New Zealanders kill the BILL – Search and Surveillance Bill

28 02 2011

The Bill:

• Allows for warrantless searches of the homes of anybody detained by the Police.

• Allows the Police and other state agencies to take anything in ‘plain view’ during a raid, without having to specify it on a search warrant.

• Creates a provision called ‘residual warrants’. Residual warrants allow state agencies to use any new surveillance technology created, even if laws creating guidelines relating to its use have not been passed by Parliament.

• Grants the same powers the Police enjoy to 70 other state agencies including Work and Income New Zealand (WINZ) and the Pork Board.

• Effectively abolishes the right to silence by allowing Police and other state agencies to apply for ‘examination and production orders’ which force people to report for compulsory questioning and to surrender documents. The Human Rights Commission has raised concerns that these provisions could be used by police to harass trade unionists and political activists falsely accused of minor charges, such as trespass.

• Allows for state agencies to apply for a warrant for ongoing video surveillance of private property requiring only the same criteria needed for a one off search. In other Western countries, such as Canada, the USA and much of Western Europe, ongoing video surveillance of private property is considered a very serious breach of privacy, so Police must demonstrate to the courts that every other possible way of gaining the evidence has failed. No such restriction is included in this Bill.

“These rights should not even be granted to the Police, let alone 70 other state agencies” continued Mr Walker. “We must stand up to defend our freedoms”. Press Release: Cameron Walker

If this bill becomes law, the so-called right to silence will no longer exist. Using an Examination Order, the police can demand that you report to them for questioning. The criterion is that they suspect you of being involved with two or more others in the commission (or plotting) of any offence punishable by imprisonment, for example even trespass or disorderly behaviour would qualify.

The only way to refuse this order is to cite legal jargon: ‘Section 60 of the Evidence Act’ and claim ‘privilege against self-incrimination’. But even if you happen to know this, it may not help you – you can be ordered in front of a judge where you then have to offer evidence as to why you would be likely to
incriminate yourself if you talked. Catch-22.

Something else that changes with this bill, is the ‘right’ you have to not participate in proving your guilt. Current practice is that the police have to provide all the evidence – next year they can sit back and order you to produce some of that evidence. Instead of getting a search warrant, they will be able to apply for a Production Order. This order will require you to produce documents you are suspected of having (or will have) in the future and is available to any enforcement officer covered by the Act. If you refuse to supply the documentation they are after, the sentence is a maximum of a year’s imprisonment.

Surveillance devices are another invasive part of the bill. They include bugs, video cameras and tracking devices for cars.
Currently, there are no specific regulations around surveillance on private property. However, police need a warrant to enter your house and install a camera or bug. The bill introduces the concept of a surveillance device warrant, which can be obtained by any enforcement officer (not just police) under the same criteria as a search warrant – the suspicion that the search (or surveillance) will uncover evidential material necessary for the prosecution of a crime. This equates ongoing video surveillance with a one-off search.

There are also options for warrant-less searches. Once you’re arrested (or even just detained) the police and enforcement officers are able to search your home, workplace, car, friend’s home or any place with which you are associated, without a warrant – if they believe they can find evidential material related to the offence they’re holding you for. This power, combined with ‘plain view’ searches is a nightmare. Whilst you are sitting in the cells, your home can be turned upside down with no warrant.


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One response

28 03 2011
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