Editorial: Bill goes too far in curbing right to silence

The Search and Surveillance Bill just needs to pass its final stages. Photo / Thinkstock

It is a free country, people say, but they might be surprised at the range of state agencies that have powers to maintain surveillance of them, search their property and even seize items of interest. It is five years since the Law Commission drew Parliament's attention to the lack of clarity and consistency in the powers these agencies enjoyed and it has taken this long for a search and surveillance bill to make much progress.

Now, in the way of these things, the Search and Surveillance Bill needs to pass its final stages in a hurry because a temporary law, passed last year after a Supreme Court decision stopped numerous police surveillance operations, will expire next month. The bill was at its penultimate stage in the House yesterday.

It goes beyond search and surveillance to include production and "examination" orders. The latter would over-rule the right to silence for people questioned in investigation of crimes carrying at least a 10-year jail sentence. Examination orders would also overrule the confidentiality of information people share with their doctors and lawyers, and the information people sometimes give in confidence to news media.

The rights of reporters to protect confidential sources will be seriously restricted. It is proposed that when media invoke that essential right (which lawmakers call a privilege), a High Court judge will decide whether they can withhold identifying material.

Worse, media must first surrender the material to the police who will be able to make copies of it and supply it to the High Court for the judge to decide whether the police can make use of the material. A similar procedure will govern information held in confidence by a doctor or lawyer but the effect on media will be more harmful. People need to trust doctors and lawyers with personal information for the sake of their health or wealth. People who act in a public interest do not have a comparable need.

Those who tell a reporter what they know only in the strictest confidence will not be as forthcoming if "confidence" means the person's identity might be discovered in documents that might have to be surrendered to police on an authorised search. Not many people would share Justice Minister Judith Collins' belief that information, once it is known to the police, could be restored to confidentiality by a High Court decision.

Ms Collins argues that the bill would be an improvement on current law, under which media cannot prevent material being seized during a search. They have to challenge its admissibility in court or seek an interim order to prevent it from being used or viewed. It is hard to see that much is gained by having to entrust the material to the police while awaiting the court's decision.

Powers of search, seizure and surveillance are necessary tools of law enforcement but they need to be carefully balanced with civil liberties. The bill strikes a fair balance for the most part, requiring external authorisation before any agency's officers can search private property or set up surveillance devices.

Examination orders are more disturbing. Professionals providing personal services may be content to be relieved of a duty of confidentiality sometimes but news media serve a public interest. If informants cannot be protected at times, their concerns might not come to light.

News media are no different from the ordinary law-abiding person when it comes to rights and freedoms. When laws are proposed that need to provide special treatment for media, it is usually a warning for everybody's rights. The right to silence is a cornerstone of civil liberty. This bill goes too far.