KEITH LOCKE (Green)
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 select 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 demonstrative 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 the video camera on private land, not trying to get a warrant to do that, because, as the Chief Justice said, they knew they could not lawfully get one. 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 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 had been 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 commonsense that most surveillance cameras have been those used to check the comings and goings to a property through cameras in the street or, with permission, from a neighbouring property. None of those cameras were ruled unlawful by the September Supreme Court decision. Of course, their operation would have 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 Fisheries, the New Zealand 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 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 reign to use video surveillance to a range of State agencies for 6 months into the future.
To make matters worse, a new bad 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. That is constitutionally repugnant, in 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 Parliaments can make new law. I say that 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,
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 is debated in Parliament?