Hon Christopher Finlayson
Attorney-General
27 September 2011
Media Statement

Video Camera Surveillance (Temporary Measures) Bill

First Reading Speech

Mr Speaker, I move that the Video 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 at least 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 covert video surveillance. These cases involved 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 fully justified in their belief that the use of covert video surveillance in connection with a search warrant was not unlawful.

Lawfulness is distinct from reasonableness. That filming allowed by the Court of Appeal was always subject to a challenge under s 21 of the New Zealand Bill of Rights Act 1990 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. While not strictly part of the decision, the Court’s reasoning would also apply to searches using that technique from surveillance points outside the target property.

The decision of the Supreme 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.

This Bill does not overturn any decision. It temporarily holds the law of New Zealand applying to covert video surveillance to that laid down by the Courts before the Supreme Court in Hamed reversed that legal position.

This 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 provides for the period before the Search and Surveillance 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 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 the persons who have obtained the benefit of the Supreme Court’s decision in Hamed.

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 onto private property for the purpose only of seeking visual evidence from covert video surveillance. The entry onto private property where covert video surveillance is intended must be pursuant to a warrant issued under s 198 of the Summary Proceedings Act, and that warrant must be issued and executed according to existing law. As I have already said, surveillance will remain subject to a challenge under s 21 of the New Zealand Bill of Rights Act 1990 based on unreasonableness.

This situation differs from the bill as released for consultation 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 the Courts might otherwise in the future apply the right to be free from unreasonable search. I have listened to the reasonable criticism of this limitation on the s 21 BORA 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 that 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 existing law.

We find ourselves in a difficult and unsatisfactory 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 Parliament is in a position to 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 PCO on this point, and I agree with them entirely. I understand my colleague the Minister of Justice will say some more on this point later in the debate.

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 indispensable facility in relation to the safety of police officers and the detection of serious criminal offending.

That is not a situation that can stand. I commend this bill to the House.

ENDS

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