on what it is important to retain at the end of the process. My colleague David Parker pointed that out really articulately. Firstly, we have a responsibility to ensure that our law enforcement agents are given the powers required to do their job, within certain boundaries. The second element concerns those boundaries and the need to ensure that we maintain the protection and rights of citizens. I believe that this House has already seen that tested. For instance, the Criminal Investigations (Bodily Samples) Amendment Bill, which is currently before the Justice and Electoral Committee, is a test of the boundaries of some of those rights. There is a challenge to see, as our modern crime-fighting tools move on, how far we should allow those tools to be used in the investigation of criminal acts.
I want to talk a bit more about that balance and to make an international comparison. Before I came into this House I had the opportunity to work on a review of policing in England and Wales under Sir Ronnie Flanagan, who led Her Majesty’s Inspectorate of Constabulary in the UK. I guess one could say he was the equivalent of the Commissioner of Police. One of the areas in the UK that he wanted to look at was the rising amount of bureaucracy in the police force under that jurisdiction. He was interested in what had triggered the increase in bureaucracy, and that was the element of the review I worked on. What became quite clear was that in the UK there had been an increase in the powers granted to the police, but rather than testing whether those powers should have been granted in the first place, the immediate response was to put
layers of accountability checks, which came in the form of bureaucracy, on top of those powers. For instance, keeping everything in writing was seen as a counterbalance, rather than the questioning of principles at the time.
Probably one of the best examples was the stop and search powers that existed in the UK. In the UK police officers are able to stop and search any individual or person they suspect of having committed a crime, without there being much check on that. I will reflect again on how that is portrayed in this bill, where at least we have a balance. In the UK, in order to provide a counterbalance, any police officer who exercised stop and search powers, or who even questioned where an individual was going, would then fill in a lengthy form. The consequence was that the individual who was stopped felt as though his or her details were being recorded for a massive database. One can see why people might assume that, given that the UK is the most watched nation in the world and, one might argue, one of the most heavily bureaucratic as well. So that is a clear example of where powers went to a particular point, and the assumption was that a layer of bureaucracy would be enough of a protection for citizens when, in fact, it was not, and gathering of information in and of itself was seen as an invasion of people’s privacy.
I reflect on that because in the Search and Surveillance Bill we see a quite lengthy discussion on the use of warrantless powers for the gathering of information that may be useful for tackling various criminal acts. These are set out in Subpart 4 through to Subpart 7 in Part 4. In each of these subparts I am pleased to see that the bill is very explicit, and that although a police officer may have the right under particular circumstances to act without a warrant, this is kept in check by the fact that it may be only for an imprisonable offence of 14 years or more. So already we see a counterbalance in there that is not bureaucracy-based but based on a standard that is recognised and understood in law, and which means that an element of seriousness must first be present before a police officer may act in that way. I think it is a useful attempt at ensuring that we have balance. That provision applies for the gathering of evidence and material from a vehicle and in relation to the Misuse of Drugs Act. I think it would be useful for the select committee to spend a little bit more time on that area, because it strikes me as being much more open-ended than some of the other subparts of the Search and Surveillance Bill in relation to warrantless searches.
I want to refer quickly to the reporting mechanisms that have been added to the law itself. It is interesting that in drafting this bill it was obviously seen as important that we have the counterbalance of including the reporting procedures. We did not see that in the UK, and that was another reason why the bureaucracy became out of control as a measure of accountability. I think it is useful for the Government to point out its expectations from the outset when it comes to reporting. Otherwise reporting can be a mechanism that is used on the job as an accountability measure, and a way for individual law enforcement officers to say they have done what was required, ticked a box and filled in a form, and that the accountability does not need to go beyond that.
