Hon DAVID CARTER (Minister for Primary Industries) on behalf of the Minister of Finance: I move, That the Appropriation (2010/11 Financial Review) Bill be now read a first time.

• Bill read a first time.

Hon PHIL GOFF (Labour—Mt Roskill) : Part 3 of the Search and Surveillance Bill is an important part of the bill. It deals with the powers and the orders that enforcement officers are going to use. It looks at warrants for surveillance devices, and in particular it looks at the use of production orders.

I want to say, first of all, that Labour supported the introduction of this bill. In fact, it was introduced by Labour. When Labour looked at this bill, we did not take the steps that were included in our bill lightly. It was based on 6 years of work by the Law Commission, and it was based on a widespread view that comprehensive reform was necessary of a series of laws that had been subject to ad hoc changes, which had led to real confusion and a lack of coherence. Some of these laws were 50 years old and simply did not cover the technological changes that had occurred. So the first principle that Labour followed was that we recognised that in fighting crime we have to give our enforcement officers adequate tools and powers, particularly reflecting changes that have occurred technologically. But there was a second principle, which the National Party, when it took over the bill, did not seem as concerned about. That principle was that, equally, you must recognise that when you give coercive powers to enforcement agencies, you make sure you do not unreasonably undermine basic civil rights and liberties.

The thing that worries me about the way National has gone about this bill is that it had 2½ years to actually act on it and put in place Labour’s reforms, and it did nothing. National sat on it; it did nothing. Then at the last moment, as a result of a court decision in Hamed, National decided, in a panic-stricken way, to introduce new powers and not worry at all about how these powers could be misused. The fact was that in the legislation that came in last year, National was going to rush legislation through this House without reference to a select committee, without the ability of any individual or organisation to make submissions on it and to improve or change that legislation. Fortunately, National did not have the numbers to do so. It did not have the numbers to do so, so the changes were temporary.

When the Justice and Electoral Committee looked at these details, the select committee—and I am talking about the whole of the select committee; National as well as Opposition members—acknowledged that the bill that National had introduced went far too far. It had no balance, and it needed to be, and has been, significantly redrafted. Not only have changes been made in the select committee, but the Minister of Justice has come back to this House with 92 pages of a Supplementary Order Paper—92 pages. How badly wrong did the National Party get this legislation? The truth is that but for the work of the select committee and the insistence of Labour that the bill go to the select committee, that original bill would be on the statute book today and it would be wrong. National Party members on the select committee admitted that many of the powers went over the top, were disproportionate to the offending, went to too many agencies, and went too far.

I do acknowledge that some changes have been made that make this part of the bill more palatable. We have reduced the surveillance period without warrant. I think that is an important safeguard. We have limited the retention of surveillance data on people who are quite innocent of any offending. It is absolutely repugnant that you would be keeping on tape video surveillance of people, intruding on their privacy, who were doing nothing wrong. It is really important that we protect the privacy of individuals who are innocent of any offending against the law and against other people. And the bill imposes more stringent reporting requirements. But this still does not go far enough, which is why Labour is not supporting the part.

There are amendments in the name of my colleagues Charles Chauvel and David Parker, which we will be supporting, but in particular we want to focus in this debate on the use of production orders. Production orders are orders that require a person to produce information or documents. That is, in effect, overriding what we would regard as the right to silence. No person is normally forced to produce documents that might or might not be incriminating against them. In fact, it is only the Serious Fraud Office that has the power to issue production orders prior to this legislation coming into effect. When we looked at how those powers were being used by the Serious Fraud Office, we found—in fact, the Law Commission commented on it—that there was a tendency, because we gave these powers to the Serious Fraud Office, for it to overuse them. It did not use conventional investigation techniques. Its first instinct was to use these extraordinary powers, regardless of whether or not they were appropriate in the circumstances.

This brings me to the point that I think is most important in this debate, and that point is this: in this country, Parliament acts to hold a Government accountable, but there is also the fourth estate, the media, which has the vital role of holding a Government to account. For the media to be effective in the use of its authority, then people who give information to the media must be confident that the information they provide will be made and kept confidential. It is vital to protect that confidentiality and the freedom of the press. That is why we are concerned that the Serious Fraud Office used production orders against the National Business Review during its inquiry into South Canterbury Finance. Serious Fraud Office staff went into the news room and seized the documents. Is it any wonder that an international rating agency saw New Zealand’s rating in terms of media freedom drop from eighth in the world to 13th? That is a significant drop. We are talking about international agencies that no longer regard New Zealand as a country that will protect the freedom of the media. And, by God, have they not got information to back that up?

During the election campaign, what did we see? The Prime Minister using a complaint over the teapot affair to get the police to go into news rooms again. We saw the Prime Minister misusing his power in terms of going on a Radio Live programme, even though he was advised by the Electoral Commission not to. We saw the appointment of the Prime Minister’s electorate chairman, a direct political and politicised appointment, on to New Zealand On Air, and his opposing documentaries that might show the Government in a bad light. It is against that backdrop that these powers available to the Serious Fraud Office and the police have got to be met with concern.

Labour wanted the Government to tighten the use of production and examination orders by the Serious Fraud Office at the same time as similar powers were being conferred on the police under this bill. Regrettably, the Government was not prepared to show the flexibility and the common sense to agree to that. If it had agreed to that, then in all likelihood this piece of legislation, which is controversial and which risks intruding on the privacy of individuals, could have gone through with the overwhelming support of this House. That would have been a sign that we have got the balance right: the balance between giving enforcement agencies the powers they need and protecting the privacy of innocent individuals. We offered cooperation to get that consensus support. It is not too late now for the Minister in the chair, Chester Borrows, although he might be reluctant to override the Minister in charge of the bill, Judith Collins, to say “Minister, come to your senses on this legislation. We can get the overwhelming support of the House for it, but let us protect the role of the fourth estate in making sure that the Government is held to account and that people’s privacy is being protected.”

That is what Labour is asking for. It is not unreasonable, and if the Government finally makes the decision to make that compromise, to show that flexibility, to have that common sense, to respect the role of the media in our society, and to get the balance right between giving police and other enforcement agencies the powers they need and protecting the right of New Zealanders, ordinary New Zealanders, to privacy in their life, then we could give support to this bill. I urge the Government to make that change.

The CHAIRPERSON (Lindsay Tisch): There is too much noise coming from the Government benches. If you want to have discussions, go out into the lobbies. That is what the lobbies are for. It is difficult to concentrate and to hear what members are saying.

DAVID CLENDON (Green) : I am pleased to take another call on the Search and Surveillance Bill, and on Part 3, to once again affirm the Greens’ opposition to this bill. There is a very slim margin majority—or has been up to now—in the House for this bill. It is becoming very obvious in the media and in public generally that people understand what this bill is intending to do, and that the majority in the street and in the public domain are very much in opposition to this bill. We are very happy to join that opposition and to voice it in this Committee.

We have no problem with some of the stated intentions of this bill, which are to rationalise what is admittedly a very convoluted, complex array of legislation. We recognise, of course, that the police and other bodies need investigative powers and, on occasion, they need covert investigation powers. But as has been very eloquently stated by the previous speaker, Phil Goff, this bill simply goes too far. This bill sets out deliberately to be a catch-all bill. It sets out to give the maximum possible powers to State agencies, rather than taking the view that we should give the State agencies the fewest powers that they need to fulfil their obligations, to do their job, and to ensure public safety.

I will move directly to some of the clauses of the bill, specifically under clause 44, the part of the bill that talks about surveillance warrants, devices, and so on. The focus in this particular part of the bill is on the ability of State agencies—be it police or any other—to install surveillance devices on private property without warrants for a defined period of time. Yes, that time has been reduced from 72 to 48 hours, but it is extraordinary that agents of the State should have the power under this legislation—and indeed under the proposed Supplementary Order Paper in the name of the Minister of Justice—to enter people’s houses; to break into people’s premises, areas, or vehicles; to interfere with vehicles; to install, using whatever force is necessary, covert surveillance devices; and, to add insult to injury, to even plug into the electricity of somebody’s home or business premises to power up these devices.

