Scoop Election 08: edited by Gordon Campbell

On the Police surveillance bailout, and Morning Report

September 20th, 2011

Tim Denee illustration - justice, search and surveillance, rule of law, video, supreme court
Illustration by Tim Denee – www.timdenee.com

It would be easier to respect the law if – repeatedly – the Police and SIS didn’t seem so willing to break it whenever it suits them, while relying on the politicians to come along and clean up the mess they leave behind.

Ordinary citizens don’t have that luxury. They have to respect the law that exists. Yet that isn’t the sort of thing that seems to bother Mr Plod unduly, or our Spy vs Spy operatives. Perhaps they have more important things in mind.

Currently, the Police are in the spotlight for their use of covert – and illegal, as the Supreme Court has now ruled (Supremem Court Judgment [PDF]) – video surveillance of the accused in the Urewera cases. As a result of the Supreme Court ruling, the charges against thirteen of the seventeen Urewera accused have been thrown out. (The nub of the matter was that the Police had installed motion sensor video gear on private property to covertly record what transpired there.)

The government has now decided to rush through legislation to allow the Police to essentially become the arbiters of when covert video surveillance on private property is legal – by dialling back the situation to the day before the Supreme Court ruling, and until such time next year as the government can permanently bestow such powers on the Police via the controversial omnibus bill of search and surveillance measures now before Parliament.

According to Prime Minister John Key, some 40 pending court cases and 50 police investigations would otherwise be in jeopardy. For that reason, the temporary law change would also be retroactive, and would thus sanitise the police actions in all the pending cases and investigations.

Incredible. The Police had been warned by the Law Commission back in 2007 that it was on shaky ground with such forms of surveillance – and could not rely on their interpretation of the Evidence Act to wing it safely. Why then, were they pressing on with the cases and investigations in question, when they knew the definitive answer was yet to be delivered by the Supreme Court? Did they, in fact, push forward knowing that each added case would make it that much more likely that the politicians would have to bail them out, if they should end up losing their gamble on the legality of the procedures in question?

The reality is that we’ve been here before, well before the Law Commission warnings in 2007. In 1996, the SIS thought it had the power to burgle the home of anti-globalisation campaigner Aziz Choudry – but the courts then found the SIS actions to be illegal, and the government of the day dutifully changed the law. The Police, mindful of the outcome of the Choudry case, should have taken extra care to ensure it was not breaking the law this time, especially after the Law Commission had added its 2007 warning.

One can only conclude that neither the SIS nor the Police have much respect for the law. There seems to be no accountability when they break the law in such cases, or misinterpret it, or screw up. Perhaps this is because they know they can hold the politicians hostage, and get the law changed after the fact.

In essence, they get rewarded for breaking the law, by having extra powers enshrined in fresh legislation. Who guards the guardians indeed – and why should ordinary citizens respect the law when the guardians in question seem to regard the law as an irritant that can be bent to their convenience ?

***

Morning Report : Bark, But No Bite. Years ago, when Metro magazine did its parody of RNZ’s Morning Report, it depicted the programme’s stalwart presenter Geoff Robinson as an Old English Sheepdog – ie, as a hairy bundle of woofing decency and goodwill to all men.

Perhaps for that reason, the RNZ producers have customarily seen the wisdom of balance, and have routinely twinned the Old English with a succession of Dobermans and Rottweillers down the years such as Lindsay Perigo, Kim Hill, and Sean Plunket – with the occasional Afghan hound thrown in, in the form of Mike Hosking. How then, to fathom the current team on Morning Report, which appears to have teamed the reliable Old English Sheepdog with a fairly skittish and excitable Red Setter?

The decision seems particularly puzzling because Morning Report is RNZ’s flagship current affairs show – and given the failed state that TVNZ has become, that makes Morning Report the last bastion of quality public broadcasting in this country. The programme’s current lack of gravitas should therefore be of concern to every New Zealander – and especially when it is not due to any lack of suitable talent from within RNZ’s own ranks. Occasional host Susie Ferguson for instance, has filled the role of sharper, more incisive interviewer to good effect, and has relevant overseas experience (with the BBC) to boot.

If one was looking for someone regularly able to hold the politicians’ feet to the fire, it is also hard to ignore Checkpoint’s long time host, Mary Wilson. I know, some people find Wilson a bit of a pitbull in an enclosed space. Yet that edge – and related ability to quickly penetrate the smokescreen thrown up by politicians and officials who have been media-trained within an inch of their lives to conceal information – is absolutely necessary in current affairs interviewing. Right now, it is lacking in Morning Report’s current pair of all too amiable hosts – both of whom seem more than willing to go bounding after whatever rabbits their interviewees offer up, by way of diversion.

