Kiwi Polemicist

August 20, 2008

The absolute power of the Serious Fraud Office

The government wants the Serious Fraud Office to move from being independent to being part of the police. The staff of the SFO are opposed to this, and I’m not surprised; no one would want to give up the sort of powers they have. The SFO operates under their own Act of Parliament, so let’s have a look at their powers.

♦ the SFO may investigate any suspected case of “serious or complex” fraud. “Serious or complex” is not defined, so the director has the power to investigate or ignore a very wide range of fraud cases (s4,s30,s49).

♦ the SFO can require any person to produce any documents that the SFO requires, and to answer questions about the location of or existence of other documents (s5). There is no right to silence (s9). “Documents” is defined and means pretty much anything that carries data, including tape recordings.

♦ any person being investigated, or any person believed to have information relevant to the investigation, can be compelled to attend an interview for questioning. There is no right of silence (s9).

♦ you cannot refuse to answer a question or supply documents on the grounds that doing so would incriminate yourself (s27).

♦ now here’s a beauty: even if you think you have a confidential relationship with your bank or another business you’re not safe, because the SFO can require them to provide information (s23). The State very kindly protects confidential correspondence between you and your lawyer, but the SFO can compel the lawyer to give your last known address (s24). That is a dangerous intrusion into a relationship that should be free of State interference.

♦ the SFO can take an investigation from the police (s11). There is no means of appeal against such a move.

♦ any decision by the SFO to investigate or prosecute a case cannot be challenged, quashed or even “called into question” in a court. In other words, the SFO is above the courts (s20).

♦ if you refuse to attend an interview, answer questions, or supply information as required by the SFO, or if you blink without permission during an interview, you can go to jail for one year or be fined $15,000 (s45).

I would argue that a person who is compelled to attend an interview is being detained (if you can’t leave an interview without penalty then it’s detention), and that therefore this Act breaches section 23(4) of the Bill of Rights, which gives the right of silence to a person who is being detained for an offence.

If the SFO thinks you may have information relevant to an investigation they can deprive you of your liberty (require you to attend an interview), and you also lose your right to silence and your right to avoid self incrimination. I would argue that this is “disproportionately severe treatment” and thus contrary to section 9 of the Bill of Rights.

The moral of the story is this: the State will give itself absolute power whenever possible.

The SFO has more powers for investigating the theft of money than the police do for investigating murder. If the SFO takes an interest in you, then you’re like a kitten in the jaws of a rottweiler.

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