Last week, court documents revealed three human rights activists' phones had been tapped by Police, with phone calls and text messages intercepted and recorded. The surveillance began last year, after the three were arrested on trespass charges during a protest. The group now says Police had no grounds to conduct the surveillance, and are bringing a complaint under the Independent Police Conduct Authority.

A group of activists whose phones were tapped by police are bringing a complaint under the Independent Police Conduct Authority. Now, New Zealand Police are faced with questions about the legality of the surveillance, and what justified the invasion of privacy.

At the time , Waikato Police Senior Sergeant Ray Malcolmson said Police were taking a "low key" approach to the protest. But a year later, court documents obtained by VICE showed the subsequent investigation into the lives of the three activists appears to be far from low-key. For an unspecified length of time—the activists do not yet know if their phones could still be tapped—Police intercepted and recorded their phone calls and text messages.

People Against Prisons Aotearoa began as a group advocating for the rights of LGBTQI prisoners, initially launched to protest Police participation in Pride Parades. Over time, the group's purpose broadened to include advocating for prisoners' right to vote, abolition, running education programmes for prisoners, and advocating for an end to solitary confinement practices in prisons. Come November 2016, the group were holding pickets at Corrections offices around the country to protest a trans prisoner being held in isolation. The practice, they said, was causing the prisoner immense mental distress, and was a violation of her human rights. During one of the pickets, four members of the group entered a Corrections office and chained themselves to a desk. They were arrested, and three were charged with trespass.

According to Police statements in court, the phone-tap service was granted on 22 November 2016, the day of the Corrections protest. Trespass charges for all three demonstrators were discharged without conviction on September 28 2017, but the coinciding dates suggest the surveillance was connected to the trespass offences. The documents don't say how long the surveillance went on for—interception warrants can last anywhere between one and 60 days, and could be granted again after the 60-day period ended.

Under New Zealand's surveillance laws, interception of phone calls and text messages can only be justified by "the most serious types of offending", barrister Felix Geiringer said. According to the Search and Surveillance Act 2012, that includes category four offences —murder, manslaughter, planning a violent overthrow of the government or selling slaves—as well as a few less serious category three offences : arms dealing, importing, manufacturing and supplying psychoactive substances, or crimes carrying a penalty of more than seven years imprisonment.

"There are not enough checks and balances. It is too easy for Police to obtain a warrant in circumstances where one is not justified. It is too difficult to discover that that happened. It is too difficult to have anyone uphold, or even hear, a complaint. And there are never any serious consequences for Police for acting unlawfully," Geiringer said.

Geiringer, who has worked on several high-profile Police surveillance cases, said it was difficult for people to access information from Police about if they had been surveilled by Police, or why. "Most people only find out if the evidence is used against them in Court," he said.

"There are not enough checks and balances. It is too easy for Police to obtain a warrant in circumstances where one is not justified. It is too difficult to discover that that happened. It is too difficult to have anyone uphold, or even hear, a complaint."

But trespassing in New Zealand carries a maximum sentence of just three months. Police could not lawfully get a surveillance warrant to investigate such a minor charge. When repeatedly asked for comment by VICE, Police wouldn't state what justified the surveillance. A Police spokesperson told VICE, "for operational reasons Police are not able to respond to requests which seek to confirm or deny if a person or organisation is under investigation."

Sophie Morgan, 24, was one of the three whose phones were tapped as part of the order. She said the tapping was a huge invasion of privacy. "It's pretty disturbing to know that all this time, the police have been listening in to all kinds of personal conversations. I do really feel violated by that."

"We're not a danger to the New Zealand public at all," she told VICE: the protest action had been non-violent, in keeping with previous People Against Prisons Aotearoa protests.

"I don't believe a sit-down protest at a government office is acceptable grounds for the wholesale violation of the human right to privacy."

In an initial review of the Search and Surveillance Act from late last year, the Law Commission notes the way Police currently work could cause an unnecessary invasion of privacy, as the system involves listening to and recording all phone calls, even those unrelated to an investigation. "Where Police use an interception device on a phone line, all calls are recorded by the Crime Monitoring Centre (CMC), a national 24-hour monitoring service. CMC employees listen to all intercepted calls and summarise them," the report notes. They cite examples where "the usual process adopted by Police involves a greater invasion of privacy than necessary because someone listens to the entirety of every intercepted phone call".

PAPA spokesperson Emilie Rākete confirmed that the group would be launching a complaint through the Independent Police Complaints Authority. "People Against Prisons Aotearoa has been receiving legal advice and is preparing to pursue the Police regarding their surveillance of our organisation," she said. "I don't believe a sit-down protest at a government office is acceptable grounds for the wholesale violation of the human right to privacy."

"When people suspect they can't talk on the telephone when they're organising a simple piece of democratic activity like a demonstration or something, that has a terrible chilling effect"

Investigative journalist Nicky Hager has had first-hand experience of Police overstep: he won a case against Police in the High Court in 2016. The judge found that the Police raid on his home was fundamentally unlawful, and that Police had not meet their duty of candour when they asked a District Court judge to issue the search warrant.