Search and Surveillance Bill
The Search and Surveillance Bill has very few measures to protect people’s civil liberties and human rights.
Far from promoting people’s civil liberties and human rights, the Bill has very few measures to protect those rights, and a large number of measures that can be exploited to infringe those rights, not only of people suspected of committing criminal acts, but also others inadvertently caught up in the activities. Enforcement agencies should be given powers of search, seizure and especially surveillance very sparingly and with limits and safeguards to ensure they are only used for the particular purposes of the agency. The agencies must not be given open powers such as proposed in this legislation. It is the role of parliament to support, promote and protect civil liberties. Civil liberties form the basis for a working democracy. This Bill constitutes a failure of Parliament to undertake its core function, the protection of the rights of the people it serves. Search and Surveillance Bill 2009 1. Search and Surveillance Bill 2009 There is no denying the need for some clarity and consistency regarding operations and procedures relating to search, seizure and surveillance in New Zealand. In some respects the Search and Surveillance Bill does a good job in making explicit procedures to be followed and parameters of the powers of police and other law enforcement agencies. The Bill gives effect to the Law Commission report, including the extension of the law to meet new electronic communication processes. However the Bill does much more than consider clarity and consistency, or extending to electronic communication the powers in existing law. It provides police with rights to stop and search vehicles without warrant, to require operators of computers to provide access to all files, it compels people to provide evidence, and permits unwarranted surveillance of businesses and home addresses. The most serious challenge to civil liberties is however that all agencies engaged in enforcement activities will be covered by the same extensive search and surveillance powers as the police and customs. The agencies covered by this include government departments (Department of Labour and Immigration, Department of Conservation, Ministry of Fisheries, Department of Social Welfare/WINZ, Customs), Crown entities (Accident Compensation Commission, Civil Aviation Authority), local authorities (Auckland City Council), or other bodies (NZ Food Standards Authority) that employ or engage enforcement officers. This massive extension of the powers of these agencies has been undertaken not because of need but in the name of ‘consistency’. 2. Balancing civil liberties and security In the Law Commission report, and in parliamentary and public discussion on the Bill, there has been much talk of getting the balance right between civil liberties and security. NZCCL submits that in reality this argument is used only when civil liberties are being eroded. Only rarely in New Zealand history has legislation increased people’s civil liberties or reduced the coercive powers of the State. Over the last few years, in the name of the ‘war against terrorism’ there has been, in New Zealand, as across the industrialised countries, massive increase in the powers of the state to intrude on the rights of people. This Bill, in the name of creating consistency between government agencies, in fact constitutes another step in a major assault on the traditional rights of New Zealanders, as enshrined in the Bill of Rights Act. It provides a range of law enforcement agencies, and especially the police, with search, seizure and surveillance powers that can be used indiscriminately and with little accountability. 3. The Bill in context The Bill needs to be seen in the context of a plethora of other acts that have been passed during the last few years in the name of ‘the war on terrorism’, including the Terrorism Suppression (Bombings and Finances) Act, the Crimes Amendment Act, the Border Security Act, the Telecommunications (Interception Capability) Act, the Police Act, and many others. The effect of these has been to greatly expand the powers of the police, the SIS and the GCSB to use classified information, to use surveillance, to arrest and detain people under suspicion of terrorism. At the same time the rights of those people to silence and to non-self-incrimination, to access to the information about them, and to legal remedies has been reduced. Some of the legislation has been made exempt from the Bill of Rights Act. It is clear that similar legislation has been used in other Western countries (including USA, Canada and England) to spy on minority communities and protest groups. There is considerable evidence that that also happens in this country. Recently released information confirms that the SIS has spied on New Zealanders' lawful behaviour and private lives for many decades. We know that different police units have also spied on political activists for many years. The number of units and their surveillance of activist groups and individuals have expanded as the police gained new resources and powers under the ‘anti-terrorism’ laws. Police entities such as the Strategic Intelligence Unit, Threat Assessment Unit and Special Investigation Group feed information into a super-spy group known as the Combined Threat Assessment Group that also includes the SIS, Defence force, GSCB, DPMC. There is no effective public accountability for their activities. Given the blurred boundary line between political activism, criminal offending, threats to security and terrorism, more search and surveillance powers for the police will inevitably feed into this network, and the extension of those powers to other enforcement agencies signals the advent of a society where people can no longer feel themselves safe to express themselves openly. This Bill, then, is not only a covert and major extension of the powers of surveillance and search to a large number of other government agencies, but is part of a system that has gradually been introduced that suppresses dissent and minority views. 