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Video Camera Surveillance (Temporary Measures) Bill

Second Reading

Thursday 6 October 2011 (advance copy) Hansard source (external site)

FinlaysonHon CHRISTOPHER FINLAYSON (Attorney-General) Link to this

I move, That the Video Camera Surveillance (Temporary Measures) Bill be now read a second time. I begin by thanking my colleague Chester Borrows for his chairmanship of the Justice and Electoral Committee and the members of the committee for their work.

The bill we debate this afternoon is a slightly modified form of the bill sent to the select committee last week. Clause 3 states the purpose of the Act, which is to preserve the rights of those persons who have the benefit of the judgment of the Supreme Court but otherwise to state the law as it was thought to be prior to 2 September, the date of the judgment in Hamed’s case.

As is now made explicit by clause 3(d), all of the protections available under section 21 of the New Zealand Bill of Rights Act are left intact. Additionally, clause 5 enacts that the provisions of the bill will expire 6 months from the date of commencement, rather than 12 months from the date as provided by the bill at the time of its introduction.

The term “search” is defined in clause 4. It is best expressed in broad terms. The intention is that the term applies to a search when done in connection with a search warrant, or otherwise in circumstances where no search warrant is necessary or available. Although the decision of the Supreme Court does not rule on covert surveillance from outside the boundary of a particular private property, it has been thought prudent to refer to that form of surveillance in the bill.

Clause 5 is really the essence of the bill. It provides that where covert video surveillance occurs as part of, or in connection with, a search, whether with a warrant or otherwise, the search is not an unlawful search only because of that feature.

The bill does not assert that a search with the use of covert video surveillance is always lawful. There is an argument that such a rule may have been extracted from the pre-Hamed case law. However, the committee has chosen the form of the words used in clause 5 as the least possible interference with the trial rights. The bill still preserves the ability for the police to continue to use the vital tools of covert surveillance in countering serious crime.

Clause 5A reflects a decision of the committee to make one exception to the rejection of any retrospective element in the bill. The purpose of the amendment is to preclude persons convicted on the basis of evidence to which Hamed applies from gaining an acquittal, new trial, or appeal for the reason only that evidence admitted at their trial was illegally obtained in terms of Hamed.

That covers the main points of the bill as it has returned from the select committee. I will make further comments in my third reading speech. I commend the bill to the House.

ChauvelCHARLES CHAUVEL (Labour) Link to this

I want to make just a couple of points in this second reading speech on the Video Camera Surveillance (Temporary Measures) Bill. I differ from the Attorney-General in that I think it is fair to say that, on any objective reading of the bill, it is significantly reworked as a result of the scrutiny it received in the select committee process. It is by no means accurate to say it is somewhat or slightly modified. Let us be clear about just what changes were made in the Justice and Electoral Committee.

First, the powers of law enforcement are strictly confined to what they were prior to the Hamed decision in the Supreme Court, not the enormous grab for power that was represented in the Attorney-General’s first effort on this matter. There is a significant narrowing down of the definition of the term “search”, a removal of the outrageous reference that first appeared to the collection of information about any place, person, or thing—that is the breadth of the power that would originally have been allowed under the National Government’s initial proposal. There is an express preservation of the section 21 power in the New Zealand Bill of Rights Act 1990 that any search must be subject to the reasonableness criterion contained in that section. If it is not, the courts will not uphold it. Again, that is another protection inserted by the select committee, and it would not have been there had National had its way originally. Also, there is a removal of the Attorney-General’s attempt to nullify the discretion of the courts under section 30 to receive such evidence as they think fit under the Evidence Act, notwithstanding the manner in which that evidence was obtained. We should leave these matters to the courts, not try to interfere with them as a Parliament.

The second most significant change wrought by, and in, the select committee is that the retrospective nature of the powers contained in Mr Finlayson’s original bill has been completely removed. Existing investigations and cases before the courts will be, and must be, untouched by this Parliament.

The third significant change created by the select committee was to insist that the bill not apply for any longer than 6 months. The original proposal was 12 months. Parliament will have to get its skates on, do what it should have done a year ago, and pass the Search and Surveillance Bill, which sets out powers of search and also protections for those who are subject to those powers. It is outrageous that that has not yet been done by this Parliament and by this Government.

