Hon CHRISTOPHER FINLAYSON (Attorney-General) : I move, That the Video Camera Surveillance (Temporary Measures) Bill be now read a first time. At the appropriate time I intend to move that the Video Camera Surveillance (Temporary Measures) Bill be considered by the Justice and Electoral Committee, that the committee report to the House on or before 3 October 2011, and that the committee have authority to meet tomorrow and at any time while the House is sitting except during oral questions, during any evening on a day on which there has been a sitting of the House, and on a Friday in a week in which there has been a sitting of the House, despite Standing Orders 187 and 190(1)(b) and (c).
For the last 17 years the police have used covert video surveillance cameras. They have used them to help investigate serious crimes, including drug dealing and organised criminal gangs. They have been used both to gather evidence and to obtain information. On at least six occasions the Court of Appeal has considered the admissibility of evidence obtained by these means. These cases involve video cameras deployed both outside and within the property to be searched, and concealed on an informant transacting drug-dealing business inside the suspect’s home.
On two very recent occasions the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant. Contrary to some public comment, the police were accordingly justified in their belief that the use of this surveillance in connection with a search warrant was not unlawful. Lawfulness is to be distinguished from unreasonableness—that filming allowed by the Court of Appeal was always subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness. That situation will not change under this bill.
Last month the Supreme Court retrospectively altered the law. It ruled that in the absence of specific statutory authorisation the use of covert video surveillance amounting to a search, and conducted in tandem with a Summary Proceedings Act search warrant, was unlawful. Although not strictly part of the decision of the court, its reasoning would also apply to searches using that technique from surveillance points outside the target property.
The decision of the court affects approximately 40 criminal cases now before the courts and at least the same number of current police criminal investigations. The bulk of these cases involve serious drug and organised criminal offending. Also affected is the ability of many statutory organisations to carry out their responsibilities.
It is important to note that this bill does not seek to overturn any decision. It temporarily holds the law of New Zealand applying to covert video surveillance to be that laid down by the courts before the Supreme Court in the Hamed case reversed that legal position. The bill accordingly preserves the legal position as it was before 2 September 2011. Because, as it must, the judgment affects all relevant cases and conduct before 2 September, the bill suspends temporarily that effect of the judgment, as well as providing for the period before the bill is enacted.
Clause 3 sets out its purpose—that is, to provide a temporary period to enable Parliament to move with all deliberate speed to pass the Search and Surveillance Bill. That bill, among other things, comprehensively covers the accepted long-term goals of bringing covert video surveillance under the control of carefully scrutinised statutory provisions. As would be expected, that clause also provides that nothing in the bill affects the rights of those persons who have obtained the benefit of the Supreme Court’s judgment in the Hamed case.
Clause 4 sets out the necessary definitions. It is important to note that the bill does not give the police or any other agency the ability to enter on to private property for the purpose only of seeking visual evidence from covert video surveillance. The entry on to private property where covert video surveillance is intended must be pursuant to a warrant issued under section 198 of the Summary Proceedings Act, and that warrant must be issued and executed according to existing law. As I have already noted, surveillance will remain subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness.
The situation differs from the bill as released for consultation by me last week. Clause 5 declares that post, current, or future searches may not be held to be unlawful only because covert video surveillance was used in connection with a search. As originally drafted, clause 5(2) would have provided that the use of covert video surveillance does not, of itself, render the search unlawful or unreasonable. That would have affected the way in which courts might otherwise in the future apply the right to be free from unreasonable search. I have listened to the criticism of this limitation on the section 21 New Zealand Bill of Rights Act right and have not included that provision in the bill as introduced.
Clause 5(3) is intended to augment clause 5(2). The latter clause deals with the lawfulness of any use of covert video surveillance. Clause 5(3) is essentially an avoidance of doubt provision directed to the essential question of the admissibility of evidence. By way of explanation, if evidence is found to be improperly obtained within the meaning of section 30 of the Evidence Act 2006, it is liable to be excluded unless the result would be disproportionate to the seriousness of the crime.
The intention in the bill is that if the only basis for objecting to the admissibility of the evidence is that covert video surveillance was used, the evidence may not be treated as improperly obtained. Critically, however, because of the matters I have mentioned as to clause 5(2), if for any reason the search is found otherwise unreasonable or, indeed, otherwise unlawful, the evidence may or may not be excluded on the basis of the existing law.
In conclusion can I say that we find ourselves in a difficult legal situation. It is a situation contrary to the public interest and the safety of the public and law enforcement officers. It will be some months before a new Parliament can pass the Search and Surveillance Bill into law. Contrary to some claims I have heard, it would be impossibly complex to enact parts of that law early. I have taken the advice of the Parliamentary Counsel Office on this point, and I agree with it entirely. I understand that my colleague the Minister of Justice is going to say some more about this later in the debate, and I look forward to what Mr Parker will say.
