Private Security Personnel and Private Investigators Bill

CHRIS TREMAIN (Senior Whip—National) Link to this

I seek leave for the Committee stage of the Private Security Personnel and Private Investigators Bill to be taken as one debate with multiple calls.

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I think it is appropriate that I make a couple of introductory remarks about Supplementary Order Paper 162 in my name, which is on the Table this afternoon. In essence, it changes the commencement date of the bill from 1 December 2010 to 1 April 2011, to allow time to implement the bill and time for the industry to prepare for these changes. It broadens the existing power to exempt crowd controllers from the requirement to hold a certificate of approval to include property guards and personal guards. It allows an exemption to be made for the purpose of a major event, or associated event, if the Minister is satisfied that the public interest in ensuring there are sufficient numbers of security personnel at the event outweighs the benefits of those people being regulated. That is in new clause 13G. It also makes several technical amendments throughout Part 2 to provide for online applications, and it amends the regulation-making powers relating to training to allow the flexibility to introduce training requirements during the 5-year term of a licence or certificate of approval. It changes the date by which new categories of security personnel, crowd controllers, and personal guards become subject to the regime from 1 June 2011 to a date to be set by Order in Council.

JACINDA ARDERN (Labour) Link to this

I look forward to future contributions from the Minister in the chair, Associate Minister of Justice Nathan Guy, on the Private Security Personnel and Private Investigators Bill, and to perhaps a little more enthusiasm from him in his second or third intervention. The Minister is presenting a very significant piece of work to us today, and it will have significant implications for those who work in this sector. As was already indicated in the second reading of this bill, there will be a doubling of the number of people in this sector who will be required, essentially, to be registered, from around 9,000 to 18,000. I know that one of my colleagues will be seeking, later in the Committee stage of this bill, further clarification from the Minister of his expectations regarding the level of discretion that will be exercised in granting some of those licences, given that some of those already operating in the sector may not have been required to be registered and may fall outside some of the expectations that this legislation may create in terms of qualifications, background checks, etc. It will be interesting to have that discussion and to seek further clarification from the Minister about that.

But I wish to go back to the debate that was started in the second reading of this bill about clause 66, because, obviously, this bill was initially drafted by Labour and was introduced in 2008, and for the large part, there is little contention between both Labour and National on this bill, with the exception of clause 66. Just to give the Committee a bit of background, I thought it might be useful to spend some time on what that clause originally said before it was struck out by the Government members at the Justice and Electoral Committee.

Clause 66 set out that a private investigator or employee was to not take photographs or make recordings without consent. That provision was based on the status quo of the current legislation, which I think dates back to the 1950s. It sets out that no person may in the course of, or in connection with, business as a private investigator take or cause to be taken, or use or accept the use of any photograph, any cinematographic picture, or any videotape recording of another person, without the prior consent in writing of that person. That includes recording devices, as well. Essentially, the legislation says that if a private investigator is contracted by someone else to monitor movements, either by video recording or through photographs, the investigator cannot do so unless he or she has the written consent of the person who is being followed. On face value, it may seem to defeat the purpose of following someone covertly if one then has to seek that person’s permission for photos to be taken or used.

We acknowledged in the select committee that there was a difficulty there, and that perhaps this provision was too prescriptive, but we were not satisfied that simply deleting it was a fair middle ground. We heard from some submitters that the restrictions of clause 66 would inhibit private investigators who are investigating criminal activity. Therefore, they said that outweighed any concerns that may exist around privacy, so they advocated that the clause should come out of the bill altogether. But it is important to be mindful that not all of the work that this provision covered would have been investigation around criminal activity. In fact, probably some of the more frequent activity might have simply related to, for instance, marital disputes, perhaps the following of famous individuals, or, even—we have seen and heard examples of this—politicians having their privacy invaded in this way.

