Covert surveillance should not be allowed retrospectively

Written By: - Date published: 3:00 pm, September 27th, 2011 - 55 comments
Categories: law, national, police, same old national - Tags: , , ,

mickysavage at Waitakere News blog*  has an analysis of the legal and unconstitutional implications of the Nationals dubious plan to override the courts with poor kneejerk legislation.

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

55 comments on “Covert surveillance should not be allowed retrospectively ”

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  1. queenstfarmer 1
    27 September 2011 at 3:22 pm

    Boo hoo. There is nothing constitutionally repugnant about remedying a newly-promulgated technicality to allow video evidence of serious crime to be put before a Court.

    What is consitutionally repugnant was Labour retrospectively legalising its own unlawful activities a few years ago, which included the oh-so-convenient effect of halting a court case taken against its leader.

    Anyway it’s all a bit academic – the voters will I’m sure have their views.

    • Blighty 1.1
      27 September 2011 at 3:46 pm

      “a newly-promulgated technicality”

      The court didn’t change the law. What the Police were doing was always illegal and they’ve known it since at least 2007.

      • ianmac 1.1.1
        27 September 2011 at 4:02 pm

        Interesting that Findlayson was annoyed that Red Alert had published the proposed Bill last week. In spite of the Select Committee sitting from 9am Wednesday he is very reluctant to release the new draft before then, – incase it is released for public scrutiny. What!

      • queenstfarmer 1.1.2
        27 September 2011 at 5:22 pm

        The court didn’t change the law

        I know, and it shouldn’t. As I said, it promulgated (or enunciated) the law. It hadn’t ruled on exactly this issue before.

        What the Police were doing was always illegal and they’ve known it since at least 2007

        That’s one view. The majority view (and that stated by the police) was that they knew there was no express authorisation, but just because there isn’t a law authorising something doesn’t of itself make it illegal.

    • Bored 1.2
      27 September 2011 at 5:08 pm

      QSFarmer…what the fuck is the point of having a law if the government can change it retrospectively? It is sort of “we agree that what you were doing yesterday was legal BUT for some daft reason we have decided to make it illegal yesterday. Therefore you are now a criminal….”

      Howzabout I get elected and decide that the tax rates should have been much higher during Nacts reign, therefore i am going to retrospectively change them and charge you excessive back taxes? How would you like that?

      • queenstfarmer 1.2.1
        27 September 2011 at 5:27 pm

        Ah, but the Govt isn’t making something legal, illegal. If anything it is the opposite. All the law will do is allow existing video evidence of serious crimes to be put before a court (something which Labour actually does supports).

        • Lanthanide 1.2.1.1
          27 September 2011 at 5:42 pm

          “All the law will do is allow existing video evidence of serious crimes to be put before a court (something which Labour actually does supports).”

          They can already do that anyway. The court gets to choose on a case by case basis whether to permit such evidence.

          • queenstfarmer 1.2.1.1.1
            27 September 2011 at 6:09 pm

            Yes I suppose the Court has a discretion, but I wouldn’t think it can disregard relevant evidence without good reason.

            If the video evidence was obtained illegally, that would be good reason to disregard it. However, if the law says it wasn’t obtained illegally, and there is no other legal reason for disregarding it, then it would be allowed (though in a jury-trial criminal matter, how much weight it is given, if any, is the jury’s call).

            • Joanne 1.2.1.1.1.1
              27 September 2011 at 7:26 pm

              Simple really, if the evidence was obtained illegally then it should be deemed innadmisssable. Further, the police have been engaged in illegal activity for years, so what do we do? Instead of investigating the illegal activities of the police, we change the law to make those activities and many more intrusive ones legal. No wonder at all that respect for the law and police is at an all time low and falling. The police deserve to be investigated and charged over breaking the law, not have their illegal activities legalized. what a crock of shit this government are.

              • queenstfarmer …
                27 September 2011 at 7:55 pm

                So you want the police charged? But they haven’t committed any crime. Just because their videotaping of actual (alleged) criminal activity was unlawful, doesn’t mean it’s a crime.

                If you are genuinely interested in prosecuting crime, a good start would be to put the video tape evidence before juries.

                • Bored …
                  27 September 2011 at 8:29 pm

                  They may have committed other crimes in the process such as trespassing. Get it right.

                  • queenstfarmer …
                    27 September 2011 at 8:49 pm

                    Trespass isn’t a crime (unless you refuse to leave when asked, or breach a trespass notice, etc). Get it right.