It is extraordinary that the State, a police officer, or other State agencies should have the power to actually break into people’s homes and steal their vehicles and then return them, or to put in these devices, unknowing, on suspicion—reasonable suspicion, which is a reasonably low bar, we must say—that a crime has been committed, is being committed, or indeed might be committed. Those are very, very low bars to protect the right to privacy. Basic civil liberties are at stake here, and we think it is important that people are aware of the very, very considerable powers in this part that would be given for warrantless intrusion into people’s homes, their business premises, and their vehicles—places where people ought to feel that they have a reasonable level of security and privacy. The fact that this can be done without a warrant, even for a shorter period of 48 hours, we think is simply a step too far.

There is absolutely no proven necessity for these quite Draconian measures that this bill proposes and that this part of the bill proposes. We are in a place where we are not under immediate threat from major terrorist groups, despite the best efforts, on occasion, to paint certain individuals in that light. The need simply does not exist for these extraordinarily powerful provisions in this bill—for example, around the warrantless insertion of surveillance devices, even in people’s homes.

The issue of production orders has excited considerable interest in the media, among other places, and I think that is appropriate. The editorial in the New Zealand Herald—which is not noticed as the most radical media outlet that has ever been seen, and which enjoyed the appellation “Granny Herald” at one time—acknowledges that this bill simply goes too far.

There is a clear indication in the provisions around production orders about self-incrimination, and this was referred to by a previous speaker. Within the provisions of this bill, a person who is absolutely a person under suspicion—so-called reasonable suspicion—can be obliged to incriminate themselves or to involve other people in incriminating themselves. For a very, very long time—for centuries—there has been a common law assumption, a belief, a convention that people ought not to be obliged to incriminate themselves.

That is the job of the police and the courts. The role of the police is to bring evidence, to accuse, and to deliver evidence of wrongdoing, and, of course, the courts’ role is to judge on that. The notion that people should be obliged to be complicit in their own conviction is simply anathema. Yes, we understand that we want to prevent the commission of crime. We want to ensure that people who undertake criminal activities should be taken to task and should suffer the penalty. But going against a centuries-old convention, for what reason? For reasons that are not adequately described in this bill. We do not have a situation where we ought to be compromising these very, very long-held conventions that protect people against being obliged to incriminate themselves. There is no justification given in this bill.

For what this bill does—and, in particular, in this part, in the warrantless surveillance provisions, in the issues around production orders, and in the provisions that are made explicit in terms of production orders—the case has not been made that we need these sorts of provisions. They are major assaults on civil liberties, on the privacy of individuals and of businesses, in fact. The expectation of most New Zealanders is that they can go about their business with a reasonable assurance of privacy. This bill does go too far. These provisions go far beyond the pale, and we will continue to oppose them. Thank you.

DENIS O’ROURKE (NZ First) : New Zealand First does not oppose the intent of Part 3 of the Search and Surveillance Bill relating to surveillance powers and declaratory orders. But New Zealand First certainly does have some reservations about the manner in which those powers will be used, and those have been referred to already by some of the previous speakers.

As some previous speakers have already said, there does need to be a balance between enforcement, especially using modern techniques—and bearing in mind some of the crime that today the community is facing—on the one hand, and also the right to privacy, on the other. That is a very difficult balance to reach and requires very careful consideration. In particular, this is necessary where trespass surveillance is to be authorised, and of course the bill takes some trouble to address that. However, I note that only offences punishable by a period of imprisonment of 7 years or more will be subject to those provisions. So, on balance, the New Zealand First position would be that, subject to some of the reservations that have been expressed and which I express here as to the methodology by which these powers are to be enforced, New Zealand First would say that in respect of this part of the bill the balance has probably been correctly arrived at. So we would not, for that reason, oppose that part of the bill.

We note also that the bill now provides some protection for the freedom of the press, especially by confirming the privilege to protect sources contained in clause 130, but I would have to ask, does that really in practice provide a significant protection? It is all very well for clause 130 to simply state that that privilege exists. However, the reality is that if a search was conducted of a news media organisation and information about the sources of information was uncovered, there would have to be a period of time within which the news media organisation could challenge that search and the use of that information.

I am not satisfied that in practice, therefore, the bill actually does protect the freedom of the press in respect of the media’s need to protect their sources, and I would like to have seen the bill go somewhat further than it does. So I would have to agree with some of the previous speakers when they say that the bill goes too far in some of the methods it authorises and some of the agencies that it authorises to have some of these powers.

However much New Zealand First supports the need for effective enforcement, we cannot agree with the bill overall simply because, as I have said in previous speeches, it includes a very serious issue, which is examination orders and production orders that seriously breach the ancient right to silence. That is not something that New Zealand First could agree with. That has compromised the whole bill and, as a result, New Zealand First is unable to support it overall.

You see, it is not just a matter of balance when it comes to the protection of very important democratic rights, such as the right to silence. No form of balance, no consideration of balance, is relevant to that. It is quite simple: rights of that magnitude must be protected. People have fought wars to protect rights of that kind and our democracy as a whole, and there is no way that this should be chipped away at in the form it is in this bill and in similar sorts of legislation. I would remind the Committee that in clauses 31 and 32 a senior police officer is given the right—

The CHAIRPERSON (Lindsay Tisch): Order! That is Part 2. We are on Part 3. You cannot—

DENIS O’ROURKE: I was just moving on to that, Mr Chairperson.

The CHAIRPERSON (Lindsay Tisch): Just stay on Part 3. That is what we are debating—Part 3.

DENIS O’ROURKE: Well, Part 3 cannot be agreed to, simply because the bill as a whole cannot be agreed to. I would have to repeat that in a non-business context, where those rights—

Hon DAVID PARKER (Labour) : The first issue I would like some clarification on from the Minister in the chair, the Associate Minister of Justice, relates to clause 57 of the Search and Surveillance Bill and the effect on declaratory orders of the Hamed decision, which came out after the drafting of this legislation. This point became unclear to me when I heard an address from Charles Chauvel when the Committee stage of the bill was in process during a previous sitting of Parliament, when he asked what the proper role is for declaratory orders.

We heard from the Minister of Justice in earlier stages in the debate that a declaratory order might be used when the police want to carry out some activity that is not specifically able to be authorised through a warrant because it might not have been using a technology that was thought of at the time when this legislation was passed. They could go to the court and seek a declaratory order, which is a statement by a judge that he or she is satisfied that the use of the device specified in the order is, in the circumstances, reasonable and lawful—to paraphrase the clause.

Charles Chauvel quite rightly raised the question as to whether this was an appropriate power at all, which made me think about the effect of Hamed on this. This bill was drafted at a time when the advice that we had at the Justice and Electoral Committee—and the Hon Chester Borrows, who is in the Minister’s chair, will remember this, because he was chair of the select committee at the time—was that where there was no express power because the technology was not in existence at the time the statutory provision conferring the warranted powers was enacted, there was a residual power arising from common law for the police to do it anyway. Well, that was thought by the Law Commission to be a bit loose, and so officials in the Law Commission came up with a precursor to this declaratory order form—and now this form—to give some process to try to cause some judicial oversight of these new processes.

But, of course, Hamed came along and said that there is no such thing as an unwarrantable legal trespassory power of surveillance. So you cannot get a declaratory order, I would say to the Minister in the chair—and I ask him to respond—because how can you get a declaratory order in respect of something that is now illegal in light of Hamed? I would say, then, that the only way in which the declaratory order process can be of any utility is in respect of non-trespassory procedures, because trespassory procedures that are not authorised expressly in any form of legislation are, according to Hamed, illegal. They are in breach of the New Zealand Bill of Rights Act. So except to the extent that there might be some exercise of judicial discretion not to exclude evidence because of the seriousness of the crime, it seems to me that in respect of trespassory surveillance operations this is a useless clause, because Hamed has overtaken our understanding of the law as it was explained to us at the select committee. I ask the Minister in the chair to advise me whether I am correct in that analysis—and he being a learned man and a former policeman I think he might agree with me.

