Hard News by Russell Brown


Rolling back the right to silence

Parliament's Justice select committee has walked back many of the most controversial provisions of the new Search and Surveillance Bill – but one very, very bad feature remains.

Actually, it's two features: First, people being investigated by police over serious fraud-related offences or gang crimes will no longer have the right to remain silent. Second, it will be an offence – punishable by up to a year's jail – to refuse to hand over information relating to certain serious crimes.

You may recall that a couple of weeks ago I talked to NBR editor in chief Nevil Gibson and reporter Matt Nippert about the demand for notes and interviews from Matt's stories by the Serious Fraud Office. The point was made that only the SFO had the extraordinary powers to force journalists to provide information obtained in confidence – including the identity of sources. The police can not do this, and indeed the Evidence Act 2006 offers a degree of protection to journalists in such circumstances.

As it stands, the Search and Surveillance Bill removes that protection.

In the select committee report, both the Green Party and Labour offer minority views opposing the extension of these powers in the bill, and Labour's minority view is particularly worth reading:

New Zealand Labour minority view

The Labour Party concurs with the report, with the exception of the proposed regime to allow the police to obtain examination orders and production orders. Examination and production orders are exceptions to, and override, the right to silence. They can be used to require a party to answer questions or produce documents. Police can currently ask questions and obtain and execute search warrants, but witnesses or suspects or those who hold evidence, do not have to answer questions or offer up documents.

The Serious Fraud Office (SFO) is currently the only State agency with the power to issue examination orders and production orders. The SFO has taken to using those powers too frequently, rather than relying upon conventional investigation techniques and warranted searches in all but exceptional cases where the use of these orders is justified. This is an example of how when extra powers are given to an arm of the State that agency can utilise them more frequently than Parliament intended. In recent weeks the SFO has also used those powers to order the production of documents in the possession of the National Business Review as part of the SFO inquiry into the collapse of South Canterbury Finance. This concerns us greatly. The freedom of the press to investigate and report on issues of public interest is an important part of New Zealand’s constitutional settings. Putting the confidentiality of their sources at risk means that sources will be less willing to confide in them in the future. This undermines the role of the fourth estate and is to the detriment of the general public. It shows how careful we need to be before conferring power of this kind to State agencies.

We were unable to include additional controls on SFO powers and processes concerning production or examination orders through this bill because we were advised they were beyond the scope of the cur- rent bill. 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.

The recommendations of the committee do tighten the rules applying to the use of examination and production orders by the police com- pared with the form of the bill that came to select committee. Despite this, the range of offences includes offences with a maximum sentence of 5 years or more in a business context and 7 years or more in a non-business context. While these are not minor offences, not all are the most serious and the range of offences is broad. Additionally there are no specific provisions to protect freedom of the press and the confidentiality of their sources.

Unless further restrictions on the use of such power for both the SFO and the police are agreed by the Government, we will oppose this extension of powers to the police.

I'm pleased to see Labour take a coherent and principled stance on this bill – it's what we expect of Opposition parties, if not always what Labour has delivered in this term. I've spoken with MP David Parker, who says the party will continue its effort to rein in the bill – and to also seek more control on the similarly problematic powers granted to the SFO in the Serious Fraud Act.

Opposition MPs aren't the only ones to sound the alarm on this issue. The EPMU, which represents journalists, has raised similar concerns, and the Stop the Search and Surveillance Bill blog has a wealth of resources.

Most notably, we've spoken to investigative reporter Phil Kitchin – who says he is prepared to face jail to protect his sources if the bill becomes law – and he will be joining us to discuss it on Media7 this week, along with New Zealand Herald editor Tim Murphy (speaking for the Commonwealth Press Union's media freedom committee) and, subject to confirmation, one of the Labour members of the Justice select committee, Jacinda Ardern.

If you'd like to join us for the recording of the show, we'll need you at the Victoria Street entrance of TVNZ by 5.30pm tomorrow. Drop me a line to let me know you're coming, if possible.


This is quite a big week for me. On Friday, we'll make our second show for the week (it'll screen next Wednesday) – an hour-long special from the Spada conference. Let me know if you're interested in attending that, and I'll see what I can do.

And on Thursday morning, I'm chairing what I anticipate will be a noteworthy opening session at the conference – 'The Hobbit – What really happened from a producer's perspective', featuring Spada CEO Penelope Borland, executive member Richard Fletcher, and Hobbit co-writer Philippa Boyens. I will be asking questions, and so, in due course, will members of the audience. There will be members of New Zealand Actors' Equity in the room, which I think is a good thing.

Oh, and around midday on Thursday, something special will be happening to this website. Like I said: big week.

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