The legislation prevented that until now, but clause 66 has now been removed from the bill. The consequence of that is that if an adequate code of conduct is drafted, essentially it will be the case that private investigators will have wider powers than the police, if we compare what we have here with the Search and Surveillance Bill, which the Justice and Electoral Committee is currently considering. One of the concerns raised by the select committee was that at the moment we have two pieces of legislation in the mix. We have this bill and we also have the Search and Surveillance Bill, which the Justice and Electoral Committee is considering. The Law Commission is also doing a report on privacy. We run the risk of having a lack of cohesion and an inconsistent response to the issue of privacy, and some individuals may wind up with greater powers than others. That was a concern for the select committee.

How could we have resolved that concern? I will look at clause 106, which sets out the regulations that will be subsequently drafted, and which will remedy some of the issues that we looked at as a select committee. For the large part, I am happy for a lot of these regulations to be set outside the ambit of the select committee inquiry and to be set in consultation with the sector, because, by and large, they relate to the prescribing of forms, the setting of fees, and the prescribing of the competency, knowledge, and skills required by applicants for licences and certificates, which was perhaps one of the more significant provisions inserted by the select committee. I acknowledge that the sector has a huge role to play in setting out its own expectations and standards for the industry, and I think that is good and proper. Of course, the Regulations Review Committee will also have oversight, particularly of the fees that will then be set.

But I think we have gone a step too far in setting out and allowing a code of conduct to be set outside the ambit of this House—and I have some questions for the Minister in the chair about that. We see that clause 106A, which is, I guess, the counterweight to the removal of clause 66, states that “the Minister must recommend that the Governor-General make regulations … to be in force at all times on and after 1 December 2010,”—I imagine that date is changed on Supplementary Order Paper 162 in the name of the Hon Nathan Guy—“prescribing a code of conduct containing matters that the Minister is satisfied are necessary or desirable in relation to the surveillance of individuals by private investigators and private investigator employees.” That is very broad. We do not have a sense at this stage of how comprehensive the code of conduct will be, or of the expectations of the Minister or the Government.

I have a number of questions. I ask the Minister what role he envisages that the Law Commission’s report on privacy will play in developing the code of conduct and whether there will be any interaction, or whether the time lines are simply out of kilter. I ask what the expectations of the Minister are for that code of conduct, or whether we are essentially beginning with a blank canvas. If the Minister has some expectations, then I would be interested to hear them. I ask him who will be involved in the drafting of the code of conduct, because there are a number of various interested parties when it comes to these matters. I also ask what mechanisms the Government is building in to change the code of conduct if compliance becomes an issue. This is obviously what we need to take into account when we look at forms of pseudo - self-regulation. I ask how the Minister will build in the prerogative to change the code of conduct if it is inadequate.

Just to restate Labour’s position on this issue—which, I believe, is shared by the Greens—I say our preference was to retain clause 66, although acknowledging that it needed to be amended. Our view was that it should be retained, and that once the Law Commission’s review had been completed, we should then make an amendment to it. Our intention is to put forward an amendment along those lines. If the Government wishes to then come back with a compromise—for instance, that we retain clause 66 but build in an agreement that when the Law Commission finishes its report, we cooperate in ushering through an amendment, so that we do not have a full, lengthy House procedure on it—I think that would be good. Such a compromise would ensure that we get around all the issues and make a coherent response to the privacy issue, which is certainly what we are advocating for. I know that the Law Commission has already recommended that there be security devices legislation and new offences for recording and tracking. Again, that demonstrates a significant overlap in all of the work that is being done, so it makes sense to slow down when it comes to this particular provision. If we get this wrong, then it will be hard to backtrack and rewrite history, as it were, when we are expecting an entire industry to change the way that it operates as a consequence of the deletion of quite a significant clause from this bill.

CHRIS HIPKINS (Labour—Rimutaka) Link to this

I am happy to take a brief call on the Private Security Personnel and Private Investigators Bill. Since I took my first call on this bill the night before last, I have had the opportunity to read the bill in more detail.

