Stop the Search and Surveillance Bill

Stop the Search and Surveillance Bill

Opinion Piece by Annemarie Thorby

The Search and Surveillance Bill is back on the agenda. Last time people managed to hinder its progress, but now it needs to stopped once and for all. It must be.

This Bill fundamentally alters the balance of powers between the State and individuals in this country. To put it bluntly and simplistically - this Bill massively increases state control at the cost of some core concepts of justice.

Some of its more nefarious clauses include the removal of both the right to silence, and the right not to incriminate oneself (right not to participate in one's own prosecution). The Bill also allows warrant-less surveillance, it equates 24-hour surveillance with a one-off search, it allows computers to be remote-accessed and gives police, Customs and Internal Affairs the right to break into homes to bug and film people. A lot of media are worried about the effect this Bill will have on whistle-blowers and anonymous sources. This Bill must be stopped.

This Bill is not new, it's been a long time in development.

The History

In 2002 Labour said search and surveillance powers were outdated and asked the Law Commission to write a report. The report was finally tabled in 2007 and the Search and Surveillance Powers Bill was born. However Labour lost the next election and the Bill was discharged. In its place, National launched the Search and Surveillance Bill. It was basically the same Bill with the word 'Powers' dropped.

At its first reading in Parliament, the only party to oppose the new Bill were the Greens. In October 2009, public submissions were heard against (or for) the Bill. A wide range of organisations and people spoke out against it. There were groups as diverse as law firms and unions, the NZ Law Society, the Human Rights Commission, the Privacy Commission, the Council of Civil Liberties, the Council of Trade Unions, the NZ Society of Authors, the NZ College of Clinical Psychologists and Telecom. There were only three submissions for the Bill, this included the Police Union.

In response, National put the Bill off until May 2010, and three months later an interim report was published. Re-submissions were called only from those who had given submissions on the original draft of the Bill.

After significant public pressure, submissions were opened up to the general public – resulting in 380 new submissions. However, just a handful of submitters were notified that they would be allowed to make oral submissions.

In November 2010 the Bill was reported back to parliament. In order to alleviate concerns that the Bill breached the Bill of Rights, a so-called purpose clause was added, which stated that the Bill cannot breach the Bill of Rights because that would be a breach of the Bill of Rights. There were a few other minor changes here and there, but nothing substantive. And there the Bill sat, until its second reading on Thursday, 1st March, this year.

It passed by 61 votes to 59 on Thursday evening, with National, ACT and United Future voting in support. The Bill will probably move to its committee stage during the next few weeks. The interim Video Camera Surveillance Law is set to expire in April, and the government wants the Search and Surveillance Bill up and running by then.

The Video Camera Surveillance (Temporary Measures) Act In an extremely controversial measure, National introduced the Video Camera Surveillance (Temporary Measures) Bill last year. It was basically legislation to retrospectively validate illegal conduct deliberately engaged in by the police.

In August 2011 the Supreme Court had ruled that during Operation 8 the police had unlawfully conducted covert surveillance on private land. It was ruled that as part of Operation 8, the operation that resulted in the October 15th 2007 police raids up and down the country, police had illegally used hidden cameras to gather evidence.

The Supreme Court ruling showed the lack of understanding the police have about the fundamentals of their mandate. It brought to light the fact that New Zealand police tend to do what they want, unless it is explicitly forbidden in law. They show little understanding of the fact, that they are controlled by law and can only do what is explicitly allowed.

National believed the Supreme Court ruling called for urgent measures. However, it was legislation that was not needed. Courts in New Zealand allow evidence gathered by unlawful means to be used. The actions of the police are weighed against the seriousness of the charges faced by the accused, and if the perceived illegality of the police is outweighed by the seriousness of the alleged offending of the accused, then that evidence can be allowed.

Many groups spoke out against the legislation, including the Law Commission, however it was rushed through Parliament last year with a six-month sunset clause written into it. That means the Act is set to expire on 18th April 2012.

This is why the Search and Surveillance Bill is back in the news.

And despite two revisions, not much in reality has changed. The Bill still introduces fundamental changes to core concepts of justice in this country.

What's Wrong With the Bill?

It is difficult to wade through the huge number of clauses and points in the Bill. But each time you do so, it becomes clearer that the Bill needs to be stopped, not only because of certain individual clauses, but more importantly because of its overall aims.

Stream-lining Powers

One of the stated aims of the Bill is to streamline search and surveillance powers between police and other government agencies. The reason given is to bring in line bureaucratic anomalies. But that reason is a deception. In 'stream-lining' powers, State powers are increased.