The other issue I want to address relates to the amendment in my name, which is an amendment to clause 69(1A) of the bill. It suggests that the Serious Fraud Office director be made, by this amendment, “an enforcement officer for the purposes of obtaining a production order.”, which would then mean that all of the protections, such as they are in this legislation, relating to production orders that are sought by the police would flow through to production orders sought by the Serious Fraud Office. I do not know whether you were in the Chair at the time when we were last having this debate, Mr Tisch—I think you were. You will be aware that there is a residual concern of the Opposition that even if you accept—and I heard the New Zealand First contribution in respect of production orders and examination orders in this context—that production orders might be justified sometimes, they are never justified without appropriate protections of media freedoms. And that is what this amendment seeks to address by making the same protections that apply in respect of production orders sought by the police also apply in respect of production orders sought by the Serious Fraud Office.

Since we have had those early stages in the debate, we have had some editorials come out from the major newspapers in New Zealand that have been considering these issues. I would like to reflect again on what a production order does. A production order effectively requires the person who is served with the production order to hand over documents. They do not have a discretion; they must hand over the documents to the police and also, at the moment, to the Serious Fraud Office along with the police. The police have to get a warrant, the warrant has to be from a judge, the person can claim media privilege, and there are certain protections—inadequate in the view of the press—in respect of police actions, but none of those protections arises in respect of the Serious Fraud Office.

What does the New Zealand Herald editorial of 8 March say? I will read just a couple of extracts: “The rights of reporters to protect confidential sources will be seriously restricted.” So it is saying that this legislation, if passed, seriously restricts the ability of the press to protect their sources, and I think we in this House should be worried about this. Then it refers to the fact that “It is proposed that when the media invoke that essential right (which lawmakers call a privilege),”—here it is talking about media privilege—“a High Court judge will decide whether they can withhold identifying material.” As the media note: “Worse, media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material.”

The Minister can clarify for me whether the effect of the Minister’s amendments is to make it a requirement that those materials must be held in a secure place before the judge reviews the claim to privilege. But, even then, the newspapers make the point that you are trusting the police not to copy the information on the way past, and we are also trusting that the media know their rights—and they will not all know their rights—to demand that that information be secured in the meantime.

The media then make a wider point and say: “Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part, requiring external authorisation before any agency’s officers can search private property or set up surveillance devices. Examination orders”—and production orders are the same—“are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times, their concerns might not come to light.” So they are saying that there is a special case to be made for the media because there is a public interest in preserving the confidentiality of media sources and because there is a public interest in those bad stories—they might reflect poorly on Governments or other powerful people in society—but they none the less ought to come to light for the long-term protection of the health of our democracy.

Then they go on to say—look, there’s another thing here—“News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights.” Can I pay tribute to the comment that we had before from the New Zealand First speaker Denis O’Rourke, because this is effectively what he is saying. I am going to repeat that, because I think it is quite an important point: “News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody’s rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.” That is what the New Zealand Herald says.

This bill goes too far, according to the New Zealand Herald, in respect of police powers, even with the protections around them, and I am sure it would agree that in respect of the Serious Fraud Office the issue is even worse, because those protections that exist in respect of the police exercise of powers with production orders are not there for the Serious Fraud Office. That is what my amendment tries to make a little bit better. It does not take away the power of the Serious Fraud Office to get a production order, but it does say that for the purposes of this legislation, when obtaining a production order, the Serious Fraud Office director is an enforcement officer, and all of the provisions in the bill that apply to the commissioner in respect of production orders apply to the Serious Fraud Office director.

CHARLES CHAUVEL (Labour) : I want to begin by thanking my colleague for taking the Committee through the history and the context of clause 57 and the subsequent parts of the Search and Surveillance Bill. I spoke a little earlier in the debate about this particular part of the legislation. I found it puzzling and I now have some context for the provisions. But I would, notwithstanding the fact that the Minister in the chair, the Associate Minister of Justice, is not the Minister with carriage for the bill, be very grateful if he could ask the officials for some advice on whether, particularly in light of what we have heard from the Hon David Parker, it makes any sense to retain clause 57 and the clauses that follow relating to declaratory orders.

Clearly what appears to have happened, just following the text of the bill, is that there was an original proposal for what were called residual warrants. I know that the Minister in the chair was on the Justice and Electoral Committee—I was not, but he and David Parker were—and clearly what happened here is that there is a recommendation from the Justice and Electoral Committee to strike out the provisions relating to residual warrants and a decision to replace those provisions with one relating to declaratory orders. This was a set of provisions that will allow, if we enact this legislation, law enforcement to go to the High Court or a District Court and ask for an opinion from the court about the legality of any particular type of surveillance.

This drafting has not changed since the Hamed decision was handed down and Parliament applied what we might colloquially call a temporary fix last year to this situation, which we were alerted to because of Hamed. Notwithstanding Hamed, we have still got provisions around getting these declaratory orders in place. As David Parker has pointed out, these provisions are now virtually redundant, except in respect of one type of surveillance, thanks to Hamed. So I think we need to hear from the Minister in the chair about whether it is desirable to still retain clauses 57 through to 61, because we are really in danger, I think, of enacting provisions that do not have any meaning, as a result of a judicial decision that we have now had some time to consider.

I said that it was helpful to have had the history and the context of the legislation explained, because I think it does show that we probably do not need these provisions, and I think that if we are taking our responsibilities seriously as a Committee of the whole House, we should be looking at the question of whether to retain these provisions.

I have some more serious concerns about them, and I alluded to them in my previous remarks on Part 3. I am going to just reiterate those concerns for the Minister in the chair. We do not, as a rule, in common law countries put the courts in the position of giving opinions. Our system, as the Minister knows, is one where there is a dispute of facts that goes before the courts, and the courts pronounce definitively by applying the law to it. That is the way things are done. In New Zealand we have never constitutionalised that, but in Australia, for example, the Commonwealth constitution makes it very clear that that is the judicial role; it would be unconstitutional in Australia to enact this sort of provision, where the courts are put in the position of being advisers to the executive. I still have a major reservation about the propriety and wisdom of doing this here.

Independently of the fact that we have now learnt in this debate that the provisions are probably redundant in any event, what happens if an abstract request for an opinion goes before the High Court, and the High Court, under these provisions, delivers itself of an opinion, as it would be obliged to do on the face of the clauses, and then the opinion from the court, being expressed as advisory only, is brought up in a subsequent real case, a real dispute, over the legality of a particular type of surveillance in a District Court? What sort of position would the District Court judge be put in in that real-life dispute situation? What sort of discretion would that judge have in any real sense in the face of a High Court advisory opinion on similar hypothetical facts? The reality is the judge would have none. Thanks to our doctrine of stare decisis, even though this is all expressed to be advisory, the judge would not in reality have any freedom to do anything other than apply the so-called advisory opinion given on a previous occasion in a hypothetical situation by the High Court.

That is an indication of why we do not generally enact law in this way, why we do not put the courts in the position of trying to give advice to the executive. We have a Crown Law Office and we have Crown solicitors. They are perfectly capable, and, as the Minister knows, every day they give this sort of advice in practice to the police and to prosecuting authorities. We should not ask the courts to somehow become advisers to the executive. That violates the notion of the separation of powers, and, as I have tried to show, it will result, if these powers are ever used in any extensive way, in embarrassing and uncomfortable situations as far as the courts are concerned.

Finally, as the Minister knows, the courts have enough to do at the moment. We are constantly trying to find ways in this House of easing their burden and their workload, rather than adding to it. I just do not understand, particularly given what we have heard about the Hamed decision and the fact that these provisions are now, largely, moot anyway, why we would then legislate in this way. I appreciate that it is difficult for the Minister in the chair, because he has to take carriage of this legislation temporarily, but—I think this is important enough, and it is certainly not an attempt to spin the debate out—this is a very serious question. I would not be taking time on it unless I thought it was well worth the consideration of removing these provisions from Part 3, which we are now debating. In fact, if there is time in the debate, I think I ought to move formally that the Committee do that, because it seems to me, as I say, given what we have heard, that clauses 57 to 61 are not only moot but actually undesirable.

