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Nats’ retrospective surveillance backdown

Written By: - Date published: 7:22 am, October 5th, 2011 - 27 comments
Categories: accountability, democracy under attack, law, national - Tags: , ,

The Nats most recent attack on democracy – the Video Camera Surveillance (Temporary Measures) Bill –  was outrageous in at least three respects. (1) It was an attempt to rewrite the verdict of the Supreme Court. (2) It was retrospective lawmaking which (except in benign cases such as validating legislation) is universally regarded as unacceptable.  (3) The Nats tried to (yet again) abuse urgency to ram it through without public scrutiny.

This authoritarian mess was almost universally condemned. Here for example is ex PM and constitutional law expert Sir Geoffrey Palmer:

Ex PM: ‘Fix it’ bill oppressive

The Government’s “fix-it” bill for police use of covert video surveillance gives police and all state agencies too much power, has insufficient checks and balances, and breaches constitutional principles, Parliament has been told.

Representatives from the Law Society, the Law Commission, the Criminal Bar Association and the Bar Association all rejected the Government’s Video Camera Surveillance (Temporary Measures) Bill in select committee submissions yesterday.

The bill would make legal covert video surveillance by state agencies on private property under a search warrant, a practice the Supreme Court has ruled was illegal. …

Former Prime Minister and constitutional law expert Sir Geoffrey Palmer was scathingly critical of the need for urgency and retrospectivity, which he said was unprincipled, oppressive and highly undesirable. “Laws should be prospective, open and clear … that is what fairness requires.”

Overturning the Supreme Court in this case was also a “constitutional perversion”, effectively elevating the Court of Appeal above the Supreme Court. … “If Parliament is to be supreme as the law-maker, then it needs to take principle seriously and not brush it under the carpet.”

After a brief select committee process Labour has secured significant concessions. Here’s Andrea Vance at Stuff:

Labour gains changes to surveillance bill

Labour has forced the Government to back down over controversial video surveillance laws.

After insisting the legislation go before a select committee before agreeing to support it, Labour has secured changes to more contentious aspects of the proposed law. … Labour will now lend its support after winning concessions from Attorney-General Chris Finlayson. It is understood ACT is also willing to support the revised legislation. The Green, Maori and Mana parties are all opposed to the legislation.

In pending cases, courts will be left to determine if evidence is admissible. To prevent convictions being overturned, the law that applied at the time of the verdict will stand. The legislation will only apply for six months – not one year as National hoped. …And only police and the Security Intelligence Service will be allowed to carry out “trespassory surveillance” – when a warrant is used to place secret cameras on private land in the investigation of serious crimes.

As Bryce Edwards puts it – “The Labour Party seems to have turned a very electorally-dangerous issue into a victory with its compromise agreement with National over the Police covert video surveillance fixit legislation … On a whole, National comes out of the whole saga looking weaker and less principled”.  Other positive coverage includes – Has Finlayson flunked?Goff hails victory in surveillance bill debate, and Govt waters down hidden camera bill.

For a much more critical analysis, however, see the always excellent Gordon Campbell at Scoop – On why the deal on Police covert video surveillance is a travesty (a piece which draws heavily from Andrew Geddis at Pundit).  Many of Campbell’s criticisms relate to the appalling process behind this Bill.  No argument there, but even so it was good to see Parliament work for once as it should, and at least partially check the Nats’ fondness for trampling on the democratic process.  The political Right like to vacuously accuse Labour of “arrogance”, but episodes such as this show all too clearly where the real arrogance lies.

27 comments on “Nats’ retrospective surveillance backdown”

  1. lprent 1

    Thanks for the links.

    Video evidence was always going to be a part of police work now that the tech is so cheap. The trick, like other forms of surveillance, was going to be to put its use under control rather than giving a carte blanche to any paranoid cop to trample over others privacy.

    So far, this act looks like step in the right direction. Whereas the origional one put up by Findlayson was a travesty. A supplication to the worst elements inside the police and a sop to the reflexive law’n’order voters that are a ban to the political process.

    It would have simply wound up with further abuses of the legal processes with insubstantial charges laid on the basis of quantity of evidence rather than the quality of it. The operation 8 charges show how the nutters in the police can use evidence gathered without a substantial process into a personal abuse of process. It has been a screwup from start to its eventual finish.

    • aerobubble 1.1

      The change is just as bad, from the fake outrage of too much judicial activism we’ve
      moved to too much judgical discretion in what amounts to reasonable searches.
      Given the lower courts are liable to favor full fair trials. But then there’s is the
      death to out liberty clause, the no appeals for overt surveilance.