                    • Bored …
                      27 September 2011 at 9:08 pm

                      From the NZ Police website…..
                      # Trespassing is entering someone’s private property or place of work without permission.
                      # Trespassing is a crime.
                      Get it right…

                    • queenstfarmer …
                      27 September 2011 at 9:39 pm

                      ^ I am right, you are wrong – as usual. Seems to be a habit of yours.

                      Being found on property with intent to commit an offence is a crime. Simple trespass after the fact (see the “unless” in my previous comment), which you suggest as a “crime” the police might have committed, is not a crime.

                      How about instead of quoting the police website, you quote the relevant law. If you want me to prove you further wrong, let me know and I will quote it for you.

                    • mickysavage …
                      27 September 2011 at 9:50 pm

                      Qsf you should know better.  You do not have to commit a crime to act unlawfully …

                    • queenstfarmer …
                      27 September 2011 at 10:12 pm

                      ^ micky, I don’t believe I said anything to the contrary, and I agree. Actually that’s the point I was making in response to Susan’s, and the Bored’s, suggestions that the police’s unlawful videotaping was a crime.

                      Unlawful, yes (unless retrospectively fixed up). Criminal, no.

                • Pascal's bookie …
                  27 September 2011 at 8:38 pm

                  Well they may not have committed anything covered by the crimes act, but there are possibly trespass issues, and, far more likely, Privacy Act and BORA issues. These need to be investigated. The supreme court found that the police were either deliberately or reclessly using unlawful techniques. That is not acceptable, surely?

                  Dean Knight asks relevant questions here:

                  http://www.laws179.co.nz/2011/09/covert-surveillance-some-more-musings.html

                  Updating his first question, the Attorney General has not issued any BORA Section 7 reports with this bill. That is, he does not think that retrospectively making unlawful surveillance lawful, and overturning a Supreme Court ruling finding such, is in any way inconsistent with the Bill of Rights Act. So it’s good to know what he thinks about about citizens having recourse to the courts when dealing with the states actions I suppose.

                  If you are genuinely interested in prosecuting crime, a good start would be to put the video tape evidence before juries.

                  Genuine question: Do you think it would be OK for the police to just go around getting evidence any old how, without regard to the law, and prosecuting law breaches that they discover?

                  • queenstfarmer …
                    27 September 2011 at 8:58 pm

                    Privacy Act and BORA issues

                    Yes they could get a ticking off for something done there. I expect they would take it on a chin – it wouldn’t affect their evidence.

                    Genuine question: Do you think it would be OK for the police to just go around getting evidence any old how, without regard to the law, and prosecuting law breaches that they discover?

                    No, not at all. It is clear this is a “one off” – the issues with the law have been known, and a new law (which is likely to be widely supported) coming in soon will allow this surveillance anyway. So it would be silly, IMHO, to scrap evidence of what the police say is serious offending (and I don’t think they would make that up, because the evidence will become public if it goes to trial), and then wait for the same criminal activity to be carried out again (with people possibly even being killed etc) just because of what is really a timing issue.

                    • mickysavage …
                      27 September 2011 at 9:07 pm

                      Qsf

                      the issues with the law have been known

                      This is the point.  The Government is pretending that the issues are not known and the Supreme Court decision is a surprise.  Therefore they can make the legislation retrospective. 

                      If the issues have been known (I agree with you) then there is no way that the legislation should apply to current trials.

                      So they could put up a patch up bill for future trials but they want it to apply to past events.

                      Can’t you see the problem? 

                    • McFlock …
                      27 September 2011 at 9:15 pm

                      If it’s a “one off”, then it wouldn’t affect any other case and the retrospective legislation would not be required.
                       
                      Don’t get me wrong, I am impressed by your attempt to minimise routine illegal evidence gathering by the police, but that does seem to be a flaw in your argument.

                    • Pascal's bookie …
                      27 September 2011 at 9:25 pm

                      The issues with the law have been known, as you say, and yet the unlawful surveillance has continued. 40-50 cases the PM says.

                      That’s a lot of, (to be charitable about it) “reckless” behavior on the part of the police. So it’s hard to call it ‘one off’. It’s a sustained pattern of either reckless or deliberate law breaking on the part of the police.

                      What the govt’s bill does is remove the barrier to this law breaking continuing. That’s the ‘fix’. Just let them go on acting unlawfully, giving no recourse to citizens, and if the police turn up anything then just let them use it. It gives the police the ability to go on fishing expeditions for the next year or until the new surveillance bill gets passed.