Hon CHESTER BORROWS (Associate Minister of Justice) : Just in response to the points that have been made, it is pertinent to note that where the genesis of this provision came from was the fact that technology had moved faster than the law had. So law enforcement agencies were able to draw on new abilities that were given by new technologies, and they were using those in investigations where it was questionable as to whether or not there was the ability to do so.

In response to the query raised in respect of declaratory orders, the point has been made that they are advisory, and I understand the point that the member has made. It is up to the courts to determine the impact of the Hamed decision in respect of that declaratory judgment, and then in subsequent matters as they are raised before them, case by case.

As the member Charles Chauvel noted, the declaratory order regime was recast from the residual warrant regime by the Justice and Electoral Committee when it considered the bill. I should note that declaratory orders do not give the police or any other enforcement officers new powers. However, and I will come back to this in a moment, the regime futureproofs the bill by enabling enforcement agencies to undertake investigation of a crime in the modern era while keeping pace with technological advancement, which is a provision that has not been available in the past.

Declaratory orders will be made ex parte—in other words, as with application for warrants on the papers and without notice to another party—and there will be no adversarial process. The only respondent in a case involving declaratory orders would be the person against whom the proposed device or technique or procedure was going to be used. So by giving them the opportunity to speak, obviously, the police or the courts would be forewarning them of the interest, and so would be stymying the whole need for the application for the declaratory judgment.

As noted by the member, declaratory orders are advisory in nature and can be made by either a District Court judge or a High Court judge. However, they are persuasive. It is inappropriate that declaratory orders should be binding, as at a later date a court will have the benefits of all the facts and the context in relation to the actual use of the device as used at an earlier stage. That is the point that was made by the honourable member Charles Chauvel. The declaratory order is around a hypothetical matter, but the later, subsequent court case will be about actual facts for which the courts will have to make their own decision, albeit in light of the declaratory judgment made on the earlier application.

Hon DAVID PARKER (Labour) : I will just follow that issue through a bit with the Associate Minister of Justice, because clause 57(1) of the Search and Surveillance Bill says that a declaratory order can be made by a judge only when he or she is satisfied that the activity is reasonable and lawful. The Hamed decision said that trespassory search and surveillance that did not have express legislative authority is unlawful. That is the effect of the Hamed decision. So this can never work in respect of a method of search and surveillance that involves trespass on private property, be it a car or a house, in a way that was being envisaged when the bill was at the Justice and Electoral Committee. This whole thing has turned round, because one of the ways in which this was justified at the Justice and Electoral Committee was that we were told where there was no express authorisation of a surveillance technique that required it to be warranted, that surveillance technique was, as a consequence of common law decisions, legal because it was not required to be warranted. The Hamed decision said that that proposition was wrong. So when this declaratory order provision was being thought through, it was being seen as a way to protect civil liberties by perhaps encouraging the police to go for some sort of judicial oversight of what was lawful but might be unreasonable if done a certain way, but done another way might be both lawful and reasonable. We now know that, in respect of trespassory search and surveillance that is not expressly authorised by legislative authority for the enforcement officer, it is unlawful, and therefore clause 57(1) cannot apply. So I think, Minister, that that can never apply, except in respect of non-trespassory surveillance where Hamed says that you can have non-trespassory surveillance that is not expressly authorised and that does not infringe the New Zealand Bill of Rights Act. So that is my first point.

My second point develops the theme that Charles Chauvel was developing. I listened to Charles and I thought that that was right, and I am convinced by that argument that we ought not to have this advisory role for the courts. He was referring to the effect of a higher court decision on, in practice, the decision that is subsequently taken by a lower court. But let us just consider the actual case in point. Let us say that the evidence was gathered, and then was challenged by the accused at trial. Are we saying in respect of the later decision as to whether that evidence ought to be admitted under the judicial discretion to admit illegally obtained evidence that is so serious as to warrant being admitted despite the fact that it is illegal evidence—and that discretion does exist as law, as we have seen in respect of Tame Iti and others in the Tūhoe case—that we are so naive that we think that that exercise of discretion at trial will not be influenced by the declaratory order? Well, I think it would be naive to say that, and if it is naive and if it would influence it, well, that is wrong. We have an adversarial system, but here, on an ex parte basis, just one side is being heard. In this case, the police, telling the judicial officer what they think without the other side of the case being put on behalf of the accused—who may be innocent; they are an accused, not a guilty party; merely an accused—would be wrong.

The Labour Party has prepared an amendment—and we would encourage the Greens, New Zealand First, the ACT Party, and others to consider it carefully—to expunge these particular provisions from Part 3 so that declaratory orders are not carried forward. This will cause no great hole in our justice system. There have never been declaratory orders in existence until now. Declaratory orders were not needed in order to preserve the admissibility of the evidence in respect of some of the serious offences alleged in the Tūhoe case. Illegally obtained search and surveillance evidence was none the less admitted to court under the discretion that the court has to admit evidence even though it has been illegally obtained. So there are lots of protections for the public out there already. We do not need this one as well to confer additional powers on State agencies to embark on search and surveillance measures. So I would ask the Minister in the chair, the Associate Minister of Justice, to address this issue as to what is the effect of this, in light of Hamed, when it is not lawful.

Dr CAM CALDER (National) : I move, That the question be now put.

KRIS FAAFOI (Labour—Mana) : Thank you very much, Mr Chair, for the call as we debate Part 3 of the Search and Surveillance Bill. I do feel slightly inadequate following my two learned colleagues in the legal sense, but I do have some experience in the—

Hon Member: We know that; you don’t have to tell us about it.

KRIS FAAFOI: That from the member who feels inadequate all the time when he stands to speak. I do have some experience in the media, which has been raised by Mr Parker in an earlier contribution. Part 3 does pertain to powers of officers, and the obtaining of warrants and production orders when enforcement officers are dealing with relatively serious cases. This is my first contribution at the Committee stage, and I just want to say that although we do agree with a number of the measures taken in Part 3, it is, as Mr Goff mentioned in his contribution, unfortunate that we have not been able to come to an agreement on a number of the issues we have raised in order for us as Labour members to give support to this bill and in order for a bill of such significance to have widespread support across the Parliament.

As a number of contributors have said during this debate, it is time for change in this area. The current legislation around the obtaining of search warrants for surveillance is a patchwork, and the Law Commission outlined that fact in its report some years ago. It is at least a positive move that some measures have been made, although we do highlight that a number of our concerns have not been addressed, even though I understand that during the select committee process some significant changes were made, and I do acknowledge the Minister in the chair, the Associate Minister of Justice, for his stewardship as chair of the Law and Order Committee.

I want to talk about two amendments that are pertaining to Part 3. The first is in the name of my colleague David Parker. It is an amendment to insert new clause 69(1A), and it will enforce that the Director of the Serious Fraud Office becomes an enforcement officer for the purposes of obtaining a production order. The Serious Fraud Office at the moment is an outlier in terms of the powers it has to get production orders. At the moment we do have a live case where the Serious Fraud Office did not have to seek permission to search the offices of the National Business Review, and a number of contributors on this side of the Chamber have mentioned that it is a very dangerous move when we give a law enforcement agency pretty much carte blanche to decide whether or not it can enforce a production order on our fourth estate. We did highlight this in our minority report from the select committee process, and I would like to point out that we said that the Serious Fraud Office is currently, as I said, the only agency with a power to issues examination orders and production orders without having to seek approval from a higher power. We do believe in a number of instances that the Serious Fraud Office has used that power on too many occasions. It was not the intent of this Parliament for the Serious Fraud Office to take the liberty to use those powers, especially against our media.

As I alerted earlier, having a free media is a very, very important part of a democracy. A healthy democracy absolutely relies on making sure we have a free media. I think that giving the Serious Fraud Office the power to compel media outlets to provide evidence, to provide documents, really goes to the core of media being able to protect their sources. Sources give information to the media hoping that they can stay as secret as possible. I know that around this place that is very important. When we speak to the media we want our communication with them to remain confidential. But giving the Serious Fraud Office that power to compel our media to produce documents, sources, and any other kind of technology—video or audio recordings—for its purposes really does go to the core of that main tenet of media freedom around the protection of sources. It will be a very, very sad day if people or organisations in this country do not feel that they can go to the media to highlight issues that are worthy of the media highlighting, whether it be us as parliamentarians who are being put in the spotlight or whether it be Government agencies, or whether it be—

Andrew Little: ACC Ministers.

