Challenging liberty

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is that the Clark Labour government actually introduced a Search and Surveillance Powers Bill last year; this has been withdrawn and a substitute Bill introduced which includes powers being granted to a wider range of law enforcement and regulatory agencies, including the Inland Revenue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.

There appears to be potential for permitted covert entry of premises and the copying of materials, and there are "opt-out" clauses which give the police the right to refuse to tell people what surveillance they have been under if investigations are deemed to be "ongoing" and might be compromised.

The proposed legislation effectively standardises the intrusive powers of the state. It is certainly a worthwhile intention to establish in advance, as it were, universal rules for search and surveillance to ensure certainty and consistency of application, no matter what agency is acting, including non-police agencies.

But none can pretend that the risk of governmental excess or executive excess does not exist in New Zealand, or may not exist in the future. The police and other state agencies given these powers have not always been right, they have not always acted with integrity, and they have not always told the truth.

Yet this Bill creates a far greater potential for the State to onerously intrude on individual privacy in the spacious designation of "law enforcement", while effectively weakening traditional provisions against self-incrimination.

The Government argues that it is creating a safer New Zealand, but is individual liberty to be its price? This Bill will need the most stringent of safeguards to protect personal liberty. It proposes very substantial changes to the law.

It is to be considered by a select committee and members of the public ought to take the time to make a submission so that good intentions do not become oppressive law.


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