                      You keep talking about ‘serious crimes’. That’s already covered. Nobody will get away with serious crimes because of the SC’s ruling. That’s just dishonest scare-mongering and it would do you well to stop repeating it at this point. The worst that could happen is that evidence for minor crimes will be lost, (which may or may not lead to the charges being dropped) and there might be claims for compensation arising from the Police’s unlawful actions.

                      On an earlier point:

                      The majority view (and that stated by the police) was that they knew there was no express authorisation, but just because there isn’t a law authorising something doesn’t of itself make it illegal.

                      Dean Knight, again, demolished this argument a few days ago. Basically that only applies if you have a common law right to be doing the thing in question. So if it was filming from the street, they might be ok. But they weren’t. The filming involved trespass, and the state needs explicit authorisation to do that.

                    • Pascal's bookie …
                      27 September 2011 at 9:28 pm

                      The mentioned Dean Knight demolition of your talking point can be found here:

                      http://www.laws179.co.nz/2011/09/covert-surveillance-if-it-aint-unlawful.html#more

                    • Pascal's bookie …
                      27 September 2011 at 9:33 pm

                      And I note with some amusement the regard you seem to hold the privacy act and BORA in.

                      Minor breaches of the crimes act? OMG pull out all the stops.

                      Acts protecting citizens from the state? Meh.

                      It starts with A, ends with n, and has horitar in the middle.

                    • queenstfarmer …
                      27 September 2011 at 11:39 pm

                      ^ IRT all the above. I don’t think Mr Knight’s analysis “destroys” mine – it’s just a different opinion – and as I have already noted, at the end of the day it (the solution) isn’t really an academic exercise with a right or wrong answer (the debate is quite academic though), it’s a simple question of what is parliament going to pass – it’s realpolitik.

                      Because we don’t have a “super constitution” that puts any real limits on parliament here, they can do what they want. The academics can at least take comfort that they will have another half-hour’s worth of lecture material to talk about in future years.

                      Now, I actually think we should have an entrenched constitution (if we can put one together without setting of civil war!) that would limit Govt power and stop this kind of thing. Last time I ventured to suggest such things, it was attacked as a diabolical right-wing power grab, so I don’t know if there is any sort of consensus around this.

                      So yes, it is messy and no, in an ideal world we wouldn’t need messy retrospective legislation for anything, but the fact is currently we can do, it’s simple and clearly a “one off” (as the law is about to permanently enable it anyway), it is limited in scope (the evidence already collected), it doesn’t retrospectively make anything unlawful, and there is a clear benefit (prosecuting crims caught on tape).

                    • Pascal's bookie …
                      28 September 2011 at 12:23 am

                      Completely unresponsive to any of the points raised. Colour me ‘unsurprised’ I guess.

        • Bored 1.2.1.2
          27 September 2011 at 8:28 pm

          Entirely the opposite: what the law attempts to do is make illegal surveyance legal by backdating, thereby making evidence admissable. Dont dress it up.

        • Bored 1.2.1.3
          27 September 2011 at 8:35 pm

          Dont confuse what is being attempted here with the process QSF, nor the principle. Ends do not justify means.

    • burt 1.3
      27 September 2011 at 8:16 pm

      queenstfarmer

      Boo hoo. There is nothing constitutionally repugnant about remedying a newly-promulgated technicality to allow video evidence of serious crime to be put before a Court.

      And as you note, Labour did it for their own best interests. But… none of that is really the current point. Mickysavage has put together a compelling case with sufficient integrity to say – YES!, mickysavage is right. It’s constitutionally repugnant and it’s National doing it !

      So for sure it’s hilarious to see a hardened defender of the party line run a valid issue up the flag pole when you know they defended their own party sweeping it under the rug just a few years back.

      But, even knowing mickysavage thinks its OK when Labour do it, I still agree with him its abhorrent when National do it.

      [note to self: blogs where I can write “retrospective” in my comments is likely to increase]

      [lprent: You are welcome to use it here. Others are also welcome to (ummm) mock it. ]

      • mickysavage 1.3.1
        27 September 2011 at 8:41 pm

        I can advance all sorts of arguments Burt but I know that I will not persuade you.  So tell me, how do you feel about National doing it, and in the criminal law area where outcomes may be affected part way through a trial?

