Source: Radio New Zealand
Police Minister Mark Mitchell. RNZ / Samuel Rillstone
- A new bill would give police new powers but just how far it goes will now be fought over in select committee.
- The Privacy Commissioner says it sets the bar too low, but a Justice Ministry push for more safeguards was rejected.
- A criminal procedure expert warns it leaves so much up to police discretion it will likely land them in lots of court challenges.
- A hurry around the bill led to limited consultation with the public, Māori and over impacts on children.
A big step towards mass surveillance or restoring common sense powers to police to collect evidence and fight crime?
A bill just introduced to Parliament delivers new powers to police to move or detain someone, but just how far it goes depends who you listen to.
Alarm and reassurance were both in play when Mark Mitchell tabled the Policing Amendment Bill at its first reading before a nearly empty Parliament on Tuesday evening.
“I want to be very clear that this bill will not provide additional powers to police that could be construed as enabling mechanisms for mass surveillance of the New Zealand public,” the Police Minister told the House.
Labour’s Camilla Belich. ©VNP / Phil Smith
Labour’s Camilla Belich retorted that it was too vague to be sure.
“We don’t want a situation where we have an Orwellian society of mass surveillance, where there is unreasonable collection of personal data, which is then in some instances used to charge people with offences and … there isn’t enough detail in this bill to date that … should assure the House that situation will not arise,” she said.
The bill allowed for police to record short live videos in public if they judged that was justified.
Law professor Gehan Gunasekara bridled at Mitchell’s repeated statements that the bill “restored” police powers.
“It doesn’t restore the status quo. It changes the status quo,” he said.
Law professor Gehan Gunasekara. Supplied
‘Safeguards’
The bill in a preamble said two events “have together narrowed the law” so that police now had less power to photograph or record people in public than a regular person.
One was official inquiries sparked by RNZ in 2020 exposing how officers for years had casually snapped tens of thousands of people, mostly Māori teenagers.
Ruled illegal, the practices were curtailed – albeit reluctantly and soon after police won bipartisan political support to change the law amid a rise in ramraids on shops.
That change had taken till now, but not before a Supreme Court ruling last year further narrowed what officers could do, according to the bill.
ACT’s Todd Stephenson gave qualified backing to reverse that.
“This bill does clarify and expands the police’s power to collect, record and use information, including images, sounds, for lawful policing purposes,” he said in the debate.
But with a kicker.
“Our support is conditional on ensuring that there is strong privacy protections and safeguards against mass surveillance powers.”
ACT’s Todd Stephenson. RNZ / Samuel Rillstone
‘Low bar’
The Privacy Commissioner was not convinced about the safeguards, saying the bill set a “low bar”.
“It permits collection of people’s information for ‘an intelligence purpose’ which is not defined and establishes a low bar for police to meet (the police employee collecting the information only has to ‘consider that the information will or may support the Police in performing a function’),” said Michael Webster in a statement.
The Justice Ministry meantime had recommended tailormade safeguards.
But that was “deemed unnecessary” because the bill was not displacing any privacy principles or the Commissioner’s powers, said the bill disclosure statement.
However, the ministry largely supported the bill and said it did not breach the Bill of Rights Act.
Webster’s office in 2021 made one of two investigations of police taking so many photos so casually.
The Privacy Act did not permit “baseless or indiscriminate collection”, he said, but now the bill sought to set up a broad authorising framework.
“Overly broad or insufficiently clear intelligence gathering powers will impact on the privacy rights of everyday New Zealand[ers] and has the potential for chilling effect on people’s civil and political rights.”
Privacy Commissioner Michael Webster. VNP / Phil Smith
Green MP Tamatha Paul said at the first reading that maybe Mitchell was right when he said the bill would not impact everyday New Zealanders: “Maybe he’s right, because this bill is going to impact Maori.
“Rather than tightening up the practice and protecting children, they’re changing the law to make it legal,” she said.
Green MP Tamatha Paul. VNP / Phil Smith
Police did make changes over several years as ordered by the Privacy Commissioner but failed to find a technology solution to identify and delete all the unlawfully taken photos.
Council of Civil Liberties’ Thomas Beagle saw not power restored to police but a power grab.
“It is trying to give the police whatever they want at the price of the people of New Zealand,” he said.
“It’s expanding surveillance powers for police drastically by allowing them to use any form of recording [of] visual or audio data that they can capture from public or private places without any oversight.”
‘Time pressures’
“Time pressures” meant there had been little or no consultation with the public or Māori or consideration of Te Tiriti, said the disclosure statement, and a regulatory impact statement (RIS).
Police consulted Te Puni Kokiri, which raised these concerns.
For the same reason, impacts on children and teenagers had not been delved into – even though the bill arose in part from officers photographing and fingerprinting them.
“This proposal is not seeking to legislate any additional protections for the collection, use, and retention of personal information on children and young people,” said the RIS.
Existing protections combined with police seeking “to ensure operational policy and guidance is aligned with our legislative obligations” was enough, it added.
Police would deal with any disproportionate impacts, the disclosure statement said.
Children’s Commissioner Dr Claire Achmad said she had real concerns especially for mokopuna and rangatahi Māori, “given the previous breaches of their rights by the exercise of police power in photographing them”.
A police policy team talked to her office and invited more feedback “but due to very short time-frame provided by police, this was not possible”.
Children’s Commissioner Dr Claire Achmad. RNZ / Cole Eastham-Farrelly
‘We’re striking the balance’
The Police Association’s Steve Watt said it was not over-reach.
“Look, it is important to consult a wider group when these types of bills come out. However, I’m sufficiently satisfied that there’s safeguards in place that minority groups won’t be targeted as a result,” Watt said.
“Ultimately … what this does is it gives our officers certainty around the information that they can collect and store as part of their day-to-day duties.
“We’re striking the balance between what was occurring in the past but allowing the freedom and ability for police to be able to perform their duties and functions appropriately.”
He echoed Mitchell in stating that internal and external controls were adequate – Mitchell noted the establishment of the Inspector-General of Police role sparked by the McSkimming scandal – and how any information gathered could be tested in the courts.
Police Association president Steve Watt. RNZ/ Phil Pennington
But criminal procedure expert professor Scott Optican of Auckland University said that was the problem.
“The definitions are vague, the reasonable standards are vague, and I think it’s going to invite continuing challenges in court,” said Optican.
“I don’t think it does the police any favours.”
Giving police general intelligence-gathering powers was a laudable goal, but should be done after wide consultation to arrive at “proper standards, clear guidance that adequately balances the need for criminal investigation against the protection of personal privacy, [and] that creates standards of reasonableness that we all understand and live with”, he said.
Part two
The bill is in two parts: The first is on intelligence gathering; the second would give police new powers to declare a wider range of public areas off limits earlier, before, say, boy racers kicked off or other public disorder, including the power to fine people $1000, get their details or if they refused, to fine or jail them for up to three months.
Part two would “deter antisocial driving behaviour”, the bill said.
But it also would let a constable temporarily close off a place if they believed on “reasonable grounds” that “public disorder exists or is imminent at or near the place”, or a danger to a member of the public.
It “expands the police’s existing temporary closure powers to include circumstances that are broader than vehicle-related offending, as well as expanding the geographical size of areas that may be subject to temporary closure”.
Beagle said that was unreasonable and open to abuse, for instance, to close off protests.
“This, combined with the police powers to move on homeless people, are reducing the right to be in public places,” he said.
The bill has now gone to select committee to be reported back to Parliament on 27 July.
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– Published by EveningReport.nz and AsiaPacificReport.nz, see: MIL OSI in partnership with Radio New Zealand