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.

21 Comments Posted

  1. Video surveillance is a problem in the world and the whole world is losing the battle against this interference with the right to privacy (even in public spaces all have the right to act as queramso and unless obsevados when we not be observed, if someone wants or believes to be alone on the street, you are entitled to).

  2. @Trevor From memory, the Court seemed to suggest that non-trespassory surveillance was either lawful or at least almost always admissible via s 30 of the Evidence Act. If I’m right about that, then the decision doesn’t really impact on that kind of surveillance.

    This is the argument that I think Keith is making about the necessity for a rushed ‘fixit’ law: the issue is much better dealt with comprehensively and deliberatively (which the Search and Surveillance Bill will do next year) rather than selectively like the proposal here. The actual impact of the decision in the short term probably isn’t that great, so the justification for a rushed response doesn’t hold up.

    Hopefully the Select Committee will test all of that this week and we’ll find out just what the consequences of this could be.

  3. What about the case where cameras are installed on public property (such as power poles or trees lining the road) to look into private property?

    Or installed on one property to spy on another?


  4. Two quick issues…

    First, on the legal capacity of state agents (like the police) to act. As acknowledged in the decision, this is not a settled area of law. There are good academic arguments either way and I think the debate leans the same way as this judgement: requiring positive authority for action. But the principle is a bit clouded by the context (police action) in which the issue generally arises and there is no real compelling/binding judicial authority either way (though there are some cases that have come to be seen as ‘leading’).

    Second, and again this isn’t completely settled, is the issue of the breach of privacy being ‘illegal’. For argument’s sake we can assume breach of privacy is an actionable tort, but it’s definitely not a crime. So if the police are to end up ‘in court’ over their actions it could only be in a civil suit. Given that, the privacy argument is moot because there’s a clear trespass which would be much simpler to sue on.

  5. 50 cases where the police have enough evidence gathered from illegal surveillance to go to court almost certainly means there are many more than 50 cases.
    The other ones where the illegal breaches of privacy by police did not result in enough evidence for prosecution.

  6. 50 cases means that there may be 50 incidents of the Police breaking the law, unless multiple cases rest on evidence gathered in the same operation. In any case, it has not been established that the Police broke the law in each of these cases.


  7. I am alone in thinking that the police, who broke the legal right to privacy of NZ citizens, should now be before the courts themselves.

    More than 50 cases involved means, more than 50 times recently, police have broken the law.

  8. Worth noting that there was a dissenting voice in the issue of the public officials being required to have lawful authority for all actions undertaken: the dissenter’s argument was that public officials are also citizens and thus have the same abilities as would a citizen.

    I’m far from convinced with this argument; as supporting argument I call on the State of Texas castle doctrine law: many will know I quite like the castle doctrine law as enacted in Texas. In the drafting of that law it is made clear that public officials may not avail themselves of the provisions of the castle law as enacted.

    This idea of public officials requiring lawful authority for their actions is established to a greater or lesser degree in many jurisdictions.

  9. I think aquiting the police in acting in bad faith is allowing more benefit of the doubt than could be considered reasonable.

    As the judgement goes to lengths to point out, the factors in deciding whether evidence collected unlawfully can be admitted is complex. When the Police thought they were dealing with an armed uprising threatening the integrity of the state, the balance would swing well in favour of admitting the unlawfully collected evidence; trying to unseat a government by force is a most serious matter.

    Also clear from the judgement was that after a while the Police determined that they were not dealing wih an armed uprising but rather with some far less serious offences involving posession of firearms. Had at this point the Police discontinued their surveillance then I believe that everyone would agreee that the Police had conduted themselves entirely appropriately throughout the affair, and would attract no criticism whatsoever.

    However, they continued to unlawfully conduct surveillance in a situation where they could reasonably expect the evidence admissibility to be doubtful, and they knew they were acting unlawfully. At this point, and from then onwards, in my opinion, their faith was less than good.

  10. from toad’s link above to the Court Judgment:

    [24] Public officials do not have freedom to act in any way they choose unless prohibited by law, as individual citizens do. The common law position in New Zealand and in the United Kingdom is that, except in matters within the prerogative or as is purely incidental to the exercise of statutory or prerogative powers, the executive and its servants must point to lawful authority for all actions undertaken. That constitutional principle of legality applies to the police surveillance undertaken here.

  11. @ toad “State agencies cannot lawfully do anything that the law does not specifically authorise them to do.”

    ARe you sure? The law can never anticipate every circumstance.

    Note re police actions Elias also said: “I do not think it is proper to infer bad faith on the part of the police on the available evidence.”

