Scoop Election 08: edited by Gordon Campbell

On why the deal on Police covert video surveillance is a travesty

October 4th, 2011

protest against the Video Camera Surveillance Bill – photo by Anne Russell
Click for big version.

At Saturday’s protest against the bill in Wellington. Photo by Anne Russell.

So a cosy deal has been reached between National and Labour on the shape of the interim legislation governing the Police use of covert video surveillance.

The retrospective part of the government’s proposed Video Camera Surveillance Bill has been dropped. That’s the bit that would have meant that illegal Police covert surveillance would be deemed legal in all of the Police investigations currently underway or in the cases now before the courts.

However, that’s a concession without consequences – because simultaneously, it has been decided that anyone already convicted on the basis of illegally obtained covert video surveillance evidence will be unable to cite that illegality as grounds for appealing their conviction.

In future, it will be left to the courts to use the powers it always had under section 30 of the Evidence Act to weigh whether such covertly obtained video evidence is admissible. The sunset clause in the amended interim Bill will now be six months, instead of one year. By that time, the government will need to have passed into law its omnibus Search and Surveillance Bill, which will formally establish the surveillance powers of the Police and other agencies, on very much the same basis.

In the meantime, the Police will be able to resume its covert video surveillance, and the courts will ultimately decide whether such activities were justified, and whether the evidence is admissible.

Last week, Professor Andrew Geddis of the law faculty at Otago University lucidly summarised the extent to which the Crown Law Office had overstated the problem that the recent Supreme Court decision had created for the Police.

Yes, the Supreme Court did find – as most people would hope – that covert video surveillance cameras planted by Police on private property in the course of executing a search warrant was illegal. As Geddis points out, it is quite a stretch to then read into the Supreme Court judgement the dire conclusions that the Crown Law Office put in its explanatory note to the interim Bill eg.

b) all covert video camera surveillance, including use of “over the fence” covert video camera surveillance (ie, non-trespassory surveillance, for example, by filming private activity from public land or from private property with the consent of the owner), is also likely to be held to be unlawful:
(c) if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of section 21 of the New Zealand Bill of Rights Act 1990. Any evidence obtained is at high risk of being held to be inadmissible:
(d) this will jeopardise both current prosecutions in cases already before the courts and ongoing investigations by the Police and other law enforcement agencies.

Well, no. None of the above follows, and the deal that Labour and National have reached proves it.

What has been agreed is that covert video surveillance by Police on private property will be judged as a trespass and will probably be rejected by the courts on Bill of Rights grounds, and/or under the s30 provision of the Evidence Act. However, the courts will retain discretion and presumably in cases where the severity of the offence and/or the weight of other evidence has been taken into account, it could still allow even the evidence gained by such means to be put before the court.

Contrary to the Crown Law Office’s leaps of logic, there is also no reason for thinking that evidence obtained by covert video surveillance in a public place, or via non-trespassory means ( eg by cameras pointed over the garden fence of an adjacent property) would be ruled out in future.

The claims that the Police and government were taken by surprise by the Supreme Court decision – and the suggestions by politicians that this was some aberrant, nit picking decision reached by the Court – should be rejected outright. As Geddis points out, the courts had never given the Police any reason to believe that such actions were legal – and in fact, in a separate decision last year, had given the Police good reason to believe that their actions were probably illegal.

There was no reason for the Police to feel ambushed, or surprised. If anything, it was the Court of Appeal decision last year (that the Supreme Court overturned) that was the outlier. The government has done itself (and its relationship with the courts) no favours by signalling its preference for the Court of Appeal position.

And what of the wondrous numbers quoted by Prime Minister John Key that 40 police cases and 50 police operations had been placed in jeopardy by the Supreme Court decision? Those numbers were never confirmed, not even by the police before the select committee. To Labour’s Charles Chauvel, Key’s numbers were an attempt to bully Labour into supporting the original interim Bill. As Greens MP Keith Locke argued in his minority report, it is actually quite rare for Police to use evidence gained from covert video surveillance in the ways legitimised by this legislation.

Meanwhile, the privacy rights of innocent third parties caught up in such surveillance remains something of a grey area – but again, this would presumably be weighed by the courts against any greater good arguably being achieved.

Leaving aside the content… the damage done by the rushed process to any residual respect the public might have for Parliament is another matter entirely. As Keith Locke said last Saturday during a protest march against the interim legislation, he received the proposed Bill at 5.15 pm, 45 minutes before being expected to speak on its contents.

