New bill has us searching for the truth

BY WARREN YOUNG

OPINION: The Search and Surveillance Bill at present before Parliament has been the subject of widespread criticism.

Several commentators have argued that it gives police  and other law enforcement agencies sweeping new powers that have not  been adequately justified.

Terms like "spying" and "hacking into computers" have been bandied about, with the implication that if enacted the legislation will result in a major erosion of civil liberties.

These criticisms have been massively overblown and generated more heat than light. They have taken two main forms.

First, commentators have argued that part 4 of the bill authorises a whole range of non-police law enforcement agencies (of which there are many) to exercise a wide range of new powers that they do not currently have.

For the most part, these criticisms have been based upon a remarkable misunderstanding of both the current law and the provisions of the bill.

Part 4 does not provide new stand-alone search powers. Instead, when an agency has an existing search power, part 4 spells out how that power is to be exercised. Most of the provisions reflect the approach already taken by the courts in determining (after the event) whether a search was lawful and reasonable.

For example, while critics of the bill have alleged that part 4 will allow agencies for the first time to conduct searches of computers, this is incorrect. With few exceptions, the existence of that power has already been recognised by the courts when the issue has arisen. That is simply because it would be nonsensical in the modern world to allow the search or inspection of hard-copy documents but not electronic documents.

Part 4 states, for the first time, how computer searches are to be undertaken so that the intrusion on privacy is minimised. Warrants will still need to be precise about what agencies are looking for; and powers to search without warrant will still need to be confined to the lawful purposes of the search. Agencies will not be permitted to trawl through computers on "fishing expeditions". Nor will they have a power to hack into private computers.

There will be some changes to existing provisions governing the way in which searches are to be carried out by particular agencies. These existing provisions are often inconsistent with each other for no good reason. The bill ensures that the procedures to be followed by agencies exercising a search power are the same unless there is a good reason to distinguish between them. But care has been taken not to give agencies powers that they do not need. For example, the bill is explicit that, unlike police, many non-police agencies should not have the power to detain people who are found at search scenes.

It is a profound irony that, given the criticisms of it, part 4 does more to safeguard individual rights than the current law. It imposes many specific obligations on agencies to ensure their existing powers are exercised in a reasonable manner and provides more specific means of redress if that does not occur.

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 that should generally be available to law enforcement agencies that have a search power. That is the approach taken in part 3 of the bill.

This does not mean that regulatory agencies and employers will be able to undertake routine surveillance of private premises. A warrant for the use of a surveillance device may be granted only where the agency can otherwise obtain a search warrant, and can demonstrate to a judge both reasonable grounds to suspect that an offence has been committed and reasonable grounds to believe the surveillance will obtain evidence of that offending. There are also other safeguards, such as detailed reporting obligations when a surveillance power is exercised.

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.

MUCH of the concern about the surveillance provisions has focused on the regulation of visual surveillance. But at present there is no control over such surveillance at all unless it involves a trespass. Any agency may observe and record activity in a private home for long periods of time, provided that it does so from the street or lawfully from neighbouring premises. The bill now requires that before such surveillance using a device can be undertaken, the enforcement officer must obtain a warrant from a judge. This is a significant new limitation on powers.

Agencies will also have the ability to obtain a warrant to engage in surveillance that involves a trespass and at present would be unlawful. In that respect, the powers of enforcement agencies are expanded. Again, this is an issue the committee will no doubt wish to examine closely.

Other misunderstandings about the bill have also emerged in the public debate. A new power in the bill is a production order that will require those upon whom it is served to produce specified documents. It will be available for all agencies as an alternative to a search warrant. Some have regarded this as an intrusive and unwarranted power in the hands of regulatory agencies (although many of them actually already have such a power). In fact, the bill limits it to circumstances in which a search warrant for the investigation of criminal offending could be obtained. Because it is less intrusive than a search, it ensures that evidence can be gathered in the least intrusive manner possible.

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

Many people have expressed surprise at the range of powers available to agencies other than police (such as the Pork Industry Board). The commission never reviewed all of these powers and the bill does not address them. They are in the existing law and in some instances have been there for many years. They would need to be reviewed on a case-by-case basis in order to test if they are still required.

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