********

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    1. 32 Responses to “On the Police surveillance bailout, and Morning Report”

    2. By Ken Slugg on Sep 20, 2011 | Reply

      So… with it retroactively enabled does that mean they are going to have another go at those recently discharged in the Urewera case? Or is it just so that the last four can have the illegal evidence used against them come February?

    3. By lyndon on Sep 20, 2011 | Reply

      There’s a rundown of related links in Toby Manhire’s column at the Listener website:

      National’s retro-law on surveillance lambasted by pundits

    4. By lyndon on Sep 20, 2011 | Reply

      Kelly – according to the radio news, the discharged will stay discharged.

      In the case of the remaining four the Supreme Court ruled the evidence admissible despite the taint, I think – balancing that with the gravity of the charges.

      Andrew Geddis is worth looking at for clarity on the details: Once upon a time in te Urewera …

    5. By Cam on Sep 20, 2011 | Reply

      Mr Campbell, you have failed to acknowledge that the Supreme Court changed the law – the existing law was in favour of the Police activity – i.e. the Police acted in accordance with established common law and with procedure only to have the Supreme Court change it at the last instance. THIS is judicial activism – the SC has a clear history of this.

      The NZSC operates like this – determine a desired outcome – justify that outcome (sometimes on shaky grounds).

      REMEMBER that judges are not elected – their job is to determine the law (the law in relation to this evidence had already been determined by no less than the Court of Appeal).

      The Supreme Court has, once again, acted beyond its mandate – it has, on very shaky grounds, CHANGED the law.

      Nowhere in your article do you acknowledge any of this.

      The NZSC is not the Supreme Court of the USA (USSC judges are politically appointed) – NZSC judges who act outside their mandate are acting ultra vires!!

      They are acting as politicians.

      Remember that it is not a case of our truly great and all knowing (unelected) judges defending civil liberties from the clutches of the ‘evil and oppressive’ (elected) government. It is the other way around.

    6. By Cam on Sep 20, 2011 | Reply

      This article details nicely the mandate of the Supreme Court of this country –

      Justice Tipping has stated in the past that he is more than willing to bend the law to make it work in his favour (this is not his job), he is not a politician, he is a judge!!

      His job is to find what the law IS – not to discover new law to further his pathetic cause.

      Elias CJ has made similar comments – including the comment that she would be willing to strike down legislation if it were at odds with ‘the principals of the Treaty of Waitangi’ (which are not definable) – this is very troubling for constitutional lawyers like myself – no longer will we be able to give our clients sound advice.

      JUSTICE SHALL BE AS LONG AS ELIAS’S/ TIPPING’s FOOT!

      The end of consistency and predictability

      http://www.nzcpr.com/guest259.htm

    7. By lyndon on Sep 20, 2011 | Reply

      Dean Knight has even more: “Elephants and the Law” by Dean Knight: Covert video surveillance and the (c)overt erosion of the Rule of Law

    8. By toad on Sep 20, 2011 | Reply

      Cam, you are completely wrong. Don’t buy into Greg O’Connor’s spin. There was no lawfully authority for covert video surveillance on private property before the SC judgment, and the Police knew there was no such authority.

      That matter had been canvassed by them before the Select Committee hearings on the Search and Surveillance Bill and canvassed by the Law Commission.

      So the Supreme Court didn’t change the law at all – it merely affirmed what had always been considered to be the law. The real debate at the Supreme Court was over whether the unlawfully obtained evidence should be admissible in the criminal proceedings.

    9. By Cam on Sep 20, 2011 | Reply

      Toad, once again you have missed the point.

      This case, like so many others, is an example of the high judiciary’s willingness to interfere with established practice and common law to suit their own desired results.

      Their process of reasoning is as follows (by Tipping’s admission at a UC lecture last week) – “We determine what result we want – then we go about justifying it”

      This is what has happened here – the judges (for whatever reason) decided that evidence obtained within the reasonable limits of police power was BAD (‘The evil servants of her Majesty at it again’)- they used flawed reasoning to justify this result and simultaneously enlarged their powers.

      This is breach of mandate – it is judicial activism – if any survey was conducted I’m willing to bet that an overwhelming majority of people would not support this finding.

      How the hell are the police meant to do their job in the 21st century if they get slapped on the wrist by Piano-Legs Elias every time they dare to breath!

      The further these authoritarian judges elevate things the more I, for one, want to leave this country and never return.

    10. By lyndon on Sep 20, 2011 | Reply

      Cam, toad is not missing the point. He’s saying that you are, as regards this case, wrong. And he’s actually offered a piece of evidence.

