The law on searches and surveillance is inconsistent. Over the years all kinds of agencies have acquired various powers to enter your home or other private premises to gather evidence to support legal action.

We´re not just talking about the Police and the Serious Fraud Office here; the Pork Board, the local dog catcher and scores of other agencies are authorised to put you under various forms of search or surveillance. And right now this situation is being "rationalised" with a Search and Surveillance Bill which is currently going through the parliamentary machine, pulling all the rules about different kinds of warrants into a single (though not coherent) document.

The overall effect of this Bill will be to increase police powers and give every law enforcement agency all the search and surveillance powers (with few exceptions) currently held by any one agency. What is presented as a rationalisation of the law is in truth a huge expansion of the power of the state.

This means that Pork Board inspectors and dog catchers will have a raft of new search and surveillance powers. Not only will they be able to knock on your door and come in saying they have the right to check on dogs or pig-meat, as they have been able to in the past. They´ll now be able (if they suspect a breach of the legislation they enforce) to get warrants allowing them to break down doors, covertly install bugs and cameras and so on.

Even parts of the establishment are worried about this Bill. As you might expect, the Privacy Commission and the Human Rights Commission have reservations, but even the Chief Justice was sufficiently worried to criticise the Bill.

Bell Gully, an establishment law firm, argued that the "premise that each of the government agencies to which it applies ought to share common search and surveillance powers is flawed." They note that this Bill represents a considerable expansion of surveillance powers, and is "likely to lead to circumstances in which the powers are used in unexpected ways."

Another who is worried is President of the New Zealand Law Society, John Marshall QC. Marshall said in his submission that "The proposed homogenisation of powers would result in a dramatic expansion of powers for certain agencies …. The Bill´s approach is still observably `one-size-fits-all´…. [I]t is difficult for the Society to comprehend why non-police enforcement agencies require, or are suited for, such a striking expansion of powers."

While John Marshall might be concerned about the increased power of minor law enforcement authorities who inherit the search and surveillance powers of the Police under this Bill, in fact that may be a less serious development than the increased powers of the Police themselves, who are slated to acquire the powers of the Serious Fraud Office.

The Serious Fraud Office was established in 1990 with certain powers considerably stronger than those of the Police, intended to address high-level and complex business crime. The SFO can get warrants which allow them to make you give them documents, and to interview you without your normal right to silence, both on pain of imprisonment, essentially even if this will incriminate you. So powers designed to untangle complex large-scale white-collar crime will now be available to the police if they have reasonable grounds for suspicion that you are involved with two or more others in planning any offence (past, present or future) punishable by imprisonment, which is the majority of NZ offences. This is a scary thought for many, including activists, trade unionists and journalists. Under the Bill for example, Police could force a journalist to give up their sources. They could get a warrant against an organiser of a picket (if they "reasonably suspect" the picket will involve say trespass, disorderly behaviour or unlawful assembly) which essentially says, either you give us the names of other organisers, tell us the detail of your plans, and give us any associated correspondence, or you will go to jail.

This Bill is no minor consolidation of existing powers, but a new departure.

A public meeting is organised for 8 April, 7.00 pm, in the Old Government Building Lecture Theatre 2 (VUW Law School) Wellington to discuss the Search and Surveillance Bill which is due to be reported back to Parliament on 1 May. Warren Young, deputy president of the NZ Law Commission and Michael Bott, prominent civil rights lawyer and representative of the Wellington Council for Civil Liberties, are the presenters. The moderator for the programme will be Dr. Sandra Grey, Senior Lecturer, School of Social and Cultural Studies, Victoria University

Batch Hales 
06 362 6140 
batch.hales@xtra.co.nz