A group of activists whose phones were tapped by police are bringing a complaint under the Independent Police Conduct Authority. Now, New Zealand Police are faced with questions about the legality of the surveillance, and what justified the invasion of privacy.
Last week, court documents revealed three human rights activists' phones had been tapped by Police, with phone calls and text messages intercepted and recorded. The surveillance began last year, after the three were arrested on trespass charges during a protest.
The group now says Police had no grounds to conduct the surveillance, and are bringing a complaint under the Independent Police Conduct Authority.
People Against Prisons Aotearoa began as a group advocating for the rights of LGBTQI prisoners, initially launched to protest Police participation in Pride Parades.
Over time, the group's purpose broadened to include advocating for prisoners' right to vote, abolition, running education programmes for prisoners, and advocating for an end to solitary confinement practices in prisons. Come November 2016, the group were holding pickets at Corrections offices around the country to protest a trans prisoner being held in isolation. The practice, they said, was causing the prisoner immense mental distress, and was a violation of her human rights. During one of the pickets, four members of the group entered a Corrections office and chained themselves to a desk. They were arrested, and three were charged with trespass.
At the time, Waikato Police Senior Sergeant Ray Malcolmson said Police were taking a "low key" approach to the protest. But a year later, court documents obtained by VICE showed the subsequent investigation into the lives of the three activists appears to be far from low-key. For an unspecified length of time—the activists do not yet know if their phones could still be tapped—Police intercepted and recorded their phone calls and text messages.
Under New Zealand's surveillance laws, interception of phone calls and text messages can only be justified by "the most serious types of offending", barrister Felix Geiringer said. According to the Search and Surveillance Act 2012, that includes category four offences—murder, manslaughter, planning a violent overthrow of the government or selling slaves—as well as a few less serious category three offences: arms dealing, importing, manufacturing and supplying psychoactive substances, or crimes carrying a penalty of more than seven years imprisonment.
According to Police statements in court, the phone-tap service was granted on 22 November 2016, the day of the Corrections protest. Trespass charges for all three demonstrators were discharged without conviction on September 28 2017, but the coinciding dates suggest the surveillance was connected to the trespass offences. The documents don't say how long the surveillance went on for—interception warrants can last anywhere between one and 60 days, and could be granted again after the 60-day period ended.
But trespassing in New Zealand carries a maximum sentence of just three months. Police could not lawfully get a surveillance warrant to investigate such a minor charge.
When repeatedly asked for comment by VICE, Police wouldn't state what justified the surveillance.
A Police spokesperson told VICE, "for operational reasons Police are not able to respond to requests which seek to confirm or deny if a person or organisation is under investigation."
"There are not enough checks and balances. It is too easy for Police to obtain a warrant in circumstances where one is not justified. It is too difficult to discover that that happened. It is too difficult to have anyone uphold, or even hear, a complaint."
Geiringer, who has worked on several high-profile Police surveillance cases, said it was difficult for people to access information from Police about if they had been surveilled by Police, or why. "Most people only find out if the evidence is used against them in Court," he said.
"There are not enough checks and balances. It is too easy for Police to obtain a warrant in circumstances where one is not justified. It is too difficult to discover that that happened. It is too difficult to have anyone uphold, or even hear, a complaint. And there are never any serious consequences for Police for acting unlawfully," Geiringer said.
Sophie Morgan, 24, was one of the three whose phones were tapped as part of the order. She said the tapping was a huge invasion of privacy. "It's pretty disturbing to know that all this time, the police have been listening in to all kinds of personal conversations. I do really feel violated by that."
"We're not a danger to the New Zealand public at all," she told VICE: the protest action had been non-violent, in keeping with previous People Against Prisons Aotearoa protests.
"I don't believe a sit-down protest at a government office is acceptable grounds for the wholesale violation of the human right to privacy."