Unless this Parliament takes action now, the police and other statutory agencies will be denied for some time the ability to use a technology that has become an indispensible facility in relation to the safety of police officers and the detection of serious criminal offending. This is not a situation that can stand. I commend the bill to the House.
On two very recent occasions the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant. Contrary to some public comment, the police were accordingly justified in their belief that the use of this surveillance in connection with a search warrant was not unlawful. Lawfulness is to be distinguished from unreasonableness—that filming allowed by the Court of Appeal was always subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness. That situation will not change under this bill.
Last month the Supreme Court retrospectively altered the law. It ruled that in the absence of specific statutory authorisation the use of covert video surveillance amounting to a search, and conducted in tandem with a Summary Proceedings Act search warrant, was unlawful. Although not strictly part of the decision of the court, its reasoning would also apply to searches using that technique from surveillance points outside the target property.
The decision of the court affects approximately 40 criminal cases now before the courts and at least the same number of current police criminal investigations. The bulk of these cases involve serious drug and organised criminal offending. Also affected is the ability of many statutory organisations to carry out their responsibilities.
It is important to note that this bill does not seek to overturn any decision. It temporarily holds the law of New Zealand applying to covert video surveillance to be that laid down by the courts before the Supreme Court in the Hamed case reversed that legal position. The bill accordingly preserves the legal position as it was before 2 September 2011. Because, as it must, the judgment affects all relevant cases and conduct before 2 September, the bill suspends temporarily that effect of the judgment, as well as providing for the period before the bill is enacted.
Clause 3 sets out its purpose—that is, to provide a temporary period to enable Parliament to move with all deliberate speed to pass the Search and Surveillance Bill. That bill, among other things, comprehensively covers the accepted long-term goals of bringing covert video surveillance under the control of carefully scrutinised statutory provisions. As would be expected, that clause also provides that nothing in the bill affects the rights of those persons who have obtained the benefit of the Supreme Court’s judgment in the Hamed case.
Clause 4 sets out the necessary definitions. It is important to note that the bill does not give the police or any other agency the ability to enter on to private property for the purpose only of seeking visual evidence from covert video surveillance. The entry on to private property where covert video surveillance is intended must be pursuant to a warrant issued under section 198 of the Summary Proceedings Act, and that warrant must be issued and executed according to existing law. As I have already noted, surveillance will remain subject to a challenge under section 21 of the New Zealand Bill of Rights Act, based on unreasonableness.
The situation differs from the bill as released for consultation by me last week. Clause 5 declares that post, current, or future searches may not be held to be unlawful only because covert video surveillance was used in connection with a search. As originally drafted, clause 5(2) would have provided that the use of covert video surveillance does not, of itself, render the search unlawful or unreasonable. That would have affected the way in which courts might otherwise in the future apply the right to be free from unreasonable search. I have listened to the criticism of this limitation on the section 21 New Zealand Bill of Rights Act right and have not included that provision in the bill as introduced.
Clause 5(3) is intended to augment clause 5(2). The latter clause deals with the lawfulness of any use of covert video surveillance. Clause 5(3) is essentially an avoidance of doubt provision directed to the essential question of the admissibility of evidence. By way of explanation, if evidence is found to be improperly obtained within the meaning of section 30 of the Evidence Act 2006, it is liable to be excluded unless the result would be disproportionate to the seriousness of the crime.
The intention in the bill is that if the only basis for objecting to the admissibility of the evidence is that covert video surveillance was used, the evidence may not be treated as improperly obtained. Critically, however, because of the matters I have mentioned as to clause 5(2), if for any reason the search is found otherwise unreasonable or, indeed, otherwise unlawful, the evidence may or may not be excluded on the basis of the existing law.
In conclusion can I say that we find ourselves in a difficult legal situation. It is a situation contrary to the public interest and the safety of the public and law enforcement officers. It will be some months before a new Parliament can pass the Search and Surveillance Bill into law. Contrary to some claims I have heard, it would be impossibly complex to enact parts of that law early. I have taken the advice of the Parliamentary Counsel Office on this point, and I agree with it entirely. I understand that my colleague the Minister of Justice is going to say some more about this later in the debate, and I look forward to what Mr Parker will say.
Unless this Parliament takes action now, the police and other statutory agencies will be denied for some time the ability to use a technology that has become an indispensible facility in relation to the safety of police officers and the detection of serious criminal offending. This is not a situation that can stand. I commend the bill to the House.
