The Search and Surveillance Bill: A Threat to Our Civil Rights

Cameron Walker, Published in Craccum 19 April 2010

National Day of Action against the Search and Surveillance Bill: April 24
On Saturday 24th April there will be protests around the country against the Search and Surveillance Bill. The Auckland protest will start at 2pm, opposite the Town Hall, Queen Street.

The Search and Surveillance Bill is a law currently being debated by the New Zealand Parliament. According to its supporters, such as the National and Labour Parties, it is necessary because New Zealand’s laws relating to search and surveillance powers are currently spread across a large number of statutes and it would make things much easier for the Police and other state agencies if they were all put in one statute. However, the Bill not only does this but also creates a number of new powers for state agencies to monitor, search and detain people. The Auckland Council for Civil Liberties refers to it as ‘perhaps the greatest single expansion of state powers of entry, seizure and surveillance in New Zealand history’. Bizarrely the new powers are not just granted to the Police but also 70 other state agencies, including the Pork Board and Work and Income NZ (WINZ). At its first reading in Parliament only the Greens voted against it.

The right to silence has long been considered a fundamental part of living in a democratic society. It provides some protection to those undergoing police interrogation and questioning from being tricked into providing information that could lead to prosecution for criminal activities that they have taken no part in. As anyone who has been arrested knows, police officers ask detainees probing questions that can trick the inexperienced into admitting guilt or informing on others, even though they may well have done nothing wrong. This is why the right to only provide your name, address and occupation when either under arrest or dealing with police in general, in order to leave matters of guilt to the courts, is so important. The Search and Surveillance Bill heavily undermines this important civil right. Using a provision known as an ‘Examination Order’ the Police and other enforcement agencies will be able to demand people to report for questioning.

The Police and other enforcement agencies can get an Examination Order if they suspect someone of plotting, with two or more people, any offence that is punishable by imprisonment. Even very minor offences, such as trespass and disorderly behaviour are punishable by imprisonment. Someone can refuse to comply with an Examination Order if they cite Section 60 of the Evidence Act to claim privilege against self incrimination. However, to do this one can be required to go before a judge and explain why they were likely to incriminate themselves. Somewhat of a Catch 22.

The Human Rights Commission are concerned that Examination Orders could be used against trade union activists while they are simply doing their job. Disreputable employers regularly accuse union organisers of trespass, when they are exercising their legal right to enter work places and speak to workers. In a recent column for the Herald on Sunday, Matt McCarten, the National Secretary for Unite Union, wrote that during industrial disputes the Police regularly arrest union organisers on bogus trespass charges and make it a condition of bail that they are not allowed near the workplace in question for the duration of the dispute. Months later the charges are almost always dismissed in court. Recently the Manukau District Court awarded a Unite Union organiser $4000 in damages for false arrest. The Search and Surveillance Bill will give the Police more powers to interfere with union organisers’ important job of standing up for workers.

Using a provision in the Bill known as a `Production Order’, enforcement agencies can force people to participate in proving their own guilt. A Production Order forces people to give documents they are suspected of having in their [procession] possession, to the Police and other enforcement agencies. If someone refuses to supply the documentation they can be sentenced to one year in prison.

A number of provisions in the Bill are shrouded in confusing language. One part of the Bill refers to `residual warrants’. What this effectively means is that state agencies may use any new surveillance technologies that are developed, without Parliament having to pass legislation relating to their use. In the future some very invasive surveillance device could be created. In a democratic society, under the rule of law, it is important that there are limits placed on the use of each new surveillance device that is obtained by state agencies. In 1765 the courts in Britain ruled that the state could not have a ‘general warrant’ that allowed it to search anyone’s house whenever it wanted. The state could only have powers that were proscribed by law. Some legal experts have pointed out that the residual warrant provision essentially overturns this long-standing principle, considered essential in democratic countries. The Bill also allows for ongoing video surveillance on private property.

October 15 Solidarity, a support group set up for people affected by the Police’s so called ‘terror raids’ of 2007, argue that the Search and Surveillance Bill effectively legalises many of the legally questionable actions taken by Police during the raids. Police raided houses across the country with search warrants relating to firearms and explosives. In a number of homes the Police confiscated things that weren’t on the search warrants, such as children’s clothing, computers and, at Wellington’s 128 activist centre, even a bag of avocados. The Search and Surveillance Bill allows Police to take anything in ‘plain view’ whilst legally on premises, even if it is not on a search warrant. A number of lawyers have condemned this as an excuse for Police to go on ‘fishing expeditions’. While some items potentially in plain view, such as sachets of heroin, may be clearly illegal, other items such as computers and cell phones are items of uncertain status and could be taken for no other reason than the fact that Clause 109 of the Bill authorises Police to do so.

During the 2007 `terror raids’, Taupo couple Joanna Pearsall and Bryan Innes, organisers of the Taupo eco-show, had their house raided by Police. The couple had the most tenuous link to any of the accused; their daughter’s partner was a relation of some of those arrested in Ruatoki. Police seized computers belonging to the couple, their daughter and a visiting Swedish academic who was to speak at the eco-show. The items were not returned for eleven months, making it incredibly difficult to organise the eco-show and continue running their environmental education business. This illustrates the worrying impact increasing the power of the state to go on ‘fishing expeditions’ in people’s houses could have.

Warrantless searches of people’s homes, workplaces and cars are the common practice of dictatorships and autocratic regimes. Under the Search and Surveillance Bill if someone is arrested, their house, workplace or anywhere else they are associated with, such as a friend’s home, can be raided without a warrant if Police or other enforcement officers believe they may find material related to the offence. It is scary to think how this provision could potentially be abused.

The Search and Surveillance Bill is an unjustified attack on civil rights that have long been enshrined in law for centuries in democratic countries. These powers should not even be granted to the Police, let alone government agencies such as WINZ and the Pork Board. It is important that we speak out against this Bill and other attacks on civil liberties.

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