Hon SIMON POWER (Minister of Justice) Link to this
I rise to support the first reading of the Video Camera Surveillance (Temporary Measures) Bill. I will use my time to address the suggestion made by members opposite that the alternative to this bill is to cut out the relevant parts of the Search and Surveillance Bill and paste them into a stand-alone bill. Notwithstanding the good intentions behind this suggestion, it does not take account of the fact that the surveillance regime in the Search and Surveillance Bill is part of a complex and integrated scheme for law enforcement search, video surveillance, interception, and tracking powers. In fact, that is the whole intent of the Search and Surveillance Bill: to integrate our laws on search and surveillance. Its effective operation relies on the various definitions and protections provided in other parts of the bill, such as the creation of trained issuing officers, the imposition of reporting obligations, and the protection of professional privilege. I am advised by the Parliamentary Counsel Office and justice officials that the interrelated nature of the bill makes the extraction of the surveillance regime undesirable and extremely complex, and therefore open to oversights.
I will also address the claim that the Government should have moved faster to pass the Search and Surveillance Bill. The simple point is that until the Supreme Court decision of 2 September the common law understanding of the lawfulness of covert video surveillance was shared by successive Governments, the police, and the Court of Appeal.
Just for the record, I think it is worth recounting some of the history behind the legislation. Ten months after the Law Commission’s report on search surveillance powers in June 2007 the then Labour Government announced its decision to proceed with a bill in April 2008. At the time justice Minister Annette King noted that the existing legislation “is silent in relation to visual surveillance devices.” Labour introduced the Search and Surveillance Powers Bill on 17 September 2008—notably, the penultimate week before the House rose for the election. In the final sitting week of the House, the then Government used urgency to advance or pass 17 pieces of legislation in the one urgency motion, but the Search and Surveillance Powers Bill was not among them. My point is that although the previous Government anticipated the need to introduce a regime to govern video surveillance, I suggest that no one was advising them they must do so with haste lest current practice be found to be unlawful.
Shortly after I received the warrant as Minister of Justice I was advised that the Search and Surveillance Powers Bill introduced by the previous Government was not sufficiently comprehensive in its coverage. Rather than amend the bill, which, again, would have been an extremely complex task, we had the new Search and Surveillance Bill drafted and introduced in July 2009 before discharging the existing bill.
It is fair to say that that then Search and Surveillance Bill attracted more than a little controversy. The select committee consideration was extended several times while the Justice and Electoral Committee worked out substantial revisions that would provide greater comfort for parties across the House. However, just before it was finally reported back in November last year, an incident involving the Serious Fraud Office’s use of its production and examination powers to obtain information from a journalist opened up a new front for controversy. In a letter to me at the time the Hon David Parker raised this issue and several others as obstacles in the path of further support from Labour, including limiting the existing powers of the Serious Fraud Office by requiring prior judicial approval, raising the threshold for examination orders to offences punishable by 10 years’ imprisonment, and exempting the media from being subject to any production and examination orders, even those—this is as I recall—approved by a judge.
These are complex issues that have merited further consideration. We had to balance this against other Government priorities for what has been a very truncated House timetable this year. Again, of relevance in these considerations was the fact that no one was telling the Government that the current activities of the police were unlawful and therefore had to be remedied with haste. Even if we could have achieved agreement on the Search and Surveillance Bill and passed it by the middle of this year, the Supreme Court decision would have still undoubtedly captured cases where video surveillance was gathered before the bill was passed.
Finally, several other statutes have been amended or enacted by this House since the select committee reported back that would require consideration of whether consequential amendments to the Search and Surveillance Bill are necessary. I therefore support the Video Camera Surveillance (Temporary Measures) Bill as a discrete and time-limited bill to provide a temporary fix. This will enable detailed consideration of the remaining complex issues involved with the Search and Surveillance Bill to ensure that any amendments are a durable solution to this problem. I commend this bill to the House.
Hon DAVID PARKER (Labour) Link to this
I acknowledge the Minister’s prior contribution. There are a couple of areas where I disagree. The Minister said there was a risk that the surveillance powers of the police were under threat. Well, that may have been true a year ago, but it certainly was not true when the Tūhoe people started to make their appeals through the courts. At the very least, from the moment the defendants in the Tūhoe cases were making their applications to the court the Government would have been receiving reports that the power of the police to gather surveillance evidence was under question.
I come back to the issue of whether this matter can be fixed in a different way that might be preferable to the way that the Government is proceeding. I have to say it saddens me that today we have heard from two Ministers, and they are saying that, effectively, they will not even consider the alternative methodology that is being proposed by other parties. They hide behind the fiction that it cannot be drafted. I repeat: they hide behind the fiction that it cannot be drafted. I am sure that they were advised by the Parliamentary Counsel Office that it would be difficult to draft in time. I think that is the advice the Attorney-General said he had received, and I accept that he received that advice. Indeed, when we were briefed earlier today by the Solicitor-General he said that he had received that same advice. Labour’s point is that that advice is wrong. We have all but drafted the amendments that are required. Charles Chauvel is doing it, with some assistance from various parliamentary staff, and it is almost there. So it saddens me that the Government is saying “No, we won’t look at that as an option.”, because I think if you did, you might find that you had a bit more support for this Video Camera Surveillance (Temporary Measures) Bill.
The ASSISTANT SPEAKERWell, I hope he lets his members on the Justice and Electoral Committee do so.
There is a very difficult background to this, and it lies behind the nervousness of Māori as a consequence of the Tūhoe raids. We need to be very careful of people’s perceptions in an area like this. It is not just the reality of what needs to be fixed. There is a need to be fixing something here, there is a need for the police to have proper powers of search and surveillance, and Labour has always agreed with that. But we need to recall that, at the time, we had anti-terrorism legislation, effectively, being used. It was subsequently acknowledged that that had been a wrong use of that legislation, and that there were no appropriate charges to be brought under it. We saw on our televisions—and even on television I found it scary—black-clad armed offenders squad members in their masks, with their high-powered rifles, boarding buses that had schoolchildren on them, and using the full force of the law on the people of New Zealand.
The full force of the law and a bit more, as Rodney Hide says. I find it worrisome when that happens, and when it happens inappropriately, even more so. I have to say that irrespective of the niceties of the law here, I do think we have to have a look at the image we present to people when we are enforcing the law. I thought it looked a wee bit over the top in respect of what schoolchildren on a bus heading down the road saw. We must be aware of that.
The next thing we have to do is we must respect our institutions of law. The Supreme Court is the highest court in New Zealand. It is one of the main protectors of New Zealand’s civil liberties. When it says that something is wrong, we should do the minimum to interfere in that decision in order to remedy what might be a consequence that we need to fix. There are some things here that need to be fixed, but we ought to go about it in the way that, for people like the Tūhoe, and other people who are worried about civil liberties, causes the least amount of interference in the decision that the Supreme Court has handed down.