CHESTER BORROWS (National—Whanganui) Link to this

A number of points have been made about the need for the refurbishment of this legislation, bearing in mind the changes in technology over the last 35 years or so. It is interesting to note that almost every area of core business of policing, for instance, is now replicated in some form by the security industry and done privately. So the need for that vetting process, as the public perceive it, is such that these people need to be certificated. They need to go through a vetting process, and the public need to be reassured that these people are worthy of their trust. A number of those points were made by the previous speaker.

Just how far the need for that certification will extend really relates to its impact on the public and the public going about their private business. There has been some discussion, for instance, about clause 66—which was deleted by the select committee—and in respect of who is able to use video camera surveillance or still photographs. We know that private investigators are currently unable to do that, regardless of the fact they have been through that police-vetting process and that they are certificated personnel. Yet members of the public can do that any time they want.

The point is often made that private investigators have the knowledge, the skills, probably, and the motivation to do things that are on the edge of what is and is not acceptable, because they are doing it for reward, whereas the public are frequently motivated only by their own interest or by some particular hobby horse they may be on at any one time.

I need to point out, though, that unscrupulous members of the security, journalist, and other professions are currently in a position to manipulate members of the public—so they can do things that certificated private investigators cannot do. It seems to me to be ridiculous that the public can be used in an unscrupulous way without any sort of regulation at all. Hence the Government’s preference for a code of conduct to be regulated and for that provision to replace the clause 66 model, and I think that is a valid response, bearing in mind where technology has gone.

I would like to cover a point that was raised by the previous speaker, Chris Hipkins. He asked whether there was a need for community patrol people, who are frequently sitting in police stations monitoring closed-circuit television cameras that are used to monitor the public as they go about their business—for instance, late-night Thursdays, Fridays, and Saturdays. We have to remember that the community patrol people who are sitting in police stations and watching those closed-circuit television cameras at the moment have been through a police-vetting process. Otherwise they would not be allowed to sit inside a police station and have access to, or be in the vicinity of, confidential information.

The second point is that although a number of those closed-circuit television cameras are mounted on private property, they are almost invariably looking into what is public property—if not entirely publicly owned property, public in terms of section 2 of the Summary Offences Act, for instance. That section covers land that is private but accessible by the public whether or not it is right to do so. For instance, the closed-circuit television camera may be looking over car-parks, the backs of hotels, alleyways, or into pieces of land that are frequently the subject of intrusion or trespass by drunken idiots, whom we might want to monitor. The community patrol members who are monitoring those video cameras are not required to be certificated at the moment, but they have been through a vetting process and are generally operating under the fairly close supervision of members of the police who are on duty at the time. I think it was important to point out those few measures.

I commend the bill to the Committee, bearing in mind that it is not only dragging the legislation, kicking and screaming, into the 21st century—it is long overdue—but also taking account of technologies that have come into vogue. Those technologies are now easily accessible to the public, whereas they were not accessible in the past. This bill will provide a greater degree of scrutiny over those people who have some power and authority over us—for instance, private investigators and security personnel. Thank you.

CARMEL SEPULONI (Labour) Link to this

Labour will be supporting this bill, but some concerns have arisen for me, and I shall put those concerns and some questions to the Minister in the chair, the Hon Nathan Guy. In the Chamber last night Mr Harawira said that a lot of people undertaking the work that is explicitly outlined in this bill are Māori and Pacific, so we are looking after our workforce and making sure that this bill addresses their needs. I feel that the tone of the bill relates largely to the protection of the public, which is definitely an aspect, but it also legislates that training must be put into place to ensure that the people undertaking this work are not only accountable to the public but better equipped to undertake these positions. I just wonder whether there is some scope for change to ensure that that aspect comes across in the bill and that we get to see that it is not just for the protection of the public, because a lot of these people undertaking these roles are good people. The vast majority have had no problems; the vast majority have been safe in their roles, and have done a service to the public. So it is good that the tone of the bill illustrates that fact, and illustrates that the bill will protect them so they can do their job well and safely.

I went through the bill, and I might be wrong and I asked a couple of colleagues, but I could not find a regulatory impact statement. I ask the Minister whether a regulatory impact statement goes along with this bill and, if so, where it is. I could not find it.

