As seen on the NZ Privacy Commissioner’s website, 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.
Read more of the statement at Privacy.org.nz