I seek leave for all the provisions of the Video Camera Surveillance (Temporary Measures) Bill to be taken as one question.
Leave is sought for that purpose. Is there any objection? There is no objection.
I listened very carefully to what Mr Locke said, and there are just two matters I want to bring to his attention that may allay some of his fears.
The first point relates to clause 3(d). Although, strictly speaking, from a legal point of view, the subclause was not needed, it has been inserted to emphasise to those reading and dealing with this legislation that section 21 of the New Zealand Bill of Rights Act is unaffected. That is very, very important.
The second point relates to what he said about the breadth of clause 5. I will emphasise certain words in clause 5(2), and it is important to read them. The use of this type of surveillance “does not of itself render the search unlawful.” Of course, I acknowledge that when the preliminary consultation exposure draft went out for consultation there were the words “or unreasonable” in there. Those were deleted at the time the bill was introduced. It is important to emphasise those words “does not of itself”, because it could be unlawful on other grounds. It could also be unreasonable, depending on the circumstances. So to take a particular hypothetical, there might be a prosecution body that commences this type of surveillance for an offence that clearly does not warrant that degree of intrusive surveillance, and it could be challenged on section 30 of the Evidence Act grounds at some stage as being unreasonable. It is very important—and I hope this helps the member—that that unreasonableness limb is there and that in appropriate circumstances, even if this type of surveillance is not of itself unlawful, it may still be unreasonable.
I thank the Attorney-General for his comments. I appreciate that the reference to the New Zealand Bill of Rights Act has been put in the Video Camera Surveillance (Temporary Measures) Bill, in clause 3(d), but I think that it is still in conflict with clause 5A, which I have tabled an amendment to omit.
The way I read clause 5A, it is in direct contravention to the New Zealand Bill of Rights Act, because the fundamental principles, as I indicated in my initial speech, were that people have to be tried, found guilty, and conduct their appeals, etc., on the law as it applied at the time. In relation to covert video surveillance involving trespass, the Supreme Court has indicated that that was unlawful at the time and unlawful in any previous trial.
So if, for example, just a hypothetical example, the entire evidence against somebody who was convicted, or the absolutely primary evidence even, was on the basis of covert video surveillance involving trespass, now that the Supreme Court has ruled this year that somebody who was convicted, say, a couple of years ago on that basis could come back for an appeal, potentially—they might not succeed, and there are all the other issues involved in appeals—we should not as a Parliament rule out their right to apply the law applying at the time. This is against the International Covenant on Civil and Political Rights, and people like Tony Ellis in their written and oral submissions to the Justice and Electoral Committee did indicate this.
Tony Ellis has taken appeals to the UN Human Rights Committee. I think he won three of them on such similar substantive legal grounds where the New Zealand jurisdiction seems to be at odds with international law. So I think I was right to put in my speech that we could potentially face a challenge from the international bodies if somebody had an appeal denied on that basis.
I take the other point the Attorney-General made about clause 5(2), that the surveillance does not in and of itself render a search unlawful. It is similar to the point I made in my speech. I emphasise—and Charles Chauvel and David Parker are wrong here—that the Green Party is not against covert video surveillance with the proper controls. The whole issue today with this bill is what the Supreme Court dealt with, which is covert video surveillance involving trespass, not without trespass.
I totally agree, and I said so in my speech, and it is quite clear, that if the police, or any agency, engage in covert video surveillance without trespass, then they are still subject to a test—which they might succeed on, or might not—about whether that was reasonable in terms of section 21 of the New Zealand Bill of Rights Act.
We had instances of this in the select committee. If the camera is in the street and it is just keeping an eye on someone’s front gate, covert but checking who is going to and from a P lab, that would not be considered unreasonable in most cases. They would get away with it. If the camera was high up in a tree on a neighbouring property, and people thought they were in a private space, and it was focused through their bedroom window or on the backyard, and they were doing naughty things in their backyard, or whatever, it would be considered unreasonable and may be ruled out by the court.
That is why I said that this bill is a bill looking for a problem—because 99 percent of the surveillance that the police are doing now is covert video surveillance, without trespass, subject to the New Zealand Bill of Rights Act, and subject to the reasonableness criterion. Even the material collected unlawfully is still subject to section 30 of the Evidence Act, and usually it can be included if the crime has been serious enough. There are all of these fall-back positions in the existing law, without this bill. We do not actually need this particular bill.