The National Government has introduced a Supplementary Order Paper, which will exempt certain groups from the bill, and in reading it I wondered about Pacific wardens and Māori wardens, and whether they would be exempted from the bill, keeping in mind that they are volunteers, I think. Members will let me know if I am wrong. A lot of them take on the roles of crowd controller and property guard. That could be considered to be part of what this legislation is pushing for. So I want to know from the Minister whether those two groups—Pacific and Māori wardens—will be exempted from this legislation, and also what other groups he has in mind that will be exempted from it.

Initially, when we were debating this bill in the House the other night, I had a concern about the level of discretion that the licensing authority would have with regard to granting a licence or certificate to security guards, crowd controllers, bouncers—any people who fall into those categories. I have gone through the bill, and it seems broad, but it seems that there will be a level of discretion. I would also like confirmation about that from the Minister.

One example that was sent through to me was of someone who in his early years committed a very, very serious crime—that being murder—at the age of 16. He then went to jail at 17. But that murder was committed in the early 1990s; he has been out of jail for the last 8 years. He has not committed any crime ever since. He has been practising as a security guard at a bar ever since then. So I wonder whether the authority’s discretion would extend to that sort of situation in terms of allowing him to continue to practise, considering that he has done so for 8 years and despite the fact that that will be on his record for life. I wonder whether in those cases—although I am sure they will be few—the licensing authority will use its discretion to allow those people to continue and also to allow them to gain the qualification necessary in these particular roles.

It needs to keep in mind that some of those people have been working in those jobs for long periods of time. For some of them, as in the example I have just used, that is the only occupation that that person has ever known. So I wonder what level of discretion the licensing authority will have. I discussed with someone earlier the case I am talking about now. It was raised with me that that would be the exception rather than the norm. But I think the licensing authority needs to have the ability to make decisions on a case-by-case basis and to have the discretion to grant an exception for exceptional cases, like the one I am discussing.

I will discuss the provisions in general. Labour supports the bill. It was introduced to the House by Mr Cosgrove in 2008. It is unfortunate that it has taken a while to push through. I understand that the rationale for pushing it through now is to have legislation in place by June 2011, so that all of the provisions can be put into place before the Rugby World Cup. I think that is a good move, but I also think it could have been done earlier, especially when the safety of the public was the initial reason for this bill. It is something that perhaps the Government should have pushed along with a little more quickly. But that is OK; it is going through now.

The other issue raised earlier by my colleague Jacinda Ardern was our concern that National members of the select committee deleted the clause that would make it an offence for private investigators to photograph or to record people without consent. That is a very real concern that we on this side of the House have. We hope that the other side will address that. I think we have a Supplementary Order Paper up to address that—[Interruption]—yes. We hope that the other side of the House will support it. Thank you very much.

Hon NATHAN GUY (Minister of Internal Affairs) Link to this

After hearing the contributions from members across the House this afternoon I think it is important that I make some comments. A few questions have been posed this afternoon. One of those questions was from Jacinda Ardern asking whether the removal of clause 66 from the Private Security Personnel and Private Investigators Bill meant that private investigators will have more power than the police. That is not the case. The police have specific powers as set out in the Policing Act 2008. Private investigators, like any other licence holder or certificate holder, have no more powers than the general public. I hope that the member can seek some reassurance from that. It is captured in clause 101.

In terms of the code of conduct, there were some questions around drafting and who will be consulted. It is my intention that the Privacy Commissioner, the Law Commission, and the key stakeholders will be consulted through that process. Of course once the Law Commission has done its big piece of work on privacy, which could take 2 years, to be frank, then there is an opportunity for the code to be amended if it is necessary once that piece of work is done. We also need to be aware of the fact that the Privacy Act 1993 cannot be overridden in that process.

