Search and Surveillance Bill – Green Party Minority View

The Green Party is thankful that the committee has given this bill thorough consideration, and has allowed a second round of public submissions. We also support most of the amendments the committee has made to the bill. They generally restrict search and surveillance powers more than the original bill, and improve accountability provisions.

However, the Green Party still considers the bill as a whole to be a major erosion of our civil liberties.

Two striking examples of this are the provisions for Examination and Production Orders. These violate people’s traditional right to silence, other than when giving evidence in court. This right is now to be violated, not only for those suspected of an offence, but all those spouses, friends and colleagues of the suspect, in fact anyone who might have some information on the alleged offence. They will be required to answer questions or produce documents or face the possibility of a term in prison.

We are concerned that Production Orders can be enforced by a range of State agencies other than the police. While Examination Orders will be more restricted, mainly applying to offences carrying a seven year prison term, these offences can include such things as intentional damage – charges that have been laid against non-violent dissenters. If a dissenting group is deemed by Police to be an ‘organised criminal group’, as has happened recently, then a warrant for an Examination Order can be granted. We are also conscious that once this new principle of using Examination Orders in a non-business context is established, the range of qualifying offences can be subsequently expanded.

The Green Party is worried about moves in the direction of a surveillance State contained in this bill, with all its provisions for visual and audio surveillance, tracking people, and intercepting their communications. Judges will also be given the power to give warrants for other, as yet untried, surveillance techniques, under what are to be known as “declaratory orders”. Surveillance using heat or smell detectors have been mentioned as possibly being covered under declaratory orders. We believe that if the State wishes to use such new forms of surveillance, then a proposal should go before Parliament, rather than the new means simply being authorized by a judge.

The advance of digital technology means that all the mentioned forms of surveillance are now cheaper and easier for the agencies to use, and the targets of surveillance are less likely to find out. Tracking devices being miniaturised means it is simple to put one under a person’s car, and all of a person’s electronic communications (phone calls, texts and emails) can be intercepted and checked in their thousands once systems are in place at service providers. Facial recognition technology can quickly scan photos and videotapes to find out where a target was at a particular point of time.

The Green Party is against allowing warrants for such types of surveillance to be granted to dozens of State agencies. Most of these State agencies have no independent complaints systems comparable with the Independent Police Conduct Authority.

Perhaps the most offensive surveillance warrant is the one allowing State agents to trespass a home and install a covert video camera in a family’s private space. Serious criminality is not so rampant in this country as to justify such an extreme intrusion on people’s privacy. We don’t think the assurance that this measure will only apply to higher level offences is sufficient justification. It should be noted that this bill explicitly allows this extreme surveillance to apply to thousands of New Zealanders who each year are guilty of minor violations of our gun laws. This specific power will be able to be provided not only to Police, but

also to Customs and the Department of Internal Affairs.

Other State agencies which don’t have this most intrusive power will, however, be given the power to covertly tape conversations between their agents and anyone they believe has information relevant to an offence.

While this bill does not give extra agencies the general power to search, it does give many of the agencies a more specified set of powers, including powers that most of these agencies have never used before.

Many agencies are now specifically granted the power to seize computers and make a ‘forensic’ copy of the information on them. We believe that searching through people’s computer files is hugely intrusive and such a power should not be so widely granted. So many personal and private activities are now recorded on people’s computers. While, searches are supposed to focus on evidence relating to the charges specified in the warrant, computer searches lay themselves open to abuse. It is not hard for the ‘key word’ searching of the ‘forensic copy’ of a hard drive to be manipulated to disclose a wide range of information. It would be hard to stop computer searches being used for ‘fishing expeditions’ particularly when the bill allows the collection and use of evidence on unrelated charges if it comes into ‘plain view’ during a search.

This ‘plain view’ provision doesn’t just apply in computer searches. It is available to be used by all agencies searching premises and gives them more powers than they have previously had, with a potential for them to be abused.

The Green Party also shares the concern of the Media Freedom committee, in its submission to the committee, that Police searches of media offices might uncover confidential sources before the media organisation had its chance to challenge the seizure of the information under section 68 of the Evidence Act, which gives journalists a right to protect certain sources.

In summary, the Green Party does not believe the supporters of this bill have explained why, at this point in our nation’s history, we need to give such extra powers to Police and other State agencies, and in the process erode hard-won civil liberties.