Thursday, May 16, 2019

Beneficiaries are treated worse than criminals

An investigation by the Privacy Commissioner has found that WINZ systematically misused its powers, conducting intrusive and illegal searches into beneficiaries' lives in violation of both the Social Security Act and Privacy Act. Searches like this:

“In one instance, a beneficiary described to us how MSD obtained, from a telecommunications company, an intimate picture shared by that individual with a sexual partner. The photograph was then produced at an interview by MSD investigators seeking an explanation for it.”

How do they get this information? Because WINZ has warrantless search powers, originally under s11 Social Security Act 1964, and now under Schedule 6 Social Security Act 2018. Originally these allowed WINZ to demand anyone to provide them with information, documents, and records. In 2018, the current government re-enacted this as part of the rewrite of social security legislation, and added a "duty to answer questions asked by MSD", requiring anyone to answer anything WINZ asked them about beneficiaries or their circumstances. Those familiar with law enforcement search powers may recognise these as akin to a production order and examination order respectively - powers for which the police require judicial approval and (in the latter case) high-level internal signoff. WINZ has no such safeguards on its powers. But despite this, the re-enactment and expansion of the law was found to be consistent with the right against unreasonable search and seizure by the Attorney-General at the time, Chris Finlayson. Sadly, he did not provide his reasoning on that. The select committee which reviewed the bill in 2016 didn't comment on it either, though it's unclear whether that was because they had bigger issues to comment on, or because intrusive search powers hidden away in a schedule didn't attract attention. But either way, Parliament voted for this, contrary to established principles that intrusive search powers require a warrant issued by a judge.

Are the powers intrusive? They are when exercised by police against drug dealers and murderers. And when someone gets to perve through your bank records or your text messages or your emails, or force you to answer questions on pain of punishment, then yes, its intrusive. These powers urgently need judicial surveillance - and if that's inconvenient to WINZ, then tough. It's inconvenient to the police too, to have to convince a judge they have reasonable grounds to suspect an offence has been committed - but we make them jump through that hoop because these powers are ripe for abuse, and we don't trust the gang in blue not abuse them. We should apply the same standard to WINZ as well. Unless, like Chris Finlayson, we're happy for beneficiaries to be treated worse than criminals.