This is the Council's second submission about the Search & Surveillance Bill.

Summary: It is the view of NZCCL that personal freedoms should be entrenched in law, that all actions by the police or any other government agency should be done where possible without diminishing those freedoms, and where necessary should be justified only as a last resort. We believe that this bill should be completely withdrawn.

Submission on the revised Search and Surveillance Bill

The New Zealand Council for Civil Liberties notes that the rewriting of the Search and Surveillance Bill has in some places raised the threshold or tightened up on reporting procedures for some aspects of the original bill.  It has also clarified many of the areas of dispute in the original bill.

Nevertheless, the rewritten bill fails to address the concerns expressed by NZCCL and many other agencies and individuals in their submissions to the original bill.

In summary these concerns are that, seemingly without any publicly expressed need, the bill extends the general powers of the police to

• incorporate all the powers originally granted only to the Serious Fraud Office to investigate complex fraud cases.  These powers include examination orders and production orders.
• give additional powers and extensions of powers, including the extension of the use of warrantless searches and roadblocks
• legalise police practices not previously sanctioned, such as those relating to detention and other powers incidental to arrest
• hugely increase the powers of the police to conduct surveillance, including the power to conduct surveillance without warrant for up to 72 hours, and to break into private residences to install video surveillance equipment to monitor those people.
• extend surveillance powers to a plethora of other government agencies.

All these extensions of power constitute a massive assault on civil liberties in New Zealand, and have not been, and cannot be, justified by need or changes in technology and practice.

Human rights and civil liberties do not constitute a balancing act or an inconvenient side-issue. They constitute a cornerstone of civil society, and New Zealand’s commitment to international treaties and the Bill of Rights Act show that they are the foundation of our society. They should not be limited or worn away for the convenience of the police or other enforcement agencies, but only as a last resort and where there is no alternative.

Nor should personal human rights be balanced against property rights, as suggested in the committee reports. Instead, the basic rights and freedoms of individuals should act to curb the excesses and possible exploitation of those people by property holders.

The Search and Surveillance Bill seems to have been born from the concept of convenience.  If police and other agencies can conduct visual and electronic surveillance on people, then they are more able to gain prosecutions. If there is open access to internet and cellphone data then people who are regarded as a threat to society can be monitored.  If people suspected of having committed a crime can have their homes broken into by police and have their lives recorded secretly by video and audio devices, if people are required to give information about acquaintances, if doctors must provide information about their patients, then the government and the police will have a very clear idea who are the troublemakers and elements of subversion. 

But our society will be a very different place.

All these ‘convenient’ powers are mentioned in the bill. Many of the powers are given to the police alone, but those relating to surveillance are also given to a range of other government agencies, whose only requirement to use the powers is an order from a judge.  There are safeguards, but many of these are safeguards in name only. And the redrafted bill even removes some of the reporting requirements for the use of these devices.  

The original bill had two basic purposes:

1. To clarify and simplify the law relating to search and surveillance powers of the police and other government agencies.
2. To determine powers and controls relating to computer searches and the use of electronic and other new surveillance devices.

In our original submission NZCCL suggested that the bill be split into two parts, with the first determining (and restricting) the powers of government agencies, and the second part determining (and setting boundaries for) the power of police to conduct searches of computers and other electronic equipment.  We suggested that the part determining police power should be subject to widespread public debate.

The revision of the bill clarifies and confirms for us that the bill is not really about those two purposes, but is really about enormous extensions to the powers of police and other government agencies.

This raises a number of questions:

• Why are these powers being given to these agencies, when there has never been any public argument put forward to justify them, or any suggestion that they are needed?
• Why have the concerns expressed in so many submissions to the first draft of the bill been dismissed?
• Why is the government so dismissive of the protection of human rights and civil liberties, considering them as an inconvenience or impediment to laws rather than a fundamental requirement of laws?
• Does the committee consider that giving the police and other agencies more powers to invade people’s privacy and to investigate their lives will make people more secure, or reduce crime? Does the committee have any evidence that that is the case?  The overwhelming evidence points to the use of these powers, in other countries, to stifle debate and create a more fearful society. Is that what we want here?

Where is the line to be drawn?

The new government in England believes that surveillance laws passed there went too far and are trying to roll them back.

It is the view of NZCCL that personal freedoms should be entrenched in law, that all actions by the police or any other government agency should be done where possible without diminishing those freedoms, and where necessary should be justified only as a last resort.

We strongly support the submission made by Timothy Evetts regarding the bill.

We believe that this bill should be completely withdrawn.

Batch Hales

New Zealand Council for Civil Liberties