It has been through its second reading, but its passage has been temporarily stopped because of what was considered widespread public misunderstanding of the bill.
The October 15th Solidarity group does not believe that there is any misunderstanding of the Bill- it enhances state powers and fundamentally alters some core concepts in law to such a degree that even the Law Society and the Chief Justice have serious criticism of it.
So much is hidden within the 197 pages and 316 clauses of the Search and Surveillance Bill, it’s hard to know where to start.
The bill is meant to streamline search and surveillance, by redefining not only police powers but also the powers of over 70 government agencies- called ‘enforcement officers’ in the bill. However, the bill does much more than that. It effectively gives police powers to agencies such as Work and Income and the Pork Board.
This leaflet is a basic primer on the Bill. We hope that it will motivate you to get involved in our campaign to stop it in its tracks.
Dramatic Increase in Powers
Basically, once this bill becomes law, state power increases and search and surveillance become open slather. The Bill treats a single search and on-going surveillance as one and the same thing.
For example, installing a video camera in a home for a month is treated the same as a one-off search of a car; taking a copy of an entire hard disk (with all kinds of information on it, some possibly covered by a search warrant, other intimately private) is considered no different than making photocopies of business files, and all enforcement officers have the same powers, regardless of the purpose of their job.
The Right to Silence
When this bill becomes law, the right to silence will effectively 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 people in the commission (or plotting) of any offence punishable by imprisonment. Even extremely minor offences such as trespass or disorderly behaviour would qualify.
The only way you can refuse this order is to cite a bit of 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 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: the ultimate Catch-22.
Examination Orders
Examination Orders last for up to thirty days and the only penalty available for refusing to comply is a maximum of one year’s imprisonment.
These Orders weren’t part of the Law Commission’s original report to Parliament. They were inserted into the bill by the Labour government on the pretext that the Serious Fraud Office (SFO) was going to be abolished; but the National government has decided to keep the SFO.
When the SFO was created, there were many of us who opposed it. We argued that sooner or later their powers would be transferred to the police and applied outside of the business context. We were right.
The Right Not to Participate in Proving your own Guilt
Current practice is that the police have to provide all the evidence to prove a person is guilty-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 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, the sentence is a maximum of one year’s imprisonment.
Surveillance Devices
Surveillance devices include bugs, video cameras and tracking devices for cars. Currently, there are no specific laws regulating surveillance on private property. Police need a warrant to enter your house and install a listening bug. Video surveillance by police inside a house or other private place is currently illegal. Police do it anyway knowing that most judges will admit it as evidence. That will change with this bill. It 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 – that is, the suspicion that the search (or surveillance) will uncover evidential material necessary for a prosecution of a crime. This equates on-going video surveillance with a one-off search.
This contrasts to legislation elsewhere. In the US, Canada and a number of European countries, phone bugging and installing a surveillance camera in a home is treated as a much more serious invasion of privacy than a search. In order to get a surveillance warrant, police have to demonstrate that other ways of obtaining the evidence have failed. In the new bill, there is no such restriction
Plain View Searches
There is no restriction on the use of any thing the police find during a search or surveillance operation. Using ‘plain view’, if the surveillance data shows evidence of a different offence than that for which the warrant was obtained then that material can still be used in court. The same applies for a search warrant. ‘Plain view’ is an opportunity to ‘have a nosy’ at what else is around.
Warrant-less Searches
Once you are arrested or even simply 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. 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.
Similarly, a warrant will not be needed to record a conversation when two or more people are talking if one person consents to a recording of the conversation. This person could be an undercover cop sitting in a meeting, someone employed by an ‘enforcement officer’ or a friendly person at the bar.A warrant is needed for a computer search, however this warrant allows them to have access to your entire hard-drive; then using ‘plain view’ they can trawl through other information not on the warrant.