      How is this any different!!! This is just as bad, no worse, because now it looks
      like parliament consents to this slippery slope theory of justice.

      Its wrong to collect too much information because invariably you will find
      a false positive that gets blown out of proportion and leaves citizens out of
      pocket, a large part of their lives fighting court cases based on bad policing.
      It does happen, police are human they make mistakes, and when they do we
      forgive them because they are human, and that’s why you need HIGH
      standards to keep human error at bay.

      This debate has been deplorable, its smacks of the worst kind of fascism
      to push through legal law changes at the 11th hour. Especially when the
      court case is ongoing that we all can’t talk about that eefective is being
      used to club us into consenting to this shit.

      If you spend you life fearful, building man traps, training, for the day
      Police come to arrest you, like they did your ancestors, then of course
      your activities should be investigated??? Or should Police wait until
      they have a drugs warrent to walk into a powder cake??? Do we have
      the right to do martial arts training, then reenact the battle of gettesburg
      with our mates and family???? Blow off a few fireworks, study political
      strife in the past? Is this all legal, where is the line to be drawn?

      Do Police have to have a lawful reason, accredited, sure hell yes,
      but should they also be limited in how they choose to measure, hell
      yes. If you have the choice of devices to use, the placement of
      them, the spectrum they collect, then each increasing diminsion
      of freedom implies a greater level of standard that must be operating.
      Because not all surveilance is the same, the more choice police have
      the higher the bar they need to reach.

      Pictures are worth a thousand words, so they should have a
      thousand times the restrictions of a audio bug, similarly if
      the Police are ‘fishing’ then they should be forced to tell the
      judge how the covert surveilance is to be set up, to avoid
      the dreaded unreasonable search.

      If I had a dollar for everytime a political activist set off alarm
      bells in agents of the state I’d be a very rich man, its not
      very hard at all to read too much into a heated political
      debate of radicals and then connect the dots up wrong.
      We’re in Iraq precisely because rats in washington decided
      to use 9/11, the three thousand dead, to invade a country.
      The billions spent on the militrary complex and private armies…

      • lprent 1.1.1

        I agree with you. But I think that you are missing the point of the whole search and surveillance debate.

        The police need to be able to carry out surveillance as part of their work. This needs to be both to get evidence about crimes committed and also preventative to stop crimes being committed. It isn’t hard for anyone to think of instances where that is required. The question is when and how should they be able to do so.

        The courts already had law in place via the evidence act which was that the crime had to be severe enough to justify unlawful acts in the collection of evidence. The supreme court reaffirmed that collecting evidence on private property without the owners permission was unlawful (with comments about similar questions). But the courts were and did look at the admissibility of the evidence.

        The problem is that the police collected the evidence unlawfully in the first place. They can argue all they like about how they thought that the current law applied. But essentially they are lying when they try to say that the courts would treat the evidence that was thrown out in this case as being anything other than unlawful.

        So who goes into the gun for collecting evidence unlawfully? Both in this case, in previous cases, and in subsequent cases? And what is the mechanism to do something about such events?

        Well there isn’t one and nothing is going to happen to the police who acted unlawfully. The missing part in the police/public system at present is that there are effectively no constraints on the police apart from what they choose to enforce against their own, and the rather feeble admonishments of the IPCA.

        That is the missing part. The police can literally do whatever they feel like to anyone under the current surveillance and search laws and the worst that will happen to them in the system outside of the police is that they will get told off by the IPCA. Inside of the police acting unlawfully usually seems to result in promotion as far as I can see.

        The only effective response or route that the public has is to start a civil court proceeding that will take years and cost 10’s of thousands of dollars. Not to mention that in the event that you win, you are unlikely to get a award that will cover your costs and it can be appealed.

        So regardless of the laws that parliament passes about search and surveillance there is nothing stopping the police collecting information on you. What parliament is concentrating on is what evidence will be admissible in court.

        • aerobubble 1.1.1.1

          If police find a video surveilance system then the footage would be inadmissable
          under normal circumstances unless the video evidence ‘detrimential’ to justice
          if not allowed. How Police ever got the idea that covert surveilance, the
          active positioning of a recording device was the same as happenstance
          finding video footage at the scene of crimes. You are wrong to say Police
          ever had authority to use footage from covert video because its so aggrievous
          to justice. Filming a murder might just be an ban of actors, filming a
          political meeting that gets heated people and get called aside by an
          under cover agent in line of the covert video.

          False positives are a reality, Police will proactively select to their biases and
          we will see more ‘terror’ raids when already a dozen people have been
          messed around for four years with nothing to show for it. Even if
          admitted such evidence is just as likely to be thrown out by juries
          insensed by the invasion of privacy. Justice cannot be rushed by
          parliament, or by Police ‘needing’ fishing excusions which will only
          enrage and push political actvists under ground.

