About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit organisation founded in 1952 which advocates to promote human rights and maintain civil liberties.
2. We wish to make an oral submission to the Committee.

Introduction

3. Part one of this bill is an attack on privacy which removes all limits on Police powers to record people’s activities. Tools which can hear the faintest conversations through windows exist, as do cameras which can see in the dark or through walls. This bill enables the Police to use these tools for the purpose of surveillance. It also enables the use of tools which have not yet been invented, and it enables Police to leave recording devices everywhere. All without a warrant.
4. The bill also provides the legislative cover for the use of body-worn cameras by police officers, short-circuiting any consultation or imposition of appropriate limits.
5. Part two denies basic private property rights in addition to imposing drastic limits on the following rights enumerated by the New Zealand Bill of Rights Act:

section 15: Manifestation of Religion and Belief
section 16: Freedom of Peaceful Assembly
section 17: Freedom of Association
section 18: Freedom of Movement
section 21: Freedom from Unreasonable Search and Seizure
section 22: Liberty of the Person, and;
section 23: the Rights of People Arrested or Detained. 

The supposed benefits are trivial compared to the harms this bill will cause.

6. Both parts one and two lack appropriate limits, oversight, or controls. They assume that the Police will act in good faith and will never abuse the powers, which unfortunately does not match reality. 
7. Democracy is rapidly declining throughout the world. Instead of further building the arsenal of authoritarian tools with measures like this bill, the Council urges Parliament to reduce and control powers from traditional agents of authoritarianism, such as the Police. 
8. The Council strongly objects to this bill and asks the Committee to reject it.

Recommendation 1

Reject the entire bill.

Part 1 – the End of Privacy

The Status Quo

9. We should start by noting that this legislation is largely motivated by past lawlessness by our Police. The Council rejects the assertion in the bill’s explanatory note that:

The recent Tamiefuna v R [2025] NZSC 40 (Tamiefuna) judgment and the findings of the Joint Inquiry by the Independent Police Conduct Authority and the Privacy Commissioner into Police conduct when photographing members of the public (the Joint Inquiry), have together narrowed the law.

10. This is revisionist nonsense. These rulings have not narrowed the law. These rulings have made it clear that the law was not ambiguous and that police have knowingly been breaking the law. The bill is yet another example of the government reacting to Police law breaking not by stopping the behaviour but by making it legal.
    
11. In particular, it’s worth noting the joint inquiry was a direct response to Police stopping young Māori men in the street and taking photos of them ‘just in case’. This was not part of a crime investigation, nor was any other justification given, and the inherent racism is plain to see. It seems that the authors of this bill see nothing wrong with this behaviour and wish to ensure that Police can start doing it again.

Police have never had total discretion to record in public

12. The New Zealand Police Association has suggested that Police may be allowed to record in public:¹
    

Section 47 of the New Zealand Search and Surveillance Act 2012 appears to provide legal cover for officers to make an overt or covert recording when carrying out their duties, though, according to police, further legislation may be required.

13. The Council agrees only that section 47 is unclear. Specific laws override general ones. Section 47(1)(a)(ii) allows enforcement officers to make recordings, but section 47(1)(a)(i) limits this power to when the officer is “lawfully in private premises”. Given that everyone can make recordings in public, and that everyone is required to behave lawfully, section 47 can be interpreted as indicating that Police are specially and specifically limited from recording in public. If this was not the intent, then section 47(1)(a)(i) serves no purpose.

14. The definitive statement comes from Tamiefuna v R: “police [do] not “have a general power to photograph persons in the public realm and retain the images.”²
    

First Principles

15. On the basis of first principles, the Council believes that there should be strict limits on the ability of Police to make recordings.
    
16. The Office of the Privacy Commissioner always recommends collecting less personal information.

17. The cost of capturing and storing video and audio footage is getting cheaper all the time. There are approximately 10,000 police officers in Aotearoa New Zealand. Giving each of them the ability to record everything is a significant increase in the surveillance of people going about their lives.
     
18. There is already a significant bias in the legal system toward accepting the word of the police over those of other parties. Increasing the amount of recording taken from the perspective of the police further strengthens the ability of police to tell their version of the story and weakens the perspective of other parties. A picture is worth a thousand words. If we are to assess the needs of natural justice, then we should avoid further privileging the police in proceedings.
    