There are a couple of other points to be made. I do not like the Prime Minister saying that this will cause more crime, or implying that somehow there will be more crime in society. There will not be more crime as a consequence of whatever this Parliament does on this; the issue is whether people will be, effectively, prosecuted for their crimes. So let us not frighten people by saying that there will be more crime as a consequence of what is or is not done in this House of Parliament in the next few days; let us focus on whether we will be appropriately empowering the police for the future, and whether we will be letting off people who have previously been convicted of crimes, or have yet to be tried for their crimes because evidence cannot be admitted.
We should also take considerable heart from the fact that the Supreme Court was actually enforcing an Act of Parliament that we had passed here, and that is the New Zealand Bill of Rights Act, which is meant to protect our citizens from inappropriate search and seizure. Let us remember that. It is another reason to do the minimum here, rather than give carte blanche in the meantime.
Well, I do not know that I agree that we are doing the minimum here; that is one of the things we need to check.
The next thing we need to remember is that the New Zealand Bill of Rights Act already specifically says that even if evidence is illegally obtained, the court can admit it at its discretion if it thinks it is reasonable to do so, having regard to the seriousness of the offence—or words to that effect; I might not have used the precise words. Indeed, that very provision is being used in respect of the Tūhoe cases that are proceeding against Tame Iti and some of the other defendants. So we can take heart from that. Can I also gently give a message to the court that, Parliament having given that discretion to the court, we expect it to be used in appropriate cases. I ask the court to actually reflect occasionally on the pressure it causes for inappropriate overreactions by Parliament when it does not exercise its discretion. I should not say “when”, because I am not saying it has done that; I am saying that if it were to be rare in the use of its discretion to admit illegally obtained evidence, then it would create a pressure from the public, and in this Parliament, for retrospective legislation, which would be undesirable.
The Supreme Court does provide us with considerable protection. It has found that the actions of the Crown, through the police, were illegal. I think just about all of us in this House are agreed that the police need powers of surveillance. I was on the Justice and Electoral Committee when it considered the Search and Surveillance Bill, and we reached that conclusion. I think everyone on that committee agreed that the police need powers of surveillance, and we came up with wording that has appropriate protections. It says what the prerequisite level of offending has to be, depending on the sort of search and surveillance. It says that one has to go to a judge.
As for this idea that judges need to undergo some sort of training regime before they can appropriately confer these new warrants—if we did it through picking up the provisions of the Search and Surveillance Bill—which is what both the Attorney-General and the Minister of Justice said, what nonsense that is. The same judges are already giving all the other sorts of warrants under the Summary Proceedings Act. Is it the Summary Proceedings Act or the Summary Offences Act?
I thank Mr Attorney-General. I do not agree that that is a problem.
In respect of the drafting problem, we have had 3 weeks, and it appears that the Government started drafting in the last day or two. We have had 3 weeks. We are told that the Parliamentary Counsel Office finds it too hard. This has been the most important constitutional issue in New Zealand over the last month, and it cannot be given priority, through the arms of Government, so that someone pulls their finger out and starts drafting the legislation? What sort of Government have we got on the other side? Do the job! In the absence of the Government doing the job, Labour has done most of it for it. We have drafted appropriate amendments that we think do the business in respect of the prospective power that the police do need in respect of search and surveillance. In respect of the issue of retrospectivity, we need to hear from officials their advice as to whether there is a need for a retrospective fix. Until we have heard that evidence, I am not in a position to say whether it is right.
Finally, I point out that the Government has been sitting on the Search and Surveillance Bill since November 2010, when I wrote to the Minister and raised three issues that the Minister has correctly listed: press freedoms; tidying up the Serious Fraud Office powers at the same time as we confer similar powers on the police that are a wee bit more constrained; and another issue in respect of examination orders, where people lose the right to silence, which should be a bit more tightly prescribed. We have not heard back from the Government, in just about a year, on the substance of those issues, and that is part of the problem.
KEITH LOCKE (Green) Link to this
The Video Camera Surveillance (Temporary Measures) Bill is one of the worst bills to pass through this Parliament. It is being rushed through completely unnecessarily. It is a retrospective bill that legalises illegal behaviour by the police and other agencies. This Parliament is here to make laws, and people are punished for breaking those laws. In this case we are doing the very opposite.
Parliament has found that the police and people in other State agencies—and the bill does talk about other State agencies; it is important to know that this legislation is not just about the police but it is about other State agencies that have search powers, as well—have been breaking the law by engaging in covert video surveillance without authority. Rather than bringing the police to account or giving them some sort of punishment, what are we doing? We are passing a law in a rush to make that illegal behaviour legal, going way back to the time when video cameras were invented—there is no start date to this bill—and for a year into the future.
I think the essence of this issue is that we are overriding one of the most important laws on our statute book—that is, the New Zealand Bill of Rights Act. Section 21 of the New Zealand Bill of Rights Act protects the public from unreasonable search and seizure by State agencies, including unreasonable surveillance. Chief Justice Sian Elias, in her 2 September judgment, explained this. She said: “Covert surveillance by the police of people who do not know that they are being observed collides with values of freedom and dignity in the same way as search of their correspondence or interception of their conversations. The right to be ‘secure against unreasonable search’ underscores a purpose in allowing citizens to relax vigilance and live their lives with freedom.” That is what the highest judicial officer in the land said. She made it clear in her judgment that the police and other agencies are able to do such covert video surveillance in breach of the New Zealand Bill of Rights Act only with lawful authority.
There has been a lot of talk here about how we did not know that the police were doing wrong. Well, the judgment of Sian Elias said the opposite. She talked about the deliberate breaking of the law by the police in this case. She used the word “deliberate”. She said: “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.” She is not pulling punches at all there.
This idea that we all thought it was part of the common law is rubbish. It is wrong, because even in recent times we know that the Law Commission, in its report on search and surveillance, laid out very clearly that there was not lawful authority for covert video surveillance. The report highlighted that, and from that point on, every police officer and every State agency would have known that they were breaking the law.
Then there was the High Court decision in the Operation Eight case on 7 October 2009, which specifically said that it was unlawful to conduct video surveillance. That was what that case was about. Of course, the decision used section 30 of the Evidence Act and said that despite the evidence being unlawfully collected, the court would accept it because the crimes it was talking about were pretty serious. That was its decision. From that High Court decision on 7 October 2009, it was over a year later that the Court of Appeal came down with its judgment, on 17 November 2010. The police should absolutely have been instructed to cease video surveillance. They knew, and that is why Sian Elias, the Chief Justice, said that they were deliberately breaking the law. They knew of that High Court decision and of other decisions like the Gardiner decision, and they consciously broke the law.
This bill here provides for almost all video surveillance, except covert video surveillance involving trespass. It allows, for example, sticking a video camera on a building next door to a place that the police or some other State agency wants to spy on. For a person inside the backyard, bedroom, or living room who is being spied upon, who does not know that he or she is being spied upon—and if it is in a high place, that person would not expect to be spied upon—his or her guarantee under the New Zealand Bill of Rights Act against unreasonable search and surveillance is very much violated. That person would be expecting privacy.