The other thing—and this came up at the select committee; the Criminal Bar Association made the point in particular—is that in most cases the case does not turn on the video evidence. There might be a little bit of video evidence or photographic evidence, or whatever, but it turns on all sorts of other things. All I am saying is that the police have so many fall-back positions when prosecuting a case, even when they are using unlawful evidence that is trespassory evidence. They have section 30 of the Evidence Act that can rule the evidence in, they have the reasonableness side of it, as long as they cover that, and also they have a whole pile of other evidence.
It is probable, in my opinion, that most of the covert video surveillance without trespass is just working out who is involved in a P lab, or whatever. Then they have piles of other evidence, including all the evidence they now get, rightly or wrongly, from intercepting electronic communications and texts. If we look at the Operation Eight case, there were masses of electronic interception and other forms of surveillance material that they presumably were trying to hang their case on, in certain cases.
The Supreme Court’s decision in Operation Eight is an interesting illustration, in that the Supreme Court allowed the use of section 30 of the Evidence Act and said that yes, the evidence collected against the four remaining on the organised criminal group charge was collected unlawfully, but the court would allow that case to continue because it found the organised criminal group charge and the other charges as sufficiently serious enough. That is why I say it is very hard to argue for this. I think it is important because of the conflict between the New Zealand Bill of Rights Act provision in the Act and the fact that under section 5A of this bill a person cannot use the fact that evidence was found on him or her, even though it was illegally collected—that is, covert video surveillance involving trespass—in an appeal. That is quite unjust, and I think it will come under quite a bit of criticism from the law profession, because it is a retrospective provision that is generally unacceptable. It is in conflict with the New Zealand Bill of Rights Act.
Generally the Supreme Court is our highest court, and we should not treat its decisions lightly. It does not have quite the strength of the US Supreme Court. If one wants to overthrow a US Supreme Court decision one has to have a two-thirds majority in two Houses, and all kinds of things. Things like its abortion decision back in 1973 still stand, because even though there was quite a big religious right, and all the rest of it, they cannot overturn that decision.
It is not respecting the Supreme Court when we see the police deliberately breaking the law, as the Chief Justice said in the Operation Eight case. They do not get any penalty whatsoever, so then a certain disrespect for the law is generated. Some of the submissions, particularly I think from Tony Ellis, in quoting learned judges and whatnot on that, say that it creates a disrespect for the law when the State breaks the law and there is no penalty. Then the law changes, and some retrospectivity is put in there.
It is true that in the system we have Parliament is supreme, but we must always guard the sanctity, or whatever we want to call it, of the judicial system and the court system, particularly of the Supreme Court. I think rushing this legislation through is not achieving that.
I also wanted to talk a bit about the extension of these powers beyond the police. That has been too little covered, both in the political debate and in the media. I went through the search powers of various other agencies that have search powers, such as the Ministry of Agriculture and Forestry, the Department of Internal Affairs, the Commerce Commission, the Customs Service, etc., and all of these agencies, for the next 6 months, until we deal with the Search and Surveillance Bill, will have these powers to leave covert video cameras on private property.
In speaking to the Video Camera Surveillance (Temporary Measures) Bill I want to first acknowledge the incredible act of democracy demonstrated by the fact that 438 submissions were received in the space of 24 hours. This bill was referred to the Justice and Electoral Committee last Tuesday, 27 September, and a day later submissions closed. Our appreciation as a House must be expressed to those ordinary New Zealanders who made considerable efforts to provide comments, despite the difficulties associated with rushed legislation.
A common theme throughout many of the submissions was to draw on the advice and counsel of Dean Knight, who suggest that claims about the implications of the ruling for other cases are overstated. Mr Knight’s view is that although the Government claims there may be about 40 current cases that will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases. In the purpose expressed in clause 3 of this bill, we read that the legislation is required “(b) to provide a temporary period that will enable Parliament to address … the matters raised in the decision regarding the lawful and appropriate use of video camera surveillance as part of law enforcement;”. And although the bill itself does not mention the current cases, the threat of these cases certainly looms large through the framework of the bill.