19. The Council recommends reviewing the British Columbia Provincial Policing Standards. They prohibit “indiscriminate use” of surveillance. Police discretion is minimised. Recordings are required “when attending a call or responding to an incident where there is a reasonable belief that there will be use of force, or where violent or aggressive behaviour is anticipated or displayed” and are otherwise prohibited without a warrant.

New Sections 45A to 45E

20. The Council will start by noting that sections 45A to 45E are being inserted into the wrong act. These powers belong in the Search and Surveillance Act, not the Policing Act. This bill effectively exempts Police from the surveillance controls of the Search and Surveillance Act.
    
21. The Council further notes that part one of the bill seeks to give mass surveillance powers to any person employed by police, and is not limited to  Police Constables or Authorised Officers who have received training and taken oaths. The difference being that employees need not be properly trained nor acting in the interest of keeping the peace.

45A purposes

22. New section 45A enables unlimited surveillance. Section 45A(d) on its own covers any imaginable activity conducted by police. Should 45A be enacted the primary control on Police surveillance will shift from our laws and rights, to the number of cameras that Parliament is willing to buy for Police.

Recommendation 2

Replace new section 45A with “Police Constables may make recordings in public without a warrant only when there is reason to believe that there will be use of force, or where violent or aggressive behaviour is anticipated or displayed.” Subsequently remove sections 45D and 45E as unnecessary.

45B Public Places

23. The phrase “by any means” in new section 45B vastly expands the dangers in section 1 of this bill. Tools which can hear the faintest conversations through windows exist, as do cameras which can see in the dark or through walls. This bill enables the Police to use these tools for the purpose of surveillance. 

Recommendation 3
Replace new section 45B with:
For the purposes set out in section 45A, a police constable may only record what is visible or audible from their location without enhancement.
a) Devices which record outside the ordinary range of human vision and hearing may only be employed as authorized by the Search and Surveillance Act.” 

45C Private Property

24. New section 45C(2) references the definition of surveillance device in section 3(1) of the Search and Surveillance Act, which in turn references the definition of visual surveillance device which is:

any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity;

25. Presumably the intention of this section is to give the police fewer powers on private property than in public. The Council respectfully suggests that a drafting error has occurred and that new section 45C instead of enabling recording actually prohibits it.

Recommendation 4
Replace new section 45C with a section requiring Police to have permission from the people present in order to make recordings on private property without a warrant. 

Safeguards

26. Parliament has been granting Police more and more powers. The Council therefore has been critiquing mass surveillance, and preparing further critiques, for more than a decade.  This bill is missing numerous controls which we have contemplated. 

Access to Recorded Material

27. The Council’s research into body worn cameras has led us to believe that harms come from viewing and listening to the recordings (accessing) rather than the act of recording itself. We respectfully suggest that the bill has its controls in the wrong place. 
    
28. The Office of the Privacy Commissioner notes that privacy breaches are the result of unauthorised employee browsing of footage not of the recording.
    
29. There is widespread abuse of recordings by police overseas. In Ireland, an investigation by the Police Ombudsman led to management action against 74 police officers for viewing an arrest video for entertainment purposes rather than for a legitimate policing purpose.³ Another investigation in England and Wales found that there were over 150 reports of camera misuse. Some of the allegations included sharing videos on social media platforms and recording conversations without the knowledge of participants.
    
30. This bill should be designed to deter tampering with the recordings after they have been made. The Department of Corrections’ utilises Closed Circuit Television (CCTV) and bodycams. However, the technology is inconsistently used, particularly within the Prisoners of Extreme Risk Unit. The Ombudsman has found a lack of recordings during uses of force and the significant volume of footage being deleted from storage systems. The Ombudsman has referred the case to the Chief Archivist for investigation under section 29 of the Public Records Act, and presumably prosecution under section 61 of that act.
    