    11. By Cam on Sep 20, 2011 | Reply

      Chief Justice Sian Elias “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.”

      YES. I agree Sian. But, there was NO contention that the police *deliberatly* broke the law (THE LAW WAS NOT DETERMINED).

      Answer this Lyndon and Toad & Gordon – how can the police possibly be acting ultra vires when the relevant legislation was scilent on the matter?

      Where the SC has gone wrong in THIS case is that, in seeking their desired remedy, they failed to act as judges should: in APPLYING law, rather they acted as MP’s ~ creating law ~ hence why this is a metter which Parliament needs to resolve.

      BTW, retrospectivity is not in issue. Retrospectivity is a different matter (R v Pora).

    12. By lyndon on Sep 20, 2011 | Reply

      Just on the question, state agents, I’m told, need to be actually given powers – they don’t get them by default. This makes sense to me because the relevent laws are not a gigantic list of forbidden things.

      I’m not a lawyer myself, but it seems to me that’s what ‘ultra vires’ means.

      If the police were wondering whether what they were doing was legitimate they could have noted the law commission or the process for the Search and Surveillance bill (including, I’m told but haven’t checked, their own contribution to it).

      I have to say you seem peculiarly certain of your position.

    13. By ben on Sep 20, 2011 | Reply

      Isn’t the video surveillance issue a bit of a smoke screen to hide the fact that the “operation 8″ was founded on crap evidence?

    14. By Cam on Sep 20, 2011 | Reply

      Lyndon,

      Where the law is silent on matters of Crown/ executive power, the Crown has discretion to determine whether to act or whether to refrain from acting.

      In doing this they must take things like NZBORA, Treaty of Waitangi, Human Rights Act, etc into account.

      NOTE: BORA works both ways in this case – the right of the activists to due process vs. the RIGHT of all of us to live free from the tyranny of “terrorists”.

      They must balance all of this with the significance of the situation (which will be different in every case).

      In this case the police were convinced that there had been extremist groups plotting against the Government and against private citizens – this made it a matter of national security. Based on this advice they decided that it would not be unreasonable to exercise their inherent discretion to determine their power where it was not limited by Parliament and gather intelligence.

      Now I think that that process of reasoning was fair.

      I do not know much about the actual goings on of extremist Maori, however I am strongly of the opinion that in such circumstances the police (SIS) should have the discretion to gather intelligence without the need to wait around for Judicial authorisation.

      To allege otherwise is to place the rights of potential terrorists (murderers) above the rights of everyone else.

      With respect, I see it as my job to point out constitutional issues where I feel they exist – I am in no way bias, and hold no hostility toward the activists what-so-ever.

    15. By Hayden on Sep 20, 2011 | Reply

      Wonder why we called it the “supreme” court if we weren’t going to allow it to do anything (like make controversial decisions, for example). Perhaps Parliament has a sense of irony?

    16. By lyndon on Sep 20, 2011 | Reply

      I’ll stand corrected for now; thinking about what I’ve seen the BORA questions of unreasonable search and seizure would fit better. Trespass aside, which I haven’t looked into. (Is it in consequence of the former?)

      Now I think that that process of reasoning was fair.

      They don’t. It doesn’t sound like judicial voodoo to me.

      (Me? If they need a warrant for wiretaps they shouldn’t get video for free.

      And as an aside – surely the BORA applies to the actions of state agents, not of criminals.)

      At any rate, you seem to be at odds with the whole bench on that? (And with every spokeslawyer I follow on the local webs.) They differed on whether the evidence, despite the taint, was admissible in the various cases.

    17. By Cam on Sep 20, 2011 | Reply

      Welcome Hayden,

      Good question, but easily addressed: It is called the Supreme Court because it is supreme to all other courts in the judicial hierarchy. This fact often confuses people: The judicial hierarchy exists separately to the Legislature and the Crown (executive).

      Basically, the Legislature has the most power of all the bodies (the most SUPREME branch or government).

      I don’t want to lecture you, just thought I’d have a go at explaining precisely why the decision is wrong.

      First: In this case the Legislature made a series of laws which the executive (police) must abide by. In the legislative they omitted to mention some things (too much detail would make the law too hard to follow and understand).

      Next, the Police became worried that terrorists had been training in the Ureweras and decided to act to counter the threat. They decided the best way to do this was to use surveillance – they would have certainly looked at the law to make sure that they were following procedure. There is no point in making investigations unless due process is followed (the police know this).