KRIS FAAFOI: —ACC Ministers, yes, or whether it be private institutions. It will be a very sad day when we introduce, or let continue, legislation that puts at risk that freedom for individuals or agencies to go to the media to highlight things that we all would agree should not be happening. We need to have confidence that our media can carry out their job—to investigate, to expose, and to educate our communities, our society. But the Serious Fraud Office having the power to compel media to gather any piece of documentation would be a very, very sad move indeed. It is one that we do not support, and it is why we do not support this legislation as it stands, and it is why David Parker has introduced an amendment to Part 3, in order to see whether we can remove that power, which the Serious Fraud Office has on its own at the moment. The police do not have that power to go in and compel news media to supply documents, so why do we let the Serious Fraud Office go into an office—and this is a live issue, as I said, with the case of the National Business Review—and demand that they give up evidence? It is not as though the media will have the right to silence or to say no; that right will no longer be available to them. They will be forced, compelled, to give up that information.

I would also like to briefly touch on an amendment that Charles Chauvel has lodged, and that is an amendment to insert new clause 42AA(1)(a), if I am right—

The CHAIRPERSON (Lindsay Tisch): I am sorry to interrupt the honourable member but the time has come for the dinner break.

• Sitting suspended from 6 p.m. to 7.30 p.m.

KRIS FAAFOI: Taloha ni, Mr Chairperson. I do not intend to take up too much more of the Committee’s time speaking to Part 3.

Hon Lianne Dalziel: Oh please—you were great.

KRIS FAAFOI: I do intend to complete the point I was making just prior to the dinner break, which was on clause 42AA, on which my colleague Charles Chauvel has presented an amendment to the Committee. Clause 42AA covers the approval of trespass surveillance in instances where material could be collected. At the moment, the bill says that it is for offences punishable by imprisonment of 7 years or more. The substance of Charles Chauvel’s amendment is that we seek to increase that imprisonment duration from 7 years to 10 years. The rationale simply is that we believe that because of the nature of the powers that are afforded to agencies in this bill, we should use it on the rare occasion and for only the more serious offences.

Because of the spirit in which the passage of this bill has gone through the House, we ask that the Minister in the chair, the Minister of Justice, give that amendment due consideration and, possibly, support. If we did pick up that amendment as well as the amendment that has been put forward by David Parker on the powers of the Serious Fraud Office, I think we will go some way to having pretty much solid support from Labour members in order for this bill to have significant support across the House, especially for such important legislation.

In finishing up, we do support the general thrust of what is happening and what is proposed in Part 3. There have been some changes, both at the select committee and also through the Supplementary Order Paper and amendments that are on the Table now. We do support a number of those, but we do, as I want to point out again, seek some changes via the amendment from Charles Chauvel on the length of imprisonment that we take into account when we are looking at trespass surveillance orders being granted, and also the powers of the Serious Fraud Office under the amendment being proposed by David Parker.

I just want to speak very briefly to clause 57, which has already been traversed well by both David Parker and Charles Chauvel, and talk about the uncertainty about the lack of declarations and opinion that is being sought by the judiciary around some of the new technology that may be afforded in some of the stranger situations that we might find ourselves in, where applications may be sought for surveillance. If those changes could be considered, I think that would go a significant way for this side of the Chamber to support this bill. We hope that the Minister in the chair might consider that. Thank you.

ALFRED NGARO (National) : I move, That the question be now put.

Hon LIANNE DALZIEL (Labour—Christchurch East) : I want to take over from where my colleague Kris Faafoi left off, which is to talk on the declaratory orders clauses, clauses 57 through to 61. I want to ask the Minister of Justice a few questions about this. It is not my area of expertise, so I may not necessarily have a good grasp of this, but I would really appreciate the Minister responding to this. The concern that I have is this whole area about requiring or enabling a court to give a declaratory order. It is not an expression that I am familiar with, and I do not know whether they appear in other legislation. Perhaps my more learned colleagues will know the answer to that question; it is new ground. The problem I have with a declaratory order is that it is not like a declaratory judgment. With a declaratory judgment, you have two parties who have a set of agreed facts upon which they ask the judge to adjudicate. It is the same as taking a case, essentially, because you have a set of facts that are put before you—

Hon David Parker: Both sides argue.

Hon LIANNE DALZIEL: Both sides argue their particular point. In fact, we had a declaratory judgment last year, where the Earthquake Commission basically lost to the insurance companies, and it is costing the country an absolute fortune. But that was a declaratory judgment that was taken, that was the outcome, and that is what we have to live with.

A declaratory order, though, is when the police are able to go to the court and basically ask whether something is lawful. Am I reading this in the correct way? Perhaps colleagues can again assist me. The problem with doing that is that the court makes a declaratory order, which is an advisory order telling them that, yes, it is within the law, but then a case is taken further down the track when the particular provision is utilised, and a defendant in a trial then challenges the very basis of the utilisation of the device, technique, or procedure, or the carrying out of an activity specified in the order. That, to me, sets up a really difficult situation, because, in fact, the court has been asked to predetermine a position against which counsel for the defence in that particular case will not have the opportunity to argue their cause. So I am really worried about the nature of these provisions and whether they are, in fact, appropriate provisions. I think this is why we have asked for these particular clauses to be removed from this part of the bill.

Charles Chauvel: I’ve tabled an amendment for that.

Hon LIANNE DALZIEL: You have tabled an amendment to do that. My colleague Charles Chauvel has tabled an amendment to do that. I think that that is a very reasonable step to take, because when we think about the circumstances that arose in the Hamed case—and I suspect this is the reason that the bill dealt with this in this particular way, without having taken into account the case, because, of course, the drafting of this bill preceded the case in question—I guess the law is probably more settled now than it was when this was being drafted. I think that it really does need to be reviewed.

In the current legal framework there will have to be sought a court order before particular surveillance can be undertaken. Therefore, the reason for seeking a declaratory order really does not make much sense in light of where technology has already come. So it may be something that we would have looked at several years ago, but it actually does not make any sense to me why we would have such a declaratory order provision.

When I read the report back from the select committee, it made the point—I think it was on page 14 of the commentary on the bill—that it was going to call it a “residual warrant regime”, and it changed that to the “declaratory order regime”. But I think in so doing it has identified the specific problem with it, and the problem is that a declaratory order regime is actually not appropriate. It is not appropriate for a judge to be making a decision on a particular regime such as this without, in fact, ensuring that—well, it is inappropriate to provide judicial clarification, as it has said, in such a manner—

TIM MACINDOE (National—Hamilton West) : I move, That the question be now put.

The CHAIRPERSON (H V Ross Robertson): The question is that the question be now put. As many of that opinion will please say Aye, to the contrary No. The Ayes have it.

CHARLES CHAUVEL (Labour) : I raise a point of order, Mr Chairperson. I may have misunderstood a brief conversation with the Minister in the chair, the Hon Judith Collins, prior to the debate beginning, but she did indicate to me that she had had the officials have a look at this question over the dinner break and that she, as I understood it, was prepared to explain to the Committee whether or not the concerns raised by Labour members were correct. If there were that opportunity, I know that members on this side of the Chamber would be interested in hearing from her.

The CHAIRPERSON (H V Ross Robertson): Thank you. I will just restate it. The question is that the question be now put. As many of that opinion will please say Aye, to the contrary No. The Ayes have it. A party vote is called for? Please conduct a party vote. Thank you.

The CHAIRPERSON (H V Ross Robertson): This is debate on clauses 87AA to 173, and includes the schedule.

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

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

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

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

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

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

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

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

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

Hon Nathan Guy: A great Minister.

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

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

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

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

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

Charles Chauvel: Commissioner of Security Warrants.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Charles Chauvel: November 2010.

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

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

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

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

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

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

Hon David Parker: The day before the election.

Hon LIANNE DALZIEL: The day before the election.

Hon David Parker: Received after the election.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Dr CAM CALDER (National) : I move, That the question be now put.

