Human Rights Commission on Search and Surveillance Bill
The Human Rights Commission Submission is here. Extracts:
Freedom of expression, the right to peaceful assembly and association and the right to be free from unreasonable search and seizure are fundamental human rights that are essential to the functioning of a democratic society. For this reason the State’s power to intrude on those freedoms, including through surveillance of its citizens and interception of their conversations and other communications, is necessarily constrained. It is a question of striking an appropriate balance between the public interest and individual liberty.
And the balance we had, appears to be tipping into the direction of greater state powers to intercept.
While none of these rights are absolute, a high threshold is necessary to justify any restriction. As the Attorney-General’s advice notes, “the greater the degree of intrusiveness, the greater the justification that is required and, further, the greater the attendant safeguards to ensure that justification is present”
Covert surveillance is probably the most intrusive thing the state can do, so the justification should be great indeed. And it should primarily be restricted to criminal law enforcement by the Police, and security agencies. Not open to local Councils, the Commerce Commission etc.
While it is correct that the Bill stipulates that a search warrant can only be issued under specific conditions, the powers that are authorised as a result are extensive and will apply not only to the Police but to a wide variety of other enforcement agencies . It is concerning both that an issuing officer no longer needs to be a Judge but can be any “… other person” (provided they have sufficient knowledge, skill and experience) and that the threshold for seeking a warrant is that the officer only needs to have a “reasonable suspicion” that an offence is being, has been, or will be, committed . For these reasons, the Commission is not convinced that the powers in the Bill are necessarily consistent with the right to be free of unreasonable search and seizure.
The Privacy Commission made this point also.
The Bill not only consolidates existing police search powers in one Act but extends either all or aspects of the search and surveillance powers in Part 4 to a wide variety of non-police enforcement agencies .
The Commission questions the rationale for extending some of the powers created by the Bill to agencies such as the Commerce Commission which already has the power under s.98A of the Commerce Act 1986 to issue search warrants. If the legislation is enacted in its present form, employees of the Commerce Commission will be able detain people to determine if they are connected with the search or apply for a surveillance warrant to use interception or tracking devices. Or Dog Control officers (who already have a power of entry under s.14 of the Dog Control Act 1996) being able to enter premises to install a surveillance device.
This is the problem of trying to have a one size fit all law. Just because an agency may require the power of entry doesn’t mean they should be eligible to gain surveillance warrants.
The wide reach of the Bill means that it could have a disproportionate impact on journalists. Private homes and offices will not be exempt. An item in plain view may be taken the course of a search even if not identified in the warrant if the enforcement officer has reasonable grounds to believe he or she could have got a search warrant had they wanted to: cl.119. An external IT provider could be required to assist a person holding a search warrant to access and copy material held on a computer: c1.125 and computers will be able to be accessed remotely, or hacked into: cl.108(i).
The only protection for confidential journalistic sources is cl.130 which reinforces the qualified protection provided by s.68 of the Evidence Act but a Court may order disclosure of material that would disclose the identify of a source or enable it to be discovered, if it would be in the public interest to do so: s.68(2). This effectively modifies the presumption against disclosure in ss(1).
I wonder if the Commonwealth Press Union put in a submission?
November 4th, 2009 at 9:05 am
I am happy for GCHQ NZPOLICE SIS MILINT CUSTOMS to have the surveillance they need, with the attendant funding and manpower resourcing.
All must be under the ambit of the courts with no exceptions accept against defined listed terrorist organisations and that must be accountable to the courts anyway to prevent abuse.
All others NO, especially local authorities..
November 4th, 2009 at 9:32 am
Q&A:
November 4th, 2009 at 9:37 am
I am waiting for the first person in this thread to say:
“If you are innocent, you have nothing to worry about”.
November 4th, 2009 at 9:38 am
Imagine the little Hitlers in some tin-pot council enforcement department rubbing their hands in glee at the prospect of enacting a search warrant on a transgressor of a minor bylaw.
Sounds like a bill that has been hijacked by some zealous security wonks (almost typed wanks by mistake- oops!)
November 4th, 2009 at 9:43 am
EPMU
I can and agree with you, but more importantly there was a post by Grant Mckenna or FE Smith previously on another thread, Essentially about the lack of integrity of the process with NZPolice and Crown Law having to save the day or throw it out to often.