Historically, search and surveillance powers have always been tightly controlled and limited because they are intrusive and can be coercive. This used to be widely accepted. However, there has been a huge paradigm shift in the last thirty to fifty years.

A shift aptly highlighted in the following 1973 quote: "The police are the last people who should interfere with phones. To legalise phone tapping under any conditions is a step towards a police state or dictatorship." (National Party Leader, 1973)

That was just 39 years ago. National knew back then that the State is not always a static and benevolent institution. They knew that there always had to be a balance between the powers of the State and the rights of the individual. They knew that the power of the State must always be kept in check.

A lot has changed in such a short time.

Examination Orders and the Right to Silence

When this Bill becomes law, the right to silence will effectively no longer exist.

With an Examination Order, the police can demand that you report to them for questioning. You can be forced to answer questions. The supposed safe-guards built into the Bill are that the police can only use this Order for Serious Fraud offences carrying a sentence of 7 years or more imprisonment; business crime with a sentence of 5 years or more, and for investigating organised criminal groups. (Since it was first introduced in 1997, we have seen dramatic changes to the law governing organised crime. It has changed to such an extent that it is being used to prosecute the Urewera 4. And now that even Greenpeace activists are being charged with burglary, they could be the next group it is used against.)

Examination Orders were a power not included in the original Law Commission report. However Labour had plans to abolish the SFO so added these orders to the Search and Surveillance Powers Bill. They lost the election, National kept the SFO and the orders stayed in the new Bill. There they remain to this day.

When the Serious Fraud Office (SFO) was first created, there were some of us who opposed it. We argued that sooner or later its powers would be transferred to police and applied outside of the business context. We were right.

And because of this history of introducing laws and then expanding them, we know that sooner or later Examination Orders will be available for police to investigate all offences. We know that that is what they want. The State wants it there for all offences. Last year, through the Criminal Procedures Bill, National tried to remove the right to silence. They failed. Now they are getting it in the back-door through this Bill.

Soon the right to silence will be completely erased from law.

Production Orders and the Right Not to Incriminate Oneself

With this Order the police, or any non-police agency that has the power to search such as Dog Control Officers, Wine Officers and Maritime Security Officers, can demand that a person hands over documents they are suspected of having (or will have in the future). This order can even be used as an alternative to a search warrant. At the moment the Bill says that the Order applies only to documents. In the future, it could easily be expanded to any other article (thing).

When the Bill was first introduced, the Law Commission admitted this is a new power transferred and updated from the SFO. They said it was less intrusive than a search. They miss the point. A production order places the onus on the individual to provide the evidence of their guilt. They are ordered to incriminate themselves.

Current practice is that the police have to provide all the evidence to prove a person is guilty. An accused person does not have to participate in proving their own guilt. This right not to self-incriminate oneself has been in common law for a long time, some date it to the Reformation.

Associated with this privilege are other core concepts of the modern justice system, including a prohibition on torture, and an accused's right to remain silent and to have that not held against them.

With this Bill we are losing two of these privileges - the right to silence and the right not to self-incriminate. These are rights clung to for centuries as people used to know their history and knew why they were needed.

When these go, what will be next?

Nothing to Hide, Nothing to Fear

A common response to criticisms of the Bill is that if you have nothing to hide, you have nothing to fear.

That is a myth.

It has been proven time and again that State abuse is a dangerous thing, far more dangerous than any threat from drugs or gangs or whatever current reason the State uses to reduce civil liberties.

The State may say that the powers will only be used against 'bad' people or groups, but who the State deems bad changes over time. Laws introduced today, can be used against someone else tomorrow.

The State says that there are safeguards to curtail the powers, but we know that over time those safeguards will change. There will be mission-creep and the powers will be steadily widened. There will be other laws introduced and there will be little revisions here and there to this one until its powers are widened and it is barely comparable with the original.

A Bill that so significantly expands State powers to monitor and surveil people, a Bill that removes the right to silence and a Bill that ends the right not to participate in your own prosecution must be stopped.

‘If you’ve done nothing wrong, you have nothing to fear’ is a meaningless mantra. It comes from a position of naivety and lack of awareness of what has passed before us in history. History is riddled with examples of State power being used to not only control but also persecute and kill people.

'If you've done nothing wrong, you have nothing to fear' is a form of State propaganda to ensure that the majority stay mute until it is too late. We cannot stay dumb about the Search and Surveillance Bill.

A too fundamental shift in the balance of power between the State and individuals is created by this Bill. It is inconceivable that such dramatic changes to our justice system can be passed with only a majority of two votes through Parliament.

This Bill must be stopped now.

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