As I said, this applies not just to the police but also to any agency with warranted search powers, which can include the Commerce Commission, the Department of Conservation, the New Zealand Customs Service, the Department of Internal Affairs, and the New Zealand Food Safety Authority—to name a few. They are all to be given carte blanche for all past video surveillance and for any future surveillance for a year.
Why is this bill being rushed? That is what we want to know. It is very rushed. We did not even get a copy of this bill until the first speaker, the Attorney-General, started his speech. It is impossible to have a proper process when speakers in the first reading have had virtually only a few minutes in which to absorb the bill. It is important in the first reading to give the public and any submitters to the select committee process a bit of a steer by the different parties putting in their considered views. That has not been able to happen in this case. I have heard that there will be a select committee tomorrow morning at 9 o’clock. Somebody said that. I do not know whether that is the case. I have heard reports that it will be a very rushed process, particularly for voluntary groups like the New Zealand Council for Civil Liberties, the Human Rights Foundation, or any groups like that, which do not have full-time staff and are not full-time lawyers, etc., to really contribute to such a rushed select committee. That is important if we are to get the right determination here.
Why is there all of this rush? Would it not be much easier to wait just a month or two down the track, until the next Parliament, to pass the Search and Surveillance Bill? The Green Party would support giving priority to that bill. It is important, because complex issues are involved here, which is why the Justice and Electoral Committee—upon which I sat for the Green Party on the Search and Surveillance Bill—spent 2 years discussing all the complex constraints and procedures around search and surveillance. Since then that bill has been waiting in the parliamentary hopper for the second reading. When we discussed that bill in the select committee, we actually went back—unusually for any bill—to submitters for a second round, because it was very complicated and we wanted to get it right.
The Greens think there are a lot of good things in the Search and Surveillance Bill, although we are critical of some elements of it, which is why we have not been supporting it as a whole. We do not want a provision in there for covert video surveillance involving trespass. We are very much against that.
What is the argument for haste for the Video Camera Surveillance (Temporary Measures) Bill? There are 40 current trials and 50 police investigations that might be compromised, but are we really sure about those figures? I asked a question today about how many trials involving this form of surveillance have been completed in just this last year, and I was not given a figure, at all. It was too hard to even work out a figure, apparently, so I do not necessarily trust those figures of 40 trials and 50 police investigations.
There are two other things. Most trials and investigations involve a lot of other evidence. How do we know that the covert video evidence is critical? In any case, section 30 of the Evidence Act allows illegally obtained evidence to be accepted in a court case if the case is serious enough.
I do not see that more than one or two criminals would get off if we left it for a month or two until the next Parliament. That can be the price of civil liberties. The price of civil liberties is that some criminals actually get off. That is the price of civil liberties. All we are talking about here is a temporary period.
Thinking back years ago there has been a whole tradition in the protection of privacy. I will perhaps finish on one good quote, which is from former Prime Minister William Pitt, or Pitt the Elder, who said: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—”. I think the essence of that quote is that we should very jealously protect our privacy from unreasonable surveillance by State forces. Thank you.
Hon RODNEY HIDE (Minister of Local Government) Link to this
I thank the Attorney-General for agreeing to send this very important bill, the Video Camera Surveillance (Temporary Measures) Bill, to a select committee for a few days in order for the public to have a say and for this Parliament to hear from experts.
We have a simple parliamentary system here. It has been called “unbridled power” before. There are very few checks and balances on the power of this Parliament. One of the checks is select committee scrutiny, which allows ordinary citizens to have their say and for official advice to be contested. Now one of the checks is that usually not one party can muster the numbers on its own to ram through legislation. That is as it was in this case, because it is very clear that National wanted to move this bill straight through under urgency and to pass it into law. The ACT Party believes that that would have been a very serious mistake.
There is a lot at stake. Let me walk people through it. The first thing is that people say it is very odd for ACT to be the law and order party and to be standing up on behalf of the rights of, shall we say, suspected criminals or criminals. That is because if we are to have law and order, the critical bit is that the police operate within the law. If the police do not operate within the law, then there will not be any order. That is why we require and hold our police to operate within the laws that this Parliament makes. It is a very serious issue indeed if the police, when going about their business and with a good purpose to put away bad people, are not worrying about operating outside the law. We would not actually have a lawful society and we would not have the order that we expect in a civil society. That is why we set the bar so high for our police, and justly so.
The second thing is that this bill deals with a very, very important issue: covert surveillance by the police. In other jurisdictions the police, as arms of the State, can surveil who they like, covertly, and they routinely do that, for all sorts of untoward purposes. We correctly call such States police States, and New Zealanders do not want anything to do with them. We want our police operating within the rules set by the people’s representatives, voted here by the people, in this Parliament. We do not want our police to go about secretly surveilling law-abiding citizens without the proper checks and balances that a civil society has. We have to say that this is a very, very important issue; it is not a technicality, indeed.
In fact, it surprised me to learn that the procedures were set up in 1957, before we had the technical ability to do covert surveillance, I guess. This law is so outdated that the police have found themselves in this predicament. The police officer in charge of this inquiry told the High Court that he knew they were operating outside the law with their covert surveillance. Rather than the Police Association ringing around MPs to try to get them to support this legislation under urgency—retrospectively—why was the Police Association not running around this Parliament to get the proper laws updated and passed so that the police could do their job within the law, rather than operating, as they knew they were, outside the law? Covert surveillance by the police is a big deal for any civil society.
The other point is that we are dealing with a Supreme Court decision. It should not escape members in this House that the Supreme Court is the highest court in New Zealand. We say that Parliament is the highest court—
Look, we say that Parliament is the highest court, but it is not. Parliament is not a court. Parliament is the highest court in the sense that it is the place where we have the debate and we make the laws. It is the court’s job to decide and to interpret those laws. We keep in a civil society, in which we bridle power, a clear distinction between the courts and this Parliament, and rightly so. We should ask ourselves what sort of banana republic is it if the Government of the day comes along and says: “Oh, we don’t like that decision of the courts. Let’s change the law.” Well, that is OK! “But let’s change the law retrospectively because we don’t agree with the implications of that decision, on what it means for New Zealand.” That is the definition of a banana republic. Why would we invest in a country where if we end up taking the Crown to court and it does not like the result, it just changes the law, backwards? We saw that with the foreshore and seabed, and we knew then it was a mistake. This is, likewise, potentially a similar mistake, which needs very careful examination.
