Law Society Slams Police Spying Bill

The Law Society has attacked the government's plan to pass extraordinary and objectionable surveillance legislation.

Resistance to the Video Camera Surveillance (Temporary Measures) Bill is growing, and will only pass if it is substantially amended or if a party currently opposed to the bill sells out.

My money would have been on ACT doing the dirty, but I'm now beginning to think that this is just one rat the five retiring ACT MPs don't actually need to swallow.

That leaves Labour. My hope is that if the Labour leadership are wavering on whether to support the bill, they should first read the Law Society's submission.

2. The Law Society finds the proposed law objectionable because:

(a) It misrepresents the legal position, both as it existed before the decision of the Supreme Court in the recent Hamed case and as it was determined to be in that case.

(b) It would effectively amend the New Zealand Bill of Rights Act 1990 (both retrospectively and prospectively) by over-riding and attenuating a fundamental human right, and would do so in a way that appears disproportionate to any demonstrable need.

(c) If enacted under urgency, as is intended, it would lack both the degree of consultation within the community and the level of careful deliberation by Parliament that is appropriate for a significant constitutional amendment.

(d) A pressing and demonstrable need for such a serious departure from constitutional principle has not been demonstrated.

(e) It would comprise legislative interference in the judicial process in respect of cases that are currently before the courts or which are about to come before the courts.

(f) It is inconsistent with the rule of law and the principles upon which the rule of law is based.

3. For these reasons, as amplified below, the Law Society is opposed to the enactment of the proposed law. The Law Society recommends the following as a preferred alternative to the proposed law:

(a) Section 30 provides a more principled means of addressing the concerns that have been raised in the current debate than does the proposed law as set out in the draft Bill.

(b) If urgent legislative intervention is considered necessary, and if section 30 in its current form is thought to provide an insufficient answer to the problem, it would be more appropriate to amend section 30 than to over-ride section 21 of the New Zealand Bill of Rights Act.

(c) If the government were to accept this position, the Law Society would be willing to address the question of an amendment to section 30 on an urgent basis.

The claim that "the Supreme Court ruling changed everything" is clearly nonsense, and the Law Society takes issue with the clause in the bill headed “Temporary continuation of lawfulness of certain uses of video camera surveillance” and headings and sub-headings that read: “Temporary continuation and savings” and “Declaration of continued lawfulness”.

6. These provisions imply that, until the Supreme Court reached its decision in Hamed, covert video camera surveillance was lawful and that the Hamed decision changed the law by making covert video camera surveillance unlawful.

7. It is incorrect to suggest that covert video camera surveillance was lawful prior to Hamed. It is equally incorrect and misleading to suggest that Hamed reversed the previous position by making covert video camera surveillance unlawful.

Moreover, the Law Society notes that the Law Commission in 2007 took the view that covert camera surveillance involving a trespass to land (as in the Hamed case) would likely be regarded as unlawful conduct and would possibly lead to a finding of unreasonableness under section 21 of the New Zealand Bill of Rights Act, and the possible exclusion of evidence.

It should also be noted that the Court of Appeal has never, until the Hamed case, been asked to rule on the legality of covert video camera surveillance involving a trespass to land.

So this issue has been present for some time, and police and lawmakers should have acted years ago to address the problem.

The Law Society has also objected to the way in which the proposed law will violate basic freedoms, such as the basic right to be free from intrusion into our private lives, and the monitoring of our private conduct, by agents of the state, unless:

(a) There are proper grounds for the intrusion, objectively established;

(b) A process for obtaining prior authorisation is prescribed by law;

(c) The process is subject to the safeguard of prior consideration by a neutral officer (usually a judge);

(d) The officer has discretionary authority to authorise or refuse to authorise the intrusion on a case-by-case basis, after considering all the relevant circumstances.

None of these factors are present in the proposed law. It simply deems all police surveillance legal.

The Law Society slams police claims that up to 40 cases before the courts could be affected by Hamed.

34. If the quoted number of cases is correct, it must mean that the police have been using covert video surveillance unlawfully in a wide range of cases over an extensive period. But if this is so, why have these unlawful activities not been disclosed to defence counsel in any of these other cases? To fail to make proper disclosure of such matters would almost certainly breach the obligations of the police under the Criminal Disclosure Act 2008 and, if there has been a widespread breach of those obligations, Parliament must be entitled to be properly informed about that subject before validating or condoning possibly widespread police misconduct ex post facto. 

35. If, on the other hand, there has been no seriously unlawful activity on the part of the police, and therefore no real misconduct (whether deliberate or otherwise), why do the police need retrospective validating legislation when they already have the power to ask for improperly obtained evidence to be admitted by the courts under section 30 of the Evidence Act 2006?

The submission takes aim at police claims that serious criminals might go free unless the bill passes into law.

41. It is no answer to say that these people are “serious criminals”, because the purpose of our criminal justice system is to determine, by due process, whether or not criminal offences have been committed and, until a valid conviction is entered against those concerned, they are
entitled to the presumption of innocence.

Finally, the Law Society notes that section 30 of the Evidence Act 2006 already provides an avenue for illegally obtained evidence to be admitted in the case of serious offences.

It takes courage to stand up to the law and order mob, but what this bill proposes is an outrageous abuse of basic civil liberties. If the bill passes police will be able to spy on anyone they want any time they want to.

This bill must not pass into law.