31. The Council recommends that a trusted third party hold the recordings, and that Police should be required to get a warrant to view the recordings. This not merely prevents the indiscriminate trawling of recordings, it puts in place important safeguards for data retention and makes tampering more difficult. The IPCA, or any successor agency, is probably best placed to hold the recordings.
32. A trusted third party approach is already used in the Telecommunications (Interception Capability and Security) Act. Those surveillance devices are always on, and Police follow a process to gain access to the resulting data when they have good reason. 
33. The Council further recommends that Facial Recognition, and other remote biometric identification technologies (RBI), should not be used on any recording made under this act, until and unless a warrant has been issued for the recording.
34. Regardless of when RBI is applied to recordings, those RBI outputs should also be retained by the trusted third party and warrants should be required to access the RBI output.

Right to Justice

35. Our rights to effective legal representation and a fair trial should provide everyone and their attorneys timely access to recordings made under this act when those recordings are pertinent to charges against them.
    
36. At first glance the Criminal Disclosure Act’s section 13(3)(e) and (f) combine to require this access. However, section 13 is limited by sections 15-18 of that act. Section 15 would allow the prosecution to hide recordings made under this act by not looking at them themselves. The prosecution might do so if they thought they could win without that information, and didn’t want to risk learning something unhelpful. Section 16 could be manipulated by a wide variety of nefarious tactics to deny disclosure. Therefore it seems prudent to modify this bill to assert a positive right for defence councils to access recordings made under this bill, or to deny some of the standard section 15-18 grounds for refusal. 

37. Caution should be shown to ensure that RBI or other software are not permitted to trigger blanket refusal of access to recordings made under this act under the “analytical or evaluative material” grounds for refusal to provide information to the defence from section 16(1)(c)(iii) of the Criminal Disclosure Act. Again, this probably involves amending this bill to deny the applicability of section 16(1)(c)(iii), or better yet removing section 16(1)(c)(iii) from the Criminal Disclosure Act.

Freedom of Information

38. One of the reasons for allowing police to record in public is to hold the Police accountable when they make mistakes, as they inevitably will. This will be difficult.
39. The primary concern for access under the Official Information Act (OIA) would be section 6(c), that making recordings available could “prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial.” Section 6(c) will almost always apply to recordings made under this act. Few, if any, requests will be made for footage when there is no concern of either crime or gross misconduct. If the Committee wishes for recordings made under this act to improve accountability, transparency, and, ultimately, safety, then this bill will need to disable section 6(c). Disabling the entirety of section 6 for recordings made under this bill should be considered.
40. Similarly, careful consideration should be made to disabling the standard section 9 and exotic section 7, 10, and 18 grounds for denying OIA disclosure. Certainly 9(2)(ba)(ii)’s blanket protection for the public interest would need to be disabled lest the collecting agency routinely use it to avoid accountability. Similarly, it is easier to see how the other grounds in these sections, say maintaining legal professional privilege, could be abused than it is to see how they would be useful. Anyone sharing sensitive information in a recording is likely intending to share that information with the officer, and has therefore voluntarily disclosed the information anyway.

Privacy Act requests

41. The Council further notes that IPP6 and IPP7 will apply to most recordings made under this act unless section 45A is amended as we suggested. Police are not included in section 51 of the Privacy Act which provides for blanket refusal. And recordings made for the reasons currently in section 45A, for example for intelligence gathering, will not benefit from section 53(c)(i) as they are not for “the prevention, investigation, and detection of offences.” Therefore everyone will be able to request recordings of themselves. Getting a “selfie” of yourself from Police surveillance is already a pastime overseas, we should expect it to gain popularity here.
    
42. Privacy Act requests for footage from mass surveillance are a non-trivial problem. Typically more than one person will be captured in a recording. Will other civilians be removed from the recording? How and when might that be done? What happens when two people are speaking at the same time? The Council has considered this problem at length. We believe that the only workable answer is amend section 45A as we have recommended earlier to limit recording to circumstances when withholding under section 53(c)(i) of the Privacy Act would apply.

Retention

43. IPP9 of the Privacy Act says:

An agency that holds personal information must not keep that information for longer than is required for the purposes for which the information may lawfully be used.

This guidance is not particularly useful for this bill, as no period during which the information may lawfully be used is established.

44. This data retention problem is ubiquitous. Standards overseas vary from a month to a year. The Council is not concerned with where the Committee chooses to draw the line, in so much as preventing the creation of a bottomless, and expensive to operate, liability by retaining everything. 

