Search and surveillance law may need interpretation

Legislation which deals with new kinds of surveillance made possible by digital technology may be open to interpretation

New Zealand police officers have been given various levels of training in the extent of police powers under the Search and Surveillance Act, but there may still be matters open to future interpretation, says police assistant commissioner Malcolm Burgess.

The Act deals extensively with new kinds of surveillance made possible by advances in digital technology and with search of digitally-stored records. Following a number of critical submissions, the legislation was redrafted in 2010.

"The intent of the new legislation is to clarify what police can and cannot do as part of search and surveillance powers," Burgess says. "However, new legislation may always be open to interpretation and final clarification will only be determined when the legislation has been tested in court."

He adds: "Police worked closely with one of the writers of the legislation during the development of training for staff."

Disputed police video surveillance powers came to public attention at the time of the raids in the Ureweras under counter-terrorism legislation in 2007. Such surveillance, though unlawful at the time, was legalised for current and future operations by emergency stop-gap powers until the relevant clauses of the Search and Surveillance Act could be brought into force, on April 18 this year.

Some evidence gathered in the raids, in respect of serious alleged offences, was admitted, while other evidence, against those charged with lesser offences, was disallowed.

The remainder of the legislation came into force on October 1.

Almost the entire constabulary (what used to be referred to as "sworn" police officers) have now been trained in the Act, says Burgess.

Some officers were put through training early in the year to deal with the surveillance powers made legal in advance.

"An online course was made available initially to specialist surveillance staff and then supervisors before being opened up to any interested staff. Face-to-face training was delivered to some 200 specialist staff around the country, who then provided training to their groups as necessary," Burgess says.

The remaining constabulary were trained from June to September this year; "level 1" training (a two-day course) has been given to all constabulary staff and "level 2" training -- a further half day -- "for supervisors and/or investigators."

All training was based on the legislation, Burgess emphasises. Though a manual was issued to trainees, this is only as an after-the-fact reference source, he says.

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