The Video Camera Surveillance (Temporary Measures) Bill.
Is the New Zealand Police extraordinarily incompetent or wilfully contemptuous of the law?
By Dr David Small, LLB, BA Hons PhD
Senior Lecturer in Education, University Canterbury
Barrister and Solicitor of the High Court of New Zealand
Fifteen years ago, I caught two agents of the Security Intelligence Service (SIS) breaking into the home of Aziz
Choudry, an organizer of a Christchurch conference critical of APEC.
After the official SIS complaints process through the office of the Inspector-General of Intelligence and Security
proved worthless, Mr Choudry sued the SIS in trespass and for breach of his Bill of Rights entitlement to be free from
unreasonable search.
The crown replied by arguing inter alia that a warrant to intercept communications implied a right of covert entry.
The court found [Choudry v Attorney-General [1999] 2 NZLR 582] that even in the rarified atmosphere of national security, an intrusion onto private property was such a breach of
privacy that it could be justified only where there was explicit provision for it.
The SIS claimed at the time that it had been operating since 1977 in the belief that it had the power to enter private
property to intercept communication through acts such as installing surveillance equipment.
Following the judgment against the SIS, Parliament rushed through legislation to empower the SIS to enter private
property pursuant to interception warrants, and retrospectively legalizing SIS break-ins back to 1977.
Given that other comparable jurisdictions had seen the need to make explicit statutory provision that empowered law
enforcement and intelligence personnel to enter private property, there was a lack of credibility to SIS claims that
they thought they were entitled to act as they had been.
Rather, it seemed like yet another case where the SIS ‘chose to break the law’, as the Chief Ombudsman Sir Guy Powles
concluded in his 1976 inquiry into the SIS surveillance of William Sutch.
Given how clear and recent the judgment of the court in the Choudry case was, together with the retrospective
legislation that followed it, the decision of the Police as revealed in Hamed & Ors v R to routinely conduct surveillance on private property without explicit authorization to do so is nothing short of
scandalous.
To describe as disingenuous the Police claim that they thought they had an implicit right to enter private property, is
to significantly understate the issue.
Police surveillance operations have wasted a great deal of resources, breached the rights of New Zealanders and,
potentially, undermined the prosecution of some serious criminals.
Have the Police been extraordinarily incompetent or willfully contemptuous of the law? The public of New Zealand is
entitled to know the answer.
What is needed is a thorough examination of enforcement and intelligence agencies operate, not a hastily-assembled
ill-considered legislative band-aid over the wound.
This Bill combines two ingredients of the worst kind of legislation: retrospectivity and a lack of public consultation.
If it is passed, it runs the serious risk of endorsing and even encouraging in the Police the same cavalier attitude to
the New Zealand Bill of Rights Act that has long been endemic in the SIS.
The message to law enforcement agencies is: if you want to extend your capacity to encroach on people’s rights and
freedoms, just help yourself and your actions will be legitimized afterwards.
As it stands, the Bill of Rights Act is a minimal safeguard of the rights and freedoms of New Zealanders. This Bill will
further weaken it.
I urge that this Bill be abandoned until there has been time for a proper inquiry and process of public consultation.
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David Small is currently based in Washington DC studying alternative models of counter-terrorism at Georgetown
University Law Centre through the auspices of the Fulbright Foundation.