          You see that’s he benefit of Human rights, they cost society less, and
          have a habit of letting views get aired before they turn into militant groups.
          Oh, but that’s the problem we have a parliament that like tail wags the dog.

  2. g says 2

    i seem to be missing something here, i thought the tories where all for less (nanny) state in our lives and yet we get this legislation.
    equally i see a major left wing party struggling to get traction in polls, rushing to the aid of the tories to help them push thru this disgusting piece of lawmaking.
    it has helped to decide where this one will vote come november and it aint gonna be for the nat lite crew. sorry guys.
    peace.

    • aerobubble 2.1

      Medical dope, Brash never said those words, every gang leader is now cheering
      how Brash has put himself at the table and wont talk any sense. Its obvious
      we need to move to cheaper alternatives for the aging population and this
      will harm gang income, so WTF ACT come out and dump pooh on the issue.
      An think about it, gangs are very freedom focused and also very threatening,
      just like ACT, who love liverty but come down hard on those they don’t like.
      Is ACT the front party for the gangs?

  3. TEA 3

    Never mind guys after the elections the torries will have free range to do what they want sad to say eh !

  4. KJT 4

    Labour should have filibustered this one. It is an even more important removal of our rights than the VSM bills trampling on the rights of students, to have a democratic vote on VSM.

    I too am getting frustrated by Labour’s own goals.

    This election will decide if we have a future. Either retaining enough assets to own our own economy or 3 more years of repressive laws and theft under National.

    A Government that will reverse the last 35 years of Neo-Liberal IMF dictated failure is essential.
    Three more years of the same disaster will leave New Zealand in an almost unrecoverable position.

    If all Labour are offering on this sort of decisions is slight variations on National’s theme. Why should anyone vote for them.

    • Lanthanide 4.1

      Labour was only able to filibuster VSM because of the particular rules around parliament for that bill. It was really a happy coincidence that they were able to do it for so long.

      That situation wouldn’t have existed with the new bill, and even more importantly since it is intended to be passed under urgency the filibuster could’ve lasted a couple of hours at most. That wouldn’t have achieved anything.

      • KJT 4.1.1

        Point taken.

        However sometimes it is important, simply, to register your disgust with removals of our rights.

        To follow principles rather than pragmatism.

        • Lanthanide 4.1.1.1

          They did. They achieved a select committee where all of the experts were 100% negative and against what National were trying to do. That in itself is pretty embarrassing for them (even the police wouldn’t comment on the “40 trials underway” bollocks that Key was trying to spin). Then they got the bill amended to get rid of the worst of it; only one concern remains as noted by micky at #6.

          It’ll be replaced by the proper search and surveillance bill early next parliament anyway.

  5. felix 5

    Disappointing, Labour. Not surprising though.

    I CAN HAZ OPPOSITION PARTY NAO PLZ?

  6. Charles Chauvel in particular did well in obtaining significant concessions from the tories.  I suspect that they thought they would get ACT to support.  But the ACT MPs, bless their cotton socks, rediscovered principle.
     
    There is one dead rat in the legislation, the right to appeal because of Hamed has been taken away.
     
    Previously an appeal could be lodged on the basis that the decision in Hamed represents a change in the law. Generally the chances of an appeal succeeding are poor, it has to be shown that there was a miscarriage of justice. As shown in Hamed the Court has a discretion to admit otherwise improperly acquired evidence, that the evidence would otherwise have been excluded, and that the totality of the evidence was not sufficient to maintain the conviction.
     
    There is no indication about how many appeals were possible and I would have thought this would be the first piece of information to justify such a decision.
     
    So there is still retrospective effect but it is minimal.
     
    I think the Nats wanted to tar Labour as being “unprincipled”.  Labour achieved significant changes and almost had the bill complying with constitutional principles.  But there is still this one blemish, of perhaps nil effect, but there may be a person or persons whose appeal rights have been taken away.
     
    Of course the tories should be held to blame for this.  It is just another example of their wanting to play politics with our constitution.

     
     
     
     

  7. queenstfarmer 7

    Good, looks like a fairly sensible compromise in the circumstances. Should be the last we hear about this – I can’t see the Nats or Labour wasting much campaign time on what is now settled.

    • lprent 7.1

      Not really. It is a short term fix. It will rise again next year when the search and surveillance bill finally comes though (after what 5 years?).

