Gordon Campbell: Powers of search and surveillance

Does the Search and Surveillance Bill, as the NZ Herald has recently maintained, really give a web of state agencies ‘sweeping powers to spy, bug conversations and hack into private computers’ ? Or is this all based on a ‘remarkable misunderstanding’ of the actual provisions of the Bill, as deputy Law Commission president Warren Young has argued this morning in his published response?

The Bill is based on a Law Commision report that recommended reform of the search and surveillance powers held by state powers. Young’s initial point is that the state agencies already have the powers to search – say, your computer – provided that ‘ reasonable grounds’ exist for believing that the evidence they’re looking for may be on your computer. The new Bill, having formally established the ‘reasonable grounds’ basis for the search, also sets down a procedure that the authorities need to follow to establish the grounds for the search. In essence, they will need to gain warrants – and when it comes to computer searches, Young says, they will need to specify beforehand what they are looking for, which should preclude ‘fishing expeditions.’ No powers to hack private computers are bestowed.

As for the surveillance powers, regulatory agencies and employers will not be able to carry out routine surveillance of private premises, Young says. A warrant to do so will only be granted in situations where the agency could gain a search warrant, and can demonstrate to a judge that an offence has been committed, and that the surveillance might garner evidence relevant to it. Hitherto, it seems, agencies could conduct surveillance and record activity in a private home provided they did not physically trespass upon it. Under the Bill, such external surveillance would ( in future) require a warrant.

So have the Herald and other human rights advocates really been guilty of a remarkable misunderstanding? Hardly. Does the Bill merely formalize existing powers? Not really. One area where the powers are expanded – as even Young concedes – is that agencies will in future be able to obtain a warrant to conduct surveillance that involves a trespass, and that would currently be deemed unlawful. Presumably, this would be to install a listening bug, or to search for items of evidence of a type specified in a warrant. When the SIS carried out a trespass into a private home a decade ago, the Court of Appeal ruled that its actions had been unlawful (this was in the Choudhry case in Christchurch) even though issues of terrorism were supposedly at stake. Thanks to the new Bill, the likes of the Pork Industry Board will now be able to make a case for trespassing onto private property.

As Young also indicates, the Bill includes another extension of powers. Namely, a production order that requires those on whom it is served to produce specified documents. This power is limited to circumstances where a search warrant could be obtained and - Young somewhat naïvely argues - is therefore less intrusive. In reality of course, it would be an offer that the person served could not refuse.

This provision is a very good example of the creeping state power that concerns the Herald and human rights advocates. The refusal to participate in one’s own criminal investigation is an ancient right – akin to the right to silence – and its erosion used to be limited to section 5 of the Serious Fraud Office to enable complex investigations of fraud to take place. In late 2003, the power was included in section 198B of the Summary Proceedings Act – which made it a crime to refuse to assist Police constables to access computer information held to be relevant to an investigation. Apparently, the Bill will now extend such powers to a web of state agencies. This is the kind of regulatory creep that should concern Rodney Hide – but not a peep from him, of course.

It is disappointing that Dr Young seems oblivious to the reasons for public concern about this Bill. The exercise that the Law Commission has carried out, it would seem to him, has been merely and mainly a technical one: to collate existing powers, and to provide a more transparent procedure for how they are to be used. What could possibly be wrong with such an approach?

Well, for one thing, many of the public were completely unaware that such powers of search and surveillance existed at all. Second, there is probably little or no support for those powers being held by anyone beyond the Police and the security services. Even there, the track record of the SIS has done little to promote public confidence in their ability to exercise such powers competently.

The current concern is that these powers are to be held so widely – by for instance, the various inspectorates involved with Animal Products, Agricultural Compounds and Veterinary Medicines, Antarctic Marine Living Resources, Civil Aviation and Marine Mammals and by officials at the Reserve Bank, and by those involved in extradition, overseas investment and dog control. Leaving aside for a moment whether they really need sweeping powers of search and surveillance – what special training do any of these organizations demand of the officers granted such power?

It may be old news to Dr Young that certain agencies of central and local government already hold much the same powers of search and surveillance as the Police and SIS. It has been bad news to many ordinary citizens. Moreover, the safeguards that Dr Young finds re-assuring – basically, they come down to the snooping agencies needing to get a warrant - assume that the oversight is robust, that the snoopers are adequately trained and that the vaunted safeguard procedures will not amount in practice, to a mere rubber stamp. Will for instance, a ‘it seemed reasonable at the time’ defence suffice to get these agencies off the hook of paying compensation when their suspicions prove to be groundless ?

At the select committee hearings, one can safely predict that the MPs involved will be getting an earful from officials from each of those state agencies – all telling them how utterly essential such powers will be to the efficient workings of the agencies concerned. There is no reason to be confident that the sensible option – namely a mass cull of the list of agencies allowed to hold such power – will occur. Again, one also predict that despite its libertarian foundations, the Act Party will do nothing to protect the rights of the individual when this Bill reaches the select committee.

Talking of robust oversight, one might have expected the Law Commission to do a bit more than collate and formalize the situation. Some basic and ancient rights are at stake here. As previously mentioned on Scoop, there is a pattern involved.

Initially, fresh powers of search, detention, use of secret evidence etc are sought by the authorities for what is claimed to be a very narrow and specialised reason – eg, to combat terrorism or certain types of crime that allegedly cannot be met by the usual methods of policing. All too soon, those powers then get extended to a wider and wider sector of society.

Last week for instance, Justice Minister Simon Power announced a new array of crime-fighting measures – in a package that included the erosion of the accused’s right to remain silent, and thus not able to be coerced into self incrimination. As usual, it was claimed that such measures would be limited to particular types of investigations, and require court approval etc.

There is, as the British law lords have noted, a creeping complacency involved as basic liberties continue to be whittled away – in the name of the combat of terrorism, or of more efficient policing. Is it too much to expect that the Law Commission might evaluate the changes that it is formalising a bit more critically – and place their likely impact in context with the erosion of the other rights of the accused occurring within our legal system? Or in the context of an investigation into how adequate the resourcing of our watchdog and oversight agencies really are?

If the Law Commission doesn’t do such work, who will? Oh yes, that’s right. The same human rights advocates and media outlets that Dr Young feels more inclined, in this case at least, to attack.

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