1.0 Introduction

The New Zealand Council for Civil Liberties (NZCCL) presents our submission in relation to this Bill, and I make this submission on behalf of the Council.

This Bill has been introduced as a matter of urgency following the decision of the Supreme Court in Hamed & Ors v R [2011] NZSC 101, which held that the covert video camera surveillance undertaken by the New Zealand Police in this instance was unlawful.

Concern has been expressed that there are a further total of some 90 additional operations that are either in progress or are before the Courts where similar covert video camera surveillance has been undertaken, and there is uncertainty as to the degree of acceptability of evidence obtained in that manner.

2.0 Issues for Consideration

NZCCL has identified 4 issues that merit comment –

1. the assumption that S.21 of the Bill of Rights Act 1990 can be over-ridden with impunity;
2. the assumption that the Police, who are responsible for upholding the law, can operate outside the law without express authority, and without any awareness on the part of the public; 
3. the need for extreme urgency; and
4. by proposing legislation with retrospective application, there is a reduction in the integrity of the process and, by implication, of those who endorse that legislation.

3.0 Bill of Rights

S. 21 of the NZ Bill of Rights Act 1990 states that “everyone has the right to be secure against unreasonable search or seizure, whether of the person, property or correspondence or otherwise”.

There is a great irony where the Search and Surveillance Bill currently before the Parliament over an extended period, and subject to extensive reservations, looks to validate the practice of covert surveillance as though it is on the verge of being implemented, when in fact that practice has already been used for at least 15 years.

The Explanatory Note accompanying the Bill states that, if video camera surveillance is unlawful, it is likely to be found to be unreasonable and in breach of S.21.  Given this assessment, it is clear that  this current Bill is inconsistent with the provisions of the Bill of Rights Act.  It is thus very surprising that for some reason the Attorney-General has again failed to provide a S.7 report drawing that fact to the attention of the House of Representatives.

4.0 Obligations of Police

We acknowledge the validity of the proposition that where the law does not proscribe an activity then that activity is permitted.  We also acknowledge the equally valid proposition that where the law does not prescribe an activity then that activity is proscribed.  While those two propositions are mutually exclusive, the actual reality is that there is a great deal of activity within the so-called “grey area” which then becomes a fertile ground for litigation when something goes awry.

There is a risk for individuals and for the police when they operate in this grey area.  Individuals tend to do so openly, and when something goes awry the “book may well be thrown at them”. 

However, the Police tend to do so secretly, and when something goes awry they seek to legitimate their actions.  There is clearly a double standard in operation here.

Moreover, the Police quite properly swear an oath to uphold the law which means to operate within its confines.  Where an operation appears to require actions outside the law the proper approach is to have the law amended with effect on a prospective rather than a retrospective basis.  This ensures that there is an openness about the methodology and that lawyers, judges and citizens are aware of the changed regime.

5.0 Urgency

In an urgent situation an application might be made for a warrant to act outside of the prescribed regime, but in so doing there is no invitation to act in this manner on an on-going basis and virtually at will.

We acknowledge that, after considering submissions to a Select Committee, the members of the House of Representatives have the right to re-frame legislation as they see fit.  That is readily accepted when the rules change for the future.  It is unacceptable when those rules are changed for events that happened in the past.  It is completely unacceptable when the actions involved in those past events were outside the law, and abhorrent when the parties involved in those past events were duty bound to uphold the law, rather than find ways around it.

6.0 Integrity

Those who legitimise past unlawful actions become tainted with the same unlawfulness, although that is usually always denied.  What it also does is undermine the notion of personal integrity. 

It appears likely that most members of the House of Representatives will have had no knowledge of  the practice now disclosed in the Supreme Court decision, and probably no idea that it had already been in operation for more than 15 years.  To cover over this practice in haste is an indictment of the process and of those involved in it.

Far better, indeed, to allow existing matters to be determined within the Court environment.  It would be no surprise to discover that there are perhaps even worse examples of video camera surveillance already within those operations, and that may be an additional (and covert) factor in the need for both legitimacy and for urgency.  There needs to be a proper scrutiny of all those past actions.

7.0 Summary

The manner in which the Bill of Rights Act is over-ridden with disdain – even a S.7 report is absent – is a cavalier disregard for the rights and freedoms of all citizens.  The distorted reasoning that enabled those who are duty bound to uphold the law to act outside it, is an indication of a significant disregard for it.  The rush to legitimise a long-time practice, which has only now been fully examined in an holistic manner and found to be unlawful, on the alleged basis that other operations will be adversely affected, is an indictment on both the Parliamentary process and on the members of the House of Representatives.