Finally, the select committee insisted that as far as past court decisions were concerned, where evidence had been admitted in good faith by a judge on the basis of good law applicable at the time, those decisions should not be able to be disturbed. There are some who do not like that exercise of authority or that recommendation by the select committee. They think that it should be possible to relitigate actions taken by law enforcement, on the basis of an ex post facto application of the Hamed decision. I say to those people that that would be “dog law”. That would be like saying to one’s dog “Bad dog, bad dog”, after it had done something it did not know was wrong at the time. Either we oppose retrospective application of the law, or we do not.

In that regard I quote what a human rights commissioner said to the select committee. When asked whether existing court decisions ought to be preserved, one of the human rights commissioners replied: “Well, my view would be that the cases that have concluded have concluded. If the lawyers haven’t raised the point, then it’s past and there would be no avenue to reopen the case. It presupposes, of course, behind your question, that the only evidence was the video evidence. So I can’t see the Court of Appeal entertaining appeals on that basis.” So it is not, in respect of that particular aspect of the recasting of the Government’s original bill, any sort of offence to human rights to have protected existing court decisions in that way.

I conclude this second reading speech by paying a tribute—but a limited tribute—to the parties in the House that, like Labour, were not willing to simply write the National Government the blank cheque that it sought on this legislation a couple of weeks ago. Obviously the Green Party, the Māori Party, and the Mana Party are in that category, but not Peter Dunne, as was asserted in the New Zealand Herald today in its editorial. I was at a public meeting with Peter Dunne on the night of the bill’s tabling, when he was quite happy to write that blank cheque to the Government, so we should get the record straight on that. I pay significantly more tribute to the ACT Party for remembering its traditions and protecting civil liberties. I hope that with Mr Banks and Mr Brash in prospect as potential future MPs, that tradition is not in significant danger. But I want to pay the most tribute to my Labour colleagues, for respecting their traditions of limited Government. They could have chosen to leave law enforcement with no surveillance powers. That would have been the easy option, and it was the one urged by the Greens, the Māori Party, and the Mana Party. But my colleagues avoided that trap. It would have been irresponsible, at the time of the largest international event New Zealand has ever hosted, to leave law enforcement powerless in that respect.

So the least-worst outcome will be achieved out of this legislation. As a result of the select committee process that the Government was required to undergo, police will get only the limited powers that they formerly held, for 6 months only, and Parliament will be prevented from doing something constitutionally repugnant—that is, legislating retrospectively. Labour stood firm and achieved that outcome, and for that I express the deepest respect, gratitude, and thanks to my Labour colleagues on this side of the House.

BorrowsCHESTER BORROWS (National—Whanganui) Link to this

I think it is important to note that from time to time in response to courts’ rulings, the Government has to respond, or Parliament has to respond, in respect of law, and must do so through retrospective legislation. Retrospective legislation is a type that should be applied only with the strictest of criteria.

It is true that the initial Video Camera Surveillance (Temporary Measures) Bill as proposed by the Government was modified somewhat through the select committee process, and the Justice and Electoral Committee modified it after discussions across the parties represented in that select committee process. I am also pleased to be able to confirm that in the course of that process 438 submissions were received from the public. Twenty were heard orally, and the others were received in a written form, and we were able, even within the narrow constraints of time, to be able to receive a departmental report in respect of those submissions. I thank those parties’ representatives who were involved in the committee for the way in which they engaged with each other.

Bearing in mind the words of the previous speaker, it is correct to note that the Green Party, through its representative Keith Locke, maintained its position throughout that process. I also acknowledge that although the Green Party was never going to vote or give any support for this legislation, the fact is that the member engaged with the committee in the fairest possible and most reasonable way, and his arguments were philosophical and never personal. It would have been good if that had been the manner whereby all parties engaged. But I am pleased with the way in which the members of the committee worked on this bill together.

I also acknowledge the work of the Hon Rodney Hide in that committee process: the questions that he asked, and the way that he too was able to engage. I have to align myself with the comments of Charles Chauvel, in being a little suspicious as to whether such ACT engagement would continue past this election if we do not find Mr Hide back with us—although some of us have not given up hope on that score.

I would like to say a thankyou once again to the committee, but most of all to the members of the public who, within a very short time constraint, managed to put aside the duties of their day to be able to engage with the committee in a very reasonable and full way, given the narrow constraints of time. I commend the bill.

ParkerHon DAVID PARKER (Labour) Link to this

I want to catalogue some of the areas where I was unhappy with this process. I think we came close to getting it wrong in this Parliament, and we would have but for the circumstances that Charles Chauvel has already outlined, which involved all of the minor parties lining up with Labour to stop National pushing through this Video Camera Surveillance (Temporary Measures) Bill under urgency without a select committee process.

