Thursday, February 16, 2023

The police knew coercing photographs from kids was illegal

In September last year, the Privacy Commissioner and Independent Police Conduct Authority issued a joint report on their investigation into the police's practice of coercing "voluntary" photographs from young Māori on the street. The report uncovered illegality, systematic racism, and widespread ignorance among police officers of the limits on their behaviour, including some practices so obviously illegal that the Privacy Commissioner was forced to issue a Compliance Notice to stop them. The report mentioned that the police had conducted their own internal review into the issues it covered, and a sharp-eyed person used FYI, the public OIA request site, to request a copy. Today, three months after the statutory deadline, the police finally provided a response, including a copy of the report. That report shows that, contrary to their public statements, the police's processes for handling this data are not robust, and they know it (or at least, they would if they read beyond the summary, which in usual police fashion, minimises their own wrongdoing and buries the true scale of their non-compliance). But it gets worse, because the report included legal advice, which was not properly redacted. This shows that:

  • Photographing and fingerprinting children and young people is likely inconsistent with the UN Convention on the Rights of the Child and its principle that the best interests of the child be a primary consideration in all actions concerning children;
  • They know that their claims of "consent" where children are concerned are pure bullshit. "There are a number of barriers to obtaining full and informed consent including the power imbalance between the young person and the Police officer, literacy issues, and communication disabilities... These factors can make it difficult for an officer to adequately explain the points in the POL545/545A forms to the level required not least because the officer does not have the training to recognise them or to address them." There are multiple cases already where evidence coerced from children and young people in this way has been thrown out by the courts on these grounds.
  • Even if officers were properly trained, "some young people, particularly those aged under 15 years are not usually able to provide full and informed consent".
  • These concerns effectively poison all existing material taken from young people.
  • The nature of the youth justice system and its focus on allowing young people to make amends and leave offending in the past means that indefinite retention of information on children and young people is not a "lawful use", regardless of "consent".
Chris Hipkins is on record as saying that he wants to simply legalise the police's criminal behaviour, effectively putting them above the law. But this wouldn't just involve overturning the most basic principles of the Privacy Act - it would also require overturning fundamentals of the youth justice system. Which in turn would put us in violation of UNCROC, which has been incorporated into New Zealand law through the Oranga Tamariki Act. And as with "three strikes" and mandatory minimum non-parole periods, I'm not sure the courts would stand for that.

Update: The report is now on DocumentCloud. To read the redacted bits, click on "Document" (on the bottom left) and change it to "Plain text".