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Submission on the Video Camera Surveillance Bill

By Steven | September 29, 2011

Felix Geiringer and I drafted a submission on the Bill, and got it in with 5 minutes to spare before the midnight deadline. (Hope you enjoyed your opportunity for public input, people.)

Here it is:

Submission to the Justice and Electoral Select Committeeon the Video Camera Surveillance (Temporary Measures) Bill 
  
SUMMARY OF VIEWS 

We oppose the Bill in its entirety. 

The Bill is unnecessary.  Section 30 of the Evidence Act enables the courts to admit unlawfully obtained evidence where the seriousness of the offending justifies it.  
   
The Bill is too broad.  We ought not to be giving the every public official blanket immunity for unlawfully installing hidden cameras on private property during a search.   
     
The Bill is undesirable.  It violates the rule of law and fundamental liberties.  It breaches constitutional norms.  If the Police have been behaving in a flagrant or unjustifiable manner then there ought to be repercussions.  
   
The Bill is partially ineffective.  The only impact that the Supreme Court’s decision in Hamed has on “over-the-fence” surveillance is in relation to Bill of Rights considerations.  However, the Attorney-General twice stated in the house that surveillance will not affect human rights challenges under the Bill of Rights.   

If the Bill is to be passed notwithstanding these objections, the following amendments are imperative: 

RECOMMENDATIONS 

Do not pass this Bill. 

 

If our primary recommendation is not followed then, in the alternative, amend the Bill as follows:

  1. Expressly preserve the jurisdiction of the courts to consider the legality of a search (including the use of video surveillance cameras) in accordance with the New Zealand Bill of Rights Act 1990, by inserting a new clause 4(2) to read as follows: “Nothing in this Act limits the rights contained in s 21 of the New Zealand Bill of Rights Act 1990.”;  
  2. Clarify that the use of a video surveillance camera can be unreasonable and therefore unlawful by virtue of the manner of its use, by removing the words “(without limitation)” and “positioning” from the definition of “use” in clause 4; 
  3. Make the Bill prospective only and not retrospective, by removing clause 5(1)(a) (which would also remove the need for paragraph 3(a) and clause 6); 
  4. Make it clear that the Bill is not intended to include warrantless searches of private land by inserting a subparagraph (a)(iii) in the definition of search in clause 4 to read as follows “does not include a warrantless search of private land, and”, replace the word “and” with the word “but” in subparagraph (a)(ii) of the definition of search in clause 4, and replace the word “includes” with the word “is” in paragraph (b) of the definition of search in clause 4; 
  5. Preserve the state of the law outside the question of evidence in criminal trials, by removing subclause 5(2) (and therefore removing the need for the words “without limiting subsection (2)” in subclause 5(3)); and 
  6. Limit the scope of the Bill to the Police, by replacing  the words “a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990” with the words “a constable of the New Zealand Police as defined in the Policing Act 2008”. 

  
DETAILED VIEWS
The truth about Hamed
 The Crown Law Office says that all covert video camera surveillance, including use of “over the fence” covert video camera surveillance (ie, non-trespassory surveillance, for example, by filming private activity from public land or from private property with the consent of the owner), is likely to be held to be unlawful. We disagree. 
We cannot see that Hamed touches on the lawfulness of “over the fence” surveillance at all. Under current law, they are not unlawful, and Hamed does not – even arguably – make them so.  Hamed does develop the law around unreasonable searches under the Bill of Rights Act. But the Attorney-General has assured the House that the Bill of Rights will not be affected by this Bill. 

New powers not justified by Court of Appeal cases 

The Attorney-General in the First Reading Speech states that “[o]n 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.”  He therefore concludes that “the police were accordingly fully justified in their belief that the use of covert video surveillance in connection with a search warrant was not unlawful.” It is understood that the Attorney-General is referring to the cases Hodgkinson v R CA221/2010, 7 October 2010 and the Court of Appeal’s decision in Hamed.   In fact, a review of those cases does not support the Attorney-General’s contention. 

 

In Hodgkinson, a case argued in September last year, the Crown conceded that a search warrant could not lawfully authorise the trespassory planting of a camera.  In its decision, the Court of Appeal expressed “some doubt about that conclusion” and considered that “it is strongly arguable”.  However, the Court also acknowledged that there were arguments the other way and went on to reach its judgment on the assumption that the camera’s use was unlawful.

In Hamed, argued before the Court of Appeal last June, again the proposition that the search warrants did not authorise the surveillance operations “was not really challenged” by the Crown (para [36], CA decision). Even so, the Court of Appeal found that the wording of the warrant in question was sufficiently broad to include the capturing of video images by planting surveillance cameras.  This turned on the Court’s view that the warrant was able to able to extend to anticipatory evidence.  This ruling was in November of 2010.  This could not give rise to long standing belief in the legality of such surveillance. 

It is difficult to accept the proposition that the Government had a reasonable belief that trespassory searches were lawful without express authority.  The contrary principle was established in the case of Entick v Carrington in 1765.  That decision has been consistently followed around the common law world in the intervening 246 years, including expressly in New Zealand.

