The New Zealand Law Society believes more detail and analysis of the information held by the New Zealand Customs Service is needed to better assess the potential privacy risks and harm posed by proposals to give direct access to Customs databases to enforcement agencies.

The Law Society has released comments it has made to the Customs Service on its Discussion Paper on the Customs and Excise Act 1996 Review.

It says it is not clear that regulations permitting information sharing under Customs legislation are necessary. Provisions in the Privacy Act 1993 regulate the development of information sharing agreements within and between agencies, and no reasons have been given as to why that system is considered inadequate for Customs.

“It appears from the discussion paper that Customs wishes to maintain public trust and confidence, but also wants significantly greater powers to share information with enforcement agencies, particularly the Police,” the Law Society says.

“These agencies would presumably welcome direct access to Customs’ databases without having to go through the usual legislative or court processes for seeking the information.”

The rationale for such information sharing is that to protect New Zealand, government agencies need to understand potential risk through sharing multiple pieces of information to develop a richer picture of risk which will not come from one agency’s information system.

“However, without more detail about the information held by Customs, it is difficult to assess the potential privacy risks and harm posed by the proposals,” the Law Society says.

“The rationale for agencies having direct access to information held by Customs needs to be supported by more evidence and analysis.”

Offender drug and alcohol testing bill lacks judicial oversight

The lack of judicial involvement in drug and alcohol testing legislation is problematic, the New Zealand Law Society says.

The Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill enables the Department of Corrections and the Police to require some community-based offenders and people on bail to undergo drug and alcohol testing to ensure they’re complying with conditions prohibiting the use of drugs and alcohol.

The Law Society has presented a submission on the bill to Parliament’s Law and Order Committee.

The Law Society questions the way the bill will be implemented, who the decision-makers should be and the consistency of parts of the bill with the Bill of Rights Act 1990.

Law Society spokesperson Graeme Edgeler says powers proposed by the bill to make people be continuously monitored by a drug or alcohol monitoring device is a “major infringement of liberty”.

“It will be possible to justify it in some circumstances, but certainly not in respect of all people who are subject to alcohol or drug abstention conditions,” he says.

Mr Edgeler says the legislation will prohibit judicial involvement in the imposition of bail, sentence and release conditions requiring the wearing of drug or alcohol monitoring devices.

“There should be judicial oversight of decisions to impose continuous monitoring. No person should be required to wear an alcohol monitoring bracelet without a judge’s approval,” he says.

In its submission the Law Society says that while it appreciates there may be resourcing concerns, the solution is not to place sole discretion with the Police or Corrections and forbid judicial involvement.

Mr Edgeler says bail or sentence conditions imposed by the Parole Board or a judge should be made with agreement from the appropriate agency. This is similar to what happens with electronically monitored bail, or home detention, which require a feasibility assessment.

“This is particularly concerning with respect to the changes to the Bail Act. It is inherent that bail applies to individuals who have not been proven guilty of any offending,” he says.

The Law Society’s submission suggests the bill uses standard conditions in the Bail Act that could be adopted as needed, allowing a judge to impose a monitoring condition if it is considered appropriate by Police.

“This staggered approach would enable a judge to tailor the regime as appropriate to the alleged offender and the alleged offending,” Mr Edgeler says.

Recent submissions

The Law Society recently filed submissions on:

• Drug and Alcohol Testing of Community-based Offenders and Bailees Legislation Bill;
• Tax, QWBA00078: Goods and Services Tax – Non-profit bodies – registration, accounting for GST, and deregistration;
• Taxation (Annual Rates for 2015-16, Research and Development, and Remedial Matters) Bill;
• Customs and Excise Act 1996 review;
• Environment Canterbury (ECan) review, discussion document; and
• Tax: Simplifying the Collection of Tax on Employee Share Schemes.

The submissions are available at www.lawsociety.org.nz/news-and-communications/law-reform-submissions.