Privacy Commissioner - Te Mana Matapono Matatapu

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Harassment And Criminal Associations Bill - Points Of Emphasis

Points Of Emphasis To Justice And Law Reform Select Committee

In the last five years I have examined a number of criminal justice statutes which have touched upon important information or privacy issues. Two which spring to mind were those establishing a DNA databank and the reporting regime to combat moneylaundering.

This bill deals with a far more traditional privacy issue: the interception of private communications. This is one of the more dramatic examples of the State's interest in law enforcement coming into conflict with community expectations of privacy. As the former President of the Court of Appeal put it, the grant of a warrant to intercept private communications "is a step never to be lightly authorised in New Zealand society".

The bill will amend four key criminal justice statutes as well as establishing entirely new provisions dealing with criminal and civil harassment. It began life as a response to a problem of offending by gangs. As the bill comprised so many separate measures I split my examination in to two parts.

The committee has copies of my two reports. The first deals with the harassment and criminal associations aspect of the bill while the second focuses solely on interception of private communications. I look forward to questioning by the committee in respect of the details and thrust of those two reports but wish, at this stage, to take two or three minutes to highlight an aspect from each of the two reports. My comments are not intended as a complete summary of the reports but simply draw attention to two new suggestions for additional provisions in the bill. The two matters are:

• the suppression of details on public registers where an individual has a restraining order; and
• the proposal for an independent audit authority to oversee interception of communications.

Public registers - suppression on grounds of harassment

Consideration should be given to adapting this bill to enable people who restraining orders under the bill to also obtain orders that their personal details be held confidential on public registers.

Presently some laws provide that individuals may have their whereabouts held confidentially on a public register if they have reason to fear for their safety if those details are released. Specific provisions of this type appear in the laws governing the motor vehicle register and the electoral roll. In 1995 the Domestic Violence Act established a more general regime covering all those registers declared to be "public registers" under the Privacy Act. If people obtain a protection order they can seek a direction that their details be held confidentially. A common example would be where they have left their abusive partner and established homes elsewhere.

However, existing laws are too narrow to meet the concerns of people who obtain restraining orders under this bill. The Domestic Violence Act regime will have no application. The other provisions which allow the suppression are directed towards people who fear violence. Not all those who suffer harassment fear actual violence. However, as I suggest in my report, such people may benefit from keeping their address details secret from the person carrying out the harassment. If they move house they may obtain some respite from the harassment if they can prevent their new address becoming known.

Interception of communication - audit authority

The other issue I wish to canvas is my proposal that functions be conferred upon an existing independent oversight body, such as the Police Complaints Authority, to review an interception register to be maintained by the police. There is a clear precedent for such oversight in both Australia and the UK, although it is the Australian model that I commend to the committee.

Interception of communications for law enforcement purposes is, of necessity, carried out in secret at the time that an investigation is under way. However, we do not wish to encourage a secret surveillance state any more than is necessary. In my report I recommend a significant enhancement of the reporting to Parliament requirements so that while specific cases are not open to scrutiny the public gets a picture as to the covert surveillance being carried out in its name.

Reporting of statistics alone cannot guarantee public confidence that the intrusion into privacy inherent in interception of private communications is being controlled appropriately. We have had judicial warrant process since 1978 and my recommendations make no case to depart from that. However, we have never had anyone independent from the police looking at interception in a systematic way and having the powers to investigate adherence to existing laws. The suggested safeguard is deliberately crafted to fit entirely with existing laws. It is a proposal which should give Parliament, and the public, confidence that existing legal controls are being met.