Similarly, the people wishing to make submissions on the Bill were expected to get hold of a copy of the Bill, analyse it, write up their response and be ready to appear before the committee by 9am the following morning.

Locke succinctly explained to Scoop the reasons for feeling outraged at this Parliamentary travesty:

“At no point have specific examples been given of why they [the police] need this Bill. Not a single example. We have been told there are a number of cases using video surveillance. We have not been told of how many are using covert video surveillance involving trespass [even though] the whole issue in relation to this Bill is around video surveillance involving trespass.

“It’s a Bill without any explicit justification, other than the Police saying ‘We’ve broken the law. We’ve got some operations under way. We won’t give you any details. We won’t give you any justification. We just want the powers of Parliament to overthrow this decision of the Supreme Court – and retrospectively, to prevent anyone from bringing as part of an appeal, the fact that they’ve been spied on illegally prior to the passage of this Bill.’”


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    1. 15 Responses to “On why the deal on Police covert video surveillance is a travesty”

    2. By Ron Wilson on Oct 4, 2011 | Reply

      This is just plain silly. As I understand it audio Surveillance of people on privtae property is allowed but video Surveillance is not?
      Leaving decisions to a judge as to what constitutes allowable footage and what does not is unacceptable. Governmenst make laws and the Government should either make a law that is clear and understandable or they should forget it and live with the consequences

    3. By donna on Oct 4, 2011 | Reply

      Thank you, Gordon.
      The whole process has been an absolute disgrace, and if Labour wonders why people still won’t trust them, they need look no further than their behaviour in regard to this Bill. They should have had the guts to walk away and leave the government and the police to explain clearly why it was so important.
      Keith Locke appears to be one of the few who got it right. His integrity will be missed.

    4. By Joe Blow on Oct 4, 2011 | Reply

      In a way they are bypassing the powers of Parliament by pushing this Bill through under urgency. Still I guess if Labour has backed it that it is difficult to brand it as government driven legislation. Time and again Labour keeps missing sound opportunities to stake a claim to being worthy of votes this coming election…

      Just one last thing about the Court of Appeal decision. The Court of Appeal said that the legislation on search warrants could be interpreted to make the warrants valid thereby making the covert video surveillance reasonable and lawful. For that reason the Court didn’t even broach the subject of whether the surveillance would have been lawful at common law so that decision does nothing to back up claims from the police that they have been ambushed or surprised. Everyone knew that the current search warrant legislation did not allow covert video surveillance and that was why there is specific legislation (Search and Surveillance Bill 2009) allowing warrants for such surveillance still waiting to pass through Parliament…

    5. By John Ryder on Oct 4, 2011 | Reply

      The fact is that the nats and the labs are not actually at odds. Both parties are more or less endorsed by the US Federal Reserve Bank and the Bilderberg Group, the elite mobster loansharks who run the world. Therefore, in order to keep the people at odds with each other, the battle between ‘left’ and ‘right’ is pretended. But both are after the same thing, eventual total control of the population. Election day and democracy is a sham of a mockery of two mockeries of a sham. Doesn’t matter who you vote for, although the labs have more people-friendly policies, but it’s all a lie. So –
      How about an article clearly explaining the global monetary system to your readers Gordon?
      Cheers, JR

    6. By KJT on Oct 4, 2011 | Reply

      The Supreme court said the police broke the law. Where are the arrests and charges against the senior police that allowed and encouraged the law to be broken.

    7. By Andrew R on Oct 4, 2011 | Reply

      The other issue of concern is that the police have been deliberately breaking the law in undertaking this video surveillance. That is clear from judge’s comments in the Supreme Court decision.

      And the bill being rushed through under urgency with support of National, Act, United and Labour is just confirming a one law for us (the police) one law for the rest approach.

    8. By GunHo on Oct 4, 2011 | Reply

      Too many questions arise from this, for example:

      If I find a police covert surveillance camera on my property, would I be held liable if I disposed of it?

      If so, the “covert” aspect is arbitrary and the state is essentially allowing police to set up cameras in our homes and businesses.

