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Government & legal system

Surveillance and monitoring of activists by the state

Being watched and monitored by the police
and government

When is “surveillance” legal?

There are two different types of surveillance:

  • surveillance that doesn’t require any special power to carry out because it is within the normal scope of a citizen’s rights and powers, and
  • surveillance that requires special permission (like a court warrant) because otherwise it’s against the law.

Anyone can carry out the first kind of surveillance. We can follow someone to see where they go or find out where they live, we can observe who they visit or we can listen in when someone on the bus is talking on their phone. So long as we don’t interfere with someone’s rights (for example, their right to privacy) or otherwise break the law, those actions would be legal.

So what surveillance powers do police have generally?

Search and Surveillance Act 2012, s 46

Police do have some general surveillance powers that don’t require a court warrant. They can:

  • watch and monitor you without a surveillance device so long as it doesn’t involve trespass (using a surveillance device would include things like watching you with a zoom lens, bugging your phone, or using a tracking device on your car)
  • carry out visual surveillance of people and activity in public places (like streets and parks), even with a device used to improve vision, like a zoom lens.

Can the police spy on me while I’m at home, like using binoculars to look through my window?

Search and Surveillance Act 2012, s 46

If they don’t have a court warrant, they’re not allowed to use binoculars, a telescope, a camera with a zoom lens, or any other device that provides better than normal vision, to watch you when you’re inside your house or flat – so looking through your window would be outside their powers.

The law is different if the police are observing you while you’re outside in your back yard or anywhere else in your section – what the law calls the “curtilage” of your place, which means the immediate surroundings of the main building of your house or flat but within the boundaries of your property. If you’re anywhere in those immediate surroundings then the police can use binoculars or zoom lenses or other visual devices to watch you for up to three hours in any 24-hour period, or up to eight hours in total, for any single investigation or series of connected investigations.

Example: Surveillance of activists and the community

During 2006–2007, the police carried out a nationwide investigation of activists who were alleged to be involved in planning acts of political violence. While 20 people were arrested and charged with a range of offences, primarily firearms possession, many other people were raided by police and still more had been subject to surveillance or had property seized as evidence in what became known as Operation 8. When the matter came before the courts, the extent of the investigation became evident.

The surveillance included the interception of phone calls and gathering of text messages. It also included compiling call data; this is the metadata about a particular phone including the numbers contacted and the times and places of that contact. This then provided a pool of people who were also investigated. The police conducted in-person surveillance of political meetings by way of undercover officers, and used a parabolic microphone to listen to conversations inside of a house. They followed people, used hidden cameras on public roads and private property. They installed listening devices on communal Māori property including marae. They gathered travel records, banking records and details of TradeMe transactions. They seized computers from people who were not raided, and held these devices for six months or more. Later, they photographed people at court.

Much of the video surveillance was ruled inadmissible as under the Evidence Act. This was because police had exceeded their lawful powers when placing cameras. As a result of this case, the Search and Surveillance Act was passed clarifying police powers.

Police did rely on electronic evidence gathered from computers including online chat logs that had been stored on the computer’s downloaded files, but this investigation occurred relatively early in the days of Facebook, so social media apps did not feature as part of the investigation. Many people were under lengthy surveillance despite never being arrested or charged with any offence.

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Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

Treaty of Waitangi

www.nzhistory.govt.nz/politics/treaty-of-waitangi

This NZ History webpage has information about the Treaty of Waitangi and events and issues surrounding it. The website is run by the Ministry for Culture and Heritage.

Waitangi Tribunal

www.waitangitribunal.govt.nz

This website has information about the Waitangi Tribunal.

To start the Tribunal process of submitting a claim, you can either: call the Tribunal office for queries on (04) 914 3000, or email them at WT.Registrar@justice.govt.nz

Matike Mai Report

www.nwo.org.nz/resources/report-of-matike-mai-aotearoa-the-independent-working-group-on-constitutional-transformation/

Matike Mai Aotearoa is an Independent Working Group dedicated to Constitutional Transformation based on tikanga and kawa in Aotearoa/New Zealand. This report outlines their vision, research and findings.

Human Rights Commission

www.hrc.co.nz

The Human Rights Commission was set up in 1977 and works under the Human Rights Act 1993. Their purpose is to promote and protect the human rights of all people in Aotearoa New Zealand.

UN Declaration of the Rights of Indigenous Peoples

www.hrc.co.nz/our-work/indigenous-rights/our-work/undrip-and-treaty/

The UN Declaration of the Rights of Indigenous Peoples (UNDRIP) was set up in 2010 for the purpose of increasing the UN’s commitment to promoting and protecting the rights of indigenous peoples worldwide.

Privacy Commissioner

www.privacy.org.nz

The Privacy Commissioner has a wide range of functions, including investigating complaints about breaches of privacy, running education programmes, and examining proposed legislation and how it may affect individual privacy.

Advocacy organisations and support services

Rainbow Youth

www.ry.org.nz

RainbowYOUTH provide a number of services, including advocacy for queer, gender diverse, takatāpui & intersex youth, their friends, whānau and wider communities.

Disabled Persons Assembly NZ

www.dpa.org.nz

Disabled Persons Assembly NZ provides direct support and advocacy, and work in collaboration with others to achieve inclusion for all New Zealanders.

Mental Health Foundation

www.mentalhealth.org.nz

The Mental Health Foundation has useful links and resources for people dealing with mental health issues.

Helplines

www.health.govt.nz/your-health/services-and-support/health-care-services/mental-health-services

Police Brutality & Activist Trauma Support and Recovery

medium.com/@jessieden/a-resource-for-activists-working-through-trauma-82a9807712be

The Police Brutality & Activist Trauma Support and Recovery resource is a booklet made by activists for activists, with accessible information on what trauma is, how it affects people, and ideas for supporting yourself and others through it.

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