4 October 2011

Covert surveillance: post-Select Committee and pre-Hamed

A quick post to close the circle, following the release of the Select Committee report on the Bill.  Labour's bottom lines have effectively been endorsed by the Select Committee and the passage of a watered-down Bill now looks to be assured.

Some thoughts:

1. It is quite extraordinary that the Select Committee received 438 submissions in less than 24 hours.  While a number of these are form submissions, others are tailored and substantive.  I haven't done the analysis myself but someone suggested that all bar one were opposed to the Bill.

Quite an incredible response to a Select Committee process that originally wasn't going to happen.  

(As an aside, I am especially heartened by the number of law students who took the time out of their studies to make personal submissions. One of the things I've been trying to encourage and cultivate at Vic over the last few years is a culture of participation and engagement - we need "good citizens" contributing to our civic process, just as they did here.)

2. On the merits of the post-Select Committee position, see my earlier post on Labour's bottom-lines.

One additional point, I am worried about the extension of the temporary measures to numerous other agencies. Andrew Geddis has covered the issue here.  He notes the Bill still enables "all the State's investigative agencies" to engage in covert video surveillance.

This doesn't worry me so much for non-trespassory "over the fence" surveillance.  But for trespassory surveillance it is troubling.

Might we be concerned if local authority enforcement officers are engaging in covert filming as an adjunct to searches warranted under the Resource Management Act? Or the Standards Committee of the Law Society when searching the premises of a practitioner pursuant to a warrant under the Lawyers and Conveyancers Act? No thanks!

3. The Select Committee report and ministerial interviews that followed still seem to perpetuating the view that covert video surveillance had sanctioned by the Court of Appeal for the last 15 years, justifying the police action and the quick fix.

The Select Committee said:
"Before the Hamed decision, the use of covert video camera surveillance by State agents had been considered by New Zealand courts, and was found to be permissible under common law whether the surveillance was conducted on private property entered pursuant to a search warrant, or from a place not requiring a warrant to enter.
We note the Law Commission’s 2007 report questioned the legal basis of trespassory video camera surveillance. We note that this report was issued prior to three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance."
I still don't get it. That doesn't accord with my reading of the cases.  Or the reading by others.  Steven Price has explained things well here.

Last week I asked the Attorney-General's office for clarification of what cases were being referred to, after the Attorney made a similar claim.  I'm still waiting for a response.

Given the centrality of this point to the government's position, it would be helpful if the advice they have received was released (in some appropriate form) - rather than being advanced by oblique and unsubstantiated assertion.

UPDATE: Lyndon Hood at Scoop has been working on this line and has an interesting article here.  The PM's office seems to be referring to Fraser and Gardiner - both cases which deal with non-trespassory surveillance!   


Lyndon said...

I wrote up my dealing with the PM's office looking for citations here:

Dean Knight said...

Thanks Lyndon - post now updated in the light of yours.

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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