      Now: the prosecution would like to use the footage of the alleged criminals in a trial against them. The idea is that the jury will be able to look at the footage and determine whether the accused are guilty.

      BUT the defence counsel raised an objection to the use of the evidence on some truly rubbish grounds (I’ll bet they are as surprised as I am that they could pull it off).

      The usual procedure would be for the SC to make a determination based on precedent and based on purely legal ‘judgment’ – this case presents a poisonous and very worrying political element.

    18. By Joe Blow on Sep 20, 2011 | Reply

      @ Cam

      I would just like to start by congratulating the Supreme Court on fulfilling its role as the bastion of the rule of law. No one can accuse it of being a mere extension of the crusty old Court of Appeal now! Bravo!

      I’m surprised that someone who calls themself a constitutional lawyer can miss the point that not everyone views the judiciary’s ultimate role as being one where they perform their duties much like a bunch of sheep or views the New Zealand Bill of Rights as being anything but a transformative instrument.

      You claim that the law has been changed by the Supreme Court, but I see an awful lot of reference to the “previous” common law in the the Supreme Court decision above. Tell me, if no legislation existed in relating to the use of covert surveillance, what was the “settled” common law on the legality and reasonableness relating specifically to covert surviellance before the Supreme Court supposedly changed the law?

      The common law is developed by the courts under the doctrine of stare decisis whereby courts must follow the binding authority of superior courts. The Supreme Court is the most superior court in the land and therefore, your contention that its decision is somehow ultra vires is absurd and so irrational that it sounds much like something that would easily be captured by Wednesbury unreasonableness. To quote, “So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

    19. By Cam on Sep 21, 2011 | Reply

      Joe, you need to review the books!

      The decision is not ultra vires because it throws stare decisis into contempt – it is ultra vires because it affords no respect for the executive.

      It is true that the SC is tasked with defending the rule of law; in this case the rule of law was never breached.

      The police, in gathering evidence, followed a reasonable process/ practice – to call that into contention now raises serious problems with justice.

      It was a politically motivated decision and if you can’t see that then I suggest carefully revising legal systems.

    20. By lyndon on Sep 21, 2011 | Reply

      “Elephants and the Law” by Dean Knight: Covert surveillance: if it ain’t unlawful then it’s lawful?

      “Baloney!”

    21. By Joe Blow on Sep 21, 2011 | Reply

      @ Cam

      What possible political motive would the Supreme Court have in making a decision that would thwart the executive’s whims? The judiciary cannot uphold the rule of law if it is expected to defer to the executive every time it makes a decision.

      You keep contradicting yourself Cam! First you say that the Supreme Court has somehow changed established common law, but then you say that the police did nothing wrong because there was no established common law of which to be in breach of.

      Two points:

      First, if there really was a void in the common law, isn’t it exactly the Supreme Court’s role to develop the common law as it has done so? The common law is law developed by judges through decisions of courts rather than through legislative statutes or executive branch action. The Supreme Court’s decision IS the common law!

      Secondly, there was no void in the common law. There was a nice big fat s 21 of NZBORA sitting in your so called void along with warrants for search and seizure under s 198 of the Summary Proceedings Act not to mention s 30 of the Evidence Act on the other side of the reasonableness question. These were all enactments of the Legislature. Hell interpretations of s 198 have to be consistent with BORA under s 6 anyway. If the police were free to do what they wanted because there was no common law, why did they try and get warrants in the first place?

      I don’t know about you Cam, but it seems like there was quite a lot of law that could be breached by the police. I think that what we have here is no respect by the executive for the rule of law.

      To quote Geddis:
      “The courts are there to provide interpretations of the law independent of those who govern us (or enforce their rules), to ensure that the law has some meaning other than that which is most convenient to them”.

    22. By TuF on Sep 21, 2011 | Reply

      Cam…Do you have problems listening…Get off the high horse…The Police acted illegally and no cheerleading by you or Fuher O’connor will change that…Are you just here to troll. Do you work for the NZ Police or any government department? Just the rules dont suit doesnt mean you can change what you dont like. We as citizens have to live by the letter of the law…Why do you think you and your mates are any different?

    23. By Paul on Sep 21, 2011 | Reply

      Do you notice how often the National Party ministers decline interviews on National Radio? RNZ could add a lot more bite to their reporting were they to say “that is the 7th time the Minister has declined an interview. What are they trying to hide?” The media needs to hold them to account.

    24. By Joe Blow on Sep 21, 2011 | Reply

      @ Cam and Lyndon

      Halleluhah! Praise the great common law. Nice article Lyndon. I guess s 21 BORA is just a codification of Entick v Carrington (the common law) anyway.

