Human Rights Commission on Search and Surveillance Bill

The Human Rights Commission Submission is here. Extracts:

Freedom of expression, the right to peaceful assembly and association and the right to be free from unreasonable search and seizure are fundamental human rights that are essential to the functioning of a democratic society. For this reason the State’s power to intrude on those freedoms, including through surveillance of its citizens and interception of their conversations and other communications, is necessarily constrained. It is a question of striking an appropriate balance between the public interest and individual liberty.

And the balance we had, appears to be tipping into the direction of greater state powers to intercept.

While none of these rights are absolute, a high threshold is necessary to justify any restriction. As the Attorney-General’s advice notes, “the greater the degree of intrusiveness, the greater the justification that is required and, further, the greater the attendant safeguards to ensure that justification is present”

Covert surveillance is probably the most intrusive thing the state can do, so the justification should be great indeed. And it should primarily be restricted to criminal law enforcement by the Police, and security agencies. Not open to local Councils, the Commerce Commission etc.

While it is correct that the Bill stipulates that a search warrant can only be issued under specific conditions, the powers that are authorised as a result are extensive and will apply not only to the Police but to a wide variety of other enforcement agencies . It is concerning both that an issuing officer no longer needs to be a Judge but can be any “… other person” (provided they have sufficient knowledge, skill and experience) and that the threshold for seeking a warrant is that the officer only needs to have a “reasonable suspicion” that an offence is being, has been, or will be, committed . For these reasons, the Commission is not convinced that the powers in the Bill are necessarily consistent with the right to be free of unreasonable search and seizure.

The Privacy Commission made this point also.

The Bill not only consolidates existing police search powers in one Act but extends either all or aspects of the search and surveillance powers in Part 4 to a wide variety of non-police enforcement agencies .

The Commission questions the rationale for extending some of the powers created by the Bill to agencies such as the Commerce Commission which already has the power under s.98A of the Commerce Act 1986 to issue search warrants. If the legislation is enacted in its present form, employees of the Commerce Commission will be able detain people to determine if they are connected with the search or apply for a surveillance warrant to use interception or tracking devices. Or Dog Control officers (who already have a power of entry under s.14 of the Dog Control Act 1996) being able to enter premises to install a surveillance device.

This is the problem of trying to have a one size fit all law. Just because an agency may require the power of entry doesn’t mean they should be eligible to gain surveillance warrants.

The wide reach of the Bill means that it could have a disproportionate impact on journalists. Private homes and offices will not be exempt. An item in plain view may be taken the course of a search even if not identified in the warrant if the enforcement officer has reasonable grounds to believe he or she could have got a search warrant had they wanted to: cl.119. An external IT provider could be required to assist a person holding a search warrant to access and copy material held on a computer: c1.125 and computers will be able to be accessed remotely, or hacked into: cl.108(i).

The only protection for confidential journalistic sources is cl.130 which reinforces the qualified protection provided by s.68 of the Evidence Act but a Court may order disclosure of material that would disclose the identify of a source or enable it to be discovered, if it would be in the public interest to do so: s.68(2). This effectively modifies the presumption against disclosure in ss(1).

I wonder if the Commonwealth Press Union put in a submission?