Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
I move, That the Video Camera Surveillance (Temporary Measures) Bill be now read a first time. At the appropriate time I intend to move that the Video Camera Surveillance (Temporary Measures) Bill be considered by the Justice and Electoral Committee, that the committee report to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
For the last 17 years the police have used covert video surveillance cameras. They have used them to help investigate serious crimes, including drug dealing and organised criminal gangs. They have been used both to gather evidence and to obtain information. On at least six occasions the Court of Appeal has considered the admissibility of evidence obtained by these means. These cases involve video cameras deployed both outside and within the property to be searched, and concealed on an informant transacting drug-dealing business inside the suspect’s home.
On two very recent occasions the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant. Contrary to some public comment, the police were accordingly justified in their belief that the use of this surveillance in connection with a search warrant was not unlawful. Lawfulness is to be distinguished from unreasonableness—that filming allowed by the Court of Appeal was always subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness. That situation will not change under this bill.
Last month the Supreme Court retrospectively altered the law. It ruled that in the absence of specific statutory authorisation the use of covert video surveillance amounting to a search, and conducted in tandem with a Summary Proceedings Act search warrant, was unlawful. Although not strictly part of the decision of the court, its reasoning would also apply to searches using that technique from surveillance points outside the target property.
The decision of the court affects approximately 40 criminal cases now before the courts and at least the same number of current police criminal investigations. The bulk of these cases involve serious drug and organised criminal offending. Also affected is the ability of many statutory organisations to carry out their responsibilities.
It is important to note that this bill does not seek to overturn any decision. It temporarily holds the law of New Zealand applying to covert video surveillance to be that laid down by the courts before the Supreme Court in the Hamed case reversed that legal position. The bill accordingly preserves the legal position as it was before 2 September 2011. Because, as it must, the judgment affects all relevant cases and conduct before 2 September, the bill suspends temporarily that effect of the judgment, as well as providing for the period before the bill is enacted.
Clause 3 sets out its purpose—that is, to provide a temporary period to enable Parliament to move with all deliberate speed to pass the Search and Surveillance Bill. That bill, among other things, comprehensively covers the accepted long-term goals of bringing covert video surveillance under the control of carefully scrutinised statutory provisions. As would be expected, that clause also provides that nothing in the bill affects the rights of those persons who have obtained the benefit of the Supreme Court’s judgment in the Hamed case.
Clause 4 sets out the necessary definitions. It is important to note that the bill does not give the police or any other agency the ability to enter on to private property for the purpose only of seeking visual evidence from covert video surveillance. The entry on to private property where covert video surveillance is intended must be pursuant to a warrant issued under section 198 of the Summary Proceedings Act, and that warrant must be issued and executed according to existing law. As I have already noted, surveillance will remain subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness.
The situation differs from the bill as released for consultation by me last week. Clause 5 declares that post, current, or future searches may not be held to be unlawful only because covert video surveillance was used in connection with a search. As originally drafted, clause 5(2) would have provided that the use of covert video surveillance does not, of itself, render the search unlawful or unreasonable. That would have affected the way in which courts might otherwise in the future apply the right to be free from unreasonable search. I have listened to the criticism of this limitation on the section 21 New Zealand Bill of Rights Act right and have not included that provision in the bill as introduced.
Clause 5(3) is intended to augment clause 5(2). The latter clause deals with the lawfulness of any use of covert video surveillance. Clause 5(3) is essentially an avoidance of doubt provision directed to the essential question of the admissibility of evidence. By way of explanation, if evidence is found to be improperly obtained within the meaning of section 30 of the Evidence Act 2006, it is liable to be excluded unless the result would be disproportionate to the seriousness of the crime.
The intention in the bill is that if the only basis for objecting to the admissibility of the evidence is that covert video surveillance was used, the evidence may not be treated as improperly obtained. Critically, however, because of the matters I have mentioned as to clause 5(2), if for any reason the search is found otherwise unreasonable or, indeed, otherwise unlawful, the evidence may or may not be excluded on the basis of the existing law.
In conclusion can I say that we find ourselves in a difficult legal situation. It is a situation contrary to the public interest and the safety of the public and law enforcement officers. It will be some months before a new Parliament can pass the Search and Surveillance Bill into law. Contrary to some claims I have heard, it would be impossibly complex to enact parts of that law early. I have taken the advice of the Parliamentary Counsel Office on this point, and I agree with it entirely. I understand that my colleague the Minister of Justice is going to say some more about this later in the debate, and I look forward to what Mr Parker will say.
Unless this Parliament takes action now, the police and other statutory agencies will be denied for some time the ability to use a technology that has become an indispensible facility in relation to the safety of police officers and the detection of serious criminal offending. This is not a situation that can stand. I commend the bill to the House.