3. The role of government The Bill calls into question the role of a government in a democracy, and the sort of country we would like to see in the future. In the news we see on a day-to-day basis the effects of governments that ally with law enforcement agencies to produce ever more sophisticated processes to combat crime. We know that in those countries with the most oppressive regimes crime has become endemic, and the government uses the measures they have introduced to spy on and oppress dissenting voices and minority groups. In a democracy, it is not the role of the government to ‘balance civil liberties and security’ but to ensure that civil liberties are maintained, even if it may make law enforcement more difficult. Otherwise the government itself becomes oppressive. The Law Commission report spends considerable time discussing what constitutes ‘reasonable expectation of privacy’. NZCCL considers that this Bill intrudes on the reasonable expectation of privacy as outlined in Section 21 of the Bill of Rights Act : “…to be secure from unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise”. 4. Law by stealth Although it has been sold as a rationalisation of the search, seizure and surveillance powers or a range of existing government agencies (described in up to 50 other pieces of legislation) the Bill in fact increases the power of most of those agencies, to the extent that any of them may use surveillance equipment, seize and copy documents without consent, and require both work and private computer documents to be opened. The Bill also increases the power of police to conduct car and house searches without warrant, to seize property that may be incidental to a search warrant, and charge people who fail to cooperate. In effect the Bill removes the right of people not to incriminate themselves, by making it a requirement that the operator of a computer open up files to the police. It makes it very easy for all agencies to go on fishing expeditions, and makes it hard for suspects to appeal, because their rights to view evidence against them are diminished. It is the view of NZCCL that changes as substantial as these need to be subject to public debate, instead of being hidden in a complex bill that is promoted as doing administrative tidying up. The Bill challenges the rights and freedoms that are at the heart of our democracy. 5. No case for the increase in powers No strong case has been made, either in the Law Commission report or in the subsequent discussion, for the increase in the powers of the State to search cars and houses without warrant, to seize personal property, to flout laws relating to privilege, to use a range of surveillance measures with little accountability, and to charge people who fail to cooperate. The argument for increasing such powers has been made in the context of creating consistency between agencies, not based around clear evidence of need. 6. The role of the police The Law Commission report makes various benign statements about the role of the police and other law enforcement agencies: “Law enforcement agencies exist ultimately to protect rather than to control the community” (p.23); “The police and other law enforcement agencies are, after all, meant to be of the people for the people” (p.37). It considers that the police are not opposed to civil liberties but wish to protect them. It is the experience of NZCCL over many years that the police have no regard for civil liberties, and indeed have been the main instigators of the erosion of civil liberties within this country. The police push the boundaries of their power to the limit. It is fatuous to consider that police will use sparingly the powers provided in this Bill, or with regard to the civil liberties of the people who are suspects or caught up in their actions. Yet there is little check in the Bill of the powers of the police. There are no strong reporting requirements for any of the new powers, and indeed for some of them there are no reporting requirements at all. Thus the police are to a large extent able to be unaccountable and act with impunity. 7. In conclusion It is clear that this Bill attempts to do too much, and so issues of real concern are inadequately addressed. Not only has it the potential to trample on people’s rights, but it may also lead to greater confusion than it is intended to resolve, when a range of enforcement agencies determine to use their new coercive powers. Far from promoting people’s civil liberties and human rights, the Bill has very few measures to protect those rights, and a large number of measures that can be exploited to infringe those rights, not only of people suspected of committing criminal acts, but also others inadvertently caught up in the activities. NZCCL suggests that the Bill be divided into at least two separate Bills, so that the guidelines over the issuing of warrants and other powers, and the reporting of results, are separated from parts considering new powers given to various agencies. NZCCL considers that enforcement agencies should be given powers of search, seizure and especially surveillance very sparingly and with limits and safeguards to ensure they are only used for the particular purposes of the agency. The agencies must not be given open powers such as proposed in this legislation. Finally, NZCCL considers that it is the role of parliament to support, promote and protect civil liberties. Civil liberties form the basis for a working democracy. This Bill constitutes a failure of Parliament to undertake its core function, the protection of the rights of the people it serves. Recommendations 1. That the Bill be split into two parts, one considering the procedural, administrative, reporting and accountability requirements pertaining to all search, seizure and surveillance activities carried out by officers of any enforcement agency, and the other relating to the increase in powers of the police, to set up road blocks, to stop and search vehicles, to search without warrant, and other powers. 2. That the part of the Bill relating to all enforcement agencies be restricted to procedural, administrative, reporting and accountability requirements, with the authority for each agency to use the powers to be determined individually on the basis that they should only have the power if there is a strong necessity for it in order to undertake their enforcement activity. 3. That the part of the Bill relating to increase in police powers be subject to further public debate and scrutiny. 4. That a report should be written at the conclusion of ALL search, seizure and surveillance activities, whether or not they are done under warrant or other permission, with that report detailing the purpose, the procedure and the result of the activity. These reports should be subject to external scrutiny, both to determine the effectiveness of the activities and to ensure they are used only where there is a clear purpose that could only be resolved by the use. 5. That clear processes of complaint and redress are included, to ensure that people wrongfully caught up in the search, seizure and surveillance activities have their rights protected Batch Hales NZCCL Committee 16 September 2009