      Cam you should read that article by Dean Knight (a real constitutional lawyer) and possibly Entick v Carrington too.

      Baloney!

    25. By R on Sep 21, 2011 | Reply

      @Paul
      Yeah, um, nah, because the moment they get too critical of the guys who hold the purse-strings their funding’ll be cut to nil. We the listeners need to take note of such things ourselves.

    26. By Cam on Sep 23, 2011 | Reply

      Joe.

      Try Fitzgerald v Muldoon too.

      I heard recently that Mr Fitzgerald still has his job in the Department of Labour…

      Boring case from memory, Entick on the other hand is an interesting case, of a time when the judiciary still had respect for the rule of law (upon fear of death of course).

      Entick must not be confused with this situation (nor Fitz v Muldoon)- the former involved (from memory) the searching for and destruction of documents of a political opponent upon authorisation of a truly bad minister. The latter concerned the drunken abolition of a statute by proclamation (without vote in the house) by Rob Muldoon.

      VERY different situations to the present case – the reasonable surveillance of terror suspects by the police where no binding law forbade that action!!!

      I don’t think I am the one who needs to read EvC or FvM – I read them more than 20 years ago – the actual law (in case you have not realised) must be more concerned by practicality.

    27. By Joe Blow on Sep 23, 2011 | Reply

      @ Cam

      You’re so full of it Cam I am beginning to believe you really are a lawyer! You need to read Entick v Carrington again. It’s been so long since you’ve read it, that you don’t know the common law from your A-hole anymore. The whole point of Entick was that if the state wishes to lawfully (and therefore reasonably) commit a search and seizure, then the state must show authorisation by the law. NOT just that nothing forbade the action. Pure and simple since 1765. Furthermore, the only time an unlawful search will be reasonable is if the illegality is due to some minor technicality or minor error in a search warrant or something like that. Therefore, an unlawful search is unreasonable and prohibited by s 21 of the BORA. If you were a real lawyer you would know that!

    28. By Joe Blow on Sep 23, 2011 | Reply

      @ Cam

      Correction: Sorry I just remembered that an unlawful search can be reasonable if there is no expectation of privacy or something like that. Still that authority, unlike the present Urewera case, all involved surveillance that did not involve entry onto property or premises and definitely didn’t involve police sneaking around on private property in their ninja threadz pretending they were chasing the likes of al-Qaeda in the NZ bush! The police and you should know that! Shameful! Like a bunch of pre-schoolers with new spiderman suits for Christmas that just HAD TO TRY THEM OUT ON SOMEONE! JUST HAD TO!

    29. By Leon Henderson on Sep 24, 2011 | Reply

      Cam, the New Zealand/Aoteoroa political scene is utterly hidebound with cronyism – that vile American bag of crap, Paula Rebstock (who had previously been the CEO of the Commerce Commission and was a bone-lazy and utterly useless bag of crap who did absolutely nothing to protect the Working-Class people of this Nation against foreign and local capitalists, was appointed by the National/Act/Maori Party as the “Chairman” of the “Welfare Working Group”!!!

    30. By Leon Henderson on Sep 24, 2011 | Reply

      Paul: you speak of the grovelling subservience of National Radio to the National/Act/Maori Party (all one and the same except that the Maori Party had better watch their backs!!!) and the smarmy, pandering, kowtowing of the so-called “journalists” on that station to the National/Act/Maori Party is utterly Barf-In-A-Bucket-Inducing.

    31. By Jane Doe on Sep 29, 2011 | Reply

      On the increasing breaches of privacy law;
      if anyone does not want the “smart meter” surveillance just say no

      The refusal to allow Genesis energy to install an” Advanced Meter”at my premises is not contrary to any energy supply agreement or consumer law.

    32. By Stephen McGregor on Oct 5, 2011 | Reply

      “Cam” is just a silly lawyer, trying – unfortunately successfully in this case – to change the subject from the common garden corruption of the police to the pointless any-fool-can-make-a-rule attempts of the legal system to appear to have some sort of internal consistency.

      Whenever one sees anyone like “Cam” floundering around trying to change the subject, just look in the other direction and you will see the real issue.

    33. By lyndon on Oct 5, 2011 | Reply

      the reasonable surveillance of terror suspects by the police where no binding law forbade that action

      I really shouldn’t, but since you clearly haven’t been paying attention:

      The police were placing hidden cameras on private property without the owners knowledge or consent with no authority except a warrant to search. That’s a common law right, is it? If you can’t see how there could be a trespass there, you are a liability to the legal system.

      On the question of whether case law had previously allowed this, I will defer to named independent experts and say that this is at least disputed.

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