27 September 2011

Covert surveillance: process and principle

Haste is the enemy of good law-making.

Too often in recent memory we have seen controversial legislation passed under urgency, often in one day.  It is pleasing therefore to see yesterday’s announcement that the Video Camera Surveillance (Temporary Measures) Bill would be referred to a Select Committee for public submission and scrutiny, albeit for less than a week.  Of course, that was inevitable given the government did not have the numbers to push ahead with urgency without some form of select committee scrutiny.

Kudos to those parties -- particularly ACT and Labour, whose votes proved crucial -- who saw sense and insisted that the government take a breath before pushing ahead with this egregious legislation.

As an aside, we might have been lucky last week was a recess week.  If Parliament had been sitting, there was a real prospect that the legislation might have been progressed through all stages under urgency on Tuesday or Wednesday, as has been the case in the past.  Parties would have been called on to make snap-judgements about whether to support the Bill or not.  There would have been little, if any, time for critical analysis in the media.

Thankfully, we have seen (largely) informed debate in the media about the proposed law. Over the week, politicians, media and commentators have been discussing the intricacies of s 30 of the Evidence Act, the differences between trespassory and non-trespassory searches, the power to grant search warrants in Summary Proceedings Act, and numerous paragraphs from one of the longer Supreme Court judgments.

The government’s assertions about urgency and necessity have largely been debunked.  The mischievous rhetoric originally deployed – “You’re either with us or you’re with the crims” – has been side-lined in favour of genuine analysis and debate.  

And, it’s notable that following this public discussion, almost all major newspapers have come out with editorials against the Bill, along with numerous opinion writers.  Leading practitioners have also lined up against the Bill. The academy has been vocal -- and this time couldn’t be dismissed pejoratively as “latte-sipping Aucklanders”. Professor Geddis gets a particular mention, as he’s been doing much of the running on this one. But others have been chipping in with helpful analysis: some public, some behind the scenes.

But a reminder that this public discourse takes time to percolate.  If we prefer informed debate over meaningless rhetoric, time and effort is needed.  As an example, my initial blog post took some 6 hours to construct (luckily, the UK daytime gave me a head-start while NZ was sleeping!)  I know others also dropped things to devote time to researching, analysing and commenting on the issue.  Political parties were presented with similar challenges – needing time to digest the Bill and its implications.

That bring me to my final point.  A few have attempted to cast the ACT and Labour Party positions as quibbles about process.  Where do they stand, they say, on the principle?  At the end of the day, will they support the Bill or not?  Are they trying to have it both ways?

Well, I think this line of attack misses the point.  It is in cases like this that process and principle intersect.  Robust and reflective process ensures that principle is preserved.

These issues are rarely open-and-shut issues. Not all instances of retrospective legislation can be condemned.  Validation of state unlawfulness is not always bad.  Bills abridging rights are not automatically objectionable.

But we need to be vigilant against such measures and ensure they are vigorously scrutinised.  The government must justify – to Parliament and the people – its resort to these measures.  Assertion and executive say-so is not enough.

That’s where process becomes important.

Considered scrutiny of a proposal, through select committee processes and public discourse, tests the justification advanced by the government. It may be that a genuine case can be made for the use of what otherwise would be malignant measures.  It may be that the claimed justification is weak and the legislation is truly objectionable.  And the process allows alternatives – less harmful alternatives that still achieve the important objective – to be promoted.

Here, of course, we see the government’s claim about urgency and necessity unravelling as it has been exposed to scrutiny over the past week.  And credible alternatives have been feed into the mix.  It will be interesting to what comes out of the select committee process next week and how the parliamentary votes shake down.  

But, what a difference a week makes, eh!  

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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