Police Minister Mark Mitchell says the change will make the country safer. Photo / Mark Mitchell
By Phil Pennington of RNZ
A law change around police powers to collect information about people is being promised by the Government.
An expert in criminal procedure says it could signal a “sea change” to expand powers, though nothing is clear yet.
The police union says officers desperately need clearer laws, after a couple of landmark cases hobbled them – especially when they could be using new technology tools such as facial recognition more.
Police Minister Mark Mitchell talks about making the country safer.
But civil liberties groups have warned of a step towards a surveillance state.
Details of the law change are sketchy and Mitchell would not provide any.
“In the Quarter 3 plan the Government has signalled its clear intent to change the law, so that police have the lawful ability to collect, use and retain information about individuals in public places for lawful policing purposes,” he told RNZ.
“As the specifics are currently being worked through, we will have more to say at the right time.”
Privacy Commissioner Michael Webster had been consulted but he also would not give any details.
This followed a couple of landmark cases: in one, the Supreme Court threw out a case that relied on a photo of a man – Mahia Tamiefuna – taken by police in public that coincidentally matched to a crime; and police being ordered to delete countless thousands of pictures – mostly of young Māori – that they took although they were not investigating them.
Though it was not certain, it was very likely the law changes were sparked by the cases, various observers told RNZ.
“Tamiefuna was very clear, there is no general evidence-gathering power, you know, from people on a public street in New Zealand,” said University of Auckland associate law professor and expert in police investigations, Scott Optican.
“I mean, if they’re talking about some sort of powers of police to just stop people and get information particulars, I mean, and to hold that information in some way, shape or form, short of having actual grounds to arrest or detain under existing New Zealand law, yeah, that would be a real sea change.”
But “it was not even clear what they mean by evidence, it’s not clear what they mean by public places. It’s not clear what they mean by what level of suspicion, if any, suspicion.”
Police already had a lot of powers, enabled and controlled under law, and did they need more was the question, he said.
“It’s just by no means clear to me that this is worth it.
“What the power would look like, what they’re proposing. And whether it would really be beneficial compared to the potential significant abuses and intrusions on privacy that it could entail. We’re just going to have to wait and see.”
Mitchell, though, had no doubts.
“You cannot put a price on public safety,” the minister told RNZ.
“Allowing police the ability to lawfully hold information about individuals who are considered a threat to the public, and themselves, is one of the actions this Government is taking to restore law and order, and make this country safer.”
Asked for more details, his spokesperson said: “When Cabinet has taken decisions, the minister will have more to say. Speculation until that has happened is inaccurate and unhelpful.”
Law and order was a big issue for the coalition parties at the last election campaign.
Police Association head Chris Cahill said Tamiefuna and the mass photos cases had left officers very uncertain.
For instance, they were reluctant to take photos in public of gang members unless they were part of a specific investigation.
“We’ve gone from police operating in a way they always thought was legal, to the Tamiefuna case and now having... to go back almost the opposite,” Cahill told RNZ.
“Some balance needs to be restored.
“I’d also question whether society understands what police should or shouldn’t be able to do and whether things are changing [because] you’ve got facial recognition technology, these sorts of things.”
Cahill talked about needing clarity and guidelines acceptable to both sides.
The Council for Civil Liberties and the Privacy Foundation would not disagree on clarity – they saw grounds for alarm in the scant information coming from Mitchell.
“We need more information about this so that we can make proper judgments,” said council chair Thomas Beagle.
Police went too far when they illegally photographed young Māori boys “just up the road from me in Masterton” in what for years was routine police practice, he said.
“It was an invasion of privacy, and we’re worried that this [law change] might be interfering with that and trying to sort of, you know, gazump the Privacy Commissioner,” Beagle said.
Both he and the foundation’s Gehan Gunasekara were calling for a national debate and a reset on surveillance laws, before technology took things too far, carrying law enforcement along with it.
“With the click of a mouse, you can combine... licence plate information, people’s movements, the GPS,” Gunasekara said.
“You know the old argument is parroted, ‘If you’ve got nothing to hide, you’ve got nothing to fear’, but it’s not the police’s business to know what everyone is doing all the time.”
The police’s now-routine but rapidly escalating access to private surveillance camera footage made the problems much worse, he said.
Optican said all those new technologies were in play.
“As we develop new and more exotic methods of surveillance, where people are just surveilled because they’re in the field of view of cameras ... and that information is made available to the police we’re going to have to have a discussion.
“That’s a very new debate and we’re going to have to have it a lot more because we just don’t have laws fit for purpose.”
Cahill said the coming law change by the Government should not shy away from the tech questions.
“I think it should grapple with that, otherwise it’s going to be out of date so quickly.
“I mean, the use of facial recognition technology can be a game-changer for the safety of New Zealanders” but it needed debate around how it was used, he said.
He added the union had had input to the minister about evidence-gathering laws but did not know what Mitchell had in mind.
The promised law change is almost certainly in part motivated by the case of Tamiefuna.
He was convicted and sentenced to prison in 2021 over an aggravated robbery in 2019. But the case was dropped when the Supreme Court ruled a photo taken by police of him, by chance at a traffic stop, could not be used in evidence.
The central question was whether a photo taken by a police officer on a public road during a routine traffic stop could be used to convict a person of an unrelated crime.
His defence lawyers argued this highlighted important principles of privacy and the limits on police powers.
“A Supreme Court decision may have implications for how police gather and use photos as evidence,” Dr Alexandra Allen-Franks of Auckland University wrote in an analysis.
– RNZ