The next thing we can say is this: we are attempting a so-called fix of the Supreme Court decision, under urgency. The proposal was to do so without the bill going to a select committee. We would have had this: the Government of the day getting official advice—the only advice it would get; there would be no contest—
—from the police and from the Solicitor-General, who was advising them in the court case that they lost, to say: “Oh, the Supreme Court got it wrong. Change it. We will just pretend the Supreme Court did not make that decision. In fact, we will scrub it out of the books—scrub it out of the books.” To do that under urgency makes it worse. So at the very least we have the bill going to a select committee. Then not only that, but to do so retrospectively! What that would be doing is making lawful what the police knew back in the day was unlawful. Parliament is the only place that can do that. Something was done unlawfully some years ago, and this Parliament will come along and say: “Oh, that’s OK. The police were operating unlawfully. They knew they were operating unlawfully. We knew that they were doing covert surveillance unlawfully. We’ll come along and make lawful what was unlawful.” That is Alice-in-Wonderland stuff. I do not mean to pick on Labour, but it made a similar mistake with the foreshore and seabed. The best thing this Parliament can do is hold its fire, listen to what the courts have to say, and make the law, not become the court of this country.
We are going off to a select committee. I can tell members of this House that I do not know what the answer is. I will be very interested in the submissions the select committee hears on this bill and what suggestions we hear on this bill. I am very interested in what Labour has offered. But here are the things: first of all, it seems to me that we do want the police to be able to undertake covert surveillance, but we want them to do it under the law, with proper checks and balances. I do not see that in this bill. I do not see it in this bill. It cannot be beyond the wit of us to produce it. Second of all, I have a grave concern about retrospectivity. We have been told about all the cases before the courts that will fail. I asked the Solicitor-General about that. He said: “Well actually, I don’t really know. I just emailed all the Crown solicitors and said ‘How many cases have you got that could be affected?’.” He said that it worked out to about 40. Let us get to the bottom of how many cases are affected before we run off and commit what is a constitutional outrage. We would need a pretty good reason for committing such a constitutional outrage.
Let us also do this. The argument is that there are all these bad people locked up, and now we have the Supreme Court’s decision. Actually, it is not the Supreme Court’s decision; it is the failure of this Parliament and successive Governments that is the issue. It is our failure to update our search and surveillance laws and our laws for search and seizure, so that the police can act in a way that people think is reasonable. It is not the failure of the Supreme Court, it is the failure of this Parliament. Let us test the evidence and find out how many people now inside are truly at risk of being let out and having an appeal under the law, as the Supreme Court has it. I suspect there will not be very many.
TE URUROA FLAVELL (Māori Party—Waiariki) Link to this
Tēnā koe, Mr Assistant Speaker Robertson. Kia ora tātou e te Whare kua hui mai i tēnei pō. I will start by saying to the Hon Rodney Hide that his speech was pretty much right on the money in respect of the Māori Party’s concerns about the Video Camera Surveillance (Temporary Measures) Bill, in all aspects of his kōrero. I do not wish to go back over it because, along with other speakers, he has placed the issues fairly and squarely in front of the Parliament of this land. What I do want to do, though, is add to the theme, in a sense, around the police.
As a young fellow growing up I was always brought up to understand and believe that if we need a hand, we should go to the police; that if we need some guidance, we should head to the police; and that we should give them the respect that they are due. I have been out on the road a couple of times with the police, and I give them full respect for the mahi that they have to do. I have been out at night-time and in daytime on shifts, and I do not envy their tasks at times. There are those in the field who are doing a great job of keeping the country going in a lawful way. There have been a few times when I have doubted the responsibility of policemen and policewomen throughout the country. One of them was a few years ago when a young boy, by the name of Rāwiri Falwasser, I believe, was held by the police in Whakatāne. There was a big court case. It was found, unfortunately, that a number of police members had dealt to that young man in a way that should never have happened. The second time—to cut out a long period of time—was basically the result of that one day that is well written into New Zealand history in respect of the arrival of the police in the Ruātoki Valley.
Following that day, I was fortunate to be able to go with a colleague of mine, Mr Hone Harawira, to the streets of Whakatāne one day when people organised a hīkoi through Whakatāne. I heard from nannies with their tamariki who were still shaking after that moment in time—and we are talking about a week or so after it. They were crying and showing their anger and despair at what had happened. I was with the people in Whakatāne on that hīkoi. I have heard a draft report back from the Human Rights Commission. I have been at the Tūhoe Ahurea, which is the biggest festival gathering of Tūhoe people in the Ruātoki Valley, on at least two occasions—because it is run every two years. I have heard haka; I have heard poi. I have heard whaikōrero, or speech-making, on the marae, which concluded absolutely that Tūhoe would never ever forget that occasion. I know that Tūhoe, even their young people, as recently as about two months or a month ago, at their competitions had that day in mind when they did their haka.
I know that Tūhoe talk about the confiscation line. I know that Tūhoe talk about the invasion of Maungapōhatu. I remember, and was there, on the day that the Waitangi Tribunal arrived at the Ruātoki Valley on the back of a cart, when there were about 20 young men on horses, at least, and at every point and stop all the way in to the Ruātoki Valley, the tribunal was reminded about what Tūhoe believe is their history and what has happened to them—things such as confiscation and invasion. So there is a history of mistrust of the police by the Tūhoe people, not just on the back of one occasion, but—on the back of the State, I suppose, in a sense—on the back of a number of occasions over time.
What is worse is that since that time those people still hang in limbo—not the ones who are in court, necessarily, or those who have been released or otherwise, but the people who actually had their doors either smashed open or knocked on, the families who had their tamariki strip-searched, and the families who had members taken to other areas of the Bay of Plenty and outside the region. I will not talk about the Auckland ones, because I did not hear anything from them; I heard from the Tūhoe people. I have not heard anyone say “I am sorry.” I have not heard anybody say “We got it wrong.” I am talking about the people who were hurt on that day, the ones who had nothing, absolutely nothing, to do with it, but who still suffer 4 years down the line. Those are the ones whom I feel sorry for. They are the ones whom I think about. Even the ones who lived in Whakatāne said the police came around, and now people do not talk to them. It is down to that sort of detail that people still hurt about what happened there. There are those who are still waiting to go to court. Sure, one or two have taken some liberties by going overseas—good on them—but for the rest, I just want to make a plea that tonight in this Parliament we think about those people.
Against all that background of waiting for 4 years and of what happened, one would understand that for the people of Tūhoe, as I say, their feelings about the police are not very great. Finally, to find out, about a month or so ago, that a number of them have got off their charges—10 to 12 of them got off—because the evidence did not stack up or whatever, would have had some people laughing. To finally get the outcome of the Supreme Court ruling really, in a sense, rubbed salt into the wound, especially when we had a statement from a judge of the court, Chief Justice Sian Elias, that said this: “Parliament has provided many statutory powers of entry, search and seizure, including for the interception of conversations. It has not however provided any authority for secret surveillance of the type undertaken here, despite having had the absence of such powers drawn to its attention”—a point made by Mr Hide, in terms of successive Parliaments—“by the Court of Appeal and the Law Commission.” That is what she said. She continued on: “I consider that the police act unlawfully if they do not have specific statutory authority for intruding upon personal freedom. That conclusion is compelled in my view both by the common law and by the terms of the New Zealand Bill of Rights Act. It also meets rule of law values of certainty and predictability.”
So against all of that, one would understand that not just Tūhoe but indeed Māori across the country are looking sideways now at the whole relationship in respect of the police, and indeed wondering about how it could be that the police, of all people, could go ahead into an action that was unlawful, as Mr Hide said.