      It also leaves the issue of police accountability hanging out there to come up again after the operation 8 cases go through. Quite simply some police knowingly acted unlawfully in the way that they collected evidence. They used that evidence to puff paranoid delusions and mount a massive search and seizure exercise against people for no obvious reason. They appear to have knowingly falsely arrested and held people in prison, caused them to incur massive legal bills, and disrupted their lives in forcing them through a 4 year court battle. All because a few cops in Otahuhu have paranoid fantasies and a fetish for collecting evidence unlawfully.

      Obviously the police aren’t likely to do much about those cowboys and the IPCA is ineffectual. I think we will have a rather large and long civil court case going ahead against the police. Hopefully it will also be against the individual officers like Aaron Pascoe who look like they acted well outside the bounds of their duty.

  8. Lanthanide 8

    I’m not quite sure why everyone keeps using the term “retrospective”, when the correct term is really “retroactive”.

    Retrospective (from Latin retr, “look back”) generally means to take a look back at events that already have taken place. For example, the term is used in medicine, describing a look back at a patient’s medical history or lifestyle.

    An ex post facto law (from the Latin for “from after the action”) or retroactive law is a law that retroactively changes the legal consequences (or status) of actions committed or relationships that existed prior to the enactment of the law.

    • Blighty 8.1

      because the law ‘looks back’ at events in the past before it was passed.

      It’s the universally used legal term.

      • Lanthanide 8.1.1

        I can’t find much one way or the other, and google results for “retroactive law” and “retrospective law” are very close.

        Did find this, though:
        “The term is used in situations where the law is changed, making a previously committed lawful act now unlawful. Sir Stuart Bell used the term “retrospectivity” to describe the Thomas Legg audit of MPs’ expenses. Usually the terms ex post facto law or retroactive law are used. “

  9. Nick K 9

    Micky is right. Chauvel and Act (Hide mostly) worked together to get these changes. That’s the beauty of MMP. Hide’s departure is going to be a huge loss to this parliament.

    • Lanthanide 9.1

      Well not really.

      What is going to be a huge loss is Hide being replaced by Banks and possibly Brash. Just Hide leaving by himself though is no real loss.

  10. deemac 10

    looks like the compromise that Labour got was the best that could be achieved under the circs. Some people seem to forget that an Opposition has very limited powers. Plus this was a necessary temporary fix until the next Parliament looks at the matter in detail.

    • aerobubble 10.1

      I think its all suspect. Gangs will realize they are being filmed covertly, then
      they will act up to create a false trail that bungs up the courts for years.
      How parliament doesn’t get this aspect of reality, that the way you choose
      to measure dictates the outcome. Video found at a scene is pure luck if
      it shows guilt, that’s a whole different story in choosing the positioning
      of covert video equipment.

  11. BLiP 11

    Labour? The last bastion of civil liberties? FAIL.

  12. Jenny 12


    The Moderately Exciting Adventures of Middle Man

    If they bring a knife to the fight – – I bring a Reasonable Bipartisan Compromise!

  13. The end result was due to input from a number of parties and individuals, and a pragmatic correction by National.

    Peter Dunne:
    The outcome on this Bill is a good one. Once the original proposals were made public, it became obvious that the provisions regarding retrospective application and the twelve month temporary life of the Bill were not going to fly with the public, and that change was required.

    Although I was not part of the select committee which gave brief consideration to the legislation I did have a number of discussions with my Ministerial colleague the Attorney-General (whose office just happens to be next to my mine, so our conversations were frequent). We agreed from a very early stage that the best outcome would be to drop the retrospective provisions and to limit the life of the Bill to just 6 months, provisions which have ultimately come to pass.

    While it may not suit some people’s preferred narrative of these events, the Herald’s editorial is a fairly accurate summary of what happened.

    There’s a lot that goes on behind the scenes in government, and a lot of false assumptions and flakey claims made on blogs.

    • Pete this bill was an abomination and raised such a stink from the Law Profession that the Government had to back down. 
       
      And Pete the Poodle’s claims that he somehow influenced the legislation to improve it is a joke.  He pledged support from the start. 
       
      It is only the actions of the other parties, including ACT, that meant that the most appalling provisions were toned down.
       

      • Pete George 13.1.1

        Can you back up your claim or are you making it up?

        Dunne’s claims are backed up by this:

        Editorial: Surveillance law shows MMP’s worth

        Its partners, Act, United Future and the Maori Party, hesitated to grant police retrospective authority….

        These concessions, sufficient to win the support of Labour, Act and United Future…

        As the Herald says (and I have said previously) – this was a good example of MMP at work, something flawed (and neglected for over a decade) became the best possible compromise due to the input of multiple parties, law groups and individuals.

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