Written By: - Date published: 3:00 pm, September 27th, 2011 - 55 comments
Categories: law, national, police, same old national - Tags: law commission, operation 8, search and surveillance, supreme court
The urgent legislation the Government is rolling out in response to the Supreme Court decision in Hamed is looking like a well-choreographed dance. Two months before the election the Government is planning to ram through legislation that is constitutionally abhorrent and trying to put Labour in a position where it has no choice but to oppose. Labour is intending to put up an alternative bill. But I am sure that it will not succeed and I am reasonably certain that the Government will ensure that its bill has retrospective effect no matter what the damage to our constitution.
There are all sorts of constitutional principles at play here. Courts determine the law, and if Parliament does not agree with a Court’s interpretation of the law then it has the option to change the law through legislation. By convention however it does not change the law with retrospective effect. Citizens need to have the benefit of certainty of the law. Changes should be gradual and subject to intense scrutiny with the ability of citizens to comment. And once a citizen is charged it is almost unheard of for Parliament to change the rules. By doing so it may effectively be legislating to send citizens to jail without the benefit of the rule of law applying and in constitutional terms this is the sort of thing you would expect from modern day Fiji or Zimbabwe, not New Zealand.
It is accepted that where well-settled law is found to be defective or there is a mistake then retrospective legislation may be appropriate. This is why the Government has consistently said that its bill is just to “preserve the common law prior to the Supreme Court decision”. If this is not the case then retrospective legislation cannot be justified.
So what was the common law before the Supreme Court decision? A distinction needs to be made between “over the fence” surveillance where the filming occurs from a place where there is authority for the camera to be, for instance in a public place or from property where the owner or occupier has given specific permission, and filming where a trespass has to occur for the camera to be put in place.
There are three decisions, Gardiner (CA239/97), Fraser (CA19/97) and the Court of Appeal’s consideration of Hamed itself. Gardiner and Fraser both involved filming from a place where a trespass did not occur. In each case the Court took the view that unless police actions in undertaking video surveillance are prohibited by statute or otherwise constitute an actionable wrong such as trespass, they are lawful at common law. Gardiner and Fraser involved filming that was considered not to be too intrusive and in both cases the evidence obtained was admitted.
The Court of Appeal when considering Hamed thought that the filming was authorised by the search warrants that were issued and that there was no difficulty in allowing the evidence to be produced. This was overruled by all of the members of the Supreme Court on appeal.
So none of the cases relied on ruled that evidence obtained through covert surveillance that involved a trespass was admissible. In two cases no trespass occurred, in the third it was thought the search warrant provided authority for the filming.
When you add the recommendations of the Law Commission in 2007and the fact that the Search and Surveillance Bill introduced two years ago was to address the problems identified in the Commission’s report you really have to question the contention that the law was settled.
The Supreme Court commented on this and formed a totally different view.
Chief Justice Elias said “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.” Further, “[i]n 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.”
Justice Blanchard more charitably said “[e]ven taking the view most favourable to them, the police seem to have been prepared over and over to run the risk of acting in breach of the law. They did not obtain legal advice and should have done so.” He further said, “… The police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable. Winkelmann J [in the High Court] made a finding that the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so.”
So we seem to be heading to a constitutional crisis where the Government is prepared to advance an argument that the Supreme Court has ruled against to justify action that in constitutional terms is appalling. The Government’s justification, that the law was settled, was not accepted by the Supreme Court. If this legislation is passed we are in for an interesting time.
* lprent: No it is not true mickey spends all of his blogging time here – he has his own site. And yes we know he was a candidate to be a Labour candidate. So those are off the discussion table in this post because I do tend to find such predictable attempts at diversion. Getting into the governments preemptive lawmaking, I hereby announce that people trying such simple diversions then will be presumed to have read this notice cunningly placed at the bottom of the post in small letters to catch people speeding past the post content without reading it. I wish to introduce them to the pleasures of a wee ban for utterly predictable stupidity. It doesn’t quite get to the level of spending four years in court because of an unlawful act by the police. But it does have the same style of arbitary unfairness