28 September 2011

NZLS opposes proposed surveillance law change

The New Zealand Law Society (NZLS) opposes enactment of the bill which would retrospectively amend the law relating to video camera surveillance.

However, the Law Society has also proposed an alternative solution, by amending section 30 of the Evidence Act 2006 to preserve the discretion of judges to allow any relevant and cogent evidence.

NZLS has released its submission on the Video Camera Surveillance (Temporary Measures) Bill, which was introduced to Parliament last night under urgency.

The submission was presented to Parliament’s Justice and Electoral committee today by NZLS Criminal Law Committee convenor Jonathan Krebs and Rule of Law Committee member Grant Illingworth QC.

In its submission, the Law Society finds the proposed law "objectionable" for a number of reasons, including the fact that it misrepresents the legal position – both as it existed before the Supreme Court decision in the recent Hamed case and as it was determined to be in that case.

The Law Society says the bill would also effectively amend the New Zealand Bill of Rights Act 1990 by over-riding and attenuating a fundamental human right, and would do so in a way that appears disproportionate to any demonstrable need without community consultation.

"If enacted under urgency, as is intended, [the bill] would lack both the degree of consultation within the community and the leve of careful deliberation by Parliament that is appropriate for a singificant constitutional amendment," the submission says.

"A pressing and demonstrable need for such a serious departure from constitutional principle has not been demonstrated."

The Law Society says the bill would also show legislative interference with the judicial process for cases currently before the courts. This is inconsistent with the rule of law and the principles upon which the rule of law is based.

While the 9-page submission provides details of why the Law Society is opposed to the bill, it also proposes a "preferred alternative". This is based on the recent Supreme Court decision where the majority ruled that some of the unlawfully obtained evidence was admissible by virtue of section 30 of the Evidence Act 2006.

"Section 30 provides a more principled means of addressing the concerns that have been raised in the current debate than does the proposed law as set out in the draft bill," the Law Society says

"If urgent legislative intervention is considered necessary, and if section 30 in its current form is thought to provide an insufficient answer to the problem, it would be more appropriate to amend section 30 than to over-ride section 21 of the New Zealand Bill of Rights Act."

The Law Society has proposed an amendment to section 30 that could be enacted on an urgent basis.

ENDS

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