CHARLES CHAUVEL (Labour) Link to this
Thank you for the opportunity to speak to the Video Camera Surveillance (Temporary Measures) Bill. What persons not in the House might not realise is that the bill was placed on the Table of the House about 7 minutes ago, so there is really no opportunity to comment on its provisions. So the traditional first reading speeches will not occur in this debate. It is true that that is a consequence of the House having taken urgency, but it is regrettable that the bill’s sponsor did not seek the leave of the House to release a copy of it in its current form earlier, given that members of the public are expected to front up to a select committee, I understand, tomorrow morning and make submissions on it. That is not a satisfactory process and nobody should be surprised if we do not get a good result out of it.
I am afraid that the sponsoring Minister has simply engaged in brinkmanship on the questions that are raised by the bill and by the Supreme Court decision in the Hamed case. It is quite clear that he does not have any desire or any intention to try to reach any sort of multiparty solution to the problems identified in that case. He simply wants to try to bully other parties in the House and to make it appear as if any party that does not support the legislation demanded by National to be passed is soft on law and order, and that is quite apparent from the way in which John Key, the leader of the National Government, has presented the arguments in favour of the bill to date. I say to the members of National that that will not wash. They will not get, as members of the Government party, a blank cheque from this Parliament to do what they think is necessary, without scrutiny and without a careful testing of the claims that have been made in favour of the legislation. At least there will be some of that testing, however unsatisfactory, because, as I say, there is, I understand, to be a select committee process—however truncated—so that there can be some scrutiny of the bill. It is a small mercy but at least it is happening.
What we see in the approach taken on the questions raised by the Hamed decision is arrogance—arrogance from a Government that thinks it can get its way, no matter what. We saw this arrogance in respect of the Government’s dealings with my colleague the shadow Attorney-General over the question of support for the Search and Surveillance Bill.
One of the things that has to be said right upfront is that Parliament would not be in the position that it is in at the moment—being asked to rush through an emergency fix on police surveillance powers—if Simon Power had responded to David Parker back in November last year. Mr Parker said that we would cooperate to pass the Search and Surveillance Bill—now that it has come out of the select committee, now that it is much improved, now that it actually sets in place limits on what the police can do by way of covert video surveillance, and sets out a regime governing what they should do—if the Government agreed to make three small amendments, the most important of which was about protecting the freedoms of the media from some of the provisions in the Search and Surveillance Bill. Well, we heard Mr Power yell out during question time that he did send a response—he said “I’ll consider it.” We know that Mr Power has 6 days left in this House, so let us hope he does consider it and let us hope we get, finally, a response on the question put to him by Mr Parker.
That sort of arrogance has typified the Government’s approach to the issue of vital police powers. Parliament has been asked to address window-dressing bills like the three-strikes legislation, boot camps, and taking votes away from inmates in prison—all the things that actually make not one jot of difference to people’s safety—while the vital issue of defining and limiting police powers on search and surveillance has been left to languish on the Order Paper. This is not a responsible Government on law and order.
As I said, the bill was tabled a mere matter of minutes ago. There is no point in trying to comment on its text, but what I will say is this: members of the Labour Party have always agreed that there is an issue that needs to be dealt with here, and it goes back way before the Supreme Court case in Hamed. That is why there was a Law Commission reference on the question of general search and surveillance powers by enforcement agencies.
We have known for a long time that the law is not clear and needs clarification. But that clarification has not occurred, so what do we do in the current situation? We say there needs to be a reference of the Government’s proposed fix to a select committee. We at least have some agreement from the National Government that that will occur. Then the question is how broad the fix should be.
What appears to be proposed—although the draft that has been tabled is radically different from the draft that was being consulted on last week—is that the current vague state of the law will be carried on for a year, by reference to the issue of lawful searches in the legislation, which begs the question as to what is a lawful search and what is not. And we are to have retrospective validation of all actions on the part of enforcement agencies that have occurred any time in the past, as well as for a year hence.
We need to test whether that sort of broad taking of powers is an appropriate exercise in the present case. I have big reservations about that; so do many of the respected academic commentators. Their views deserve credit, and we do need to test, as I say, very carefully the claims that are made in favour of this legislation. The scope of the bill must be carefully looked at.
Finally, we have to make sure that there are appropriate safeguards in the legislation. It has been suggested by a number of commentators that what we should do is simply take the regime out of the Search and Surveillance Bill; it has already been through a select committee and agreed by most parties in the House. We could take that regime out and we could put it into the Summary Proceedings Act, so that there is a clear limit on the powers of the police and other enforcement agencies, but a clear definition of what those powers are.
Mr Finlayson said that that was much too difficult for the officials to do in the time available. Well, we have had a go at it. In question time today, I tried to table this Supplementary Order Paper, which would do exactly that. I was prevented by the Leader of the House from doing so. Given that the select committee is to consider these issues again at 9 o’clock tomorrow morning, and given that they will have the bill before them, I would like them to have the Supplementary Order Paper.
So I am concluding by making an application for leave to have the Supplementary Order Paper tabled and to have it referred to the Justice and Electoral Committee, on the same basis that the Minister intends, as he has foreshadowed, to refer the bill itself to that committee.
Mr SPEAKER