This bill, I think, cuts to the very core of some deeply held concerns within our community. Mr Hide outlined most of them, but we are talking about transparency, we are talking about accountability, we are definitely talking about trust, and ultimately maybe even about the notion of corruption. What really worried me was an interview with the Police Association in which the head of the association said something along the lines of “It wasn’t written down that we couldn’t do it, so we did it.” I mean, we are talking about the head of the Police Association, and if that is the rationale for going ahead with actions by the police, we have some serious problems—we have some serious problems. So I agree absolutely with Mr Hide on all the points about retrospectivity, looking back, and the whole notion of the short time frames. We would have liked to have a little more time to work things out, because clearly it has been identified that there is an issue there. But, under the circumstances, clearly it is not going to happen.
I can say, and this will not be too much news to anybody, that the Māori Party will be voting against this legislation. We are going too fast. We have to take our time to get it right. I understood from discussions with various people that there is a worry about those people who are still out there and what happens with regard to them. As I understand it—and I tried to get some clarity around this—the police simply need to go to court to get permission to be able to go about the work that still lies there. I think the Minister, in this afternoon’s question time, outlined the difference between the two terms, which were—
TE URUROA FLAVELL Link to this
I thank the member. I am not a lawyer, but I like to think that that authority should still stay within the court.
Finally, there is the question of whether people will get off. There are four people still held under charges at this point in time, so that might suggest that those people can still be held over, and indeed those other people charged with crimes. The issue is not going to go away. We will fight this legislation all the way through. Kia ora.
Hon JUDITH COLLINS (Minister of Police) Link to this
I will speak to some of the practical aspects of policing covered by the Video Camera Surveillance (Temporary Measures) Bill. Covert video camera surveillance is used in a wide range of criminal investigations to record activity at, or comings and goings from, a particular location. Principally, it is used to gather intelligence in support of criminal investigations, including support for applications for interception of private communications; to gather evidence for crime, including recording unlawful activity; identifying persons to link to other evidence, for instance intercepted voices; to corroborate testimony of witnesses, for example undercover agents and others, including informers; and to guide decision making.
It is also used to facilitate the safety of police officers and others, for example undercover operatives, informers, and other people present in premises, such as children in a meth cook area, and to protect police officers and witnesses who have been the subject of serious threats.
It is also used to facilitate the safety of police officers and assistants lawfully entering addresses and localities pursuant to their lawful duties, such as the armed offenders squad or termination teams, investigators, or technicians entering cannabis plots. In the event of an armed siege it might be used to view a suspect address to monitor the activity of a suspect, in situations such as the Napier siege following the murder of Senior Constable Len Snee, and to provide the operation commander with the best intelligence they can get. An application in writing has to be made on oath to a District Court judge, JP, community magistrate, or registrar for a search warrant, and there must be reasonable grounds to believe that an offence punishable by imprisonment is involved. That is what is being received in all of these cases—search warrants have been granted, and they have been asked for.
On occasion, the police install covert video cameras after obtaining permission of the owners of the land. For example, cameras have been installed on private property with the permission of the owners to record unlawful activity on the land, such as people trespassing on their land in order to cultivate cannabis. In other cases owners have given the police permission to install covert cameras on their land to record activity on adjacent public land, or on a nearby suspect address. In the latter case, this is now unlawful following the Supreme Court decision.
In these cases where surveillance from adjacent land is needed, it is far safer for the owners or occupiers for video surveillance to be conducted, rather than to have surveillance by officers present on the land. There is far less chance of detection or suspicion falling on them. Criminals can be very hard on those whom they perceive to be assisting police.
The use of covert video camera surveillance involving entry on to private property as part of the exercise of a search warrant has now been declared to be unlawful by the courts. The police are therefore not able to lawfully undertake any further covert surveillance involving trespass, as there is nothing in statute to authorise it, and where this surveillance is critical to obtaining crucial evidence of offending, the police are now hamstrung in their attempts to prosecute such offending.
Covert video camera surveillance of private land from public land, or from private land with the consent of the owner, is likely to be an unreasonable search in breach of section 21 of the New Zealand Bill of Rights Act, following this decision. This will put in significant doubt the admissibility of evidence obtained from these types of surveillance, as it will have been improperly obtained in terms of section 30 of the Evidence Act, and the courts will allow it to be admitted only if there are strong counter-arguments in the interests of justice for it not to be excluded. This will be particularly important when surveillance evidence is crucial to the Crown case.
As a result of the Supreme Court decision 47 operations, including 229 accused, currently before the court are potentially at risk. Over the last year there have been, on average, operations involving 47 camera installations per month. Because of the nature of some of the installations, some will not fall foul of the law, but others will. It can be expected that a number of operations may not be initiated, because of the Supreme Court judgment. Following the Supreme Court judgment the police do not believe they can continue to use surveillance equipment in the way they have for at least the last 15 years.
Over recent years traditional surveillance involving a person watching people or suspect addresses from an adjacent place has been replaced by the use of modern technology. Even criminals have taken to the use of covert cameras to safeguard themselves from the police. The police have adapted modern technology, including the use of covert video cameras, to facilitate investigation of serious crime for many reasons. In some situations it is not physically possible to conceal a person, including in urban and residential areas where police activity would stand out, or where the locals are hostile to the police or sympathetic to the criminal subjects. Some operations go for lengthy periods and require changes of staff, supply of food, and other logistical issues. Installation of a covert camera can limit these issues. In remote or country areas, unusual activity or strangers stand out, and might alert the criminal organisation. Experience shows that many methamphetamine labs are located in the backblocks, away from prying eyes.
Use of video surveillance reduces the risk to the police and members of the public. The risk to the safety of police staff is very high in some organised crime operations. By using cameras we are able to safely and responsibly mitigate that risk. That is also true for members of the public, who give the police access to their homes to conduct surveillance on criminal suspects and addresses. Surveillance work is extremely dangerous. I think of the murder of Sergeant Don Wilkinson, murdered when placing a surveillance tool.
This bill is necessary, and the Chief Justice, in particular, has invited Parliament to regularise the situation. This bill is necessary, and it is urgent.
Hon SHANE JONES (Labour) Link to this
Kia ora anō tātou. This, arguably, is one of the most vexing issues that Māori parliamentarians can stand and speak upon during their parade into the world of parliamentary politics. Firstly, on behalf of my party, I would like to have it recorded that I support the referral of the Video Camera Surveillance (Temporary Measures) Bill to the Justice and Electoral Committee, but with reservations.
Dover Samuels, that rather colourful colleague of ours in times gone by, 48 hours after the so-called Tūhoe raids, went to Tūhoe. He had no compunction. He suffered no doubts about going there, despite the encouragement of our then leader, Helen Clark, that it possibly was not the most judicious of things to do. He had family connections there, and he went there to assure the Māori members of the Labour Party that, whatever had happened up there, there might have been a criminal element but it did not represent a level of egregious offending akin to international terrorism. He came back and told us that, yes, there were dramas, or raruraru as we say in Māori, up in that part of the country, but he saw no evidence that there was a well-conceived, executable strategy to destroy the nation state of New Zealand.
