The Police have known for years that the kind of surveillance they carried out in the Ureweras was illegal.
They went ahead and did it anyway. They were betting that the Courts would permit illegally gained evidence to be used in prosecuting serious offences (no ‘fruit of a poison tree‘ rule here like in the US). They got a surprise with the strength of the Supreme Court’s decision to disallow the evidence against most of the Urewera 18, even though the illegally obtained evidence will still be allowed against four who suffer more serious charges. But the important point is this: your Police knowingly acted illegally to spy on your fellow citizens.
No-one’s saying those being surveilled are angels. It’s not about them. It’s about whether the agents of the State, who are ultimately meant to be your agents, should be allowed to act illegally. Should the ends justify the means or do we believe in the rule of law as the only way to constrain those with power from abusing it?
Should the law be changed for the future? I’m no expert. It seems the experts do want the law changed. That’s why a law change has been in the Search and Surveillance Bill for two years to make this surveillance legal. But the government didn’t get around to passing it. Too busy organising the World Cup, I guess…. oh, wait.
But should the law be changed retrospectively? That’s a whole other kettle of fish. It tells the Police that they can do whatever they want and later claim that their actions have to be legalised post hoc as long as they cry ‘if you don’t you’ll be letting crims free!’
There needs to be some kind of consequence to the Police officers and their bosses who knowingly broke the law. They’re criminals, after all. So far, there’s been no suggestion that these law breakers should be punished from the government.
Regardless of whether the law should be retrospectively changed, the way that National is planning to ‘fix’ the situation is completely unacceptable. According to reports, the law they want to rush through under Urgency doesn’t change the law it just suspends the effect of the Supreme Court decision for a year. So, the surveillance – past, present, and future – will remain illegal, just everyone will pretend the Supreme Court decision making that clear hasn’t happened year. It’s ludicrous and it’s a breach of the rule of law and separation of powers.
If the Executive doesn’t like the law as it stands, it should ak Parliament to change it, after which the Judiciary will interpret the new law. That’s how our system of government works. What the Executive shouldn’t do is interfere in our independent Judiciary by using Parliament to pick out a single court decision it doesn’t like, in which everyone agrees the Judiciary has done its job in correctly interpreting the law passed by Parliament, and put it on ice. It is not for the Executive or for Parliament to do the job of the Judiciary or prevent the Judiciary doing its job. If Bainimarama tried this, our government would be howling.
So where to from here? The Greens, Maori Party and, probably, ACT will oppose this law. That leaves Labour to give National a majority. Labour’s in a tough place. If they make a principled stand they risk the media calling them soft on crime 10 weeks from an election, with the going already tough. On the other hand, if the media decide that rights, restraint of State power, and the rule of law matter – and, incredibly, that’s not something we would normally expect from the media (witness that fuckwit John Armstrong’s uncritical backing of National and attack on Labour today – http://nzherald.co.nz/nz/news/article.php?c_id=1&objectid=10753198) – then Labour can safely stand up for principle, maybe even score a political win. Unfortunately, being a political party, especially a major political party, often means voting for things that you oppose but that is is politically untenable to vote against (even the Greens voted for CERRA, the Canterbury Enabling Act 1).
I’m hoping that Labour will vote against this Bill. It certainly seems they are drifting that way.
But they will need the support of the media, who need to take responsibility for their constitutional role, rather than acting like sports commentators for once. The journos need to look at the government’s record of anti-democratic actions – Supercity, Ecan, CERA, CERRA, abuse of Urgency, RWC Enabling Act, abuse of question time, refusing to do media on policies like asset sales – and decide that, when the government is seeking it infringe on the independence of the Judiciary to protect the illegal actions of the Police, it is time to draw a line in the sand.