 

The fact that the Government was aware of this limitation on police powers is also apparent from the discussions surrounding the Search and Surveillance Bill (2009) and the associated Law Commission report in 2007.

Section 30 already solves the problem for past searches 

 

A suggestion used to justify the Bill is that without it serious criminals may escape justice. Many people have pointed out the problem with this claim. Section 30 of the Evidence Act allows courts to admit evidence even if it has been illegally or improperly obtained. Essentially the courts must balance the extent of the impropriety against seriousness of the crime and make a decision that protects an “effective and credible system of justice.” Indeed, the Supreme Court in Hamed admitted all of the evidence against the defendants in that case who had been charged with serious offences.

The Attorney-General expressed his concern in paragraph 6 of his 21 September 2011 letter to Charles Chauvel that the Bill was necessary notwithstanding s 30.  This was because “in cases where there was a high degree of expected privacy and other investigative techniques were available (however difficult to deploy) the risk of exclusion is much higher than it was in respect of Operation 8.”  In short, the Bill of Rights balance might favour defendants in other cases.

There are several objections to this. First, the courts in the past have not been slow to admit improperly obtained evidence. Second, the Attorney-General omits to mention the trespass element, which weighed heavily in the Hamed balance, but may not be present in other cases.  Third, the “however difficult” bit is an overstatement because actually the courts have never required the police to show that other methods were impossible, just impractical.

Finally, and most significantly, if the police have seriously infringed privacy rights without good justification during a search, it is right and proper that they should be penalised.

The Attorney-General tells us that the government has listened to these reasonable criticisms and undertaken to preserve s 21 of the Bill of Rights.  Therefore there is now no need for this Bill to deem all past uses of surveillance cameras during searches to be lawful.

Constitutional impact  

As drafted, the Bill violates the rule of law and constitutional norms.  There is nothing wrong with Parliament prospectively overturning the effect of a court decision.  However, the retrospective nature of this Bill and the way it has been expressly presented as a preference for the views of the New Zealand Court of Appeal over the views of the New Zealand Supreme Court risk undermining the constitutional relationship between those courts and parliament. 

It is not the case, as has been suggested, that this Bill merely returns the law to the ‘common law position’ before the Supreme Court’s decision.  Instead, it retrospectively validates illegal actions by the Executive branch of government.  The Supreme Court did not make new law, but merely applied existing law, passed by Parliament, but which had previously been wrongly interpreted by the Court of Appeal. The Supreme Court decision therefore determined that the Police had for some time been acting illegally.  To retrospectively validate such behaviour by the Executive is highly dangerous and sets a most undesirable precedent. The Supreme Court bench is filled with New Zealand’s most experienced and highly regarded judges.  They have been charged with being the final arbiters in New Zealand of the proper interpretation of the country’s law.  This Bill, and the manner of its introduction by the Government, seriously undermines our top court.  Parliament should be hesitant to endorse this. 
Bill of Rights not clearly preserved 

It is common to distinguish considerations of unreasonableness under s 21 of the Bill of Rights from other forms of unlawfulness.  The courts will usually consider other forms of unlawfulness first, and their conclusion will be a factor in considering unreasonableness.  However, ultimately it is also unlawful to breach s 21.  A finding that a search was in breach of s 21 is a finding that that breach was “unlawful.” 

 

Clauses 5(2) and 5(3) of the Bill are therefore ambiguous as drafted.  If it is genuinely intended that this Bill not affect Bill of Rights considerations it needs to say so expressly. Otherwise there is a danger that arguments about unreasonableness under the Bill of Rights will be fatally undermined by the fact that the behaviour is deemed lawful.

Positioning should be considered by the Courts 

The Bill expressly deems the use of video surveillance as part of a search to be lawful.  “Use” is defined in the Bill to include a number of things “(without limitation)” including “positioning”.  It therefore appears that the courts are being prohibited from considering the lawfulness of cameras based on how they were positioned. 

 

It is paramount that the positioning of the cameras remains something that the courts can consider in each case.  A camera that is lawful in a P-lab should not necessarily be lawful in the lab’s shower.  A camera that is lawful at the front desk of a brothel should not necessarily be lawful in the bedrooms. A camera that is lawful at the front gate of a high school should not necessarily be lawful in the changing rooms.

The Bill should not cover warrantless searches of private land  

The Police have the power to undertake searches of private land without a warrant in certain circumstances.  For example under s 18(2) of the Misuse of Drugs Act the police can enter and search premises without a warrant where the police have reasonable grounds to believe that illegal substances are on the premises in breach of the Act.

If warrantless searches of private land are covered, then if the police believe on reasonable grounds that you have so much as a joint of marijuana in your house then it will be deemed lawful for them to come into your house and install hidden video cameras.  This is too broad a power.  The Bill, as presently worded, is ambiguous.  The express inclusion of warrantless searches that was in the earlier draft of the Bill has been omitted.  However, clause 4 defines a “search” so that it “includes the acquisition of information about any person place or thing.”  This was probably intended only to clarify that a search included these aspects of searches falling within paragraph (a), but it is not expressed that way.  In fact, it utilises a convention used to encompass material not otherwise covered in foregoing definitions. As such, it appears to include all searches of any kind whatsoever.

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