Privacy Impact Assessments

45. The bill authorises a limitless set of surveillance tools. This bill should require that a Privacy Impact Assessment be gazetted for each new technology used under this bill, and for every novel use of existing technologies under this bill.

Part Two – Temporary Closures

46. Part two denies basic private property rights in addition to imposing drastic limits on seven different Bill of Rights Act (BORA) rights. This bill enables police to break up any gathering, remove people from any location, and detain people on suspicion that they might return. These locations include everywhere accessible by road including every home, Marae, school, or church, as well as undoubtedly any place used for political protest. It is no exaggeration that this bill allows police to deny you the shelter of your own home and to detain you for wanting to return to your home.
47. The stated reasons for part 2 are irrelevant. There is no grounds whatsoever that such a measure can be justified in a free and democratic society.
48. The Council agrees with the Antisocial Road Use Legislation Amendment Bill’s Regulatory Impact Statement (RIS) that there is no reason to believe that the powers in Part 2 will be effective for the bill’s stated purposes. 

Right to Protest

49. While the Council is sceptical that this bill will improve the problem of antisocial road use, we are confident that it can be used to undermine our democracy. The Council does not believe that it is a coincidence that Police are being given powers that would be very useful to prevent another hīkoi, like the 2004 Foreshore and Seabed Hīkoi, so soon after 2024’s Hīkoi mō Te Titiri drew over 80,000 participants.
    
50. There are already too many laws that allow Police to limit public protest.  Police are already well empowered to keep the peace during protests.  No suggestion has been made that these powers need to be expanded.
    
51. Given the broad and vague justifications for invoking the powers from part 2 of this bill, we must prevent their use against protest.⁴

Recommendation 5
Add to revised section 35 a new subsection (1)(g), with wording similar to the Crimes Act section 78AAA(5)(b):

This section may not be invoked at a place where any person is engaged in protest, advocacy, or dissent, or where there is a strike, lockout, or other industrial action. 

52. Given Police’s history of violence against protests, take the 1981 Springbok Tour as just one example, the Council is greatly concerned that part 2 of this bill will be used by the Police to pervert the course of justice. New section 35C(2) allows the use of force. Police could therefore invoke section 35 against a protest, then proceed to assault everyone in attendance. Instead of facing criminal sanction for their violence, there would at best be administrative condemnation for inappropriate use of section 35.

Recommendation 6
Remove section 35C(2) from the bill. 

Too easy to invoke 

53. “Public disorder” in revised section 35(1) is too small of a concern to justify the invocation of the powers in this bill. As we have noted, seven different BORA rights and basic property rights are being limited.

Recommendation 7
Remove section 35(1)(a) from the bill, so that this bill becomes about what it claims to be about. 

54. Part two also establishes the power for Police to interfere with our liberties without any offence having occurred. Police merely need to believe that public disorder is imminent. The effect is to punish people for crimes that they might commit. This is unacceptable in a rights-based society. 

Recommendation 8
Remove “or is imminent” from section 35(1)(a) and remove “or may reasonably be expected” from 35(1)(b),(d),(e), and (f)

Accessible Area

55. The existing section 35 limits the application of the powers in part 2 to roads. The big problem in part 2 is the expansion from roads to accessible areas. As we have already noted, accessible areas includes all places of residence and places of religious observance. It is entirely inappropriate for a bill claiming to be about anti-social road use to include the power to deny people access to their own homes.
    
56. Parliament, Premier House, Government House, and similar sites are also subject to being closed by section 35. This seems unwise.
    
57. Unless amended part 2 of this bill provides Police with the power to deny medical treatment. This could be by removing people from a place where they are being treated, or by denying people the ability to reach their doctor or a hospital.

Recommendation 9
Amend clause 5, to amend the definition of accessible area in section 4 of the act by adding
(c) is not a building, unless that building can hold more than half dozen motor vehicles and the closure is under section 35(1)(d)
(d) for the avoidance of doubt dwellings, places of worship, medical facilities, and marae may not be designated as accessible areas

Traffic

58. Limitations on pedestrians are not rationally connected to the bill’s purpose. They therefore stand no chance of passing a Hansen test for limiting BORA section 18.

Recommendation 10
In clause 6, replace the definition of traffic in new section 35(4) with “traffic means the movement of motor vehicles”

Papers Please

59. Prior to this bill, people only had to provide Police with their names and addresses. If the Police could demonstrate the need they could ask for the date of birth. Being arrested only provides Police further access to your occupation.
    
