By Stephen Winter
“Trust and confidence is critical for Police.”
Those are the words of Howard Broad, New Zealand’s Deputy Chief Executive, Security and Intelligence in 2015. A former Police Commissioner, Broad made the statement when speaking about concerns over privacy in the digital age. His argument was that citizens needed the Police to protect them. To do so effectively, the Police needed sweeping powers to gain information about those who might threaten New Zealanders. The exercise of those powers would also need to be largely secret. Some oversight could be provided, but New Zealanders could and should trust the Police.
What do we mean by trusting the Police? We are not, in the first instance talking about trusting a particular police officer. Instead, we are talking about the trust that New Zealand citizens can or should place in New Zealand’s policing institutions. That form of trust entails the reasonable belief that those institutions will do the right thing using appropriate procedures. Institutional trust is important in circumstances of asymmetrical power relations between citizens and institutions; where institutions hold more power over the individual, than individuals do over the institutions.
In New Zealand, the Police have significant powers to violate privacy. And that power is a serious threat. Privacy is important. It is a recognised human right and all New Zealanders have legal rights to privacy. Section 21 of the NZ Bill of Rights Act reads as follows:
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise
The implications of the provision are very clear: the Police cannot search an individual’s person, property or correspondence without very good reason. The Privacy Act supports that prohibition by forbidding any agent from collecting information in an unfair, unreasonable or unlawful way. When the Police fail to respect those rights, someone is injured. And when the Police injure a citizen, they chip away the institutional trust that is both necessary to, and a foundation of, their work.
Institutional trust is particularly important in the domain of informational security. The digital revolution has given New Zealand police a great deal of power— Edward Snowden showed us how easy it was for security agencies to access hitherto unimagined quantities of personal information. Moreover, security breaches by the police are very hard for individuals to discover. Those points combine to create a troubling dynamic: our privacy is simultaneously easier to breach and harder for people to discover. These are asymmetries of both power and knowledge. The existence of those asymmetries demands trust—New Zealanders must be able to trust that their privacy is secure from the police.
Abuses of trust in this area by the Police are very serious. And yet, they appear to be a pattern. As the New Zealand Herald recently reported, political activist and blogger Martin Bradbury was the subject of an illegal search by the NZ Police. The Police search of Bradbury’s banking details did not require a warrant, as the conditions governing Bradbury’s banking permit the bank to provide private information to police who are investigating bank fraud. But the Police were not investigating Bradbury for fraud. Therefore, the Police appeared to have lied to Bradbury’s bank about the nature of their search.
And this is only the latest in a series of abuses by New Zealand’s security.
In this case, the Police obtained Bradbury’s banking records as part of their ongoing investigation into the hacking of the emails that provided material for Nicky Hager’s 2014 book, Dirty Politics. Hager’s book concerned, in part, the inappropriate use of private information concerning former opposition Labour Party leader Phil Goff by NZ security agencies. Some of these claims were investigated in the 2014 Gwyn Report. Aside from the concerns identified in Dirty Politics, and spurred by the discovery that the GCSB had illegally intercepted Kim Dotcom’s communications, the Kitteridge report of 2013 found serious concerns about operations of New Zealand’s security organisations. Then, in 2015, the Police unlawfully obtained Nicky Hager’s banking details using the same ruse they used against Bradbury. They also sought private information about Hager’s air travel.
The barrister Felix Geiringer has said that it is “highly likely there would be multiple instances of ‘unlawful’ access” by the Police of New Zealanders’ personal information. We may never know. Bradbury only learned of the illegal search of his bank records because the Police had told the bank that they were investigating fraud. Believing Bradbury to be the subject of such an investigation, the bank downgraded Bradbury’s credit rating. That downgrade meant, in turn, that Bradbury was denied credit, alerting him to the problem. Bradbury used the Privacy Act to pursue the matter, to uncover and to lodge a complaint about the deceit. We may never know how many others besides Bradbury have suffered similar invasions.
Having seen that they have broken the law when investigating Hager and Bradbury, should we trust that the NZ Police are acting lawfully towards others?
Back in 2015, Assistant Police Commissioner Malcolm Burgess assured the public that “there are controls around how information is both requested and provided“. In essence, the Police asked New Zealanders to trust them. But, it seems that trust may have been misplaced. If the Police lied to various private corporations, on multiple occasions, in the course of investigating the long-ago hacking of former Justice Minister Judith Collins’ emails, what do they do when engaged in investigations that are more pressing in terms of both time and importance? When New Zealanders look back at the track record of their security agencies, it is easy to conclude that the right lessons have not been learned.
Howard Broad was, and is, right. The Police need the trust of the New Zealand public. But they must recognise that trust is not irrevocable. Trust must be earned and that requires the Police to act in ways that indicates that they are deserving of the trust that they carry. And that means the Police must respect not only the letter of the law, but its spirit. The standard cannot be what they can “get away with” but rather, what the rights of the citizenry demand.
Stephen Winter is a Senior Lecturer in Politics and International Relations at the University of Auckland. He teaches and researches on and around areas of justice, rights and democracy. He has jurisprudential inclinations and has been known to discuss questions of cultural politics, federalism and indigenous politics.
At present, he is engaged in a long-term research project concerning the redress of institutional child abuse.
In 2014, he published Transitional Justice in Established Democracies: A Political Theory, which explains how states are using transitional justice mechanism, such as truth commissions, official apologies and reparations, to repair the damage state wrongdoing inflicts upon political legitimacy.