    “Again, I mean no criticism of the policing judgment to try to gain further information.”

    and Blanchard said

    “It was also understandable that the police would not appreciate that certain of the warrants were entirely invalid because of their prospective nature. After all, the Court of Appeal, too, saw nothing wrong with this aspect of them. I acquit them of having acted in bad faith in obtaining and executing the warrants.”

  12. @samiam 8:48 AM

    State agencies cannot lawfully do anything that the law does not specifically authorise them to do. That contrasts with individuals, who can lawfully do anything that the law does not specifically prohibit them from doing.

    In the Urewera case, the Chief Justice found:

    I regard it as a significantly exacerbating factor that the film surveillance was undertaken deliberately without legal authority, in the knowledge that there was no lawful investigatory technique available to be used… In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained 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.

  13. Police acting illegally? That’s not how I understand the situation. The law as it stood did not dis-allow covert surveillance, it just didn’t allow it either. The court chose the cautious approach and the government has chosen to clarify matters. Or am I wrong here?
    I’m curious as to how you guys think serious criminals should be caught? Honesty box?

  14. The cops will be required to get a permit before commencing covert filming. Does that not provide a sufficient initial test of human rights abuse?

    History would suggest not given that Govt is trying to push through legislation to retroactively legitimise illegal covert surveillance. The Police are tasked with enforcing and upholding the nation’s laws. I think it entirely reasonable to expect them to not break these laws in the prosecution of their duties. For anyone to suggest that it is permissable for the Police to present evidence which has been obtained illegally in a court of law just baffles me. Maybe I’m a naive idealist on this issue, but I believe the Police should be held to very high standards indeed.

  15. The criminals should ply their trade legally too shouldn’t they?
    The cops will be required to get a permit before commencing covert filming. Does that not provide a sufficient initial test of human rights abuse?

  16. @Brendon Agreed, this would appear to be an appalling abuse of legislative power. The Police should have collected their evidence legally in the first place.

  17. Yes, we can never live in a fair and just society until both the Police and Parliament are required to obey the Law.

  18. The argument for allowing Parliament (rather than the Court) to decide the law rests on the assumption that Parliament is the best suited body to do so. Knee-jerk reactions, abuse of urgency, and a lack of understanding of fundamental constitutional principles like the rule of law and separation of powers negate those assumptions and are increasingly deteriorating the legitimacy of Parliament as a law making body.

    If the law did not allow the collection of covert video surveillance in those 40 trials and 50 operations (and we now know that it apparently did not) then the Police need to face up to the consequences of their conscious breach of the law. If the crimes are sufficiently serious to permit the admission of improperly obtained evidence, then this proposed law will be irrelevant. If there is other evidence that was not improperly obtained, then the proposed law will again likely have a minimal effect on cases. It is only where the crime is minor and the only evidence the Police have was illegally obtained that this law will achieve anything – surely that is not something that we want to achieve.

    In deciding whether or not improperly obtained evidence is admissible notwithstanding the failure in its acquisition, the Courts are obliged to consider the desirability of an “effective and credible system of justice” (s 30(2) of the Evidence Act 2006, discussed at length in the Supreme Court decision). When passing the Evidence Act, Parliament clearly though that a credible system of justice was an important objective. They must now turn that objective on themselves and consider their response in light of that important objective.

    An “effective and credible system of justice” does not allow the Police to illegally collect covert video surveillance for years, fail to do anything about it when the problem is brought to light, and then retrospectively authorise the illegal actions of the Police once it finally becomes impossible to ignore the issue any longer. Moreover, such a system most definitely does not do so using the dubious tool of Parliamentary urgency.

    To retrospectively authorise illegal searches made by the Police, with the knowledge that those searches were illegal, is an unjustified limit on the s 21 right to security against unreasonable search, unduly disregards the importance of an “effective and credible system of justice”, and is an affront to the rule of law and the separation of powers.

  19. Why enshrine the nebulous in Law?
    Where has our Privacy gone?
    How far is retrospective?
    I saw a bloke jaywalking in the 70’s…

    If the Police are already free to break the Law
    Why not address that first?

    Is this a Licence to pursue legitimate political opposition?
    They should be looking at restoring Prisoners access to the Ballot.

  20. Let’s hope Parliament will uphold the rule of law and reject at least the retrospective aspects of this. This post by Labour’s Charles Chauvel indicates he’s not keen on retrospectivity.

    Surely ACT, the self-styled party or property rights won’t support retrospective legislation validating unlawful State trespass onto private property to undertake surveillance. Or do they have no principles left at all?

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