Bell Gully on Search and Surveillance Bill

The Belly Gully submission on the Search & Surveillance Bill makes some excellent points. It is attached here – Search&Surveillance_submission_Sep09[1]

Some extracts:

Bell Gully submits that the Bill’s premise that each of the government agencies to which it applies ought to share common search and surveillance powers is flawed. In particular, we are concerned that this approach grants broad powers of surveillance to some regulatory bodies where such powers are not justified by either the scope of their responsibilities or the nature of the offences that they are tasked with investigating. We consider that the investigative powers of a government agency should be appropriately tailored to the relevant regulatory context.

I think this is key. The Law Commission is generally very good at simplifying law, and in this case they have proposed a standard regime for all warrants and surveillance. But this is one of those areas where a standard regime may not be desirable – it is not a one size fits all.

Therefore the effect of Part 4 and Part 5 is to extend to non-police agencies (such as the Commerce Commission, the New Zealand Meat Board, the Ministry of Labour, and Local Authorities) the right to obtain a surveillance warrant, including the power to place a covert listening and/or recording device on private property.

Now these agencies already have the ability to get a search warrant. But this is also giving them the right to place covert listening or recording devices, and that is a step up from a search warrant. They note:

The installation involves the covert entry by a state agent into private property.

And I think Bell Gully make an excellent point about the difference between Police and other agencies:

The ability of a government agency to carry out surveillance in the ways contemplated by the Bill fundamentally changes the character of the relationship between the regulator and the regulated. Unlike the Police in their interaction with criminals, government agencies and regulators interact frequently with people and businesses in the relevant industry. It is therefore important that government agencies and those subject to their jurisdiction work to maintain goodwill.

The Police don’t have to maintain a relationship with the Mongrel Mob. But imagine what would happen if the Commerce Commission (legally) bugged Vodafone’s board room – there would be total hostility.

We note the Law Commission’s observation that, “the Police themselves expressed reservations to us about the desirability of this, believing that the activity might become too widespread and uncontrolled.” The Law Commission does not provide a detailed summary of the basis for the Police reservations. We suspect they reflect the fact that non-Police agencies do not have the checks and balances that exist in the Police culture of supervision, training and discipline, which constrain the misuse of surveillance powers. We share these reservations and suggest that the power to obtain surveillance warrants should only be granted where there is sufficient justification and robust supervision and training to minimise misuse.

So even the Police are not that keen on having a score of Govt agencies with the ability to bug people.

We believe that the better approach may be for non-Police agencies to refer serious offending to the Police and request that the Police obtain a warrant on their behalf.

Yes.

If any other submitters on the Bill want to send me their submissions, I’m happy to read them and as appropriate blog them. I think it s very important the Bill not be reported back without significant amendments.