Legal Beagle by Graeme Edgeler


Search and Surveillance: an occasional series

When the Search and Surveillance Bill (now Act) suddenly became a political hot topic a couple of years back, I started writing/researching a post that would explain what it did and did not do. I read pretty much the entire Law Commission Report before realising I would not have the time to do the topic justice, so largely dropped it.

However, it has been in the news again, and I thought that, while I may never be able to examine the whole thing, it might be useful to take exceedingly small parts of it and explain what has happened, especially when some of those bits have made the news. We begin today (and may or may not actually continue) with the changes made with respect to search warrants and media privilege.

There was substantial comment to the effect that the bill is a retrograde step for journalism, and that changes made late in the day made it even worse. I am confident that neither of these things is true.

As can be seen from the search warrants executed following the teapot tapes, media currently have few special protections when it comes to being search by police. There are cases about being careful in granting search warrants in respect of the media - and if a media organisation found out there was a search warrant before the search was carried out, they could seek an urgent judicial review and ask that the issue of the warrant be quashed - but once police obtain a search warrant in respect of a journalist or a media organisation, they can and do execute it in pretty much the same way that they do with anyone else. They can go in, and look through a journalist's stuff, including, potentially, computers, and recordings, and notebooks and cellphone records. If a journalist has material naming a confidential source, police can seize it under the search warrant in the same way they could any other evidence relating to an offence.

And this is the current law.

Various people within the media have pointed to the section of the Evidence Act providing for journalistic privilege, and saying that it is being subverted by the changes. However, it has never applied to material that might be obtained through a search warrant. It is principally about evidence in Court, and whether, for example, a journalist called to give evidence can be required to answer a question that would force them to disclose confidential sources. Journalistic privilege has never been able to be used to tell a police officer executing a search warrant "you can't seize that! It's covered by journalistic privilege."

The Search and Surveillance Act changes this. When conducting a search of material in which there may be a potential claim of privilege (such as journalistic privilege), that person must be provided with a reasonable opportunity to claim that privilege, by, for example, conducting the claim in their presence, and allowing them to say "oi, that's protected, don't look at that." The person conducting the search must then either not take that item, or may secure the item, and then take it to a court to have the claim decided; they cannot search it until specifically authorised by a Court (because, for example, it has decided there is actually no privilege).

Anyone interested in protecting journalistic privilege should welcome this law change.

The principle change made to this by the supplementary order paper was so that questions of journalistic privilege would be decided by a High Court judge (who will generally have more time to get to grips with the argument), and to making the process by which journalists (and others claiming privilege) could actually have their privilege claims determined slightly clearer.

Maybe the law could go further in protecting journalists, but it is already a substantial advance on what we currently have, which provides few firm protections for media organisations which are the subject of search warrants.

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