Monday, March 09, 2020

Secrecy and the police

Yesterday we learned that NZ nazis had obtained a copy of a confidential document from the police's Financial Intelligence Unit, which warned banks on how to recognise their transactions. Today a woman appeared in court charged with "unlawful possession of Police property" over this. Meanwhile, I'm wondering "how is this even a crime"? And the answer is an old, Official Secrets Act-era law which has weirdly been re-enacted, even in the supposedly much more open, post-OIA era.

Section 50 of the Policing Act 2008 criminalises unlawful possession of Police property. In case there were any Dixon v. R doubts about whether information can be property, police property "includes a confidential Police document or copy of that document". Which seems pretty open and shut. But while its being applied to a nazi, it also criminalises leaks of such documents to the media, or to NGOs or defence lawyers in order to expose police malfeasance. Which is obviously pretty useful for them in preventing oversight.

So why do we have this law? The explanatory note to the Policing Bill says that the clause "carries forward section 52 of the Police Act 1958 and aspects of section 61A of that Act". Section 52 is aimed at physical property, and criminalises possessing "anything whatsoever supplied or to be supplied to a member of the Police" without reasonable excuse. Section 61A is a more explicit secrecy clause, declaring the Police Gazette, Police Notices, Police Circulars, and "other document of a like nature" intended for internal police circulation to be "confidential Police documents" which can not be published and whose possession is a criminal offence. While it was amended to include explicit reference to the OIA in 1989, it was passed in 1978, an era when attitudes to secrecy were rather different. And that clause is itself an expansion of earlier laws (which applied only to the Police Gazette) passed at least as far back as 1947.

Back then, all government information was considered secret-by-default under the Official Secrets Act. That era was supposed to end with the passage of the Official Information Act, but at least in respect of the police, it didn't. And at this stage its worth pointing out that this protection is exceptional: there is no similar clause protecting information intended for internal use by spy agencies such as the SIS, for example, no law which allows people to be prosecuted simply for possessing a classified document regardless of its content or what you do with it (espionage requires intent to prejudice the security and defence of New Zealand, as does wrongful retention or copying of official information. Only John Key's recent anti-whistleblower law comes close - and even that only applies to people who have or have held a government security clearance, not to journalists or random members of the public). And that's because the new presumption in our secrecy laws - such as they are - is that its the government's job to keep its secrets, not ours, and that any criminal penalty for dealing with government documents requires exceptional harm, which significantly outweighs the harm done to freedom of the press and democratic values by statutory secrecy.

In short, the inclusion of documents in this clause is an archaic relic of an authoritarian era. It has no place in our modern democracy. It needs to be repealed.

(And for the avoidance of doubt, because someone will be a dick: I hate nazis, but this issue is bigger than them).