I want to bring to the Committee the expert view of barrister Tavake Barron Afeaki, who urged Parliament to consider that the voice of reason must resound. In his email he made some extremely salient points, which I wish to lay on the floor for further debate. I quote: “The presumption of innocence must remain for those who are entitled to it, and it is not for the police and politicians alone, without the independence of the judiciary overseeing the process, to merely deem that the 40 cases before courts and 50 current investigations are justified in having law-breaking surveillance. The law should be certain and the police should get it right when they exercise the powers we the electorate give them.”
I think these points are really critical, and I am in full agreement with Mr Afeaki that injustice is the price of making laws that break laws. I remind the Committee of some statements made earlier in the debates this week around public confidence and trust in the police. If two out of three victims will not go to the police, then surely we have a problem.
I return again to the words of Mr Afeaki, to place on record another interpretation that might fit within the purpose statement of this bill. “Police powers should be used for serious crimes: nasty, evil, violent acts; P dealers, real gangs, robbers, murderers and rapists, not for stifling political dissent by Maori political activists, greenies, animal rights people and the like.”
The law already has safeguards, which the operation and Supreme Court judgment demonstrate. Mr Key, in his initial comments on this new law, made the broad claim that if the Government could not get the numbers, that would mean there would be some serious criminals who would not be brought to justice. I think it is really disturbing to note that the initial thought was not about developing a workable solution to a problem, but more akin to a crude ultimatum: all other parties would have to support ramming through the legislation, or they would be soft on crime. I have to conclude that this legislation is politicking by both National and Labour to create a perception for voters that they are actually acting in the interests of the electorate by putting up this legislation. The Māori Party says that is absolutely, blatantly untrue, and we continue to oppose this bill at every step that we can.
I will just continue explaining how the Video Camera Surveillance (Temporary Measures) Bill covers a whole lot of Government agencies that have search powers—well beyond what most New Zealanders think this bill is about: just the police.
For instance, fisheries officers have search powers. The chief executive, according to the law, can grant powers to an honorary fisheries officer—not even a full-time person, it seems. This fisheries officer can wander along to a registrar or perhaps talk to a deputy registrar, who probably is not an expert in the area of fisheries, who just ticks off something. Then this fisheries officer can, as part of a search, enter a private dwelling and leave a covert video camera. That is what this law allows.
The Department of Internal Affairs can get search warrants for a whole lot of things. The first one I came across was search warrants for people engaged in email spam. An officer of the department can go along to a registrar, get a search warrant, and go inside a building and leave a video camera looking, presumably, at the computer screen of an alleged offender, etc. Gambling inspectors can go into, presumably, some gambling institution with a search warrant and leave a video camera there. Implementing liquor bylaws is another area of the law that allows for an officer to go inside a liquor establishment and leave a covert video camera there.
The Commerce Commission has search powers under the Fair Trading Act. Its officers can go into a shop and leave a covert video camera there. The shop owner does not know about it. Of course other agencies concerned with white-collar crime could leave covert video cameras all over boardrooms. In fact, when the Search and Surveillance Bill first came up, it was actually the big company lawyers who really got stuck in, because they themselves were worried about covert video cameras being put in boardrooms. There is also the Customs Service. Its officers have to get a District Court judge to give them a search warrant. They have quite significant search powers and they can put video cameras wherever they like, so all of this is quite dangerous.
I went through all the consideration of the Search and Surveillance Bill on the Justice and Electoral Committee, representing the Greens. The whole thing started off with the 2007 Law Commission report, which said in black and white that that form of surveillance was unlawful. It was all a bit unclear about video surveillance in general; the only thing that was clearly unlawful was trespassory covert video surveillance. The commission said to the Government—Labour at the time—to get its skates on and develop a bill. Labour did and presented it to Parliament in 2008. Then for 2 years the select committee, under the fine chairpersonship of Chester Borrows, really scrutinised it. There were two sets of public submissions and all sorts of changes. The Law Commission made submissions, particularly Warren Young, who came to the recent select committee process very critical of the Video Camera Surveillance (Temporary Measures) Bill—he played a huge role in the thing. So everyone knew that there was a big issue, that it was unlawful, and that there were not a lot of these so-called subsequent court cases. In fact, there was only one subsequent court case, the Court of Appeal case on Operation Eight.