The Supreme Court decision threw up three issues, which the Government conflated. Those three issues were, firstly, whether the police and some other agencies needed a prospective power of surveillance, which the Supreme Court found does not exist until this legislation is passed; secondly, what the effect of the decision would be on prior convictions; and, thirdly, what the effect of the Supreme Court decision would be on illegally obtained evidence in respect of trials that are yet to take place. It was not until we got to the Justice and Electoral Committee and had input from other parties, including Labour, that light started to be shone on those three issues. Once we did that it was easier to cure the problem.

I am disappointed and extremely surprised that yet again we have had a failure of Parliament’s processes in respect of the vet in terms of the New Zealand Bill of Rights Act. That Act requires the Attorney-General to report to Parliament when any legislation breaches it. We have referred to this in our minority report. On this occasion we did not have a report from the Attorney-General signalling that this legislation infringed the New Zealand Bill of Rights Act. It has taken Labour to elucidate that in our minority report.

The Supreme Court found that the police acting without express authority in the use of surveillance devices was in breach of the New Zealand Bill of Rights Act, and that stands as the ratio of the court’s decision. This legislation, as it was introduced to the House, retrospectively made that illegal evidence legal. That must—must—infringe the New Zealand Bill of Rights Act provisions in respect of freedom from inappropriate search and surveillance. How could the Government conclude that no warning was necessary for this House? It would have highlighted to the House that care needed to be taken in respect of the retrospective application of this legislation. The select committee did get to the bottom of it, but it was no thanks to any warning, which was properly required under the New Zealand Bill of Rights Act.

That is not a fault of the Attorney-General, because in respect of this legislation he had delegated it to Kate Wilkinson. In fairness to her, she acted on advice from the Ministry of Justice. But that is the third instance in this Parliament where, in my opinion, we have had poor process within the ministry, and it has advised Ministers that no New Zealand Bill of Rights Act vet was necessary. We had it in respect of the earlier attempt to remove the unconditional right of accused persons to appear at their own defence when they wanted to. We also had it in respect of some of the provisions that would, effectively, abrogate part of the right of silence of defendants. In the criminal procedure legislation the defence was going to be required to disclose the nature of its defence to the prosecution. And we have had it again in respect of this legislation. I say to the Attorney-General that there is a need to review that office, because these are three instances where I think complications in terms of the New Zealand Bill of Rights Act ought to have been brought to the attention of this House.

In respect of the prospective power of the police, I am disappointed with the attitude of the Greens. It is absolutely clear that the police on some occasions need the right to surveillance techniques—it is absolutely clear. The select committee was told of one example that speaks volumes, which is that drug dealers who know they might be subject to listening devices close the curtains and write instructions on whiteboards. The only way the police can gather evidence in respect of that situation is through the use of cameras. That is the only way, so for the Greens to deny that a prospective power is necessary for the police is quite wrong.

The other point I raise is that it is true also of the SIS. The SIS is affected by this legislation. I was disappointed that I learnt that only at the select committee. It might have been raised with some other people at briefings prior to that, but it was not raised with me, and it was not raised in any of the Minister’s speeches in the first reading. This legislation does not apply just to the police; it applies to other agencies.

This legislation could have been better. As Sir Geoffrey Palmer said, within a day’s drafting we could have specified that it was to be a warrant only from judges, we could have listed the level of seriousness needed before the police could exercise this sort of warrant, and we could have had a list of the agencies to which it applied. If we had had those things, we would have greater protections than this bill provides.

Having said that, Labour is satisfied to vote for this bill because we accept that a prospective power is needed for the police. We are pleased that there is not retrospectivity in respect of the trials yet to take place, and we think it is appropriate that we not reopen convictions that have previously been entered. We will be supporting this legislation with those reservations.

LockeKEITH LOCKE (Green) Link to this

I was not going to give another speech in this House after my valedictory last Wednesday, but I have finally been persuaded by the argument that because I was the Green representative on the Justice and Electoral Committee hearing the Video Camera Surveillance (Temporary Measures) Bill, I do have a duty to speak on the committee’s report back to the House.