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

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

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

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

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

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

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

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

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

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

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

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

Hon David Parker: Or all these pieces of paper.

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

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

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

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

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

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

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

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

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

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

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

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

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

METIRIA TUREI (Co-Leader—Green) : I raise a point of order, Mr Chairperson. I did not want to interrupt the voting process just to ask this question of clarification. Is it legit for National to vote on behalf of the ACT Party when the ACT Party member is in the Chamber and in his seat and available to vote? [Interruption]

The CHAIRPERSON (Lindsay Tisch): Order! There is a point of order being dealt with. The answer to that is yes, and I did seek advice on that matter. So that is in order. We have come to the debate on the clauses.

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

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

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

Hon JOHN BANKS (Minister for Regulatory Reform) : I move, That the Regulatory Reform Bill and the Regulatory Reform (Repeals) Bill be now read a second time. Both bills form a key part of this Government’s commitment to better and less regulation; better and less regulation for business—the lifeblood of the New Zealand economy—for those who create the wealth, from the farmers, to the manufacturers, to the retailers, and for the people who go out and commit their money, take the risks, produce the jobs, and pay the taxes.

As an aside, I would note, as the ACT MP for Epsom, these bills dovetail nicely with the concepts, philosophies, and principles of the ACT Party. These are the concepts of less regulation, smaller government, and free enterprise. Before we can spend, we first have to sell, and ACT believes that a more prosperous New Zealand will be one that unleashes business from unnecessary and unwanted regulation by the Government.

As Minister I would like to acknowledge the work of the previous Minister for Regulatory Reform in getting these bills to this stage. His commitment to improving our regulatory environment is seen in these bills. I would also like to thank the Commerce Committee and all those who made oral and written submissions on the Regulatory Reform Bill.

The committee’s report includes some sensible recommendations to further reduce compliance costs for business. My role in life here in this ministry and coalition is to further reduce compliance costs for business. This Government is a Government for small business, for the 420,000 business people up and down the country who employ fewer than five people. This Government is committed to addressing the barriers, big or small, that hold back New Zealand businesses from reaching their fullest potential. The challenging economic environment makes reducing compliance costs more important than ever.

I know that the people of Epsom will be very happy to see what their local MP is doing in his role as Minister for Regulatory Reform to get the Government off their backs and out of their pockets. And if this crowd opposite was in charge, it would not be getting off their backs and out of their pockets; it would be heavier on their backs and deeper into their pockets as it borrowed more and spent more money that it had not produced.

The Regulatory Reform Bill improves the quality of regulation in New Zealand. It recommends small but important amendments to 13 Acts to reduce the regulatory burden on business. It reduces those 13 Acts, which produce regulatory impediments to the spirit of free enterprise and the people who create the wealth across this country. The bill was introduced under the former Standing Order 259(a), as the amendments can be regarded as implementing a single broad policy. The Regulatory Reform (Repeals) Bill repeals—listen to this—31 unnecessary and spent Acts of Parliament on the statute book tonight. This bill was introduced under the former Standing Order 259(b), as the amendments are of a similar nature to each other.

I endorse the Commerce Committee’s commitment to canvass a number of options to ensure that the progress of these bills is as efficient as possible. I particularly want to acknowledge the efforts of the committee chair, the Hon Lianne Dalziel, to save this House time. It is not easy, but I do acknowledge her work and give her thanks and praise for helping out small businesses up and down this country, which say the Government is too heavy on their backs and too deep in their pockets.

It is pleasing that the Business Committee, which I am a member of, has agreed to my request that the bills be treated as cognate bills under Standing Order 266. The Commerce Committee also recommended that the Committee of the whole House stage be dispensed with for the Regulatory Reform (Repeals) Bill, and it is pleasing that the Business Committee also agreed with this request, and the bills can now be progressed very efficiently.

Hon Lianne Dalziel: Must have had a very good chair.

Hon JOHN BANKS: Well, we are from the Government, we are here to help small business, and the people listening to this debate on their crystal sets up and down the country tonight will be pleased that a businessman is the Minister for Small Business.

I turn now to the Regulatory Reform Bill. Most submitters were supportive of the Regulatory Reform Bill, and the Commerce Committee has not recommended any substantive changes. How good is that? I would like to focus on the most significant issues addressed by the committee. The committee recommended changes to the amendments to the Agricultural Compounds and Veterinary Medicines Act 1997. My colleague from Epsom knows that Act, as he knows the Animal Products Act 1999 and the Wine Act 2003, and he wants less regulation in business, less red tape, less difficulties, and less Government interference. That is what my colleague from Epsom—my mate from Epsom—recommends as well.

The committee has recommended changes to the amendments to the Companies Act 1993, clarifying that companies may send—listen to this; as if we would have to do this—hard-copy materials, as well as electronic material, for communications, meetings, and voting. The Government was involved in that. As if it is the Government’s business as to where and how companies can send electronic material for communications.

The committee also recommends changes to clarify that a shareholder may appoint more than one proxy for a meeting, as long as there is only one proxy exercised for any particular share. The committee recommended changes to clause 50, which enables regulation to impose time frames on concessions processing under Part 3B of the Conservation Act 1987. This change will allow for the rolling on of expired concessions where an application has been made for a new concession. It is amazing that we even have to do that. Why would that have been put in the statute in the first place, so that it needs to be changed by the Minister for Regulatory Reform in circa 2012? But I am glad I am doing it, and I am glad the House—and this side of the House—supports it, as, indeed, does the other side of the House. It is very encouraging for small businesses up and down the country that the Labour Party would be supporting small-business enterprise up and down the country.

Jami-Lee Ross: That’s new.

Hon JOHN BANKS: It is novel, but it is welcome. Small businesses up and down the country, which I represent from the powerhouse seat of the New Zealand electoral system, the Epsom electorate, say that they want less regulation and they want the Government to get off their backs, and that is what this about.

Submitters were mainly supportive of the changes to the Films, Videos, and Publications Classification Act 1993. One submitter sought a change to the commencement date, Part 5, to ensure that industry can gain benefits from the amendments as soon as possible, and the committee said that is not a bad idea. Lianne Dalziel said we can tick that off, and she has, and full marks for that. The Government is committed to ensuring that industry can take advantage of reduced compliance costs as swiftly as possible. As we come out of the second wave of the global recession, businesses need the Government to get off their backs and out of their pockets, and this bill does that.

Part 7 of the bill removes requirements under the Friendly Societies and Credit Unions Act 1982. I was in this Parliament when we debated that bill. We felt that the friendly societies and credit unions needed an Act of Parliament applying to credit unions, and now we are addressing those silly parts of that silly piece of legislation enacted so many years ago that are an impediment to small business. This National Party and ACT coalition, with its friends, believes in getting off the backs and out of the pockets of small business.

The committee recommended the removal of clause 113 of the bill. This clause amended section 20 of the Takeovers Act 1993 to add international comity as an objective to the Takeovers Code.

Now to the Regulatory Reform (Repeals) Bill. The final change recommended by the Commerce Committee that I will comment on is the inclusion of a new schedule 2 to the Regulatory Reform (Repeals) Bill. The schedule contains three additional regulations to be automatically revoked, as the Acts that they are made under would be repealed by this bill, and that makes sense, and people will welcome that. This is a great night for small business up and down the country.

Hon CLAYTON COSGROVE (Labour) : The Labour Party will support this legislation—I want to make that very clear—given that the originator of this legislation, back when we were in power, was our then Minister of Commerce, Lianne Dalziel, who put this in place. Mr Banks’ predecessor, Mr Hide, came to this Parliament and gave a very similar speech, actually, to Mr Banks’, saying that this was going to be an earth-shattering reform. We support the concept of this legislation. It is a good process and a good concept. What we are going to highlight tonight are some of the absurdities. You would think that this legislation was going to change the constitutional business framework of this country, the way Mr Banks trumpeted it. Really, what it is, is lightweight content in a heavyweight process. It is lightweight content in Parliament.