In these 2 years of select committee hearings the police were there. Presumably they were taking notes and were not just treating it as a day away from the office. They knew precisely that the Law Commission said tresspassory covert video surveillance was unlawful. The select committee was dealing with the bill partly, and significantly, because covert video surveillance involving trespass was unlawful. There was all of the interchange that went on.
The select committee reported back last November, and the whole thing has just been sitting there awaiting its second reading for all that time. The Government knew as early as May this year that tresspassory covert video surveillance was unlawful when, according to Steven Price in one of his blog posts over the last day, it “got a bath”; that is the term he used. It got a bath in the Supreme Court hearings on this unlawfulness thing. The Government knew from May precisely that the Supreme Court was likely—or there was certainly a fair chance—to rule in its latest September ruling that covert video surveillance involving trespass was unlawful. So it was not as if people did not know what the hell was going on.
It just surprises me now that previous to September people thought it was common law, that anything was lawful, etc., when we had all of that evidence and all of that argument over, from 2007, a 4-year period. Even on the court cases, it was really only a short period of time from the Court of Appeal ruling on, I think, 19 November 2010 until the Government was, in Steven Price’s words, given a bath at the Supreme Court in May 2011. It was only for that 6-month period that the Government thought it had a chance, at all. All of the other evidence was the other way.
There was a lot of confusion about what the police were actually doing. There was all this talk about 40 or 50 cases, but when it came down to it at the select committee the police said there were 13 investigations under way involving covert video surveillance, and the bulk of those were in public places. They were not even sure that any of them involved trespass, and that any of them, therefore, were illegal. The Supreme Court had ruled that only covert video surveillance involving trespass was illegal. But there was no clear indication that there were any current police cases of that type.
As I said, this bill is legislation that has been looking for a problem, and there is no reason at all why we could not have gone for another 6 months under the present system. The police would have been—should have been—happy. They could just continue on with what they were doing, and go before the court on the reasonableness criterion under the Evidence Act. If they had a problem and if there were a serious P case, they could use section 30 of the Evidence Act to rule in illegally obtained evidence, etc. It just somewhat amazes me that we got as far as this on such a rushed bill.
I said in my second reading speech it was wonderful the way everyone responded at the select committee process. Lawyers all of a sudden stayed up all night and came hung over with tiredness the next morning, just to put the case. There does seem to be quite a consensus amongst all of the leading lights in the country, in the legal community that showed up, that there were so many things wrong with the bill. Some of them have been addressed, and I thank the committee for that, but several of them have not. Thank you.
I will start with the notion of police impropriety within the context of the rule of law. Clause 5 of the very brief Video Camera Surveillance (Temporary Measures) Bill deals with the “Temporary continuation of lawfulness of certain uses of video camera surveillance”. I am fascinated by the use of legislation to create lawfulness for agencies that are charged with implementing and monitoring the law in the first place. The starting place for all criminal law is to protect the rights of an individual against the State, lest the individual become oppressed. That is why one does not allow Parliament to take away a person’s rights lightly, which is why there are real restrictions on the police in the way of search warrants. With this new bill, we now have before us provisions that “The use of covert video camera surveillance as part of, or in connection with, a search does not of itself render the search unlawful.”
I refer to an article by Dean Knight entitled “Elephants and the Law”, which tells us that although the Supreme Court did not rule that the police acted with bad faith, the majority indicated that the police’s attitude to the unlawfulness of the covert surveillance was, at best, reckless, and, perhaps, deliberate.
I will read from the actual ruling of the Chief Justice in paragraph 73 of the Urewera case of R v Hamed: “In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”
Justice Blanchard went even further in describing this deliberate unlawfulness and the detail around the activities, which served to destroy the credibility and effectiveness of the system of justice: “Despite being aware that they lacked statutory authority for the surveillance, they proceeded without taking legal advice, which they had plenty of time to obtain. Having failed to get advice, the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be cut some slack. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful.”