The Greens support most of the changes that the select committee made to the original bill—those that were for the better—but we still cannot support the bill. We particularly thank those who submitted to the committee, who inspired many of the changes for the better. I must congratulate the 438 people and organisations who submitted written submissions and the 20 who spoke before the committee—all in the 2 days after the bill was tabled in the House. This level of concern—almost all submissions opposed the bill—is another reason why this bill should not have been rushed through this House in a week. What we are making here is rushed law, which is bad law and also unnecessary law. Here is a temporary measures bill in an area where there is no demonstrated need for temporary measures; it is legislation in search of a real problem. It also threatens the rule of law.

The rule of law requires us to respect the law. This is a sorry saga of disrespect for the law and the courts. First, the police in the Operation Eight case deliberately broke the law by putting a video camera on private land, and by not trying to get a warrant to do that, because, as the Chief Justice said, they knew they could not lawfully get one. When ruling on that case, the Supreme Court on 2 September said that the use of covert video surveillance involving trespass is unlawful. As a result the charges against 13 of the Operation Eight defendants were dismissed. That upset the Government, but instead of accepting the verdict, it is rushing through a bill to override the general impact of that judgment and also to make the new law retrospective. The Government then scaremongered by claiming that all kinds of investigations and court cases would be affected, but when I and others interrogated that fact at the select committee, it was found to be incorrect.

Rodney Harrison QC said that if there were court cases where the police had been using search warrants to authorise camera surveillance involving trespass, those cases would have come to the attention of criminal lawyers, and he doubted that the police had been doing that. The Law Commission thought that there had been “one or two” court cases that dealt with trespassory video surveillance.

It is common sense that most surveillance cameras have been the ones used to check the comings and goings to and from a property, through cameras in the street or, with permission, cameras used from a neighbouring property. None of those cameras were ruled unlawful by the September Supreme Court decision. Of course, their operation would have had to meet the test of reasonableness, meaning that they did not in the circumstances unreasonably intrude on the privacy of people as guaranteed by section 21 of the New Zealand Bill of Rights Act.

So what was the video surveillance bill all about? Whether or not there was any conscious intention, it was about the State flexing its muscles, particularly against the courts. The Supreme Court clarified the law in a way that the Government did not like, so what was the Government’s response? To simply change the law immediately. The Government seems quite happy that this bill will give a range of State agencies with search powers—the police, the Ministry of Agriculture and Forestry, the Customs Service, the Department of Internal Affairs, etc.—pretty much untrammelled powers to use covert video surveillance.

If the surveillance is over-the-fence surveillance, a warrant will not be required; if it involves trespass, there needs to be a warrant—except that the warrant does not need to specify that there would be any surveillance, just that the property will be searched. All of those State agencies are now able to leave a hidden camera behind after their search. Yes, there has been a concession in that some of the retrospectivity in the bill has been removed, and that is good. The bill no longer blankly validates all video surveillance done in the past. All the arguments from the police, etc., about the practical need for retrospectivity collapsed. But it is still bad, and unacceptable to the Greens, that the revised bill gives free rein to use video surveillance to a range of State agencies for 6 months into the future.

To make matters worse, a bad new retrospective clause has been added—that is, clause 5A—which denies a convicted person the right to use in their appeal the fact, following the Supreme Court decision, that covert video surveillance involving trespass is unlawful. This is constitutionally repugnant, being contrary to the New Zealand Bill of Rights Act, sections 21 to 28 inclusive, which deal with search and seizure and the rights of accused persons. It is a fundamental principle of law that people engaged in court proceedings have the right to access the law as it applied at the time of the alleged offence. I will be moving an amendment to delete clause 5A. If my amendment fails, then the application of this retrospective clause could easily be challenged at the United Nations Human Rights Committee as in contravention to the International Covenant on Civil and Political Rights, which prohibits such retrospectivity.

Let us be clear: the Supreme Court ruled that covert video surveillance involving trespass is unlawful now and has been unlawful in the past. The court was clarifying the law, not making new law; only Parliament can make new law. I say this because there has been a lot of talk from the Government about the Supreme Court changing the law as previously understood or in respect of common law. That is not correct. The New Zealand Law Society’s submission to the committee agreed with the Law Commission’s 2007 paper Search and Surveillance Powers, saying: “The paper correctly assumes (in accordance with the previously decided case law) that covert camera surveillance which involves trespass to land will be regarded as unlawful conduct …”.