        • burt 1.3.1.1
          27 September 2011 at 9:59 pm

          Micky,

          The key difference that I see (without this legislation having even been introduced into the house yet) is that National are not going to kill a standing court case against John Key and is not validating “anything” National did to win an election.

          Other than that, it seems way wrong especially given there has been a warning about continuing with status quo practice.

      • mickysavage 1.3.2
        27 September 2011 at 9:11 pm

        Burt

        Further to my previous comment you might want to read the analysis by Law Professor Dean Knight.  Feel free to argue with his analysis.  For me all I could do is offer hopelessly partisan arguments. 

        • burt 1.3.2.1
          27 September 2011 at 10:01 pm

          I do wonder if Dean Knight was across the detail that Labour had been warned by the Chief Electoral Officer (David Henry) that the pledge card spending would be considered electioneering prior to lodging it for approval under the old “It’s how we have always done it” chestnut.

  2. seeker 2
    27 September 2011 at 4:05 pm

    lprent, brilliant idea to simulate the “same style of arbitrary unfairness” used by the police :

    ” 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.”

    It also simulates the often arbitrary style of government that John Key (and his buddies?) indulge in e.g.Tuhoe announcement, Ecan, Supercity, Paula Bennett ignoring the privacy laws for her own ends and her actions still being pronounced “honourable” by our esteemed prime minister and now possibly unjust retrospective legislation.

    Simulation can be a very powerful educational tool.

    Let’s hope any RWNJ’s who fall foul of this learn something from their small experience, of the danger and suffering they and the people of this country can and, often do, encounter from the actions of an ignorant,unjust,self serving government.

  3. ianmac 3
    27 September 2011 at 4:06 pm

    Red Alert from Charles just now Tuesday about 4ish.
    Chris Finlayson has changed his Urewera fix it bill, but he won’t say when he will make it publicly available. He didn’t seek leave to table it in the House today, despite the fact that people are expected to speak to it in select committee in less than 20 hours time. Great to see his commitment to democracy on show.
    http://blog.labour.org.nz/index.php/2011/09/27/surveillance-bill-update-v/

  4. insider 4
    27 September 2011 at 4:30 pm

    This is hardly a constitutional crisis. The future of a govt doesn’t depend on it, nor is it making illegal that which was legal, so there is no issue re citizens having certainty of the law. Citizens engaged in illegal conspiracies are still doing so illegally; it’s just the chance of them being prosecuted that will change (or not dependign on your view).

    Five different SC judges had five different interpretations of the law even if they came to similar conclusions in some areas, which shows how complex the issues were. to contrast the views of Elias, McGrath said : “In the absence of specific legislation, the officer responsible for management of the investigation said it was decided that this was the best and most reasonable way to proceed. That was understandable given that there was no judicial decision that clearly indicated when video surveillance would be unlawful. In R v Gardiner the Court of Appeal pointed out that ―[t]here is no mechanism in the law requiring or enabling the authorisation of video surveillance. The law’s requirements have been clarified only by this Court’s judgment.”

    • mickysavage 4.1
      27 September 2011 at 4:57 pm

      But Insider do you agree with the changes being retrospective?

      Generally this should only happen to repair a legislative hole or to return the law to what was thought to be a settled position after a decision that holds otherwise. Otherwise legislation should not be retrospective.

      The “crisis” that I see is that the Attorney General is advancing as a ground for the retrospective change in law that which the Supreme Court Justices have expressly ruled against. Elias said the Police knew they did not have legal authority, Blanchard said they continuously ran a risk and that they did not take legal advice, McGrath obviously thought the power’s existence was uncertain and only resolved by the Court’s decision. It is very clear that the Judges disagree with the Attorney General. They do not agree that there is justification for exercising extraordinary powers to change the law retrospectively.

      The relationship between the Court and Parliament will not be the same if this bill is passed retrospectively. You can bet there will be an appeal to test the legislation presuming it is passed in the proposed form and how is the Court then going to handle this?

      • insider 4.1.1
        27 September 2011 at 5:30 pm

        I have no problem with retrospectivity but understand why some do. To me it is retaining what was considered an acceptable form of surveillance until the SC decision, and rectifying a hole in legislation. I don’t think the impact is oppressive or unduly deprives people of rights – did many in the public really think that this was not lawful or that the police should not have access to such techniques? So while it may outrage some lawyers and academics and activists, I suspect the wider public would shrug their shoulders and say it was ridiculous the police couldn’t do it in the first place.