No one can read through those words—failure to get advice, reckless risk, deliberate unlawfulness—without a sense of horror that we are not talking about criminals. They are not those whom society should fear; these are the very agents of the State, who are meant to uphold the rule of law.
I cannot ignore the findings of a PricewaterhouseCoopers report released in February last year that found that the police had made little progress in implementing Dame Margaret Bazley’s findings. PricewaterhouseCoopers referred to the in-house engagement survey that confirmed that 67 percent of police employees are ambivalent about their job and 16 percent are completely disengaged. I do not know exactly—
I just remind the member that you must be more succinct. Although you can refer to the case, you must keep it within the confines of what this bill is. I ask the member to come back.
Thank you, Mr Chairperson. I am pointing out that this bill is making lawful what was unlawful, and we cannot have that. We cannot allow that. We cannot have Parliament make lawful something that was unlawful. Where do our constitutional rights stand?
I go back to what the police were doing; they were ambivalent and disengaged. The Māori Party does not want people with that sort of attitude having prospective surveillance powers, let alone police officers who promote one another, who cover for one another, and who allow sexual predators to prosper. This Parliament cannot let the New Zealand Police continue in the way that it is. The Māori Party, for one, is prepared to do something about it. We have—
I just remind the member. I mentioned before that you must come back. This is a very narrow scope of this bill, and although you can refer to the case, remembering that it is still before the courts, we must be very careful that we just stay within the scope of what this bill is about.
Thank you, Mr Chairperson. I make the point that this bill should not be making lawful that which was unlawful.
I have to say, first of all, that I am disappointed with Mr Chauvel’s position on this. I am absolutely convinced that if Labour was not involved in this whole case, he would be the first to condemn this legislation, the Video Camera Surveillance (Temporary Measures) Bill. The fact that the Tūhoe raids were conducted in Labour’s time is the reason it wants to get out from under this as quickly as National does right now, but that is no reason to support the legislation, which, I suspect Mr Chauvel knows, and I know Mr Finlayson knows, is flying in the face of justice, particularly in terms of the way in which the bill has been brought to the House.
This bill gives extraordinary powers not just to the police—this is not just about the police any more—but to the Inland Revenue Department, the Department of Internal Affairs, fisheries officers, and the Commerce Commission. I can think of innumerable families in and around where I live who are likely to wake up with a camera in their house. If they ask the police, they will not tell them anything. There is no obligation on the police to tell them that there is a camera in their house. There is no obligation on the police to tell them that there is a camera on the marae. There is no obligation on the police to tell them that there may be a camera in the toilet block, just in case somebody might be going around there and smoking a bit of dope.
This is terrible legislation. It enables those State agencies to invade the privacy of citizens without having to go before a judge with proof of a good reason for doing so. We already know that information has been gathered in the past, and it has been gathered illegally and used to destroy political careers in this country in the past. I know too, for example, of a very high-profile politician of very recent years—very recent months—who was caught during surveillance of a woman as part of a P investigation. It was not the politician under surveillance but this woman, as part of a P operation. She was having an affair with a very high-profile politician.
No, no. Just because Rodney is leaving, it does not mean it is him. But these sorts of things can happen. Where does this sort of thing stop? And there is the fact that it is retrospective legislation. You know, retrospective law is bad law. I have heard that on numerous occasions from law lecturers and lawyers. In fact, every submission from lawyers and legal organisations, civil rights organisations, and individuals on this legislation has said “Don’t do it.” In fact, I understand that the only ones who support it are the police. There has to be something wrong with legislation if the only people who support it are the police—and, of course, National and Labour.
This kind of retrospective legislation contravenes basic human rights and legitimises the illegal behaviour of the State and its agencies. Just because Labour got caught out on this in the Tūhoe raids, and because National is getting hung out with it because of the decision of the Supreme Court, that is no reason to race through special legislation. There is nothing that is currently going on that means it could not wait. The police might say that there will be problems with the trials of 40 to 50 serious criminals, but it is one thing to say that and another thing to prove it. If they are not prepared to put the information on the table, then we should not be foolish enough to just accept it. And there was the indecent haste with which the whole select committee process went through. It was indecent. The select committee process allows the public to have their say on the lawmaking process, and in this case I just heard the previous speaker, Rahui Katene, talk about how many submitters the Justice and Electoral Committee managed to cram in in just 1 day. On legislation as important and fundamental to our human rights as this bill is, there should have been far, far more time to consider it. I suspect that the Minister in the chair, the Attorney-General, knows this, and I know that Mr Chauvel agrees with that.
