Video Camera Surveillance (Temporary Measures) Bill
Rahui Katene, MP for Te Tai Tonga
Thursday 6 October 2011 – committee stage

In speaking to this bill I want to firstly acknowledge the incredible act of democracy demonstrated by the fact of 438 submissions being received in the space of a 24 hour period.

This Bill was referred to the Justice and Electoral select committee last Tuesday the 27th September.

A day later, submissions closed.

Our appreciation as a House must be expressed to these ordinary New Zealanders who made considerable efforts to provide comments despite the difficulties associated with rushed legislation.

A common theme throughout many of the submission was to draw on the advice and counsel of Dean Knight, who suggested that claims about the implications about the ruling on other cases are overstated.

My Knight’s view is that while the government claims there may be around forty current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases.

In the Purposes section; expressed in clause three of the Bill, it notes that the legislation is required to provide a temporary period that will enable parliament to address the matters raised in the decision regarding the lawful and appropriate use of video camera surveillance as part of law enforcement.

And although the Bill itself doesn’t mention the current cases, the threat of these cases certainly looms large through the framework of the Bill.

I want to bring to the House the expert view of barrister Tavake Barron Afeaki who urged the Parliament to consider that the voice of reason must resound.

In his letter he made some extremely salient point which I wish to lay on the floor for further debate, and I quote:

“The presumption of innocence must remain for those who are entitled to it, and it is not for the police and politicians alone, without the independence of the judiciary overseeing the process, to merely deem that the 40 cases before courts and 50 current investigations are justified in having law-breaking surveillance.

The law should be certain and the police should get it right when the exercise the powers we the electorate give them”.

I think these points are really critical – and I am in full agreement with Mr Afeaki, that injustice is the price of making laws which break laws.

And I remind the House of some statements made earlier in debates this week around public confidence and trust in the police. If two out of three victims won’t go to the police, then surely we have a problem.

And I return, again to the words of Mr Afeaki, to place on record another interpretation which might fit within the purpose statement of this bill.

“Police powers should be used for serious crimes : nasty, evil, violent acts; P dealers, real gangs, robbers, murderers and rapists, not for stifling political dissent by Maori political activists, greenies, animal rights people and the like”.

Mr Speaker, the law already has safeguards which the Operation and Supreme court Judgment demonstrates.

Mr Key, in his initial comments on this new law, made the broad claim that if they couldn’t get the numbers that would mean there would be some serious criminals who would not be brought to justice.

And I think it’s disturbing to note that the initial thought wasn’t about developing a workable solution to a problem but more akin to a crude ultimatum – all other parties would have to support ramming through the legislation or they’d be soft on crime.

And I have to conclude that this legislation is politicking by both National and Labour to create a perception for voters that they are actually acting in the interests of the electorate by putting up this legislation.

The Maori Party says that is absolutely blatantly untrue and we continue to oppose this Bill in every step that we can.

I want to start with the notion of police impropriety within the context of the rule of law.

Clause 5 of this very brief bill, deals with the temporary continuation of lawfulness of certain uses of video camera surveillance.

I am fascinated with the use of legislation to create lawfulness for agencies which are charged with implementing and monitoring the law in the first place.

The starting point for ALL criminal law is to protect the rights of an individual against the state, lest the individual become oppressed.

That is why one does not allow Parliament to take away a person’s rights lightly which is why there are real restrictions on the Police in the way of search warrants.

With this new bill we now have in front of us provisions that the use of covert video camera surveillance as part of, or in connection with, a search does not of itself render the search unlawful.

And I want to refer to an article by Dean Knight, entitled, Elephants and the Law, which tells us that while the Supreme Court did not rule they acted with bad faith, the majority indicated that the police’s attitude to the unlawfulness of the cover surveillance was at best reckless and perhaps deliberate.

And I want to read from the actual ruling of the Chief Justice in paragraph 73 of the Urewera Case, R v Hamed. I quote:

“In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some ten months, is destructive of an effective and credible system of justice”.

Justice Blanchard went even further in describing this deliberate unlawfulness; the detail around the activities which serve to destroy the credibility and effectiveness of the system of justice.

“Despite being aware that they lacked statutory authority for the surveillance, they proceeded without taking legal advice, which they had plenty of time to obtain.

Having failed to get advice, the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be cut some slack. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful”.

Mr Speaker - no-one can read through these words – failing to get advice; reckless risk; deliberate unlawfulness – without a sense of horror that what we are talking about are not criminals; they are not those that society should fear – these are the very agents of the state who are meant to uphold the rule of law.

And I cannot ignore the findings of a Pricewaterhouse Coopers report released in February last year which found that the police had made little progress in implementing Dame Margaret’s findings.

Pricewaterhouse Coopers referred to the in-house engagement survey which confirmed that 67% of Police employees are ambivalent about their job, and 16% completely disengaged.

Mr Speaker, I don’t know exactly what these terms mean – ambivalent or disengaged – but the Maori Party does not want people with that sort of attitude having prospective surveillance powers, let alone policemen who promote one another, who cover for one another, and who allow sexual predators to prosper.

We cannot be allowing something which is unlawful lawful

Where are our constitutional rights standing?
The Maori Party cannot let the New Zealand Police continue the way it is. I make the point that this bill should not be making that which is unlawful lawful.

ENDS

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