These reporting structures are much broader. They set out on an annual basis the information that the Government expects to be provided to this House on the use of warrantless searches, and I think that is useful. Those provisions are contained in Subpart 7 in Part 4. In clause 162 it says explicitly: “Any person who exercises a warrantless entry power, search power, or surveillance power conferred by this Act or by a relevant enactment must provide a written report on the exercise of that power to an employee designated to receive reports of that kind by the chief executive …”. It also sets out the information that must be included within that report, including a short summary of the circumstances surrounding the exercise of the power and the reasons why it needed to be exercised, as well as statements on whether any evidential material
was seized, and whether any criminal proceedings have been brought or are being considered as a consequence of that evidential material.
I point out that we must ensure that the putting of reporting mechanisms into this bill does not become an excuse or a justification for the broad use of what are very far-reaching powers. That is why I am pleased to see that clause 163 states that those reports must come to Parliament. It will be up to members of this House to ensure on an annual basis that the powers within this Act are being used in the way that this House intended, are not being misused by law enforcement agents, and are achieving the ends that were intended.
As a member of the Justice and Electoral Committee, I look forward to going into greater detail on the other aspects of this bill and to ensuring that we have struck the crucial balance between the individual liberties of members of the public whilst also ensuring that we adequately reinforce our law enforcement agents.
PAUL QUINN (National)
: I will take a short call on this first reading of the Search and Surveillance Bill. I support this reading and the contributions of my friends and colleagues on this side of the House, and perhaps some of the contributions from our friends and colleagues on the other side of the House.
I was struck by Jacinda Ardern’s opening comment about the use of the word “old” to describe the current legislation; she said that something being old was not of itself a reason for changing it. I agree with her to the extent that being old of itself is not a reason, but being out of date is. One thing is for sure: the current legislation is way out of date. Times have moved on, methods have moved on, technology has moved on, and the way we do things has moved on. As a consequence, it is time to take a fresh look at the legislation through this omnibus bill, and to bring it into today’s times so that the law enforcement agencies can use modern techniques to assist their honourable work in protecting society, the community, and individuals. I cannot help but reflect that this modern and focused Government has today brought in two long-overdue bills to modernise legislation. To some extent that is a reflection of this modern party and its drive to put the focus on doing rather than doting, which we have had over a lengthy period.
I want to make a couple of comments on some other previous speakers. Lianne Dalziel said there might be some contradiction as set out in the regulatory impact statement. I say to her that this Government at least has an open book and is prepared to provide regulatory impact statements. I was a bit confused by the messages provided by Charles Chauvel and David Parker in respect of the Law Commission. Although I agree that the Law Commission does some excellent work, I do not think it has a free licence to have all its work considered excellent. I reflect on one particular bill where I was involved in a consultation process that, from my recollection, was completely against what the community wanted. That was the Waka Umanga (Māori Corporations) Bill, and, fortunately, it languishes way down the Order Paper. I think that, yes, the commission provides expertise in some areas. Search and surveillance, and limitation, are technical in nature, and the commission can provide some expertise on them, but I think we need to follow the wise counsel expressed by David Parker that, ultimately, Parliament must take responsibility for passing laws, not the Law Commission. I heartily agree.
I also want to pick up on the concerns expressed by the Māori Party, and to say that I am sure that the Justice and Electoral Committee will diligently work through those issues. Some of those issues have been raised on both sides of the House. I am sure they will be taken into consideration when this bill is referred to the Justice and Electoral Committee, which is under the excellent leadership and chairmanship of Chester Borrows.
I do not have much more to add, other than to say that it is always good to be working on very important bills that enhance the crime-fighting capabilities of our law enforcement officers in order to make our communities and society safer. On that basis it is with much pleasure that I look forward to this bill being referred to the Justice and Electoral Committee. Thank you.
A party vote was called for on the question,
That the Search and Surveillance Bill be now read a first time.
||New Zealand National 58; New Zealand Labour 43; ACT New Zealand 5; Māori Party 4; Progressive 1; United Future 1.
||Green Party 9.
|Bill read a first time.
referred to the Justice and Electoral Committee