National and Labour members say the Law Society is out of date and that there were subsequently “three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance.” That is trespassory surveillance. Respected lawyer Steven Price said that two of these three cases, R v Gardiner and R v Fraser, were not about trespassory surveillance at all. So Labour and National are relying solely on the Court of Appeal Operation Eight ruling, which was overturned by the Supreme Court. That National and Labour could get this so wrong is another reason why it is such a travesty of parliamentary process to so abbreviate the select committee scrutiny of this bill and rush it through Parliament. The Supreme Court decision was not some rogue decision that Parliament had to overrule in haste, as we are doing today to the discredit of Parliament; it was a perfectly just decision.

Let us look at the fundamental substantive issue in all of this for the people of New Zealand. That is, in simple terms, do we want to give a range of State agencies the right to enter our homes and, without us knowing, put a camera in our living room or bedroom that can record and transmit our most intimate family activities? Do we want such a camera put covertly in a company boardroom? The police, in their submission, indicated that they had already done this, even though there have been no reports of such a case coming to court. The Greens say now, as we did in the select committee report back on the Search and Surveillance Bill, that putting a covert camera in someone’s house or office is a step too far. It is not justified by the perhaps one or two extra criminals it might catch.

The Greens do allow for covert video surveillance without trespass. I note to the two previous Labour speakers that the Greens do allow for covert video surveillance without trespass—say, to monitor people entering a house where P is being produced—but it has to have all the controls that are in the Search and Surveillance Bill on special surveillance warrants, report-back procedures, tapes being subsequently destroyed, and, after the fact, people being told that they have been under surveillance. None of these controls are in the Video Surveillance (Temporary Measures) Bill. Why not simply wait until February when the now fine-tuned Search and Surveillance Bill with all its controls will be debated in Parliament? Thank you.

HideHon RODNEY HIDE (Minister of Local Government) Link to this

I believe that this bill, the Video Camera Surveillance (Temporary Measures) Bill, shows our Parliament working at its best. I think we should take a minute to respect our Parliament and the work it has done on behalf of the people of New Zealand in this regard. In my 15 years—short as they have been—this has been, in my view, Parliament at its very best, under very pressured circumstances.

First, I congratulate the Minister in charge of the bill, the Attorney-General. Such is our constitution and system of Government that a select committee can never get on and do its business freely unless a Minister is prepared to allow it and to accept the recommendations of the select committee. I thank the Minister for that.

Second of all, I congratulate the Justice and Electoral Committee. The critical part of getting this bill right and satisfactory was getting it to the select committee, where the advice that officials were providing could be contested by members of the public and by people with expertise, and where members outside the executive could scrutinise it. Without the work of that select committee we certainly would not have had an improved bill that is satisfactory like the one we have today.

I particularly thank all the submitters, particularly the lawyers—and they were high-priced lawyers. They take a lot of stick from members of the public and from politicians, but there they were, on their own time, in the best interests of justice for all, taking time out of their weekend and their day to come to Parliament in what might have been a forlorn hope of making a submission about what the law should be. Certainly, they changed my thinking and, I believe, the committee’s thinking on this bill, and they greatly improved it. So I pay tribute to all those who made a submission to the select committee.

I believe that Chester Borrows did an outstanding job chairing that select committee. I am sounding a bit twee in my dotage, but what was interesting to me was that under the pressure of time all members of the select committee decided to work really in the best interests of getting the result. Amazingly, there was not much difference amongst all of us about what we were trying to achieve. I thank the members for that.

I had not worked with Charles Chauvel before, and I have to say that it was a huge delight and privilege to work with Charles on this bill. I found him to be a man of some remarkable intelligence. He also interested me, because he did not play the “Opposition card”; he actually worked in the committee to achieve a result. I think it is very easy in Opposition to just be in opposition. But, actually, Charles was prepared, with Labour, to step up and see that there was a problem and to work with Government members and the select committee to get a result.

It would be very remiss of me not to acknowledge Keith Locke, my colleague, and his opposition to the bill. It is very easy to sit in this Parliament and pick on the party and the individual that stands aside from the rest. But I believe it is the party and the individual that stands aside from the rest that gives us the best insight into what we are doing and why we are doing it. I think it is quite marvellous that Keith Locke has ended his week and his last day in Parliament exactly—exactly—as he started. I congratulate him on that. Thank you.

Amendments recommended by the Justice and Electoral Committee by majority agreed to.

Link to this

A party vote was called for on the question,

That the Video Camera Surveillance (Temporary Measures) Bill be now read a second time.

Ayes 105

Noes 14

Bill read a second time.