Recommendation

The Justice and Electoral Committee has examined the Video Camera Surveillance (Temporary Measures) Bill and recommends by majority that it be passed with the amendments shown.

Introduction

The bill introduces temporary measures to provide a framework for the use of covert video surveillance in the wake of the decision in Hamed and Ors v R [2011] NZSC 101, 2 September 2011 (the Hamed decision).

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.

In the Hamed decision the Supreme Court decided that covert video camera surveillance conducted on land entered pursuant to a search warrant and without any form of “prior judicial authorisation” that specifically authorised the use of video cameras was a trespass, and therefore unlawful. The Court’s decision has immediate effect and has had a substantial impact on past and present criminal and proceeds of crime proceedings and current police investigations into very serious crime. We were advised by the New Zealand Police that they have stopped all covert video surveillance following the Hamed decision.

We believe that in the wake of the Hamed decision three distinct questions are posed:

• 1What prospective powers should state agents who seek to use covert video camera surveillance be granted, and how should those powers be authorised?

• 2What effect does the Hamed decision have on proceedings awaiting trial and current police investigations?

• 3What effect does the Hamed decision have on decisions made before 2 September 2011 in cases which involved evidence obtained through covert video surveillance?

Consideration of the bill and these questions has been limited by the short time available before Parliament dissolves for the general election. In the brief time the bill was before the committee we received 438 submissions and heard 20 submissions. We were greatly assisted in our consideration by the submissions we received.

This commentary covers the major amendments we recommend to the bill. It does not cover minor or technical amendments.

Types of surveillance

Covert video camera surveillance can be broadly divided into two categories—trespassory and non-trespassory.

Trespassory surveillance generally means covert surveillance conducted on private property as part of a search warranted under section 198 of the Summary Proceedings Act 1957. This type of surveillance was ruled upon in the Hamed decision.

Non-trespassory surveillance, or “over the fence” surveillance, is conducted from a position such as public land, or a neighbouring property with the full knowledge and consent of the property owner. Non-trespassory surveillance was not ruled upon directly in the Hamed decision, and there is a view that nothing in the judgment could affect the use of non-trespassory surveillance.

Prospective surveillance powers

We believe that the Police require prospective surveillance powers in some form. Surveillance is an important investigatory tool, particularly as criminal networks become more sophisticated. The bill would allow the Police and other State agents to continue to rely on a section 198 search warrant until the Search and Surveillance Bill is enacted and a more comprehensive framework can be established.

In the case of trespassory surveillance the current practice of the Police is to obtain a warrant pursuant to section 198 of the Summary Proceedings Act, in order to authorise their entry onto private property without consent. We expect this practice to continue, and any application for such a warrant to expressly indicate the intention to perform video camera surveillance, and to be made to a District Court Judge.

Non-trespassory video camera surveillance, by its very nature, does not require the authorisation of a search warrant. Its admissibility as evidence will remain subject to the judgment of the court on the basis of the reasonableness requirements of section 21 of the New Zealand Bill of Rights Act 1990 and section 30 of the Evidence Act 2006.

We are aware of concern that the bill would significantly widen the surveillance powers available to the Police and other State agents to potentially include audio recording. We were advised and assured that the video cameras currently in use by law enforcement agencies have the sound recording function disabled, so this appears not to be the case. Obtaining audio recording without an appropriate interception warrant remains unlawful.

In addition to the issue of sound recording we were concerned to ensure that any search or gathering of evidence that could have been challenged as to its legality prior to, and without reliance on the issues raised in the Hamed decision would have all such challenge grounds preserved. We are satisfied that this is the case however the committee is also recommending the inclusion of new clause 3(d) in the purpose clause of the bill to reinforce this.

At the same time the committee was also concerned to ensure that the effective parts of this legislation would provide sufficient certainty to enable prospective covert video camera surveillance to continue, subject to other challenge grounds, for the 6 month period created by the bill. We are advised that the bill as reported provides a sufficient framework for law enforcement agencies to recommence covert video camera surveillance (both trespassory and non trespassory) with some expectation that if no other challenge grounds are established the evidence so collected will be considered to have been lawfully acquired.

Current investigations and operations

We believe that the judicial process can be relied upon to determine the lawfulness of evidence obtained by the use of covert video camera surveillance case by case. This would apply only to cases that were before the courts or waiting to go before the courts and investigations that were active at the time of the Hamed decision.

Past court decisions

The Hamed decision was issued on 2 September 2011.  Prior to that date, covert video camera surveillance was not prohibited under common law, and convictions were lawfully obtained on the basis of its results. We asked the Human Rights Commission if it would be undesirable or a breach of human rights to prevent the reopening of such convictions, and the commission told us that it would not be. We have inserted a provision accordingly, which makes it clear that appeals on other grounds are unaffected.