The select committee process also allows politicians to consider bills in a more relaxed environment, but in a compressed time frame that is never going to happen. The good thing about a decent select committee process is that it minimises the chance of having knee-jerk legislation like this bill, which comes about as a specific response to a particular event. The Supreme Court nailed it. Really, we should have asked what action we are taking against the police. But, no, all we are going to do is grant the police more powers. A good select committee process is fundamental to good lawmaking, and a weak select committee is really an insult to the people and to the parliamentary process.
Is there not something wrong with legislation when every lawyer whom Mr Finlayson knows and Mr Chauvel knows opposes it? The Law Society opposes it, the Criminal Bar Association opposes it, all of the civil society organisations oppose it, and hundreds of individuals oppose it, and they had only a day to put in their submissions. How they even got a chance to read the bill, I do not know. But hundreds opposed it, and they made comments about how New Zealanders need confidence that the principle that public authorities can do only what they are authorised to do under law should continue to apply. In fact, instead of restricting the police’s ability to do certain things, we are not only granting them extra powers but also granting everybody else those powers.
There are doubts about whether those promoting this bill understand that it compromises the right to be free from unreasonable covert surveillance by the State. One of our genuine freedoms has to be that we can wake up in our own bed and know that there is not some bloody camera watching. I am not saying that that will happen to everybody, but Mr Finlayson knows a lot of the people whom I know in the north, and he knows of some of the discussions around land and how to go about acquiring land and whether there need to be steps taken to acquire that land, which may not necessarily always be within the law, and that they will be reason for the police to surveil them. I know of people who march to Waitangi every year and who are likely now to have given the police the reason to stick a camera in their rooms. I know that at the Waimanoni Marae, the Mahimaru marae, and a whole range of maraes people discuss these kinds of activities. They will now be open ground for the police to put in cameras.
This bill is a serious violation of our human rights. We do not have a Privy Council to oversee the Government’s actions or an Upper House to monitor legislation like this. We do not even have a written constitution. And the first time the Supreme Court comes up with something like this, the Government, instead of standing back and taking a breath, along with the support of the main Opposition, just goes bang and rides roughshod right over the top.
This bill is an overreaction and is designed to be used in conjunction with the enormous resources that have been given to the police and the SIS since 2001 to protect us from so-called terrorism. But we are not a terrorist target, except for the French bombing of the Rainbow Warrior, of course. The scary thing is that we have a history—I know this to be true—of passing laws for one purpose and then using them against those who dissent. The charge of breach of the peace, which I have been arrested for on numerous occasions, was introduced originally to justify giving police the power to stop gangs intimidating people but has been used more against protestors arrested at Waitangi and elsewhere than against gangs. Trespass orders were sold as a way to help farmers keep unwanted hunters off their land but have been used willy-nilly ever since by police against protestors. This new bill is being sold as a means to catch really bad criminals, but I guarantee—and I think the Minister knows this is true—that it will end up being used to monitor and suppress dissent.
Freedom from surveillance is the right to be left alone. The police abuse of the law regarding surveillance should be punished, not rewarded. This bill is getting pushed through while our whole nation’s attention is being diverted by the rugby. The bill is an expansion of the power of the State that New Zealanders would not support. It legalises illegal police activity. It grants powers to police, instead of charging them for their illegal actions. It is a breach of human rights. It is being rushed through Parliament without proper debate. It will impact directly on Māori activists, beneficiary rights activists, unions, environmentalists, and, I am sad to say, ordinary New Zealanders. Mana opposes it, and more intelligent members of this House do so as well. Kia ora tātou.
The question was put that the following amendment in the name of Keith Locke to clause 5A be agreed to:
A party vote was called for on the question,
That the amendment be agreed to.
Amendment not agreed to.
A party vote was called for on the question,
That Parts 1 and 2 and clauses 1 and 2 be agreed to.
Parts 1 and 2 and clauses 1 and 2 agreed to.