Keith Locke on the Video Camera Surveillance (Temporary Measures) Bill – in committee

I thank the Attorney-General for his comments. I do appreciate that the reference to the New Zealand Bill of Rights Act has been put in the Video Camera Surveillance (Temporary Measures) Bill in clause 3(d), but I think that it is still in conflict with clause 5(a), which I have tabled an amendment to omit. The way I read clause 5(a), it is in direct contravention to the New Zealand Bill of Rights Act, because the fundamental principles, as I indicated in my initial speech, were that people have to be tried, found guilty, and conduct their appeals, etc., on the law as it applied at the time. In relation to covert video surveillance involving trespass, the Supreme Court has indicated that that was unlawful at the time and unlawful in any previous trial. So if, for example—just a hypothetical example—the absolutely primary evidence against somebody who was convicted was on the basis of covert video surveillance involving trespass, now that the Supreme Court has ruled this year that somebody who was convicted, say, a couple of years ago on that basis, they could potentially come back for an appeal. They might not succeed, and there are all the other issues involved in appeals, but we should not as a Parliament rule out their right to apply the law applying at the time. This is against the International Covenant on Civil and Political Rights, and people like Tony Ellis in their written and oral submissions to the Justice and Electoral Committee did indicate this. Tony Ellis has taken appeals to the Human Rights Committee. I think he won three of them on such similar substantive legal grounds where the New Zealand jurisdiction seems to be out of odds with international law. So I think I was right to put in my speech that we could potentially face a challenge on the international bodies if somebody had an appeal denied on that basis. I do take the other point the Attorney-General made about clause 5(2) that the surveillance does not in and of itself render a search unlawful. It is similar to the point I made in my speech. I emphasise—and Charles Chauvel and David Parker are wrong here—that the Green Party is not against covert video surveillance with the proper controls. The whole issue today with this bill is what the Supreme Court dealt with, which is covert video surveillance involving trespass, not without trespass.

I totally agree, and I said in my speech, and it is quite clear, that if the police or any agency engage in covert video surveillance without trespass, then they are still subject to a test, which they might succeed on or might not, of whether that was reasonable in terms of section 21 of the New Zealand Bill of Rights Act. We had instances of this in the select committee. If the camera is just keeping an eye on someone’s front gate, it is a camera in the street, covert but checking who is going to and from a P lab, it is focused on the front gate, that would not be considered unreasonable in most cases. They would get away with it. If the camera was high up in a tree on a neighbouring property, and people thought they were in a private space, and it was focused through their bedroom window or on the backyard, and they were doing naughty things in their backyard, or whatever, it would be considered unreasonable and may be ruled out by the court. That is why I said that this is a bill looking for a problem, because 99 percent of the surveillance that the police are doing now is covert video surveillance, without trespass, subject to the New Zealand Bill of Rights Act, and subject to the reasonableness criterion. Even the material collected unlawfully is still subject to section 30 of the Evidence Act, and usually it can be included if the crime has been serious enough. There are all of these fall-back positions in the existing law, without this bill. We do not actually need this particular bill. The other thing, and this came up at the select committee, and the Criminal Bar Association made the point in particular, that in most cases the case does not turn on the video evidence. There might be a little bit of video evidence or photographic evidence, or whatever, but it turns on all sorts of other things. All I am saying is that the police have so many fall-back positions when prosecuting a case, even when they are using unlawful evidence that is trespassory evidence. They have section 30 of the Evidence Act that can rule the evidence in, they have the reasonableness side of it, as long as they cover that, and also they have a whole pile of other evidence. It is probable, in my opinion, that most of the covert video surveillance without trespass is just working out who is involved in a P lab, or whatever. Then they have piles of other evidence, including all the evidence they now get, rightly or wrongly, from intercepting electronic communications and texts. If we look at the Operation Eight case, there was masses of electronic interception and other forms of surveillance material that they presumably were trying to hang their case on, in certain cases. The Supreme Court’s decision in Operation Eight is an interesting illustration, in that the Supreme Court allowed the use of section 30 of the Evidence Act and said that yes, the evidence collected against the four remaining on the organised criminal group charge was collected unlawfully, but it would allow filming in that case to continue because they found the organised criminal group charge and the other charges as sufficiently serious enough. That is why I say it is very hard to argue for this. I think it is important, because of the conflict between the New Zealand Bill of Rights Act provision and the fact that under section 5A we cannot use in an appeal the fact that evidence was found on someone, even though it was illegally collected. That is covert video surveillance involving trespass, and one is not allowed to use that in an appeal. That is quite unjust, and I think it will come under quite a bit of criticism from the law profession because it is a retrospective provision that is generally unacceptable. It is in conflict with the New Zealand Bill of Rights Act. Generally the Supreme Court is our highest court and we should not treat its decisions lightly. It does not have quite the strength of the US Supreme Court. If one wants to overthrow a US Supreme Court decision one has to have a two-thirds majority in two Houses, and all kinds of things. Things like their abortion decision back in 1973 still stands. Even though there was quite a big religious right, and all the rest of it, they cannot overturn that decision. It is not respecting the Supreme Court when we see the police deliberately breaking the law, as the Chief Justice said in the Operation Eight case. They do not get any penalty whatsoever, so then a certain disrespect for the law is generated. Some of the submissions, particularly I think from Tony Ellis, in quoting learned judges and whatnot on that, say that it creates a disrespect for the law when the State breaks the law and there is no penalty. Then the law changes, and some retrospectivity is put in there. In this system we have, Parliament is supreme but we must always guard the sanctity, or whatever we want to call it, of the judicial system and the court system, particularly of the Supreme Court. I think rushing this legislation through is not achieving that. I also wanted to talk a bit about the extension of these powers beyond the police. That has been too little covered, both in the political debate and in the media. I went through the search powers of various other agencies that have search powers, such as the Ministry of Agriculture and Forestry, the Department of Internal Affairs, the Commerce Commission, the Customs Service, etc., and all of these agencies, for the next 6 months, until we deal with the Search and Surveillance Bill, will have these powers to leave covert video cameras on private property.