        And to say the relationship between the Court and Parliament will not be the same is I think hyperbole – the courts and Parliament have been undermining each other for centuries.

      • queenstfarmer 4.1.2
        27 September 2011 at 5:35 pm

        You can bet there will be an appeal to test the legislation … how is the Court then going to handle this?

        Very simply – the Court applies the law Parliament writes. There is really no more complex analysis needed than that – we currently have no “super constitution” that can strike down non-compliant laws (personally I think we should, though last time I started suggesting this, people here started attacking the idea as some type of diabolical RWNJ plot!).

        If the amending law is badly written (unlikely but possible, given that it is a temporary fix only) then there may be a loophole for a defence-friendly judge to wriggle through. But otherwise the Court simply applies the law.

      • Anne 4.1.3
        27 September 2011 at 8:15 pm

        @ mickysavage.
        Did you watch Rodney Hide in the House this evening? His speech was superb. What an enigma of a man. Perhaps now he is leaving parliament, he feels free to say what he really believes.

        This issue is taking on the aura of a significant election issue.

        • mickysavage 4.1.3.1
          27 September 2011 at 8:56 pm

          @Anne.  I heard him and it was the first speech he has given that I agreed with every word!  Will hopefully be on inthehouse soon.

        • mickysavage 4.1.3.2
          27 September 2011 at 9:39 pm

          And here it is.

          Go Rodney!!  Great, great speech … 

          Best bit, “if we are to have law and order then the Police have to operate within the law”.

          • ianmac 4.1.3.2.1
            28 September 2011 at 12:14 am

            Yes. Bloody good speech. Covered the concerns of many. Be interesting to see if Act vote in favour of the Bill.

            • ianmac 4.1.3.2.1.1
              28 September 2011 at 12:30 am

              Come to think of it, National may have a problem. Since none of the sitting Act members will be there after the Election the MPs might have an option to stand/vote on Principle, without Key having any bribing chips or threats about their vote. “After the Election…….etc”

  5. Penny Bright 5
    27 September 2011 at 5:12 pm

    Doesn’t National believe that NZ Police should follow the ‘Rule of Law’?

    New Zealand, as a ‘State Party’ signed the Universal Declaration of Human Rights in 1948, which states, in the preamble:

    “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”

    http://www.answers.com/topic/universal-declaration-of-human-rights

    What is the ‘Rule of Law’?

    “Rule according to law; rule under law; or rule according to a higher law.
    The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law.

    No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures.

    In a second context the term means rule under law.

    No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law.

    In a third context the term means rule according to a higher law.

    No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems.”

    http://legal-dictionary.thefreedictionary.com/Rule+of+Law,+the

    If there is one group of people who citizens should expect to follow the ‘RULE OF LAW’ – then surely that is the Police?

    It is NOT ok in a supposedly ‘free and democratic’ society – for NZ Police to act unlawfully – then get the Government to pass retrospective legislation to effectively legitimise their unlawful behaviour.

    If the Police evidence was unlawfully obtained then it should not be allowed to be used.

    If ‘ignorance of the law is no excuse’ – then surely that must equally apply to Police?

    “In handing down the Supreme Court decision, the Chief Justice said that the police actions were “destructive of an effective and credible system of justice “. A hasty law change that hands a blank cheque to the police is not the way to repair the damage done.”

    http://www.nzherald.co.nz/opinion/news/article.cfm?c_id=466&objectid=10754138

    Remember this fundamental principle of natural justice in this country?

    The presumption of innocence until PROVEN guilty?

    At the time that the Urewera 18 were being (unlawfully) surveilled, they had not been charged – let alone convicted of any crime.

    Being arrested and charged with an offence – does not make a person guilty.

    Remember, 12 people were arrested during the 15 October 2007 raids under the Terrorism Suppression Act.

    Were they proven to be ‘terrorists’?

    No.

    After nearly four years, all charges have been dropped against 13 of the ‘Operation 8’ defendants.

    ( I have been arrested 22 times in attempting to defend and uphold the public’s right to ‘open, transparent and democratically accountable’ local government.

    Only one arrest out of 22 led to a conviction – for trespass at arguably the most public of all public buildings – the Auckland Town Hall at a time it was open to the public.

    This is now the subject of a complaint to the United Nations Human Rights Committee – having exhausted all legal channels in New Zealand).