He did not gain very many fans or friends—not that that ever bothered him in the life of the Labour Party, in times gone by—but from that small incident I as a Māori parliamentarian learnt an important lesson. The lesson is this. When many of our young Māori say that the largest gang in New Zealand is the police, I tend to pooh-pooh that idea, because I, rightly or wrongly, believe in the notion that the constabulary are there to effect public safety, and that they do operate within the confines of the law. When we feel that our rights have been infringed or that the law may have been broken, we are the first to call either those of the Māori folk we know in the police force, or the local policeman. But let history record that in this particular incident, where a group of New Zealand’s trusted officials, called the police, decided to don garb akin to that of the SAS operating in Afghanistan, and move into the sleepy valleys of Tūhoe to arrest possible developments that belong in the mythology and the stories of al-Qaeda, the police made an egregious error on that day.
The courts may show that Tame Iti and others deserve to be charged and eventually convicted, but we leave that for the courts. The key point that a Māori parliamentarian is entitled to make about this issue is that we trusted the police. We trusted the most powerful policeman in the country, Howard Broad, and we were prepared to rely on his judgment. It is wrong for any Government, irrespective of the flavour of its Māori presence, to politicise the police force. God knows, there are many opportunities where a politician or a Minister might be tempted to tell a regulator: “Can you taihoa?”. This party did not put that pressure on Howard Broad when he and his officials—in particular, a unit located in Auckland—became possessed of the view that elements from the Pākehā community, possibly the greenie community, and hapū of Tūhoe were conceiving a plot to destroy the nation state of New Zealand. That particular act must not go unchallenged.
We come this evening to what we are to do. The highest court in the land, as Rodney Hide has correctly pointed out, is the Supreme Court. The actual legislature you and I, Mr Assistant Speaker Robertson, populate. We are the legislature. The judiciary construes the law that we make, and we rely upon the bureaucracy, or the executive, to execute the law. We have almost an existential tension. The highest court in the land has said that the police have consistently, in this case, behaved in a way that is illegal. But there are cases where the quality of life of New Zealanders could actually be worsened if we do not enable the police to effectively prosecute these villains and criminals.
I have taken the effort to find the New Zealand Bill of Rights Act, in this bill—the New Zealand Bill of Rights Act, passed by Geoffrey Palmer in his time. The New Zealand Bill of Rights Act is something worth fighting for as a parliamentarian. It is a clarion call that those of us who are parliamentarians, we place at the point of primacy the liberties, the freedoms, and the interests of citizens, and it is nothing—and it brings us into disrepute—if we are incapable of calling the police to operate under the same standards.
We want this bill to go to the select committee, but let no New Zealander think that any parliamentarian—I am prepared to say even those on the other side of the House—wants to hand over a blank cheque or unfettered authority to the police force. It has a difficult job to do, but we also have an arduous task before us. The courts already have enough discretion. The courts already have enough authority to make a call as to whether evidence in particularly gross cases can be admitted to effect a successful prosecution. When the courts have that level of discretion, it is not unreasonable for a parliamentarian to expect the judge of a court to exercise it.
We may not like the results that are delivered from the exercising of it. I was not a parliamentarian at the time, but I was quite surprised at the vigour with which the Chief Justice of the Supreme Court delivered her seabed and foreshore—takutai moana—judgment. I raise that issue only because there are certain resonances between that decision a year or two prior to the 2005 election and this decision quite close to the 2011 election. It focuses our attention on what is worth defending. It is worth defending. If the Government of the day wants to pass law that has retrospective impact, that does potentially curb the rights and freedoms and liberties of citizens, we should stand up to that. After all, these are the characters who actually vote for us. The institution of the police force does not vote for us. The police may as citizens, but their advocates—Mr O’Connor and others—have a different agenda. So this bill ought to go to the select committee.
It may come to pass that something can be cobbled together, because at the end of the day it will be between the two major parties to develop a “sustainable deal”. Whether it is them or us, someone will have to fix this problem. But there are some deep principles that are worth fighting for here. No group in New Zealand ought to feel either that they are above the law or that, having not operated within the law, they can usher an agenda into our legislature and have it limply passed.
The role of an Opposition is to hold the Ministers and the Government to account, and, indeed, the police. They must justify why they want retrospective power. If it passes the court of public opinion, and if it passes our threshold of tolerance, then it enjoys the broad support of this legislature. That is something worth fighting for, and what better time to debate it, what better time to distil the essential arguments, than 9 to 10 weeks from an election?
So Labour will support this particular bill. I am confident that, with the spirit of goodwill, we will find a balance between what the State needs to effect its enforcement powers and what the legislature needs in order to be a credible House of Representatives. I look forward to hearing what submitters may say, but, more important, to enjoying the experience of seeing a commingling of goodwill on the other side of the House and within Labour to effect a sustainable outcome for this very sad episode. A number of people have been through hell. Most of them have been released. The remaining number, four or five, unfortunately for them will have to face the music, and only the facts will liberate them. But we must not deprive individual citizens of further liberty through the unfortunate passage of poor legislation. Kia ora tātou.
Hon Dr WAYNE MAPP (Minister of Defence) Link to this
I open my remarks by noting that the Video Camera Surveillance (Temporary Measures) Bill proposed will not actually affect the parties in the Supreme Court case. They will—all of them—have the fruit of the result. But the Supreme Court decision raised wider questions, which the bill has to deal with. One of the questions that has been raised in the House today is the issue of retrospectivity. The bill provides that video surveillance, pursuant to a warrant, on private property is lawful—future surveillance but also previous surveillance. To that extent the bill negates the finding of the Supreme Court. For some commentators and, indeed, some members of the House such legislation—even if it were not retrospective—would, in any event, be wrong. However, the Supreme Court itself has conceded that such surveillance would be legal, provided that it had specific statutory authority. The Supreme Court, in essence, invited this House to pass such legislation.
Of course, any such legislation will always be subject to the section 21 test of the New Zealand Bill of Rights Act. In other words, such surveillance has to be reasonable. Presumably, therefore, what Mr Price and others are really concerned about is the fact that past surveillance will be deemed to be lawful, and that is actually the essence of the retrospective issue.
There are, essentially, two questions here. First, what is the legitimacy of retrospective legislation? In short, can any form of retrospective legislation have legal and moral legitimacy? Second, does this particular bill pass such a test? Is it a reasonable use of retrospective legislation? For many people it is axiomatic that all retrospective legislation is bad. The reason is simple: retrospective legislation typically makes something unlawful that previously was lawful. But there are degrees of retrospective legislation, and this distinction is made by Burrows and Carter in Statute Law in New Zealand, page 588. They say this: “In essence, retrospective legislation is only objectionable if it takes away existing rights or defences, makes unlawful things that were lawful when they were done, or attaches a tax or other liability to something done in the past.”
