Blog | Search and Surveillance; the price of safety?

Blog | Search and Surveillance; the price of safety?

Islamic Women’s Council national co-ordinator Aliya Danzeisen. [xvi]

By Jingshu Xu

The Search and Surveillance bill [i] will be up for review this year as part of the government’s response to the Royal Commission of Inquiry’s recommendations about the Christchurch masjidain terrorist attack on March 15, 2019[ii] [iii]. The bill was originally created in 2012 and allows law enforcement to carry out a warrantless search of a person or property if they suspect a licensed gun owner is in danger of harming themselves or others, allowing the police to move quickly and initiate searches without oversight of the courts[iv]. The government has proposed amendments to the Terrorism Suppression Act 2002 and the Search and Surveillance Act 2012, which would renew the terrorism laws in response to the attacks[v], the bill was fast-tracked in response to the Auckland supermarket terrorist attack on September 2021[vi]. Justice Minister Kris Faafoi said the Government is committed to following the recommendations of the Royal Commission. The review process will take place across 2022 and involve working with Māori groups, ethnic, faith-based, youth, rainbow and other interested communities[vii]. Although police surveillance has increased in NZ, is the public safer? 

Public privacy

Politicians, lawyers and gun owners are among the groups of people who oppose the current powers of Search and Surveillance. Privacy Commissioner John Edwards says the government’s proposed counter terrorism law is a risk to the public and lowers the threshold for warrantless searches, giving police officers too much power and not enough oversight[viii]. Terrorism “Control orders” were created in 2019 out of fear of Islamic terrorists returning to NZ[ix]. The proposed changes would create new criminal offenses for planning and combat training of terrorist acts and allow the police to conduct warrantless searches. 

Edwards has stated that although he supports the bill in spite of its flaws, he is opposed to “control orders” because it chances the definition of terrorist activity from inducing “terror” to “fear” in a population which lowers the standard of proof for terrorism, leading to a disproportionate and unjustified use of force against people who would not be otherwise considered dangerous, for example someone who expresses their desire to build a bomb on a forum but does not have the skills or materials to do so will be considered a serious terrorist threat, potientially facing the maximum penalty of 7 years imprisonment.[x] Aliya Danzeisen from the Islamic Women’s Council national co-ordinator is also opposed and stated that she fears new laws would disproportionately target Muslims. “We have lived the life of counter-terrorism laws for 20 years. We have been the focus of those laws for the last two decades.”[xi]

Gun-owners feeling targeted

Since 2019, 1369 firearms have been confiscated and 1161 arrests have been made, 36 were prohibited military style semi-automatic guns, but it is unclear how many of those guns belong to criminals and how many were returned to lawful gun owners. 

Gun owners fear they are being unfairly targeted by police[xii]. There have been several instances of police confiscating guns and conducting warrantless searches on people with no criminal record. In one instance, on New Year’s Eve 2021, police conducted a warrantless search on the home of Christchurch Pastor Carl Bromley, confiscating his rifle and 500 rounds of ammunition. Bromley had expressed pro-gun and anti-government views the police cited concerns about his mental health[xiii].

Bromley said he had made no threats with his gun and felt the police had been overly forceful and violated his privacy. Christchurch barrister and senior firearms lawyer Grant Fletcher says the use of warrantless firearms searches are “rampant” and these laws might make people more distrustful towards the police and hinder crime prevention, such as making people less likely to seek help for mental health issues if they fear they will be treated like criminals[xiv].

The future of surveillance

The Law Commission and the Ministry of Justice reviewed the Search and Surveillance Bill on the 30th of January 2018, and have issued their 67 recommendations.The report states that while search and surveillance powers are an “essential tool” for investigating and prosecuting crime, people have a right to privacy and the state’s intrusion should be minimal[xv], their main goal is to strike a balance between effective law enforcement and protecting human rights. Law Commissioner Donna Buckingham says the act does not need a “major overhaul,” but should be adapted to new technologies and “clarified” to respect the privacy of citizens. This includes new regulations for conducting undercover operations and limiting the ability to conduct warrantless searches on electronic devices like cell phones. Buckingham states the amount of data generated by people and organizations have rapidly increased, most of which is stored online and police need access to data and new technologies to investigate crimes. With the bill currently up for review, NZ needs to consider if safety should come at the cost of privacy.  

















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