Barry Wilson and Ian McIntosh: Big brother to get more rights

Armed Offenders road-block at Ruatoki in October 2007. Photo / Rotorua Daily Post

Opinion

There is a saying: "If you have nothing to hide you have nothing to fear".

New Zealanders who trot out that tired mantra to diminish fears about the multi-headed monster known as the Search and Surveillance Bill have very short memories.

Two years ago in the police raids on Ruatoki, innocent families were held at gunpoint, and their homes searched by armed police officers in black ninja gear.

Others were held up at illegal road blocks, forced out of their cars and photographed.

Other innocent activists had their homes and businesses searched under warrant.

In one typical case where no charges were laid, a computer hard drive was seized, causing great damage to the business.

It was returned only nine months later after the owner threatened to go to the media.

The Independent Police Conduct Authority is still investigating complaints made as a result of those raids and has yet to produce its report.

Those affected will receive no comfort from one of the architects of the bill, Law Commission deputy president Dr Warren Young, who insists it does not extend existing search and surveillance powers.

He maintains there will be no fishing expeditions by state agencies covered in the bill. He is wrong.

The bill gives powers for police and about 70 other state agencies with enforcement duties to remotely hack into and trawl through computers, and copy any document.

The existing laws are draconian enough. As the bill stands, powers of enforcement agencies are extended in the following ways:

If there is any doubt as to whether an item is covered by a search warrant it may still be taken away for testing. This gives a licence to remove a hard drive from a business.

An enforcement officer can remove any item which he believes might have been covered by a hypothetical search warrant.

Such provisions fly in the face of a basic principle in a free society - that general search warrants are illegal. They have to be specific on what is wanted.

In a landmark case under the New Zealand Bill of Rights Act, police looking for drugs under a search warrant raided the wrong house.

Ignoring strong protests from family members, police went ahead with a search, the officer in charge commenting "We often get it wrong, but while we're here, we might as well have a look around." The Court of Appeal disagreed, awarding substantial damages.

In its present form, the bill gives state agencies the ability to "get it wrong" with minimal fear of consequences.

Strip searching: The bill gives enforcement agencies the freedom to frame their own guidelines for carrying out something as invasive as a strip search. To compound the error, the bill frees each agency from illegality for failure to comply with such guidelines.

A further shortcoming is that the police and other enforcement agencies will regularly be able to use "opt out" clauses and refuse to tell people what surveillance they have been under because the investigations are deemed to be ongoing.

The importance of getting the warrant exactly right has been downgraded in some enforcement agencies by shifting the power to issue a warrant from a judge to someone called an "issuing officer" who could be a court registrar or a Justice of the Peace.

Perhaps most disturbingly, the bill opens the way for as yet unknown forms of surveillance (ie, other than interception tracking or visual surveillance device).

It is also incorrect of Dr Young to suggest that rather than extending powers, the bill provides safeguards for individual citizens.

A key component of the individual's right to privacy is the right to be free from unwanted surveillance. The surveillance powers provided for in this bill represent a major erosion of already greatly diminished rights to privacy in New Zealand society.

The bill authorises the wholesale extension of police powers to about 70 state agencies with enforcement powers. This has been done by the clumsy importation of those powers into other statutes - instead of basing them on what search officers in particular enforcement agencies actually do.

Why extend such powers to organisations such as the Pig Marketing Board, the Meat Board and the Overseas Investment Commission? Parts of the bill read like a veritable "shopping list" for enforcement agencies generally.

Dr Young concedes the bill does not address the search powers already held by enforcement agencies. He notes the Law Commission never reviewed all of them.

No explanation or justification has been offered for the extension of such powers.

The bill is quite simply a blueprint for a surveillance society. Dr Young is wrong to argue otherwise.

* Barry Wilson is president and Ian McIntosh an executive member of the Auckland Council for Civil Liberties. Both are barristers.