Bell Gully on Search and Surveillance Bill
The Belly Gully submission on the Search & Surveillance Bill makes some excellent points. It is attached here – Search&Surveillance_submission_Sep09[1]
Some extracts:
Bell Gully submits that the Bill’s premise that each of the government agencies to which it applies ought to share common search and surveillance powers is flawed. In particular, we are concerned that this approach grants broad powers of surveillance to some regulatory bodies where such powers are not justified by either the scope of their responsibilities or the nature of the offences that they are tasked with investigating. We consider that the investigative powers of a government agency should be appropriately tailored to the relevant regulatory context.
I think this is key. The Law Commission is generally very good at simplifying law, and in this case they have proposed a standard regime for all warrants and surveillance. But this is one of those areas where a standard regime may not be desirable – it is not a one size fits all.
Therefore the effect of Part 4 and Part 5 is to extend to non-police agencies (such as the Commerce Commission, the New Zealand Meat Board, the Ministry of Labour, and Local Authorities) the right to obtain a surveillance warrant, including the power to place a covert listening and/or recording device on private property.
Now these agencies already have the ability to get a search warrant. But this is also giving them the right to place covert listening or recording devices, and that is a step up from a search warrant. They note:
The installation involves the covert entry by a state agent into private property.
And I think Bell Gully make an excellent point about the difference between Police and other agencies:
The ability of a government agency to carry out surveillance in the ways contemplated by the Bill fundamentally changes the character of the relationship between the regulator and the regulated. Unlike the Police in their interaction with criminals, government agencies and regulators interact frequently with people and businesses in the relevant industry. It is therefore important that government agencies and those subject to their jurisdiction work to maintain goodwill.
The Police don’t have to maintain a relationship with the Mongrel Mob. But imagine what would happen if the Commerce Commission (legally) bugged Vodafone’s board room – there would be total hostility.
We note the Law Commission’s observation that, “the Police themselves expressed reservations to us about the desirability of this, believing that the activity might become too widespread and uncontrolled.” The Law Commission does not provide a detailed summary of the basis for the Police reservations. We suspect they reflect the fact that non-Police agencies do not have the checks and balances that exist in the Police culture of supervision, training and discipline, which constrain the misuse of surveillance powers. We share these reservations and suggest that the power to obtain surveillance warrants should only be granted where there is sufficient justification and robust supervision and training to minimise misuse.
So even the Police are not that keen on having a score of Govt agencies with the ability to bug people.
We believe that the better approach may be for non-Police agencies to refer serious offending to the Police and request that the Police obtain a warrant on their behalf.
Yes.
If any other submitters on the Bill want to send me their submissions, I’m happy to read them and as appropriate blog them. I think it s very important the Bill not be reported back without significant amendments.
November 2nd, 2009 at 9:39 am
good to see you ‘leaning in’ on this..
phil(whoar.co.nz)
November 2nd, 2009 at 10:22 am
“We suspect they reflect the fact that non-Police agencies do not have the checks and balances that exist in the Police culture of supervision, training and discipline, which constrain the misuse of surveillance powers.”
That makes me laugh! The Police don’t have that either- they base their search warrants on what they think they can get away with. I have lost count of the number of cases that the Police have lost because they ignored the rules and searched illegally. Illegal searches are quite commonplace in NZ, not the rarity they should be. Of course, Bell Gully are not criminal lawyers, so probably don’t have the exposure to Police practices that the defence bar has.
Oh, and while we are at it, we should pass a law requiring deputy registrars at our courts who can grant search warrants be required to actually read them before signing them! Seen that a few times as well..
This bill is introduced really because the Court of Appeal has spent the last 10 years criticising the police practices in applying for search warrants but the Police cannot seem to understand what they are doing wrong. The solution? Pass a law to make it easier to conduct search and surveillance and hope the Court of Appeal lets the mistakes pass.
Quite frankly, the Law Commission’s vision for the NZ criminal justice system scares me.
November 2nd, 2009 at 10:37 am
Either Bell Gully has COMPLETELY got the wrong end of the stick on this one, or I’m losing my touch at reading statutes. Let’s take just the example of the Commerce Commission (surely one of the agencies Bell Gully would be most worried about, given its past history of defending insider trading charges brought by this agency against Michael Fay) …
The powers Bell Gully are so worried about (entering property and bugging it) are only available where a “surveillance warrant” is issued under Part 3 of the S&S Bill. So, unless a govt agency (like the Commerce Commission) is able to apply for and get a surveillance warrant (i.e. has been given authorisation in law to ask for these powers), then it can’t enter your house/business and bug it.