If this is Mr Banks’ first salvo as the Minister for Small Business, small-business men and women on their so-called, to quote him, crystal sets will be hanging on every word tonight, I am sure, as they read through the 31 Acts that are a spent force and will be repealed by the Regulatory Reform (Repeals) Bill. I went and asked the Clerk, because I am not a lawyer, and I said to the Clerk: “Am I right? Does a spent Act mean basically it has been dealt with, it does not exist, it has no compliance cost, and it has no impact on anybody except Mr Banks and his sort of internal emotions?”. The answer was yes, it is basically like an Act that has been repealed. So the first great contribution from Mr Banks, as he came out of the political crypt and into this Parliament, has been to repeal 31 Acts that have no effect and no compliance costs on any small business, or on anyone. I should move that we have a minute’s silence in respect of Mr Banks’ great contribution. He is the man who came to this House and who, in his speech, talked about getting the hands out of the pockets of small-business people, getting off their backs, and stopping these grotesque spending and compliance costs.

I too am an ex - small-business person, and can I say that this is coming from the biggest spender in Parliament, other than Bill English, whose last claim to fame as Mayor of Auckland before they booted him out, was to treble the debt that Auckland City had with his spending, not including the debt that the new super-city took on. That was Mr Banks—“Hey, big spender”. So I just say to Mr Banks congratulations, what a great contribution to the Parliament it is to bring in really good legislation, a good process.

The Regulatory Reform Bill was called the Regulatory Improvement Bill, then Rodney Hide made an equally staggering, substantive contribution to this Parliament by changing its name from the Regulatory Improvement Bill to the Regulatory Reform Bill. I know that every small-business person around the country that Mr Banks represents will be getting their hands out of their pockets and putting their hands around the back into their back pocket, grabbing their wallet, and thanking Mr Banks from the bottom of their heart for changing that one word from “Improvement” to “Reform”. How much compliance cost will that save a small business? I imagine that it is millions of dollars, although I would have thought that the wording on some of the forms might have had to be changed.

But the great contribution—the first kick-off contribution—from the big spender from Auckland is to repeal 31 spent Acts that have no compliance costs, because they do not have any effect on anyone or anybody, or on any business in New Zealand. I say that this man deserves a knighthood. What a great contribution. He has made history in this place. The dinosaur has come back. It is Jurassic Park all over again. He has made history in this place by repealing 31 Acts that have no effect on anybody. Actually, this could be Yes, Minister all over again. Obviously he has read all the briefing papers the officials have put in front of him. The officials have convinced him: “Minister, this is your big day. This is your big hit. This is your penultimate hit. You have just been appointed Minister for Small Business. You can kick a goal for the people of New Zealand and small business by repealing 31 Acts that have no effect on anyone or on any small business.”

I just say this: as we are trying to reduce, slash, and burn compliance costs through this legislation, I wonder whether Mr Banks has gone to his small-business folk and said “This is the amount of parliamentary time and your money, small-business people—because you are taxpayers—we are going to take to repeal 31 spent Acts that do not have an effect or a cost on anyone.” That is a compliance cost, Mr Banks, that every small to medium sized enterprise that that Minister represents is going to pay. I invite the Minister, given the detailed and substantive Minister that he is, to maybe go and cost the amount he has spent on time-wasting by bringing in this amount of lightweight piffle—apart from, I will say, some decent provisions in here in respect of credit unions.

And there are one or two other provisions, like the amendment to the Companies Act, which Mr Hide himself said would save New Zealand companies—most of whom tend not to be small to medium sized enterprises by the strictest definition, but I am sure that Mr Banks knows that—$1.5 million. Well, $1.5 million is a lot of dough; I accept that. But when you spread that over the thousands of people in small to medium sized enterprises—they are pretty practical folk, and they try to work it out in dollars and cents. They are not into this sort of fluff; they want to work out how much this will save them. I reckon if you spread $1.5 million in cost savings over every small to medium sized enterprise in the country, it would not come to a hell of a lot. This measure, of course, deals with voting and proxies, and the particular provision here deals with whether you can use electronic shareholder participation. I do not know how many one and two-person plumbing firms—and, you know, the odd carpenter, the odd electrician may have three or four people working for him, or a couple of young apprentices—are going to sit there tonight and say “Hell’s teeth, what a wonderful provision! I can now choose to lodge my documentation as a shareholder and participate electronically.” What a brilliant, awe-inspiring, genius, I say. I think this is a moment we should cherish.

Then, of course, we have another provision that I think is a good one—the amendment to the Films, Videos, and Publications Classification Act 1993 to modernise labelling. I concede, for those in that trade—and I offer this as an olive branch to the senior old codger over there, the old Minister, the old tumbleweed—that Mr Hide said that that would save $2.4 million in its first year, going up to $3.1 million in year 5. I do not know how many video firms there are in the country, but that will be of some assistance, I grant you, to them. Likewise, the issues that the Minister outlined around friendly societies and credit unions will assist.

I say that the process that we as the former Government brought in is a good process and a good legislative framework. It is something we should do. But let us not get too carried away. This legislation was trumpeted by Mr Banks and his predecessor, old Rumpelstiltskin, who is now floating around Auckland, Mr Hide. He was going to slash through red tape, and slash through compliance costs. This is what he was going to do. He sent Uncle Fester in, as the nightwatchman from Epsom, Mr Banks. Mr Banks equally gets up and says he is going to slash through red tape, slash through compliance costs, and assist the small to medium sized enterprises. Millions of dollars would flow back into the pockets of these small to medium sized enterprises, through Mr Banks’ good works in slashing compliance costs. And then we pick up the bills. They have got a bit of weight to them, I suppose. There are a few pages in them. We pick them up, and what do we find? Yet again, mutton dressed up as mutton. That is what it is: mutton dressed up as mutton. I was not referring to the Minister; I would have said pork. But I was not referring to him; I was speaking in respect of the legislation.

Then what do we find? We find the big hit, the big moment in the sun. I am going to go out to all my small to medium sized enterprises in Canterbury. Ms Dalziel will too, and she will say “Look, this Minister is akin to Mother Teresa in political terms. Do you know what he has done? He has repealed 31 Acts basically that have no effect on him.” I am sure they will carry Mr Banks through the streets of Canterbury and Epsom in Auckland, showering him with rose petals, laurel leaves, the lot, in Romanesque-like proportions, celebrating what a great champion of small to medium sized enterprises this great man is. Then they might also ask why it was that he trebled the debt of the Auckland Council in 3 years. That is an achievement. That is an achievement that will have more impact on small to medium sized enterprises, I wager, than anything in this legislation that we pass.

So I say to Mr Banks that he has stepped forward with the old cricket bat, tried to slug one over the boundary for six runs, and got caught in the slips behind. It was not a good effort, not a good start, not a bad rousing speech, but I say to Mr Banks that the one thing you have got to remember—and maybe you have been away from the small to medium sized enterprises movement too long, and you have had your nose in the trough of local government for too long—is to think of this. Small to medium sized enterprises, Minister—through you, Mr Assistant Speaker Tisch—are not stupid. They know and they can smell bull when they see it, and this is seriously high-quality bull.

TODD McCLAY (National—Rotorua) : Where does one start? Can I say it is a pleasure to rise to speak to the Regulatory Reform Bill and the Regulatory Reform (Repeals) Bill. I want to start by saying that the National-led Government is working hard to secure a brighter future for all New Zealanders—a brighter future for all New Zealanders. I say to the Minister for Regulatory Reform, who gave an excellent speech just a few moments ago, that I have heard that phrase “brighter future” used recently on television. Who was that?

Jonathan Young: David Shearer.

TODD McCLAY: Very good. Others who are watching television tonight are wondering who the man was they were talking about, the man who was speaking of the brighter future; it was Mr Shearer. Can I say to the last speaker in this debate that our red tape moves are cutting more than $200 million. Here we have two pieces of legislation before this Parliament. The first is to repeal 31 Acts of Parliament. It is interesting because we have heard that repealing legislation that is not useful any more and not used is actually a waste of time. Well, the New Zealanders who voted last year did not believe that. Look at the changes in this House. Some people have returned, but on the other side of the House others have left. New Zealanders decided that useless pieces of space were better to be freed up.