    9. By Peter Clareburt on Oct 5, 2011 | Reply

      I can imagine why video surveillance is necessary – much in the same way as witnesses and informers can be necessary in proving wrong doing. If people are known to be doing wrong and or there are strong suspicions that they are doing wrong but we don’t yet have the necessary proof the an video of them actually doing wrong would be very helpful. So the law needs to be in place – it needs to be considered and it needs check and balances. Why no prior government has looked/addressed at this in the last 20 years is the biggest surprise. So let’s do it properly. I fully expect MP’s of all parties to work together and agree on many things in parliament and so I see Labour and National working together on this a good thing – but it does need to be done properly.

    10. By dw on Oct 5, 2011 | Reply


    11. By Leon Henderson on Oct 6, 2011 | Reply

      John Ryder: there IS a major Political Party in Parliament who ARE radically different to National/Labour and their hangers-on, and the Party in question is The Mighty, Mighty, New Zealand Green Party.

      Hone Harawera’s Mana Party is the only natural Ally in Parliament that The NZ Green Party have got, but unfortunately at the moment Hone Harawera is their sole Member in Parliament as his Party is only newly formed (hopefully they will sweep the Maori seats in November and Sue Bradford will knock Paula Bennett over too: it would be fabulous to see Bennett get dumped out of Waitakere, and Bennett is looking VERY shaky there!!!).

      The Green Party are venomously Anti-Globalist, and want a totally new type of economic system where everything operates as a co-operative. They want Electricity, housing, food, money, telecommunications, etc to be made statutory Constitutional Human Rights that nobody can be denied.

      They utterly detest Imperialism and want New Zealand to be a totally independent, sovereign, Non-Aligned State, with no foreign military/intelligence presence allowed here at all. The New Zealand military will not be permitted to co-operate in any way with foreign militarists.

      They want a “Hone Heke Tax” on financial transactions so that capitalist “entrepreneurs”/wheeler-dealers are going to have their currency fiddling whacked very, very hard!

      The NZ Green Party will not tolerate foreign ownership of ANYTHING here – they are fanatically opposed to it.

      All strategic assets under a Green/Mana Government, such as Electricity, Water, Land (both State-Owned and Municipal), Ports, Railways, Hospitals, Schools, Universities, National Parks, and Housing (Green Party Policy wants a massive State-House construction programme urgently undertaken) all to be non-profit Publicly-Owned.

    12. By Leon Henderson on Oct 7, 2011 | Reply

      In November, we ALL (who are eligible) should vote, and that includes the Vote For MMP: there is nothing that the foreign corporations, American/Jewish embassies, Business Roundtable, and National/ACT (and, secretly, Labour also) will love more than if MMP loses the Vote in November.

      Don’t let those Criminals steal your only hope of ever being able to get a decent Government into power:

      Vote Mighty, Mighty NZ Green Party (Party Vote) + Labour (Electorate Vote), or vote Mana.

      We need to get enough Green Party and Mana Party Members into Parliament so that they can “Give The Numbers” to Labour to form a Government, while at the same time having enough Green and Mana people in there to be able to hold big sway over Labour and get plenty of seats around the Cabinet Table so that Greens and Mana can force the Labour Party to have to (resentfully!!!) implement Left-Wing Policy.

      Be sure to Vote “YES” to MMP.

    13. By Tara on Oct 7, 2011 | Reply

      @Peter there is no reason for the Search and Surveillance bill. The police have all the necessary powers and laws already in place to fight serious crime.

    14. By Leon Henderson on Oct 8, 2011 | Reply

      Joe Blow: you are always EVERYWHERE on Werewolf (Gordon Campbells’ Awesomely Excellent News Website AKA Here!) and somewhere amongst your almost literally billions of Corporate Capitalist Establishment Lectures to everyone else here, you somewhere claim to be a “NZ Green Party Member”.

      What unutterable BULLSHIT: you are no Mighty, Mighty, New Zealand Green Party Member, Joe Blow, and where anywhere on Werewolf are your promotions of the Mighty, Mighty, New Zealand/Aoteroa Green Party Ideology and Worldview?

      Nowhere in sight, Mr. Mossad Mouthpiece.

    15. By Frank Macskasy on Oct 10, 2011 | Reply

      And it seems that reactionary responses to the left just got nastier, with the banning of Martyn “bomber” Bradbury, from RNZ,

      “Banned for criticising Key”

      “State Media Bans Dissident”

      You may wish to do something on your blog in support? (Feel free to use any or all of my material as you see fit.)

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