Stop the long arm of the law from getting even longer

BY ANNEMARIE THORBY
Last updated 08:09 24/11/2009
CONTENTIOUS LAW: The bill, meant to come back before the House this year, has been delayed until May 2010, partly because of the widespread public reaction to it.
PHIL REID/The Dominion Post
CONTENTIOUS LAW: The bill, meant to come back before the House this year, has been delayed until May 2010, partly because of the widespread public reaction to it.

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Ever since public submissions were heard in October, Warren Young, deputy commissioner of the Law Commission, has been busy responding to criticisms of the Search and Surveillance Bill.

OPINION: The bill, meant to come back before the House this year, has been delayed until May 2010, partly because of the widespread public reaction to it.

According to Dr Young, he's the only one who's got it right; the rest of us, including the Law Society, some judges, Simon Power and Annette King, are all wrong. However, it's Dr Young who's out on a limb.

The current justice minister, Simon Power, and the previous one, Annette King, know that the bill extends search and surveillance powers. Others agree. The privacy commissioner and the Human Rights Commission have both said the bill needs major changes before it can be enacted. Then there's many of us who believe the bill should be scrapped - it is far too invasive and gives police and enforcement officers far too many powers.

A lot of media focus has been on the expansion of powers to a range of enforcement officers. There have been tongue-in- cheek comments about the Pork Industry Board now having the power to spy on households and to legally trespass to install listening devices.

However, with a search warrant the board already has the power to search businesses and private homes. Under the new bill, they can use dogs, break down the doors in the hunt for pig meat, and even refuse to identify themselves in certain circumstances. Hidden behind witty repartees about the bill are some very real disturbing features.

One such feature is an examination order. This is an order effectively removing the right to silence. With this power, police can demand that a person report to them for questioning. When police suspect a person of being involved with two or more others in the commission (or plotting) of any offence punishable by imprisonment (and that is any offence - for example, trespass), police can apply for an examination order. So the next time Greenpeace plans to hang a banner from a building, it better make sure its plans are top secret.

It's hard to say no to an examination order. Unless a person specifically cites Section 60 of the Evidence Act and claims "privilege against self-incrimination", they have to appear for questioning. Even citing Section 60 is no protection. Police can appeal to a judge. The person then has to appear in court and explain why they are likely to incriminate themselves if they talked to police. You are damned if you do and damned if you don't.

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The duration of an examination order is up to 30 days and there is only one penalty for refusing to comply: a maximum sentence of one year's imprisonment.

Examination orders weren't part of the Law Commission's original report to Parliament. They were inserted into the bill by the Labour government. Labour argued it was abolishing the Serious Fraud Office so it was shifting those powers over to police. But Labour lost the election, National is keeping the SFO, and examination orders are staying in the bill.

When the SFO was created, there were many of us who opposed it. We argued that sooner or later its powers would be transferred to police and applied outside of the business context. We were right.

Another unpleasant part of the bill is a production order. It requires a person to produce documents they are suspected of having (or will have in the future). This order is available to any enforcement officer covered by the act and is something you cannot refuse. Basically, if a search does not uncover documents that police (or enforcement officers) expect to find, they can apply for a production order. This order can even be used as an alternative to a search warrant because the same criteria apply.

Dr Young admits this is a new power but calls it less intrusive than a search. He misses the point. A production order places the onus on the individual to provide the evidence of their guilt. They are ordered to incriminate themselves, but what if police (or enforcement officers) are on the wrong track and the person simply doesn't have the document? The only punishment for not complying with a production order is, again, up to a year's imprisonment.

It is too easy to envisage this in a George Orwell novel - bureaucrats sitting in an office churning out production orders. If you do not produce what is ordered, you go to prison. If you do produce what is ordered, you go to court first before possibly ending up in prison.

Examination and production orders are only two examples showing how the bill fundamentally alters New Zealand law. There are many more insidious legal manoeuverings hidden within the 197 pages and 316 clauses of the bill, including warrant-less searches, the use of surveillance devices and road-blocks.

Dr Young believes that codifying current search and surveillance practice will make the application of the law easier for all enforcement officers, which is obvious, but he also claims that doing so protects human rights.

However, what Dr Young is failing to understand is that this bill is leading us on the slippery road to a totalitarian state. It gives more powers to police and enforcement agencies and changes some core concepts in law - including the right to silence and the right not to incriminate oneself.

Annemarie Thorby, who made a submission on the bill, is a member of the October 15th Solidarity Group, a group formed in the aftermath of the police raids of October 2007.

- The Dominion Post

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