There were also some comments on the discretion of licensing. The bill gives the authority some discretion to grant a licence or a certificate even if a disqualification ground applies. I think the important point is that the discretion is used in exceptional circumstances where evidence—and it would have to be strong evidence—is provided to the authority that a person’s background, character, or circumstances means that they are suitable for the role, despite their conviction or disqualification criteria.

There was also a comment, which I thought was interesting, concerning community patrols. If we think about community patrols, as I understand it most of those people—I think all of them—are volunteers. Volunteers are not captured under this regime. If they operate in-house, that is, if they are not employed by a licence holder, then they are not captured unless, of course, they are a crowd controller. The Supplementary Order Paper has been dropped on the Table, so I look forward to hearing some comments from the Hon David Carter—Parker—about that.

Hon DAVID PARKER (Labour) Link to this

I thank the Minister in the chair, the Hon Nathan Guy, for those comments. I am not sure that it is a pleasure to be confused with David Carter, but I will not take offence.

I take issue with the Minister on whether private investigators should be able to undertake search and surveillance measures. The general policy that underlies our law is that we give additional powers to the police for search and surveillance and we control the powers of the police and other State agencies for search and surveillance. One would expect the controls that apply to search and surveillance by the police to be at least matched by controls on search and surveillance by non-State agencies like private investigators—

SIMON BRIDGES (National—Tauranga) Link to this

This is a very interesting debate on the Private Security Personnel and Private Investigators Bill, and one where I accept that there probably are some nuances and subtleties. But I would also say that, ultimately, the issue comes down to some classic philosophical dividing lines—and not necessarily between Labour and National. However, I think it would be fair to say that the position I take would be the position other National members would take more often than not, and that David Parker’s position is probably one that Labour members would take more often than not. I would say that in a fight between freedom of information, where people can record information and use it as they like, and privacy—although I know that privacy will, of course, sometimes win—I would go with freedom of information nearly every day. I would much rather live in a freer society where people can say, report, and do what they like than in one where we are cloistered by privacy rules.

It may be—and I reserve my position on this because there will be a Law Commission report—that David Parker is right and there is a gap in the law whereby private individuals can pretty much do what they like in terms of taking recordings and the like, and we may need to address that as a Parliament in the future. There will be, as we know, a Law Commission report looking at non-State actors and their roles and powers, but the solution in the interim most certainly is not to ban private investigators from doing what any other Joe Bloggs can do right now. The solution is not to restrict private investigators—particularly when what we are doing in this law is making them adhere to high standards and a code of conduct—from doing what others can do, because, as I said in the reading earlier this week, we get this ridiculous situation where journalists, for example, can do some of the most remarkable things with their surveillance and recording. By and large, that does not happen in this country, thank goodness, with maybe one or two exceptions. But in the United Kingdom there have been some flagrant examples of journalists using surveillance in very unethical ways to entrap people. I give an example I have used already—that of News of the World and Fergie, and the situation she was tricked into. It was entirely manufactured by journalists. There may be something I am unaware of, but I do not think there is anything to stop that from happening legally in New Zealand. So, as I say, it may be that David Parker has a point and we need to address that down the track. But the answer today is not to take his amendment on board and restrict what private investigators can do, because they will be held to a strict code of conduct that will be put in place prior to the enactment of this legislation.

I come back to some other examples that give a very real face as to why private investigators should be able to use surveillance. Outside of the police, most Government agencies use private investigators in the public interest. Work and Income does, the Accident Compensation Corporation (ACC) does, and the Inland Revenue Department does. In the public interest those agencies use private investigators in most of their civil fraud cases. It is a silly situation—and I accept that it is one we have had for a long time—when those private investigators cannot take photographs and video recordings to prove a case of fraud. I give the example of ACC and the person with the bad back who, in fact, plays a mean game of golf every day of the week. What would be wrong or unethical about recording that for evidential purposes in court? That cannot happen now, so we are changing the law.

Hon DAVID CUNLIFFE (Labour—New Lynn) Link to this

This is a fascinating debate, at a number of levels. I will take a very brief call. The right of politics often makes the fundamental philosophical error that the absence of regulation is the same thing as human freedom. If ever that mistake was proven, it is in the context of this bill. The absence of restriction on private investigators means that the freedom of every New Zealander is curtailed, not enhanced, and that is proven partly by the relentless march of technology.

