27 September 2011

Covert surveillance: some more musings

1.  When the Video Camera Surveillance (Temporary Measures) Bill is introduced into Parliament today, will it be accompanied by the report by the Attorney-General that it is inconsistent with the NZ Bill of Rights Act?  It difficult to see how the Bill, as it has been foreshadowed, can be consistent when: (a) it removes remedies (both tort compensation and evidence exclusion) for breaches of rights that have already crystallised; and (b) overturns the Supreme Court’s Bill of Rights-informed ruling about the existing legal position.

2.  If the government is so keen to “restore the common law” by reverting to the previous position before the Supreme Court ruling -- purportedly on the basis that this was the position as understood by all involved, then why does the legislation not unwind the court decisions to preserve the first-instance position set out by Winkelmann J? Or is that problematic because, like the Supreme Court, she ruled the actions of the police were unlawful (even though she would have admitted more unlawfully obtained evidence)?

3.  Is the elephant in the room the government’s exposure to claims for compensation as a result of the illegal searches? The validation of past illegal actions will absolve the government for any liability for trespass, breach of privacy and NZ Bill of Rights Act claims.  But how exposed is it?  Certainly it is a live issue.  But I doubt the exposure is great.  The NZ courts have been very modest in awarding compensation for Bill of Rights breaches, particularly to those who do not have clean hands themselves.  And trespass claims might be tricky – for example, a claim in the Urewera case is unlikely because those filmed were not legal occupiers of the land.  Exemplary damages might, though, be a problem, especially in the light of the Supreme Court findings about the deliberateness or recklessness of the police’s resort to unlawfulness.

4.  Given the widespread engagement in unlawful covert surveillance by the police, where is the inquiry in the systemic cause of this problem?  Is an investigation by the Independent Police Complaints Authority inevitable?  Has a complaint already been lodged?  Or is one in the pipeline?

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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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