In short, in respect of bad retrospective legislation, people’s rights are being removed in a way that they could not have anticipated. That has been a common feature of tax law. People have legal arrangements, Parliament then passes law that makes such arrangements unlawful, and of course it is regarded as objectionable, because people cannot change their circumstances. How could they do so? They would in fact have to be time travellers to unravel what they had done in order to make it lawful.
One of the fundamental tests, therefore, of any law is that it has to be predictable and certain. Retrospective legislation—the bad kind—offends against that principle, because citizens cannot know whether their currently lawful actions will be rendered unlawful ex post facto by legislation passed by a future Parliament. Ironically, in this case it is the Supreme Court that has passed a retrospective decision. It has rendered unlawful what was previously considered by the courts—a number of courts, in fact—to be lawful. The police use of surveillance was undertaken on the basis of Court of Appeal decisions in 1997—R v Gardiner and R v Fraser. In both of those Court of Appeal decisions video surveillance evidence had been allowed because it was deemed not to be unlawful. So the intent of this bill is, essentially, to restore the status quo ante. It is to make lawful today what had previously always been considered to be lawful until the Supreme Court decision. Therefore, it actually meets the test laid down by Burrows and Carter, and that is—
Hone HarawiraHon Dr WAYNE MAPP Link to this
I say to Mr Harawira that in addition to that, any such video surveillance evidence has to satisfy a test of reasonableness. In short, any evidence that comes before the court as a result of video surveillance still has to be considered by the courts pursuant to section 21 of the New Zealand Bill of Rights Act. New Zealanders still have that fundamental protection. It has not been altered in any way by this legislation. What we are doing today is allowing video surveillance on private land, pursuant to a warrant. Such a warrant has to be granted judicially, and that is what it allows. Then that evidence gained has to be tested as to whether it was reasonably gained. In that case the courts will be applying section 21 of the New Zealand Bill of Rights Act. There is substantial law on that issue as to what constitutes a reasonable search.
In that sense, the bill proposed does not change the requirement for a reasonable search pursuant to section 21 of the New Zealand Bill of Rights Act, and that, ultimately, is the key issue in this bill. Under this bill any video evidence will be assessed by the courts. They will apply a test of reasonableness to it; whether gained in the future or in the past, they will apply the New Zealand Bill of Rights protections. That is why, in fact, there is no New Zealand Bill of Rights Act statement by the Solicitor-General. It actually meets the New Zealand Bill of Rights Act tests. The New Zealand Bill of Rights Act still fully applies to any video surveillance evidence gathered pursuant to this legislation. That is an extremely important point that members of this House and, perhaps more important, members of the public should understand—that they have all of their protections, and all of those issues will be raised by them and their counsel and the various courts.
Can I also say that the Attorney-General has taken substantial trouble to get this bill right. Members of the House will know that the bill presented today is different from what was proposed a few days ago. In short, we have ensured that lawfulness is the test and that reasonableness still continues, pursuant to the New Zealand Bill of Rights Act. I say to members on the other side of the House that that fundamental protection has been preserved by this legislation, and that is something that the select committee will need to analyse carefully.
Hon NANAIA MAHUTA (Labour—Hauraki-Waikato) Link to this
Tēnā koe, Mr Assistant Speaker. We have heard in this debate on the Video Camera Surveillance (Temporary Measures) Bill Minister after Minister after Minister justify why it is necessary. They have not justified to members of the House why they are rushing it through. They have not justified to the Kiwis who are listening to this debate who feel concerned about civil liberties why this type of legislation is being rushed through. And, to put a fine point on it, members of Parliament received this bill only just before the dinner break—incredible. Even though we are told there have been many iterations of the bill, members of Parliament received it only just before the dinner break and we are concerned. True to form, Mr Mapp gave a very precise legal rationale for why the bill is being introduced, but Kiwis out there who are listening to the debate are wondering how their civil liberties are being affected and they have some real concerns. The concerns we are raising in the House are the types of issues that I think we should continue to ensure are heard by the public on such an important bill.
Labour believes we need to test the extent of the Government’s call to introduce retrospective legislation—precisely, the extent to which retrospective powers apply. On principle, I believe that a very high threshold must be passed if retrospective legislation can even be entertained. I am not convinced by any argument that has been raised by Government members in the House as to what that is. We do not know how many cases we are talking about.
Hon NANAIA MAHUTA Link to this
That might be the case, but members have asked time and time again and we need to know the exact reasons for why retrospective legislation should be introduced.
The other point I might make, by the way, is that this is a temporary measure. So, if it is such an important bill, why do we not look for a type of solution that has broad parliamentary consensus, that is not a temporary bill, and that cuts to some of the core issues. We need to test the extent of the Government’s call to introduce retrospective legislation. We need to test the Government’s assertion about the existing cases that will be released if these law changes do not go ahead. We need to challenge the rushed manner in which the Government is proposing to push through these law changes. I say again that on principle I believe that retrospective legislation to sanction the long arm of the law is not good lawmaking in itself and must be scrutinised thoroughly by Parliament. It concerns me that members across the rest of the House have not only unanimously expressed their concerns but also expressed their opposition to what the Government is trying to do today.
When all is said and done, people listening to the debate need to be aware that the bill we are discussing was tabled just before the dinner break tonight. It is important for the bill to go through a select committee process to ensure transparent and public scrutiny on the issues being raised in the House tonight. There is nothing to gain if the bill falls victim to political spin-doctoring by the Government, which wedges good lawmaking and means more criminals in the public domain. If that is the wedge that this Government is spinning to rush this law through, then it does not give the public confidence and it certainly does not give me confidence. Every politician in this House advocates very strongly for safer communities, but we cannot fudge political judgment with good lawmaking and good law enforcement to achieve that outcome. There is a clear misfit with those objectives in this bill.
Political parties across the House have highlighted several deficiencies in the Government’s argument. I am concerned about the lack of public transparency and accountability on such an important issue as the search and surveillance powers of the police. The public and Māori are all the more wary of police powers because of the excessive manner in which the Tūhoe raids were carried out. New Zealand is a small country made up of small communities of people who, by and large, want to lead safe and peaceful lives. They trust the police to do their job and carry out their responsibilities with the support of the law. Kiwis are concerned if Parliament seeks to change the law retrospectively to sanction unlawful actions of the police. Yes, it is a matter of trusting our law enforcers; yes, it is a matter of civil liberties of Kiwi citizens; and it is about lawmaking. It is not about rushing through our parliamentary process the types of proposals that the Government is making tonight. Yes, for very good reasons Labour wants the bill to go to a select committee. I am pleased that Labour has not given the Government a free pass to ram through legislation, in order to ensure that the public has a say on this very important matter. I am concerned—like Green Party members, actually—that the haste in progressing this matter through a select committee process will not build public confidence in the lawmaking process, and the Government needs to carry the entire burden of that criticism.