Let me give a couple of easy examples. Firstly, directional microphones can pick up a conversation at hundreds of yards of distance. Keystroke mapping can copy the entry of typing into a computer remotely, or via a camera, at great distance. Even a humble Google search, web search, or Facebook search will, because people have larger digital footprints, produce a wealth of information about ordinary individuals. It is not necessarily wrong if they have chosen to put it in the public domain, but it cannot be contested that technology means that there is more information about people able to be searched than ever before, and that is before the private spooks come in. We have wire taps, bugging, directional mikes, malware, and spyware on computers, not to mention code crackers. One can buy for 100 bucks at Dick Smith Electronics code cracking technology that the National Security Agency did not have a decade ago. What is a 1,000 digit combo lock now, when for 100 bucks one could crack anything? The point is that without some regulatory framework around private spies, the freedoms of every New Zealand citizen are under unprecedented threat.

I want to give a couple of little personal examples. They are historic; they are already in the public domain. My electorate office was burgled. Quite precise incisions were made in the windows. Nothing was stolen except the hard drive on the computer—the back-up hard drive. That was a couple of years ago. I am absolutely confident, and I did a routine search just to prove it, that my office is run squeaky clean. I have no concern about anything that might have been on that computer. I make the point that if somebody has done a precise, no fingerprints, surgical entry into a parliamentary electorate office through a window then there are people in our country who would stop at nothing to do wiretaps, computer hacks, or a whole bunch of other techno-savvy invasions on the very freedoms that Mr Bridges says he holds dear.

If it is absolutely accepted and bipartisan that the Crown’s own secret service agents must have a judge’s warrant to tap a phone, why do we not require a similar standard of probity from a private spy? Corporates that have large budgets can procure those services, often from ex-Crown personnel like police or members of the security services, on the free market, using their deep pockets, and that is a threat to the liberties that generations of New Zealanders fought and died to protect.

I am not blaming the Government for not having fixed this before. This is an issue that has grown over time, and the threat to private liberty is directly proportional to the reach of technology—that is, as we become more sophisticated in our computing and our potential to invade privacy, then, equally, the need for the protection of fundamental human rights and dignities around privacy rose with it. It is high time that this House addressed itself to these growing issues in a more comprehensive way than is included in this bill. However, I will commend the Government—I think this is bipartisan because it transcends the change of Government—for the work of the Office of the Privacy Commissioner under Marie Shroff. For two terms—

KEITH LOCKE (Green) Link to this

I rise to support David Parker’s amendment, and also to commend the previous speaker, David Cunliffe, for a very good, wide-ranging speech on the privacy problems we face. I thought the speaker before him, Simon Bridges, gave a somewhat contradictory speech, in that he admitted the problems of the intrusion into people’s privacy, using the example of Fergie in Great Britain, and the intrusions of the media like News of the World and the like. Recently in Britain we have had the scandal of journalists hacking the voicemails of different politicians. I do not think we have had that scandal here yet, but, as David Cunliffe indicated, technology advances are such that we might find it happening to us.

PAUL QUINN (National) Link to this

It gives me pleasure to take a short call on the Private Security Personnel and Private Investigators Bill, because I have listened intently as the debate has progressed. It seems to me that this is a classic argument. Let us be clear that the real issue here is what was clause 66 and the Supplementary Order Paper that has been submitted by the Opposition. In respect of that particular clause, which all the previous speakers in the Opposition have referred to, it seems to me that it is a matter of looking at two sides of a mirror, and of deciding, in fact, which side of that mirror we want to be on. On one side of the mirror we talk about the police having certain powers, but the Opposition—I think it was pointed out by Mr Parker—has claimed that a group of private investigators has more capability for doing surveillance than the police. On the other side of the mirror is the general public, who in fact are able to do, carte blanche, what they like.