The S&S Bill cl. 287 then amends the Commerce Act 1986 to let an “issuing officer” (ie a person able to authorise warrants) to issue a SEARCH WARRANT under part 4(2) of the S&S Bill. This warrant is NOT the same as a surveillance warrant … it only allows physical searches, which is a power that the Commerce Commission ALREADY HAS under the Commerce Act 1986, ss.98A onwards. So, because there is no legislative authorisation for the Commerce Commission to get a surveillance warrant under Part 3 of the S&S Bill, THEY WILL NOT BE ABLE TO GET THOSE POWERS!
Therefore, all the S&S Bill does with respect to the Commerce Commission is give them an already existing power under unified rules that apply to anyone who already has a search power (i.e. rather than the Commerce Act 1986 containing different search rules to (say) the Local Government Act 2002, the S&S Bill will require that any authority that is given search powers must exercise them in the same way.) It DOES NOT extend those search powers in any way, shape or form, and certainly does not give a new “surveillance” power.
Or, when Bell Gully claim “the effect of Part 4 and Part 5 is to extend to non-police agencies (such as the Commerce Commission, the New Zealand Meat Board, the Ministry of Labour, and Local Authorities) the right to obtain a surveillance warrant, including the power to place a covert listening and/or recording device on private property”, they are FLAT OUT WRONG. Which is a bit worrying, given that they are one of NZ’s major law firms, yet seem incapable of reading and understanding a piece of new legislation …
[DPF: Thanks for that. I will seek clarification]
November 2nd, 2009 at 4:30 pm
Andrew. A lawyer has e-mailed me the following:
clause 46 of the Bill provides that “the conditions for issuing a surveillance warrant” include the requirement that there are reasonable grounds to suspect an offence has been committed or will be committed, “in respect of which this Act or any relevant enactment authorises an enforcement officer to apply for a search warrant.” Therefore, agencies who can apply for a search warrant under the Bill can also apply for a surveillance warrant if there are reasonable grounds to suspect an offence of a kind that would provide a basis to seek a search warrant.
This extension of new powers was discussed in the Law Commission’s report (http://www.lawcom.govt.nz/UploadFiles/Publications/Publication_96_358_Part_2_R97%20part-2.pdf) at paragraphs 11.80 – 11.86. Chapman Tripp has also discussed these issues (http://www.chapmantripp.com/Pages/Publication.aspx?ItemID=597).
November 2nd, 2009 at 4:36 pm
Yes … having posted in haste earlier, I’ve looked at this in more some depth. That analysis seems right … which amazes me. I made the mistake of assuming the Law Commission’s general proposal would actually be reflected in legislation – more fool I.
The key is in the definition of an “enforcement officer” in clause 6 … if you’re one of these (and being given a search power makes you one of these) then you can ask for a warrant to place bugs as well (so long as you’re investigating an “offence”, that is). It’s cold comfort to note that there are only 4 offence provisions in the Commerce Act … because any future addition of offences to that legislation will automatically mean that the Commission could ask for a warrant to place bugs to investigate those offences.
So – I apologise to Bell Gully … they know how to read in full, and not just to hop onto a blog site half-cocked!
November 2nd, 2009 at 4:39 pm
F E Smith notes:
Absolutely agree. Though, as seems to be the situation here, more and more laws open the door to searches without warrants, particularly if misuse of drugs is “suspected”… and who’s to say whether an officer actually smelled cannabis in the car, even though none was found in a subsequent search.
To which I’d add they should also be made to consider the scope of a warrant. Warrants are always excuses to launch fishing expeditions which permit the Police to trawl through anything and everything. For instance I recall one case years ago where a flatmate was arrested for a drug-related offence. As a result the Police got a warrant so wide-ranging that they spent the evening going through my bank statements, my correspondence, my clothes and even my family photos, asking me impertinent questions about all of it.
In a country protected by a constitution, that would have been an invasion of my constitutional rights given I was not a suspect, had not been accused of anything, and was not named on the warrant – I was just unlucky enough to briefly share an address with someone who was.
Deputy Registrars are often young – some look fresh out of high school to me – and lack the judgement needed to decide on something as important as an invasion of privacy. Warrants should, in my opinion, always be issued by no less than a judiciial officer. Ideally a Magistrate, since many JPs know less about the law than the average Deputy Registrar (I’ve already had one struck off this year for improper behaviour).