    People cannot be classified as ‘bad guys’ who have acted unlawfully, until their alleged ‘bad guy’ unlawful actions are actually PROVEN in Court.

    If the Police are going to act unlawfully in trying to get a conviction – then what is the difference between them and the alleged ‘bad guys’?

    What sort of example is this to citizens of New Zealand?

    The Police act unlawfully, and the Supreme Court rules that they have acted unlawfully – then this National Government intervenes and tries to retrospectively legitimise their unlawful behaviour?

    How can the public have confidence in the NZ Police, Judges or the current NZ Government – if the ‘Rule of Law’ is not upheld and unlawful ‘bad behaviour’ is not only excused but retrospectively legitimised?

    If the law is seen to be inadequate, then surely the answer must be to go through proper lawful ‘due process’ in order to get the law changed – after a full consultation / select committee process.
    The voting public will soon see which political parties do in fact support the ‘Rule of Law’ by the upcoming votes on the Video Camera Surveillance (Temporary Measures) Bill.

    Penny Bright. Independent ‘Public Watchdog’ candidate for Epsom.

  6. Bored 6
    27 September 2011 at 5:15 pm

    As a matter of the record I dont agree with making life easy for the cops or anybody just to help catch “criminals”. The state should have to have the onus on them to prove guilt and do so within the law. Then there is the bullshit one we hear about “if they were not doing something wrong they would have nothing to fear”…bollocks.

    On that note I am also highly offended that the state reserves the right to x-ray me and examine my belongings every time I fly…so far in 10 years of doing so we have not arrested or prevented one single Al Quaeda terror attack on domestic travel. Its an intrusion upon our rights as citizens, we are being surveyed to keep us passive, the state nibbles away at our freedoms in the name of protecting us. We need to tell them to feck off.

    • insider 6.1
      27 September 2011 at 5:34 pm

      It could have deterred/prevented an attack – ‘We’ve had none therefore they’ve been deterred’

      • terryg 6.1.1
        28 September 2011 at 3:46 am

        not only that, its been 100% effective at preventing both Tiger and Vampire attacks. Nary a one since 9/11!

  7. Treetop 7
    27 September 2011 at 5:36 pm

    When will the government learn that they are not judge and jury and that the Supreme Court are independent of the police and the government and that the Supreme Court is the highest court in NZ.

    Had the government legislated for the police to use video surveillance the Supreme Court would not have made the LEGAL decision that they made. Being behind the eight ball is incompetence at the very least.

    The police have stopped using video surveillance since the Supreme Court decision.

    Any outstanding cases need to be reviewed through the Supreme Court for a decision to be made on whether or not the video footage is allowed. When the police arrest someone they then make a decision to charge a person with an offence or not to charge them. No doubt the following applies:
    Has an offence been committed?
    Do the police have enough evidence to charge?

    The cops cannot just put a camera on private property and wait for a crime to occur.

    Policing no doubt has its frustrations e.g a hunch that a person is a rapist, murderer, but without legally obtained evidence there is NO case.

    When evidence is obtained unlawfully this is the making of a police state.

  8. Muzza 8
    27 September 2011 at 7:42 pm

    @Insider. Absolute BS! You have no idea what you are talking about! People who are happy to handover my rights, freedoms, whatever you like to call them because you are a scared little , happy to be lied to sheep is disgusting.
    Im certain should this retrospective law come into effect we will see the same sort of attempt to bastardize the legal framework become the norm. This is dangerous territory, and if you can’t see that then ignorant is not strong enough a word.

    • insider 8.1
      27 September 2011 at 11:51 pm

      You seem ignorant of the fact that This is nOt the first time we’ve had retrospective law enacted. Given that, it’s hard to understand the outraged statements that this is the end of our democracy as we know it. We had two in the last parliament alone, one of which had remarkably similar justifications and may have legalized soemthing that turned an election -been doing it that way for years, returning the law to what everyone thought it was, a procedural issue – the other directly affected the composition of parliament and involved a minister of the crown. Democracy didn’t end and I don’t think they have encouraged more retrospective laws. I don’t see this law as having the theoretical let alone actual effect you do, especially in light of the courts accepting such unlawful evidence and it never being considered a similar constitutional outrage.

    • insider 8.2
      28 September 2011 at 1:49 am

      Ps a really interesting article on retrspective/retroactive laws. makes the point that judges make retroactive laws all the time when they overturn accepted precedent.

      http://www.vuw.ac.nz/staff/dean_knight/Waldron.pdf

  9. Jim Nald 9
    27 September 2011 at 8:26 pm

    Chris Finlayson. The Attorney General. The country’s top law officer. Bloody disgrace. Shame on you.

