Law Commission on Search and Surveillance Bill

Law Commission Deputy President Warren Young has responded in the Herald to some of the criticisms of the Search and Surveillance Bill. He talks about how computer searches are already an existing power, and also surveillance powers which I focus on:

The second set of criticisms relate to the fact that surveillance powers are extended to a greater range of agencies and types of offences. These extended powers need to be seen in context.

The commission took the view that surveillance is not necessarily more intrusive than a search of private premises; whether it is depends entirely on the circumstances. We regarded surveillance as an alternative form of evidence-gathering which should generally be available to law enforcement agencies that have a search power. That is the approach taken in Part 3 of the bill.

I respectfully disagree with the assertion that covert surveillance is not necessarily more intrusive than a search. I regard having the state break into my house, planting bugs and concealing what they have done as hugely more intrusive than someone turning up at my front door with a search warrant.

Views may differ about whether it is appropriate to provide a surveillance power to agencies that already have the power to search private premises. Certainly agencies should only have the powers that they need. They must also have the appropriate expertise and training to use those powers. No doubt the select committee will wish to consider closely whether more limits or safeguards are needed.

I believe it is best that the powers be limited to existing agencies such as the Police. I don’t think New Zealanders want local Councils, the Pork Board and the Commerce Commission with the ability to bug them – no matter how remote the possibility.

The emphasis in the bill has been on achieving a balance between the needs of law enforcement and human rights. There is good reason for this. Search powers that encroach too far on human rights are unlikely to gain community support. But search powers that are too tightly controlled and prevent law enforcement officers from doing their job effectively jeopardise community protection and bring human rights values into disrepute.

I think the balance has swung too far in the Bill, and it should not proceed if it is not amended. However like the Law Commission I am optimistic that the Select Committee will make some changes that will achieve a better balance.