Retrospective surveillance laws shouldn’t be rammed through Parliament

We should be very worried that the government intends to rush legislation through Parliament next week that could restrict New Zealanders’ ability, under the Bill of Rights, to protect themselves from unreasonable surveillance.

To add insult to injury, the legislation will be retrospective, to make legal the behavior of the Police over recent times in conducting covert video surveillance without any warranted power to do so.

Even worse, the Police have been consciously breaking the law, as Chief Justice Sian Elias pointed out in her judgement in the Operation 8 case, which saw charges against 13 defendants dismissed. She said: “In circumstances where the police officer in charge of the inquiry knew that there was no authority 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.”

The Police also knew from the 2007 Law Commission report on Search and Surveillance Powers, and three years of parliamentary proceedings on the Search and Surveillance Bill, that they had no legal authority to conduct covert video surveillance.

In attempting to justify urgency and retrospectivity, the Prime Minister has referred to problems with 40 pending trials and 50 Police operations. However, it is well established that for serious crimes the Evidence Act allows for some illegally obtained material to be used, as has occurred in the Operation 8 case, where the Supreme Court has allowed used of the video evidence against the four remaining defendants, charged with being members of an organised criminal group.

This rush to change the law in a week contrasts with the considered approach of the Justice and Electoral Select Committee, which spent two years fine-tuning surveillance powers in the Search and Surveillance Bill which has, for the last year, been awaiting its Second Reading in Parliament.

Covert video surveillance was a major topic of debate in the Committee and the

Green Party’s minority report

(which I wrote) argued that we should not go so far as to allow covert surveillance involving trespass, for example putting covert camera in someone’s living room. We were also concerned that under the Bill surveillance warrant powers will be granted to a whole range of government departments from Internal Affairs, Conservation and Commerce to the Food Safety Authority.

To now deal with such complex and controversial matters in a new bill, in urgency, is an affront to the parliamentary process.

We have yet to see the actual Bill, but from what we have heard about it so far it is not something the Green Party could support.