60. This bill provides Police with a general power to demand people’s date of birth and “electronic address”.⁵
    
61. That additional disclosure of sensitive private information is not rationally connected to the bill’s purpose. It therefore stands no chance of passing a Hansen test for limiting our freedom of expression rights from BORA section 14.

Recommendation 11
Remove clause 7, new section 35BA, and consequently clause 12, new section 54A.

Disproportionately Severe Punishment

62. Recalling once again, that part 2 of this bill claims to be about anti-social behaviour, the penalties of “imprisonment for a term not exceeding 3 months or to a fine not exceeding $2,000” are disproportionate. The RIS recommends a maximum penalty of $300.⁶
    
63. Lesser penalties are assessed for more serious offences by sections 4,10B, 11A, 11B, 14A, 14B, 15, 16, 17, 18, 19, 20, 22, 25, 28, 29, 30, 31, 34, 35, and 36 of the Summary Offences Act. Notably those offenses include section 28 “Being found in public place preparing to commit offence”, for which a first offence carries no chance of imprisonment. The most comparable offence from the Summary Offences Act is section 21, “obstructing public way”, which carries a maximum penalty of $1,000.
    
64. The Council acknowledges that our section 9 right not to be subjected to disproportionately severe punishments is more subjective than our other BORA rights. However, the Council does not believe that being imprisoned for failing to leave quickly enough after a constable has suggested that anti-social behaviour might occur is a punishment in proportion to the “offence”.⁷

Recommendation 12
Replace in clause 11 new section 54(2) and in clause 12 new section 54(2) with “A person who commits an offence against this section is liable on conviction to a fine not exceeding $300.”

Attorney General’s Bill of Rights Act report (BORA report)

65. The BORA report is contemptible. In paragraphs 20 and 21 it sets out its logic which it uses throughout: Just because the bill provides for powers which clearly exceed BORA, because the bill does not compel police to use those powers, any transgression of BORA would be an operational Police issue, not a problem with the way the law is written.
66. That a right might be but is not necessarily unjustifiably limited is not a valid argument for a BORA report. Laws are supposed to be drafted in ways which prevent the violation of our BORA rights. The Attorney General’s reports are supposed to consider every possibility of limitations of our BORA rights.

Recommendation 13
Given the Attorney General’s failure, the Committee should commission its own legal analysis, including Hansen tests for the 7 different BORA rights being limited.

Conclusion

67. The Council disagrees that this bill can be justified in a free and democratic society.
    
68. This bill is bad law resulting from bad law making. Part 2 of this bill replaces the Antisocial Road Use Legislation Amendment Bill which has only had second reading. There is a real opportunity for Parliament to further disgrace itself by passing these in the wrong order. Parliament needs to hit the brakes and accept that most of our existing laws are better than what is likely to come from rushing.
    
69. The Committee should send this bill back to the Ministry with instruction to start over from the beginning, with public consultations on the definition of the problem and suitable, evidence-based solutions.
    
70. The Council thanks members of the Committee for their time and consideration of our submission.

1. NZPA: The long view on bodycams ↩︎
2. paragraph 4 https://www.courtsofnz.govt.nz/assets/cases/2025/2025-NZSC-40.pdf ↩︎
3. Management Action Taken Against 74 Police Officers “Given the weaknesses in the control of access to body-worn video it is therefore our view that there remains a significant residual risk that private and personal data can be accessed without a legitimate policing purpose.” ↩︎
4. The Antisocial Road Use Legislation Amendment Bill’s Regulatory Impact Statement recommended at paragraph 32 that “care would be needed when drafting … to avoid the use of these powers in other contexts, such as political protest”. No such care has been demonstrated. ↩︎
5. The Council doesn’t know what “electronic address” means specifically, and we suspect that no one else does either.  This seems unwise. ↩︎
6. Antisocial Road Use Legislation Amendment Bill’s Regulatory Impact Statement page 15 ↩︎
7. Antisocial Road Use Legislation Amendment Bill’s Regulatory Impact Statement page 17 “the penalities could affect human rights and freedoms recognised and promoted in the NZBORA” ↩︎