    Legal education was wasted on you.
    The university that awarded your law degree should retract the degree with immediate effect.
    The court that admitted you as a barrister and solicitor should retract the admission.

  10. mickysavage 10
    28 September 2011 at 11:56 am

    For anyone wanting to make submissions the Bill is here.
     
    The contact details for the committee are
    Edward Siebert (Committee Clerk)
    edward.siebert@parliament.govt.nz
    DDI +64 4 817 9032
    Fax +64 4 499 0486

    You can ask how – if at all – the committee intends to receive public submissions. The majority on the committee may refuse to receive them but Charles Chauvel will argue that they should do so.
     
    Clare Curran has offered to try and table them.  Her email is clare.curran@parliament.govt.nz 
     
    I am certain that the Greens Graham Kennedy will also do his best.  He can be contacted at graham.kennedy@parliament.govt.nz

    EDIT: Thanks to an I/S tweet the Parliamentary website has just published details at http://www.parliament.nz/en-NZ/PB/SC/MakeSub/5/0/e/49SCJE_SCF_00DBHOH_BILL11056_1-Video-Camera-Surveillance-Temporary.htm

  11. Frank Macskasy 11
    2 October 2011 at 10:18 pm

    On this issue, it seems that the MSM are not too keen to cover anti-Bill protests. Hiowever, an acquaintance of mine sent me his pictorial report on yesterday’s events…

    http://fmacskasy.wordpress.com/2011/10/02/1-october/

    Only Radio NZ featured a smallish article on their website.

    Meanwhile, the Dompost ran a story of 400 sailors marching through Wellington. Dear Leader would be pleased.

  12. Frank Macskasy 12
    3 October 2011 at 10:22 pm

    From Stopthebill;

    “Urgent Action Alert – Stop the Video Camera Surveillance Bill!

    It is only days now until Parliament votes on the law that would legalise covert video surveillance by Police, Fisheries, SIS and Customs. This bill must be stopped! It is the most serious assault on our fundamental freedom and rights in our lifetime.

    We are asking everyone to take two minutes to email members of Parliament and tell them to vote ‘NO’ on the bill. It is likely to be voted on this Thursday (October 6).

    At present, the National party does not have the numbers to pass the bill. It only has the support of United Future. It needs 3 more votes – so we want to make sure that neither the Labour Party nor the ACT party support this dangerous bill from becoming law. The Green, Maori and Mana parties do not support the bill at all.

    Please email any member of parliament you like. We would certainly encourage in particular emails to

    ACT party

    Rodney Hide – rodney.hide@parliament.govt.nz

    John Boscowan – john.boscowan@parliament.govt.nz

    Roger Douglas – roger.douglas@parliament.govt.nz

    Hilary Calvert – hilary.calvert@parliament.govt.nz

    Heather Roy – heather.roy@parliament.govt.nz

    LABOUR

    Phil Goff – phil.goff@parliament.govt.nz

    Annette King – annette.king@parliament.govt.nz

    David Parker – david.parker@parliament.govt.nz

    Charles Chauvel – charles.chauvel@parliament.govt.nz

    Grant Robertson – grant.robertson@parliament.govt.nz

    David Cunliffe – david.cunliffe@parliament.govt.nz

    Ruth Dyson – ruth.dyson@parliament.govt.nz

    Clayton Cosgrove – clayton.cosgrove@parliament.govt.nz

    Maryan Street – maryan.street@parliament.govt.nz

    Trevor Mallard – trevor.mallard@parliament.govt.nz

    The most important thing to say is ‘VOTE NO ON THE VIDEO SURVEILLANCE BILL’. Other things you can say are:

    -It is an assault on the rule of law as it retrospectively legalises illegal police actions

    -It is an assault on the right to be free from unreasonable search and seizure

    -It is an assault on the right to privacy

    -You don’t want any expansion of the power of the state to surveil people

    -The police and government have been misleading the public by saying that the bill will ‘restore the common law position’ – the police have never had the power to do trespassory video surveillance. The police knowingly broke the law and should be prosecuted.

    -The ONLY submission received in support of this law was from Police. All other submissions – including the Law Society, Criminal Bar, civil society organisations and hundred of individuals all opposed this bill.”

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