In an article on October 23, the Herald reported that the Search and Surveillance Bill before Parliament would give "sweeping powers to spy, bug conversations and hack into private computers" to a web of state agencies.
The bill arose from a Law Commission report that recommended comprehensive reform of search and surveillance powers. The criticisms about it have been massively overblown and generated more heat than light.
They have taken two main forms. First, commentators have argued that Part 4 of the bill affords new powers (including the power to hack into computers) to both police and other enforcement agencies. These criticisms have been based upon a remarkable misunderstanding of both the current law and the provisions of the bill.
Part 4 does not provide new standalone search powers. Instead, when an agency has an existing search power, Part 4 spells out how that power is to be exercised.
Most of the provisions reflect the approach already taken by the courts in determining (after the event) whether a search was lawful and reasonable.
For example, while critics have alleged that Part 4 will allow agencies for the first time to conduct searches of computers, this is incorrect. The existence of that power has already been recognised if there are reasonable grounds to believe that the evidence is held on a computer.
Part 4 states, for the first time, how computer searches are to be undertaken so that the intrusion on privacy is minimised. Warrants will still need to be precise about what agencies are looking for; they will not permit agencies to trawl through computers on "fishing expeditions". No power is granted to hack into private computers. It is a profound irony that, given the criticisms of it, Part 4 does more to safeguard individual rights than the present law. It imposes many specific obligations on agencies to ensure that their existing powers are exercised in a reasonable manner and provides more specific means of redress if that does not occur.
The second set of criticisms relate to the fact that surveillance powers are extended to a greater range of agencies and types of offences. These extended powers need to be seen in context.
The commission took the view that surveillance is not necessarily more intrusive than a search of private premises; whether it is depends entirely on the circumstances. We regarded surveillance as an alternative form of evidence-gathering which should generally be available to law enforcement agencies that have a search power. That is the approach taken in Part 3 of the bill.
This does not mean that regulatory agencies and employers will be able to undertake routine surveillance of private premises. A warrant for the use of a surveillance device may only be granted where the agency could otherwise obtain a search warrant, and can demonstrate to a judge both reasonable grounds to suspect that an offence has been committed and reasonable grounds to believe the surveillance will obtain evidence of that offending. There are also other safeguards such as detailed reporting obligations when a surveillance power is exercised.
Views may differ about whether it is appropriate to provide a surveillance power to agencies that already have the power to search private premises. Certainly agencies should only have the powers that they need. They must also have the appropriate expertise and training to use those powers. No doubt the select committee will wish to consider closely whether more limits or safeguards are needed.
Much of the concern about the surveillance provisions has focused on the regulation of visual surveillance. This is the elephant in the room. At present there is no control over such surveillance at all unless it involves a trespass. Any agency may observe and record activity in a private home for long periods of time, provided that they do so from the street or lawfully from neighbouring premises. The bill now requires that before such surveillance using a device can be undertaken, the enforcement officer must obtain a warrant. This is a significant new limitation on powers.
Agencies will also be able to obtain a warrant to engage in surveillance that involves a trespass and would currently be unlawful. In that respect, the powers of enforcement agencies are expanded. Again, this is an issue the select committee will no doubt wish to examine closely.
Other misunderstandings about the bill have also emerged in the public debate. A new power is a production order that will require those upon whom it is served to produce specified documents. It will be available for all agencies as an alternative to a search warrant. Some have regarded this as an intrusive and unwarranted power in the hands of regulatory agencies. In fact, the bill limits it to circumstances in which a search warrant for the investigation of criminal offending could be obtained. Because it is less intrusive than a search, it ensures that evidence can be gathered in the least intrusive manner possible.
The emphasis in the bill has been on achieving a balance between the needs of law enforcement and human rights. There is good reason for this. Search powers that encroach too far on human rights are unlikely to gain community support. But search powers that are too tightly controlled and prevent law enforcement officers from doing their job effectively jeopardise community protection and bring human rights values into disrepute.
Many people have expressed surprise at the range of powers available to agencies other than the police (such as the Pork Industry Board). The commission never reviewed all of these powers and the bill does not address them. They would need to be reviewed on a case-by-case basis in order to test if they were still required.
* Dr Warren Young is the deputy president of the New Zealand Law Commission.