Justice Minister Simon Power responds to Herald criticism of powers contained in the Search and Surveillance Bill
The bill is designed to ensure that law-enforcement agencies can move against those who would seek to prey against the population, while ensuring that human rights values are maintained. My responses to your editorial follow.
The right to silence will fall to a new coercive power, the examination order, forcing
people alleged to have knowledge of fraud or organised crime to talk to the police.
The right to silence encompasses a number of rights and privileges. In a criminal investigation, these include the right of a suspect to refuse to answer questions after being arrested or detained (s23(4) New Zealand Bill of Rights Act 1990).
And the right not to be compelled to be a witness or confess to guilt at a trial (s 25(d) of the rights act and the privilege against self-incrimination (s60, Evidence Act 2006).
There is also a broader right of freedom of expression, which includes an ability to refuse to answer questions. However this right is more commonly subject to a range of justified restrictions - such as the laws relating to defamation, objectionable material, perjury, and suppression orders.
The Search and Surveillance Bill contains a number of protections maintaining the right to silence.
* The power to make examination orders is limited to judges, who will make an examination order only if they consider it is an appropriate and proportionate response to the offence under investigation. This involves a balancing of different interests and rights, of which judges have considerable experience;
* A person may refuse to answer a question under an examination order if the answer would either incriminate them, or is subject to a recognised privilege (including legal professional privilege, medical privilege, religious privilege, and the right of journalists to protect their sources).
Privileges, such as that against self-incrimination and the right of journalists to protect their sources, are therefore expressly protected in the bill.
Another innovation, the production order, allows police to demand that innocent individuals or organisations hand over materials that might or might not relate to an offence carrying penalties of minimum five or seven years' jail.
Under the bill, a production order will be issued only if the (independent) issuing officer is satisfied there are reasonable grounds to suspect an offence - and reasonable grounds to believe that a production order will obtain evidence of an offence.
This ensures their use only where there are legitimate grounds to believe evidence of criminal offending will be obtained.
As with examination orders, a person may refuse to produce a document under a production order if the document would incriminate them, or is subject to a recognised privilege.
The production order process reflects a common practice of police when executing search warrants against people who are willing to assist. The courts have held that a search warrant can be executed by police sending a copy of the search warrant to the person and by that person providing the documents sought.
This practice avoids the need for police to enter the premises and disrupt businesses or occupiers. The production order regime puts this process on a more formal footing.
This process provides protections to the organisation that is presented with a production order and prevents significant disruption to the business.
It also means enforcement officers do not have to search through irrelevant and possibly confidential information to find the target material.
The bill gives authorities an invitation to force the news media to reveal confidential sources, threatening the public airing of some of the country's most important, and uncomfortable, news stories ... There is a danger that the media's right to protect confidential sources - a privilege recognised in the Evidence Act 2006 and qualified only by a judge's decision that public interest might outweigh confidentiality - will be subverted by police access to examination and production orders.
The media's right to protect confidential sources under the Evidence Act 2006 has been expressly carried over to the Search and Surveillance Bill for examination orders, production orders and all searches.
This means a journalist presented with an examination order or a production order may refuse to answer questions or produce documents that would reveal the identity of their source.
If the enforcement officer disputes this claim of privilege, they may apply to a judge to determine whether the refusal is valid. The judge may require the information or document to be produced so the judge can determine the application.
It's expected that this media privilege, along with other privileges in the Evidence Act 2006 and the broader right to freedom of expression, will be considered by judges in determining whether an examination order or production order should be made.
The threat to media freedom is made clear by the misuse of such powers by the Serious Fraud Office in demanding information from the National Business Review newspaper. Until now, the SFO alone has had access to such orders.
In the drafting of the bill, this power was looked at afresh, rather than the examination order powers in the Serious Fraud Office Act 1990 being used as a template. The examination order power in the bill expressly recognises rights, including privileges in the Evidence Act such as the privilege against self-incrimination and journalists' rights not to reveal their sources, and can only be made by a judge. In contrast, the SFO's examination orders are issued by the director of the SFO and do not expressly recognise these rights.
Examination orders in the bill are subject to detailed reporting requirements, both to judges who make such orders, and to Parliament.
Streamlining search laws cannot justify removing the right to silence and circumventing media protection of confidential sources. Parliament should excise the bill's illiberal overreach, keeping the target squarely on wrongdoers, making orders subject in advance to a fair hearing and exempting the media from their auspices.
As outlined, the bill expressly protects the right to silence by recognising the privileges in the Evidence Act (such as the privilege against self-incrimination and the right of journalists to protect their sources).
Requiring independent prior judicial approval of these powers will protect against such powers being used unjustifiably. Therefore, such powers will be available only if a judicial officer is satisfied it is appropriate, reasonable and proportionate.
The Search and Surveillance Bill was reported back to Parliament by the justice and electoral select committee on November 4 and is awaiting its second reading.
* Simon Power's ministerial portfolios include Justice, Minister of Commerce and Minister Responsible for the Law Commission.
