8 Nov 2022, 09:00

This is the Privacy Commissioner's submission on the Criminal Activity Intervention Legislation Bill (166-1). Below is the full text of the oral submission made November 7 2022.

Here is the full written submission. 

Oral Submission Introductory Remarks

Thank you for the opportunity to speak to you today. I am making this oral submission on behalf of the Privacy Commissioner who is unable to be here due to illness.   

This Bill tackles an important and difficult problem in our society. Gangs can be deeply harmful to individuals and our wider communities, and the Office of the Privacy Commissioner absolutely supports the intention of the Government to tackle this problem.

There are three points I want to briefly run through today, and then I am happy to answer any questions you may have.

It is the Privacy Commissioner’s role to advocate for privacy rights and examine any expansion of search powers.

First, I want to explain why the Privacy Commissioner is interested in the Criminal Activity Intervention Legislation Bill.

The right to privacy is not just about the appropriate use of personal information, but also about people’s right to privacy in their homes and the right to be free from unjustified search and surveillance by the State. This is the oldest common law privacy right and long predates the Privacy Act 1993.

Part 3 of this Bill includes a broad new warrant power for Police to carry out searches in homes and communities.

The exercise of search powers is intrinsically privacy invasive.  It is the role of the Privacy Commissioner to examine any proposed expansion of Police’s search powers and comment on whether they are justified, necessary and proportionate.

This includes considering the privacy impacts on third parties caught up in the exercise of these search powers.

We want to be clear that privacy does not stand in the way of justified and proportionate law enforcement. Privacy is not an absolute right and there are important and significant reasons why individuals’ privacy will be limited in certain cases. Disrupting criminal activity by gangs to make communities safer is one of those reasons.  

However, for any intervention that intrudes on privacy, officials should be able to show evidence of effectiveness in addressing the problem, and that it will be proportionate and targeted.

We have not yet seen evidence to show that the warrant will be an effective tool.

This brings me to my second point.

We have not yet seen evidence that the proposed new warrant power is an effective measure to address gang harm by removing weapons from gang conflicts.  

A broader warrant power is not necessarily a guaranteed solution to tracking down the movement of weapons through gang networks.

Nor have we seen compelling evidence that it is a necessary expansion of Police powers, given the existing powers that Police already have, which include a warrantless search power in relation to arms offences and as well as the usual search warrant power where Police have reasonable suspicion of offending.

The warrantless search power is an “often used” power and allows Police to carry out searches where they reasonably suspect someone is in breach of the Arms Act and a serious offence has been committed, is being committed or is about to be committed (Supplementary Analysis Report: Criminal Activity Intervention Legislation Bill, para 83).

Gangs are a complex social, economic and criminal issue.  Analysis by officials on this Bill points to evidence that early intervention, rehabilitation and reintegration are the most effective route to improving public safety in the long-term.

Effective policing requires the trust and confidence of the public. The design of law enforcement interventions must be based on evidence of effectiveness to limit the risk of overreach and avoid eroding trust and confidence in the important work the Police do every day.

Concerns about broad nature of the search powers that are based on membership to a group.

My third point is about the drafting of the new warrant power and here we share some of the concerns expressed by the NZ Law Society.

This is the first time where the exercise of search powers is based on membership of a group, rather than on suspicion of offending. The precedent-setting design of this broad search power raises several concerns.

The proposed new warrant power represents a notable departure from the established approach to the use of search powers that require Police to have reasonable grounds to suspect a criminal act is occurring or will occur. Although it is implicit that a search is for unlawful weapons, this reasonable suspicion standard regarding offending should not be bypassed without careful consideration of the potential risks – particularly the potential for disproportionate use.

Evidence from the UK’s section 60 stop and search power underscores the need for caution. Official data shows that these similar search powers have been used disproportionately on youth and minorities, and that the majority of searches do not lead to any weapons being found. (HM Inspectorate of Constabulary and Fire & Rescue Services (2021) Disproportionate use of police powers - A spotlight on stop and search and the use of force.)

There is a substantial evidence base associated with the section 60 power which has not been summarised in the Supplementary Analysis Report and it is the view of this Office that it is important for the Committee to see this evidence to inform their deliberations.

The risks of disproportionate use are compounded by significant accuracy issues around establishing current gang membership.  It can be difficult to establish whether a person is a gang member or not. The National Gang List used by Police has known accuracy issues.

In addition, because the search powers are drafted in a broad way and allow Police to carry out multiple searches in communities and homes over a substantial period of time, we are concerned about the potential privacy impacts on third parties – on whānau, flatmates and tenants – those who are caught up in the exercise of these powers.

We are especially concerned about impacts on tamariki and rangatahi.

The introduction of these novel search powers may potentially impact on other current community interventions, intensify animosity towards Police, and erode trust in the state. 

Concluding comments

The new warrant power is a precedent-setting change to our search laws and the Government needs to take the time to get this right. Due care is needed to make sure the search power is necessary, proportionate and effective.

Given the lack of compelling evidence provided to support the effectiveness of the new powers, and the likely privacy impacts on vulnerable third parties, the Privacy Commissioner does not support the enactment of this new warrant power.  

However, should Part 3 of the Bill proceed, the Privacy Commissioner recommends a number of amendments in his written submission to provide some practical safeguards and a future review of effectiveness.

The Office of the Privacy Commissioner stands ready to work through these recommendations with officials.