Keith Locke on the Video Camera Surveillance (Temporary Measures) Bill – first reading

The essence of this is that this Government is overriding one of the most important laws on our statute book—that is, the New Zealand Bill of Rights Act



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 and 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. It is important to know that this legislation is not just about the police; it is about other State agencies that have search powers as well. We have found that the police have been breaking the law by engaging in covert video surveillance without authority. Rather than bringing the police to account or some sort of punishment, what are we doing? We are passing a law in a rush to make that illegal behaviour legal, affecting time way back to 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 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 protects the public from unreasonable search and seizure by State agencies, including unreasonable surveillance.

Chief Justice, Sian Elias, in her 2 September judgment explained that. She said: “Covert surveillance by the police of people who do not know that they are being observed collides with the 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 clear in her judgment that the police and other agencies are only able to do such covert video surveillance, in breach of the New Zealand Bill of Rights Act, 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, and she used that 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 they were deliberately breaking the law. They knew of that High Court decision and of other decisions like the Gardner decision and they consciously broke the law.

This bill here provides for almost all video surveillance, except covert video surveillance involving trespass, but it does allow, 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 back yard, bedroom, or living room who is being spied upon, who does not know they are being spied upon, and if it is in a high place would not expect to be spied upon, their guarantee under the New Zealand Bill of Rights Act against unreasonable search and surveillance is very much violated. They would be expecting privacy.

As I said, this does not apply just to the police; it applies to any agency with warranted search powers, which can include the Commerce Commission, Department of Conservation, New Zealand Customs Service, Department of Internal Affairs, and New Zealand Food Safety Authority—to name a few. They are all to be given carte blanche for all past video surveillance and 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 virtually only a few minutes to absorb the bill. It is important in the first reading to give the public and any submitters to a 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, in particular for voluntary groups like the New Zealand Council for Civil Liberties, the Human Rights Foundation, or any group like that that does 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 the bill has been waiting on the parliamentary order paper for the second reading. When we discussed the bill in the select committee we actually went back. Unusually for any bill we went back to submitters for a second round, because we wanted to get it right and it was very complicated.

The Greens think there are a lot of good things in that 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. Are we really sure about those figures? I asked a question today about how many trials involving this form of surveillance have been completed just this last year. I was not given a figure. 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 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 is that we should very jealously protect our privacy from unreasonable surveillance by State forces. Thank you.