I have also heard arguments from Government members that by not making the change now more crimes will be committed. I doubt very much whether that will be the case, and the Government is not in a position to prove that statement. So the Government should not make those types of statements to fearmonger people into supporting its position. I have also heard from the Government that criminals currently in jail are the real targets for the proposed changes. It is my strong view that rather than fearmongering the good citizens of New Zealand, the Government should clarify the extent, as I said before, to which retrospective powers are necessary—if at all. I am very concerned about this single issue. Parliamentarians do not have any detailed information about how many cases require the types of changes that are being called for.
In part, a select committee process will be an opportunity to penetrate the legislative motivations for law changes, like the ones being proposed tonight. Labour has played a constructive role in the Search and Surveillance Bill, which has not been given any priority by the Government on the Order Paper. Both my colleagues Charles Chauvel and David Parker have outlined the starting point to work through some of those issues, but let us be under no shadow of a doubt that we in Labour favour a thorough select committee process where the public have an opportunity to consider any proposed law change of this significance. I am concerned, like many others, that a rushed law is a bad law. This is an important issue that intersects with civil liberties and the extent of lawful actions of the police. The Government should consider the timing of this legislation. Rather than driving a wedge against every political party in this House, the Government should seek a broader consensus that tackles the issues Labour has put centre and front before the Government tonight.
I do not support the bill in its current form. I have some very severe reservations. I am wary of a rushed process. I am challenged by any argument that proposes retrospective law changes to police powers, because my gut tells me to think again. But through all of that I do have faith in the public scrutiny of the select committee process, common sense, and ensuring that time plays its part. There were members in the House who made the comment that the perception of this law being rushed through in such a manner is targeted to one specific event. My main concern is that, perceptions aside, the Government takes heed of all the concerns that have been raised by members of Parliament, because we reflect not the legal minds in the House but the public sentiment and will of people—normal people—in our communities. Those people who suffered the long arm of the law when powers were used at an excessive level—out there in Tūhoe—I think deserve our erring on the side of caution to ensure that, firstly, at the forefront of any decision making we are trying to address tonight in relation to the powers of the police, the retrospective powers are a matter of such significant issue that we are not going to treat it lightly and ram them through the House; secondly, that there is greater information to the public about the reasoning and justifications of the Government for trying to propose anything; but, thirdly and most important, that we look for a long-term solution and not a temporary measure. Thank you.
SIMON BRIDGES (National—Tauranga) Link to this
I have listened very carefully to the debate and take seriously the concerns I have heard from Nanaia Mahuta, Rodney Hide, Keith Locke, and Shane Jones. The police should not be able to do as they like. They should be held to high standards. But as I read the Video Camera Surveillance (Temporary Measures) Bill, it is a fair and modest bill. Defence counsel in this country will be free to pursue any pre-trial argument they like, to take the police on in terms of irregularities, illegalities, and improprieties, and to attempt to have evidence thrown out, and if they are successful and significant enough evidence is thrown out, to have the charges dismissed. I say again that this is, in my view, a modest bill. It does one thing: it says that covert video surveillance is not unlawful in and of itself.
In the case of trespass, bad faith, trickery, irregularities of any kind, people—through their lawyers or, indeed, in person—will be able to make applications to the court, but video surveillance in and of itself is not the problem. Given what I have heard from other members—that, indeed, they do not believe that covert video surveillance in and of itself should be a problem, that they believe that it should be permissible in this country—I suggest that many should be supporting this bill when it comes back to this Parliament.
I want to very briefly give a practitioner’s viewpoint, having argued in many, many cases the admissibility of evidence, and to say that, frankly, from my view and from the view of other practitioners I have talked to, to the Supreme Court’s decision has changed the commonly understood position in regard to covert video surveillance in this country. I mean absolutely no criticism whatsoever of the Supreme Court and its decision, but as a practitioner, and from talking to very experienced practitioners, I know that there is some confusion about whether the decision—or decisions, I should properly say, because there are a number from the Supreme Court, from differing judges—is restrictive; whether all it is saying is that where there is trespassory covert video surveillance, the evidence is out, or whether it is much more expansive than that, as perhaps some of the comments from the Chief Justice would indicate, and evidence from covert video surveillance is always out. That confusion among very experienced practitioners in this country is reason enough for quick clarification of this legislation to be required—so that we know, so that practitioners know, and so that accused know that covert video surveillance in and of itself will not be illegal.
I say to this House that Supreme Court cases, this case, and this bill before the House need to be put into a proper context. Covert video surveillance has long been a critical tool for law enforcement agencies, particularly regarding serious drug cases. There is no question that in Auckland—and probably in the rest of the country, but certainly in Auckland—enforcement agencies have been using covert video surveillance in ongoing criminal investigations, and that prosecutors are relying on it in current large-scale commercial drug cases involving cannabis or methamphetamine. I say to this House, and I do not say it in an overly emotional way, that the kind of havoc that large-scale methamphetamine operations wreak in this country in terms of the potential dangers to those involved from explosions, to the police, and to the people who have to go in, but also in terms of the misery peddled on our streets, should be taken into account when we consider this issue. Those sorts of cases are predominantly the cases we are concerned with when we talk about covert video surveillance and its day-to-day use in this country.
I say again that, in practice, counsel and accused will be able to argue evidence in or out on the basis of, as Wayne Mapp has said, the New Zealand Bill of Rights Act but also section 30 of the Evidence Act. Judges will be enjoined to balance factors, to take into account what has happened, to go into a quite detailed and unique, case-by-case, factual analysis of the circumstances, before they decide whether evidence is in or out. That is not for us to adjudicate on. The courts can, and will, do that. But I offer this: it may well be that in cannabis cases with a 7-year maximum term of imprisonment—of all cannabis offending, the most serious—where the evidence has come from covert video surveillance, where it has been obtained by trespass, that evidence ultimately is held to be inadmissible by a court. It may also be that in more serious cases—methamphetamine cases, large-scale commercial ones where the maximum term of imprisonment is life—in that sort of scenario, on considering the New Zealand Bill of Rights Act and section 30, and weighing up all matters, the evidence may well, in the public interest, stay in. Those are matters for judges, but this bill is modest and fair. It simply says one thing: in and of itself covert video surveillance evidence can be admissible.
Mr DEPUTY SPEAKER Link to this
I am sorry; the debate has concluded. All 12 speeches have been taken; the debate is concluded.
Well, I would like to seek the leave of the House. Could I seek the leave of the House to speak on this issue?
Mr DEPUTY SPEAKER Link to this
Leave is sought for the member to make a speech. Is there any objection? There is objection.
A party vote was called for on the question,
That the Video Camera Surveillance (Temporary Measures) Bill be now read a first time.
Ayes 106
Noes 15
- Green Party 9
- Māori Party 4
- Mana 1
- Independent 1 (Carter C)
Bill read a first time.
Hon CHRISTOPHER FINLAYSON (Attorney-General) Link to this
I move, That the Justice and Electoral Committeeconsider the Video Camera Surveillance (Temporary Measures) Bill , that the committee report finally 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).