KEY POINTS:
Gary Harrison is in his 13th year as the Registrar of Private Investigators and Security Guards. It's a senior but little-known position appointments are by the Minister of Justice, Harrison's predecessor left to become a judge.
Harrison, 61, a barrister, is mild of manner, speaks without inflection but with precision - as you might expect of someone whose 38 years in the law includes acting as counsel assisting the Royal Commissioner in the Erebus air crash inquiry, coaching litigation skills for the New Zealand Law Society and setting up Shortland Chambers.
Don't be fooled by the measured tone; absurdities, particularly legal ones, get his goat. Take, for instance, the security guard who saw two Remuera youths assaulting a taxi driver. The guard restrained one by sitting on him until police arrived, only, says Harrison, to be charged with assault "after the powers of the parents went to work on the police".
Problem is, the law (the Private Investigators and Security Guards Act) was passed 34 years ago and was concerned with protecting the public from the activities of private investigators, much of whose work involved collecting evidence for divorce cases.
Consequently section 52 prohibits private investigators from covert photography, videotaping and voice recording without the target's written consent.
A move from fault-based divorce to no-fault (separation for a minimum two years is now sole ground for divorce), along with the passing of the Privacy Act, has done away with the need for evidence of adultery anyway.
Society has changed massively. Back then, for example, there were no gated communities and we had an expectation that police would respond to neighbourhood reports of suspicious behaviour. "I'm aware that in some Auckland suburbs, when suspicious-looking individuals are seen, people ring security guards who will respond in a maximum of six minutes whereas the police might not come at all," says Harrison.
"People are now relying on the security guards as being more reliable than the police, which is a pretty sad story but that's how it is."
Harrison suggests it makes sense to give security guards a limited power of detention in an overhaul of legislation currently under way (the proposed new law is expected to be introduced into the house later this year), but the office of Associate Justice Minister Clayton Cosgrove told the Weekend Herald there is no plan to provide additional powers to the citizen's arrest available to all.
The new law will require a wider range of people involved in security to be vetted by for licences. Currently, licensed investigators can enlist paid informants to infiltrate groups and refuse to divulge the activity in court.
A case brought by three protest groups against a security firm hired by coal company Solid Energy confirmed this. Save Happy Valley Coalition, Peace Action Wellington and Wellington Animal Rights Network complained that Thompson and Clark Investigations Ltd broke the law by employing unlicensed agents to infiltrate the groups.
That complaint failed because Harrison found that paid informants in the case didn't meet the legal standard of employees. There was no contract, set pay, tax deducted or control exercised over them by the investigation firm, he said in his decision - noting that in the case of Ryan Paterson-Rouse, who passed information about Save Happy Valley, he had thought he'd been engaged by a journalist rather than a private investigator.
"In my view," Harrison said, "he was no more than an informant who was paid anonymously, from time to time according to the information he passed to his fictitious recipient."
A second complaint regarded a concealed camera placed on Crown land and directed at a track about 4km from the protesters' camp and 7km from Solid Energy's Stockton mine exclusion zone. It was claimed that this breached section 52 banning investigators taking pictures.
But security guards can install cameras for the purposes of detecting a crime. Provision Security Ltd, a company associated to the private investigation firm, employs security guards and mountain guides to patrol the mining company's exclusion zone.
The test was whether footage was for investigation purposes - the complaint failed through lack of evidence.
"You can see the blurring," Harrison told the Weekend Herald.
The function of a security camera is to see whether someone who may have committed an offence can be identified. But does the ensuing investigation amount to a breach of section 52? "It's an awful circular situation."
Private investigation is a field ripe for friction. Harrison estimates he gets 10 complaints annually concerning a licensee, perhaps 50 or 60 about employees of licensees. Most are resolved by correspondence.
"I'm pleased to say that the private investigators - of whom I suppose 90 per cent are ex-policemen - are an industry with integrity." They know the law and are generally careful.
Tactical dishonesty then is an acceptable, perhaps necessary, tool of the trade. It appears the Save Happy Valley informant was purposely misled into believing he was providing info for a journalist, presumably because it was thought he'd be less willing had he known it was for investigators working for Solid Energy.
On the face of it, it's lawful says Harrison. Because Paterson-Rouse gave evidence that he was engaged by Gavin Clark, a director of Thompson and Clark, Clark acknowledged as much. But Clark claimed immunity in respect of Somali Young who infiltrated the other two protest groups, citing legal precedent where public interest is involved.
Harrison ruled that the public interest extended to companies taking steps to protect property and business interests from damage by others but went on to say that he "inferred" that Clark had enlisted Young.
The protest groups, for their part, weren't in any doubt after emails sent by both informants to the private investigator bounced back to them.
Stockton, northeast of Westport, is Solid Energy's main export mine. It also has consents to develop another large opencast mine nearby. Licence conditions include relocating kiwis, red tussock and the giant powelliphanta augustus snails.
Save Happy Valley Coalition uses non-violent direct action to draw attention to the ecological impact of the mining, and members have been convicted of criminal charges. Solid Energy has said the actions have cost the company $25 million in managing the protests and in delayed shipments.
The company has a file of protest activities. These include work at the mine being delayed by protesters trespassing into blast zones and blocking railtracks, says spokeswoman Vicki Blyth.
The lawn at the company's headquarters has been dug up and the home of a director graffitied.
Protesters characterise the company as a defiler of the environment, while Solid Energy CEO Don Elder has labelled them "anarchists".
Though not frivolous, Harrison had reservations about whether the "spying" complaints were made in good faith, "because I believe they're part ... of the wider campaign".
The coalition is concerned by what it sees as a move away from the Act's original intention of protecting the public against unreasonable intrusion. It notes, in an article by member Emma Parsons, submitted to the Weekend Herald, the registrar's role is to act as an administrator and adjudicator and not as an investigator of complaints, as does the Independent Police Conduct Authority.
Bringing a case to court can be expensive and legal aid is doubtful. Thompson and Clark Investigations has applied for costs to be awarded against the protest groups.
Parsons' article questions the relationship between private investigation firms and the police, noting a director of Thompson and Clark gave police a briefing on the day of a Save Happy Valley protest action.
"So maybe it is time we ask ourselves some hard questions," she writes. "Do we want to live in a society where money is the control and everyone else's privacy is increasingly at risk from private investigation firms?"
The Privacy Commissioner will make a submission when the draft amendment to the Act is introduced but signalled in a letter to the Justice Ministry that an area of interest included private investigators getting information their clients were not entitled to by means of corruption or by wilfully misleading people.
The New South Wales Independent Commission Against Corruption had exposed a major trade in corruptly obtained information and, the letter noted, there have been cases in New Zealand where officials had been bribed or paid for information and others where police information had been released on the basis of friendship with former colleagues.