Can you imagine the crap we will have in the future if we make the access easier for them when they already can’t be trusted to act properly within the rules now.
The mind boggles.
I say this being biased towards law enforcement and the Int/Sec establishment.
November 4th, 2009 at 9:52 am
Bad Bill. Bad Minister. Bad, bad Minister.
November 4th, 2009 at 9:54 am
Exactly Mike, it is not a good idea to trust the police with these powers, let alone power crazed bureaucrats in the millions of different quangos we have.
I have lost count of the number of cases I have read where dialogue goes something like this:
Police: We’re here to search your house.
Person: Do you have a warrant?
Police: No, but we’re just going to have a look around.
etc. The worry is that once laws like this are put in place, how will they ever be diluted or reduced? We are throwing our civil liberties away (or the supposedly limited government ACT and National party are destroying them).
No one will campaign on repealing stuff like this, lest the shouts of SOFT ON CRIME!!!!!!!!! follow them to electoral oblivion. The majority of the NZ public really are sheep aren’t they.
Oh well, hey, we have to be tough on crime don’t we.
November 4th, 2009 at 10:29 am
“Freedom of expression, the right to peaceful assembly and association and the right to be free from unreasonable search and seizure are fundamental human rights that are essential to the functioning of a democratic society.”
Heh, it’s kinda funny that the Human Rights Commission thinks that freedom of association is a “fundamental human right, essential to the functioning of a democratic society”. Maybe they could write something on VSM?
November 4th, 2009 at 12:31 pm
John Key and co need to sit back and ask ‘what are we here for?’
Possible answers are:
1. For the average Kiwi.
2. To support and keep going the State machine. To allow the Machine to ‘dial up’ the legisation it thinks it needs.
If the answer is 2 – then look out for a dose of 6-9 years in the political wilderness starting 2014 if not 2011 – Just as Bolger / Birch laid the ground for in the 1990’s.
Given there is a legislative proposal on the table – the issue is ‘do the people really want this?’ Is it really necessary? etc. As the late Lloyd Mandeno (electrical engineer who did much to get power into the backblocks) would say ‘there must be a better way’.
There is IMO one method of controlling surveillance – user pays. The government and bureaucrats have got away with making service providers and users pay. It IRD wants to look up someone’s bank statements, it should pay the bank for this.
November 4th, 2009 at 1:23 pm
I am sure that Rosslyn NOONAN and Joris DeBres have the best interests of the Government in mind and are advocating the type of society reflecting the aims of the organisations that formerly employed them. Their submissions would also clearly reflect the view of the Council for Civil Liberties.
November 4th, 2009 at 1:30 pm
Who rights this shit?
Who have we voted in that wants to fuck us inthe arse so much?
And are the elected ones going to actually decide, yeah thats what our citizens want, they want to be fucked in the arse more and more and more.
Well fuck them
I can totaly see why people do the molotov cocktail thing when they trying ot pull this bs.
November 4th, 2009 at 8:44 pm
I have a feeling that the cage door is closing.
November 4th, 2009 at 11:41 pm
“the right to peaceful assembly and association and the right to be free from unreasonable search and seizure are fundamental human rights that are essential to the functioning of a democratic society”
But, why in this day and age to do we really need to be free from ‘unreasonable’ search and seizure? Aren’t all police actions, because they are undertaken by the police, inherently reasonable because they are undertaken against criminals. For example, I presume that there is no chance that the new proceeds of crime act powers, which do not require convictions in order for property to be confiscated, will never be used against someone who isn’t, at least in the eyes of the police, a criminal.
The problem is that both the Government (the Nats and the civil servants in the MoJ) are now viewing the Courts as being part of a crime control apparatus, rather than impartial arbiters between a prosecutor and a defendant. When the State, and the citizens in that State, hold that attitude then the justifications for personal freedoms that we traditionally use in a liberal democracy become useless.
As nickb points out, the mantra becomes one of ‘if you have nothing to hide then you have nothing to fear’, which is, quite frankly, rubbish. The problem is that when we begin to tell the truth about the system, both police and justice, then we are seen as ‘undermining confidence’ in the enforcement authorities.
So, with the emphasis on crime control, can somebody give me an real reasons why, in this ‘enlightened age’, we need any protections from the extension of the power of the state? It seems, according to experts like JennaR and Dr Warren Young, that we may need some new reasons if we want to keep our supposed freedoms.