4. SIMON POWER (National—Rangitikei) Link to this
to the Minister of Police
Does she agree with the former Director of the Serious Fraud Office’s statement yesterday that the powers of the new Organised and Financial Crime Agency were not the same as those of the Serious Fraud Office, and that court proceedings would delay cases by years, or lead to cases being dropped; if not, why not?
Hon ANNETTE KING (Minister of Police) Link to this
No, I do not agree, nor, I am advised, does the Law Commission or the Commissioner of Police. In fact, I understand that Mr Power’s two National colleagues Kate Wilkinson and Chester Borrows do not agree, either. The only person, as far as I can work out, who does agree with Mr Bradshaw is Mr Power himself.
Was David Bradshaw correct, then, when he told the select committee that the Serious Fraud Office currently has the power to make people front up to interviews and answer questions, even if they are self-incriminating, but under the new law “the examination powers are totally different” because a court order is required for an interview, and the interviewee is now able to refuse to answer questions; if so, can she explain how this change in powers will not cause significant delays?
There are no changes to the powers; there are changes to the procedures in order to authorise the use of those powers. That is what was said by those who made submissions to the select committee—except for Mr Bradshaw.
Can the Minister confirm that section 9 of the Serious Fraud Office Act states that the Director of the Serious Fraud Office may require any person to attend an interview, answer questions, and supply information, yet clause 30 of the bill before the select committee allows the interviewee to assert privilege against self-incrimination, and even if the Serious Fraud Office seeks a further court order, the court could uphold the person’s refusal to answer?
The issue of self-incrimination was raised in the decision making around the change. The issue was not sought by the police, because things have moved on considerably. It is not a power; the powers of examination and the powers of production have not changed. The issue around self-incrimination has not been carried over, because it was not asked for by the police, and also because we know that self-incrimination powers are not needed to be able to get information from people. The police have shown that over many years. People can be required to give information, but they forget to give information, they can lie, and they can refuse to answer. It was always said that self-incrimination would not be carried over. The changes that the member has been speaking about are around production and examination powers. Those powers are peculiar to the Serious Fraud Office. They are carried over to the new agency.
Martin GallagherDoes the Minister expect that there is a risk of delay associated with the requirements of the Serious Fraud Office (Abolition and Transitional Provisions) Bill?
I am aware that Mr Bradshaw has raised the issue of court delays through judicial review. The common law already protects the police from judicial review of their decision to investigate or prosecute. In addition, clause 33 of the bill intends to carry over the current section 21 of the Serious Fraud Office Act, which prevents people from using judicial review as a way of holding up investigations or delaying compliance with orders.
Does she stand by her statement in the House yesterday that the new Organised and Financial Crime Agency has the same powers as the Serious Fraud Office but with judicial oversight; if so, how does she reconcile that with the papers she submitted to Cabinet in March, which, in addition to judicial authorisation, “propose more precise thresholds or restrictions for the examination power.” that will be “limited by … clear legislative criteria or restrictions around their use.”?
Hon Dr Nick SmithThe production and examination powers in the bill—the changes—require the approval of the Commissioner of Police or his delegate, and, in a small number of cases, examination orders, in a non-business context, require the additional approval of the Secretary for Justice. That is what the change is—not the powers themselves.
It might sound like it to that member. He should ask Chester Borrows and Kate Wilkinson, who have heard how it works, whether they now agree with it.
How can the current powers of the Serious Fraud Office and the new powers of the Organised and Financial Crime Agency be the same, as she claimed yesterday, when under the new regime people will be able to refuse to answer questions but under the current law they cannot?
Under the current law they cannot refuse, but they could lie, they could forget, and they could, in fact, not provide evidence. The police have far more experience, as Mr Borrows knows, in getting evidence from people than any such provision in the Serious Fraud Office Act could provide.
Can the Minister confirm that on 10 December last year Cabinet asked her to resubmit a paper that specifically sought to clarify “the nature of the powers proposed for the Serious Fraud Office in the new Organised Crime Agency, particularly regarding document production and compulsory examination, and how those powers could be ring fenced …”; if so, does that mean that, at an earlier stage, there was an intention to retain the identity of the Serious Fraud Office within the Organised and Financial Crime Agency, with its current powers intact?
No. A decision was made to shift the Serious Fraud Office to a new agency under the control of the New Zealand Police. I announced that, Cabinet asked for further work to be done on what the agency’s powers would be, and I made that announcement at the time that we announced we were transferring the office.