There has been a good deal of fuss made about the possible
consequences of the Government's decision to implement a Bill
based on the Law Commission's 2007 report "Search and
Surveillance Powers". Many fears have been raised
about what the legislation might mean were it to be
implemented and, according to some interpretations, enforced
to the letter.
The first point that needs to be made is that the Clark
Labour government actually introduced a Search and
Surveillance Powers Bill last year; this has been withdrawn
and a substitute Bill introduced which includes powers being
granted to a wider range of law enforcement and regulatory
agencies, including the Inland Revenue Department, the
Ministry of Fisheries, and the Reserve Bank.
As the Law Commission observed, our search and surveillance
laws, especially the search powers granted to non-police law
enforcement and regulatory agencies, had been given in an ad
hoc and piecemeal manner and were scattered through many
separate Acts. They should be consolidated.
The Government argues the new Bill will provide a coherent,
consistent, and certain approach, and claims it will balance
law enforcement and human rights. Those who have expressed
opposition say it gives far too much power to the
bureaucracy, which should be restrained by independent
authority such as the courts. They are correct. The powers
granted by the Bill are excessively broad.
They include a single production and monitoring order
available to law enforcement agencies where they are able to
obtain a search warrant; a residual warrant regime for the
use of devices, procedures, techniques, or activities that
may constitute an intrusion into reasonable expectations of
privacy; and a surveillance device regime that regulates the
use of interception and tracking device. In particular, its
provisions are intended to take into account computerised
technologies.
For people who have been under the impression that one of the
principles of our criminal law is the right to remain silent,
this Bill proposes a challenge, since agencies of the State
are to be given an examination power - available now only to
the Serious Fraud Office - to compel a person to answer
relevant questions when "reasonable grounds" exist to suspect
that a crime punishable by imprisonment has been committed or
will be committed and that the suspect has evidential
material - a compulsion order subject in most but not all
circumstances to the approval of a judge.
That power was not among those recommended by the Law
Commission. Many may also not know that the Bill extends
surveillance powers to the many regulatory agencies that
already have the right to enter, inspect and search a
person's home.
Suspects could be forced to produce documents under
production orders for any offence qualifying for a search
warrant. Individuals might be required to provide passwords
so their computers can be searched. The Bill fails to
preclude the police from going on "fishing expeditions" for
evidence or even to "hack" into people's computers.