In an initial review of the Search and Surveillance Act from late last year, the Law Commission notes the way Police currently work could cause an unnecessary invasion of privacy, as the system involves listening to and recording all phone calls, even those unrelated to an investigation.
"Where Police use an interception device on a phone line, all calls are recorded by the Crime Monitoring Centre (CMC), a national 24-hour monitoring service. CMC employees listen to all intercepted calls and summarise them," the report notes. They cite examples where "the usual process adopted by Police involves a greater invasion of privacy than necessary because someone listens to the entirety of every intercepted phone call".
PAPA spokesperson Emilie Rākete confirmed that the group would be launching a complaint through the Independent Police Complaints Authority. "People Against Prisons Aotearoa has been receiving legal advice and is preparing to pursue the Police regarding their surveillance of our organisation," she said. "I don't believe a sit-down protest at a government office is acceptable grounds for the wholesale violation of the human right to privacy."
"When people suspect they can't talk on the telephone when they're organising a simple piece of democratic activity like a demonstration or something, that has a terrible chilling effect"
Investigative journalist Nicky Hager has had first-hand experience of Police overstep: he won a case against Police in the High Court in 2016. The judge found that the Police raid on his home was fundamentally unlawful, and that Police had not meet their duty of candour when they asked a District Court judge to issue the search warrant.
He said there are questions to be asked about whether the interception of activist communications were a one-off, or part of a broader problem.
"There are two possibilities with a case like this that comes up, given that we don't get routine information about how many are going on. One, that there were some Police officers involved in this protest, who appear to have grossly overstepped… The other possibility is that the environment has changed, the climate has changed, and there's a sense of entitlement to use more intrusive tools against normal democratic protest. And we don't know which one it is, because there are no statistics on this, there's no transparency.
"There is a very serious question to be asked about whether this was foolishness, improper behaviour, or whether it's part of a climate that's been building."
He said the possible chilling effect on democratic activity was highly concerning.
"When people suspect they can't talk on the telephone when they're organising a simple piece of democratic activity like a demonstration or something, that has a terrible chilling effect," he said.
"The idea that people need the content of their phones monitored, let alone their call data monitored, because of normal, non-violent democratic activity is really crossing a line."
Last year New Zealand Police were granted 110 surveillance device warrants, according to their 2015/16 Report. Of those, 95 granted use of an interception device, 93 granted use of a tracking device, and 63 granted use of visual surveillance devices.
Greenpeace executive director and former Green Party co-leader Dr Russel Norman was in parliament when the Search and Surveillance Act was passed, and spent several years sitting on the Intelligence and Security Committee, which oversees surveillance by New Zealand's intelligence agencies. Norman told VICE he had ongoing concerns about communications between activist and human rights groups being intercepted.
"There is no reason to think that agencies of the government are not regularly intercepting communications. They have the capacity to do so, they have the desire to do so," he said.
"There is very little oversight, very little in the way of checks and balances."
"I spent years on the Intelligence and Security Committee for oversight of intelligence agencies, and we learned more from the Snowden leaks than we did from being on that committee. The level of oversight is really minimal."
"There is absolutely no question [increasing surveillance powers] are eroding civil liberties in New Zealand. Each of these laws that they passed through have restricted democratic space and given more power to engage in widespread surveillance. I do think it has a chilling effect more broadly," he said. "It's part of a cumulative effect."
Even if people find out their phone has been tapped, and believe there are no legal grounds for the tapping, it is difficult to hold Police to account. In the past, Geiringer said, clients had made complaints to the Independent Police Conduct Authority, but some never even heard back. The other option was laying a complaint under the Bill of Rights, which even with a pro-bono lawyer could prove expensive. "Even with a free lawyer, and even if successful, the damages awarded are so miserly they will not normally cover the time and cost of bringing a claim," he said. "If you lose, the Crown has adopted a policy of pursuing unsuccessful litigants for its costs. So, this route is now only usually open to well supported people wanting to do it as a point of principle."
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