Sunset clause

We recommend reducing the period to which the provisions of this bill apply from 12 to 6 months after the date on which the Act comes into force. This bill is intended to provide only a temporary solution until the passage of the Search and Surveillance Bill, which we believe should occur as soon possible in the new Parliament.

Passage of Search and Surveillance Bill

We strongly recommend that the new Parliament make the Search and Surveillance Bill a priority and expedite its passage. That bill has had the benefit of a full select committee process, and has been thoroughly tested and reviewed in a way that has not been possible with this bill.

Definition of search

We are aware of concern that the definition of search in the bill as introduced is too wide. We recommend removing paragraph b from the definition in order to make it narrower.

Bill of Rights

The bill would in no way limit the rights conferred by the New Zealand Bill of Rights Act 1990. Its role is preserved, and the unreasonableness test, which has previously been applied to the use of covert video camera surveillance, remains.

Savings

We would point out that the bill as introduced would have no effect on the implications of the findings of the Hamed decision regarding any specified person.

New Zealand National Party view

National Party members support and would have preferred to preserve the retrospective application contained in the bill as introduced to guard against the risk of accused persons escaping criminal responsibility as a result of this legal uncertainty alone. However, other committee members were convinced by the evidence presented by submitters which asserted that retrospectivity was both unnecessary and undesirable. The bill as amended is largely prospective in its application because of the need for the matter to be resolved on a temporary basis before the House rises and the Parliament ends.

New Zealand Labour Party minority view

Green Party minority view

The Green Party does not believe this bill is necessary, and we are very concerned at the way it has been rushed through Parliament. The public was given less than two days to prepare and present submissions to the committee after the bill was tabled in Parliament. This is clearly inadequate, particularly for a bill dealing with such important and complex legal issues.

While there have been some improvements to the bill, as it is being reported back by the committee, they do not make the bill acceptable to us. Nor do we judge that the bill, as amended, meets the objections of most submitters. It should be noted that virtually all submitters, bar the Police, were strongly opposed to the bill in its original form.

One common objection, which the Green Party agrees with, is that this is retrospective legislation, which should only apply in exceptional circumstances and this is not one of them. The Supreme Court, in the Hamed decision, ruled that covert video camera surveillance which involves trespass is unlawful. In the Green Party’s opinion, this was consistent with existing case law as noted in the New Zealand Law Society’s submission, where it agreed as follows with the Law Commission’s 2007 paper Search and Surveillance Powers: “The paper correctly assumes (in accordance with the previously decided case law) that covert camera surveillance which involves trespass to land will be regarded as unlawful conduct…”.

The bill retrospectively denies any person already convicted the right to use the Hamed decision as part of an appeal. That is contrary to a fundamental legal principle, that people engaged in court proceedings have resort to the law as it applied at the time of the alleged offence, in this case as determined by the Supreme Court in the Hamed decision. Although the bill purports not to affect the New Zealand Bill of Rights Act, it plainly does. It is constitutionally repugnant for Parliament to retrospectively remove by way of statute potentially valid appeal rights from persons convicted, as new section 5A of this bill does. This approach is contrary to various provisions of the New Zealand Bill of Rights Act, including sections 21 to 28 inclusive, which deal with the rights of accused persons.

Going to these lengths to prevent appeal proceedings using the Hamed decision also lacks justification in that the committee received evidence from barristers that court cases involving evidence collected by covert video camera surveillance involving trespass are rare. And, as happened in the Hamed decision, such evidence can be accepted by the court under section 30 of the Evidence Act, even when the evidence was unlawfully collected, if the charges are deemed serious enough.

The Green Party cannot see the need for Parliament to rush through this legislation when the Search and Surveillance Bill, awaiting its second reading, could be debated early in the next Parliament. While the Green Party has been critical of the Search and Surveillance Bill, including the power it gives to Police, Internal Affairs and Customs to engage in covert video surveillance involving trespass, the bill does provide a detailed framework for obtaining surveillance warrants. By contrast, the Video Camera Surveillance (Temporary Measures) Bill gives virtually free rein not only to the Police but to any State agency with search powers (Fisheries, Commerce, etc.) to engage in covert video camera surveillance, with or without trespass.

It is important to note that the Hamed decision did not determine the legality or illegality of covert video camera surveillance that did not involve trespass. If this bill was not passed courts would continue to judge the reasonableness of the covert video camera surveillance without trespass against section 21 of the Bill of Rights on a case by case basis, as they have done to date. In that respect there is no need for this temporary measures bill, prior to the Search and Surveillance Bill being dealt with in the next Parliament.