Thirteen pieces of legislation are to be reformed. The best part about this reform is that it is delivering benefits directly to New Zealanders and to New Zealand businesses by reducing red tape and compliance upon them, which is something that so many businesses asked us for and so many businesses will be thankful is being delivered for them. I congratulate the Hon John Banks on bringing this legislation back to the House and on steering it forward.

Mr Cosgrove made reference to two former Ministers. One was Ms Dalziel, who first started along this road to make reform and to recognise that. The second was Rodney Hide, whom he likened to Rumpelstiltskin. Can I say, even Rumpelstiltskin is laughing at that one. But a number of Ministers have been involved.

This is very important legislation for New Zealanders. Why is that? Some of the changes that will be made will put more money in the pockets of these businesses, and what is it that businesses do? They employ people. When do they decide to employ more people? When there are additional funds available to them, when they can be more competitive, and when they can be more productive. The one thing I think we do know is that when businesses are bound by unnecessary red tape, they must do other things and focus on their raison d’être, their reason for being, which is to produce and manufacture goods and export them.

I want to touch on just one part of this before we move on, and that is an amendment to the Companies Act. Actually, there are a number of changes that are coming through this bill that will free up businesses to get on in a new environment of the internet and the way that business is done. The first will be to change the Companies Act to enable companies to hold shareholder meetings over the internet and allow electronic voting. Well, actually, that is a reasonable thing. Let us say that there is a saving there, and the early estimates are $1.5 million. This is about allowing businesses to do the things that they want to, and where they want to do this within the realms of the legislation, and I think that is a good thing. We should not underestimate the saving to small companies—even an insignificant saving to some in this House—and the difference that will make to them. A number of other changes are to the Conservation Act, some more sense; changes to the Statistics Act; and amendments to the Films, Videos, and Publications Classification Act. Did I hear a member of the Opposition talking about that? Mr Jones—no, he is not here.

I want to commend this bill to the House. I look forward to being able to go into it in greater detail when we get to the Committee stage. Again, to the Hon John Banks I say well done for bringing this to the House and for a very strong speech that set out the direction that this Government should move towards: reducing red tape and compliance on businesses where it is unnecessary and backing businesses in New Zealand to get on and do a much better job. That is the way that we will have a brighter future, not stealing slogans and making them into speeches like last week. Thank you.

Hon LIANNE DALZIEL (Labour—Christchurch East) : I am happy to rise and speak to the second readings of the Regulatory Reform Bill in conjunction with the Regulatory Reform (Repeals) Bill. I thought it was interesting that the Minister for Regulatory Reform commented that, in fact, it was the Business Committee that had agreed to the cognate bill process, as if it were something that had been his jolly good idea. But I would like to refer to the commentary from the Commerce Committee and share this part of it with you. It says: “We recommend that Standing Orders be amended to allow more efficient and quicker progress of legislation through the House.

We also recommend that the Regulatory Reform Bill and Regulatory Reform (Repeals) Bill be treated as cognate bills for their second and third readings, and that in respect of the Regulatory Reform (Repeals) Bill the committee of the whole House stage be dispensed with.”

I was the chair of the select committee that put forward that proposal. My deputy chair, Peseta Sam Lotu-Iiga, is in the House this evening, and I hope he is going to take a call and back me up on this.

Peseta Sam Lotu-Iiga: Hurry up.

Hon LIANNE DALZIEL: No, I have got quite a lot to say, actually. Peseta Sam Lotu-Iiga was my deputy chair at the time, and I know that he will back me up on that, because we were actually quite disappointed with the advice that we received as to why these two bills had been introduced to the House as two separate bills with two separate first readings. The way that we could see things proceeding was their coming back to the House and our then dealing with them as two separate bills again. There would have been a lot of wasted time. It almost felt as if Mr Rodney Hide knew that he was not going to be returning to this place and had to have two speeches in those dying days of the previous Government.

But I just want to make the point about why we were disappointed that the two bills were not introduced under the same Standing Order. It does actually back up the point that my colleague Clayton Cosgrove made about the repeals bill being a complete and utter waste of time. I mean, it does not do anything that does not already not happen under the existing law, because all of the legislation that it repeals has been repealed or is spent because it has been replaced. I do not even know whether people realise what is being repealed in the Regulatory Reform (Repeals) Bill. I thought I would share just a couple of them. How about this. Do you remember the Economic Stabilisation Act? Well, this bill repeals the Economic Stabilisation Act Repeal Act 1987. Do you remember business development boards? Do you remember those? Do you remember who got rid of them? Max Bradford—remember that? Yep, well, guess what the Government is repealing here? It is repealing the Business Development Boards Act Repeal Act. So the bill repeals all of these pieces of legislation that simply do not exist; therefore, to suggest that it is adding any particular value is not correct.

But it does come back to this point of why the two bills were not introduced as one bill. The advice that had been given to the Minister for Regulatory Reform at the time—and the select committee, to be frank, did not agree with this advice, but this is what the Minister had been told—was that because the Regulatory Reform Bill aimed to reduce compliance costs and the regulatory burden on business, the bill was introduced under Standing Order 259(a), which allowed the introduction of an omnibus bill to amend more than one Act if the amendments deal with an interrelated topic that can be regarded as implementing a single broad policy. The Regulatory Reform (Repeals) Bill, on the other hand, would repeal 31 Acts that no longer have any effect or are out of date, which means that they did not fit within the context of reducing compliance costs or the regulatory burden on business. That was why they could not be introduced as a single piece of legislation. Well, I think that is a nonsense. If that is how the Standing Orders are being interpreted, then I think the solution is that the Standing Orders do need to change. So I am pleased that we were able to recommend a sensible way forward: for the two pieces of legislation to be dealt with as cognate bills for the remaining stages.

One thing I do want to say to the Minister for Regulatory Reform is that just because the portfolio the Minister has is “Regulatory Reform” was no reason to change the name of this type of bill. My colleague Clayton Cosgrove pointed out that when we were in Government, as part of the Quality Regulation Review process we decided that there had to be a mechanism for amending multiple statutes that did not fit within the Statutes Amendment Bill criteria, which are very strict. There has to be total agreement, and nothing controversial—nothing even slightly controversial—in the context of a Statutes Amendment Bill. But we needed something that gradually made improvements to the various regulatory frameworks that exist. That is not a reform process; it is a gradual improvement process. That is why we called the bill that we first introduced under this provision the Regulatory Improvement Bill. I think Rodney Hide, when he was the Minister for Regulatory Reform, decided that anything in his name should be called a regulatory reform bill, but it is a nonsense to suggest that this repeals bill is a reform. We have heard from the Hon Clayton Cosgrove a very good reason why you would not describe this bill as representing any form of regulatory reform in the true sense of that word.

The whole idea of making incremental improvements to regulatory frameworks within a single bill is actually a very positive one, and it is one that was promoted from this side of the House. That is why I find really unfortunate what this Minister for Regulatory Reform is saying. I remember his welcoming me to this House back in 1990 by telling me to get out from under the rock that I had crawled under, or words to similar effect, and now I feel equally hurt at the suggestion that we did nothing to improve the regulatory framework for business, because, in fact, we focused an enormous amount of attention on getting that framework right, and this process was one of the outcomes of that Quality Regulation Review. It was called the Regulatory Improvement Bill because it was designed to make incremental improvements to regulatory frameworks.

I think the Minister—and it was not this Minister; it was not John Banks who discovered this problem; it was his predecessor, Rodney Hide—discovered exactly the same problem that I discovered, which is that it is very hard to wrench these particular measures out of their individual departments and bring them into an omnibus bill. I cannot emphasise to this House enough how important it is to actually send the message out to the departments to let them go. Let them go, bring them to the Minister for Regulatory Reform, and enable these pieces of legislation to be more substantive than this. I mean, this legislation is pretty much on a par with the first Regulatory Improvement Bill, which I introduced as Minister, and I think we could do better than this in the future. But in order to get that level of change there has to be total agreement across Cabinet that an individual—

The ASSISTANT SPEAKER (Lindsay Tisch): I am sorry to interrupt the honourable member. The time has come for me to leave the Chair.

• Debate interrupted.