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Video Camera Surveillance (Temporary Measures) Bill (Consistent) (Section 21) [2011] NZBORARp 43 (26 September 2011)
Last Updated: 29 April 2019
Video Camera Surveillance (Temporary Measures) Bill
26 September 2011
ACTING ATTORNEY-GENERAL LEGAL ADVICE
CONSISTENCY WITH THE NEW ZEALAND BILL OF RIGHTS ACT 1990:
VIDEO CAMERA SURVEILLANCE (TEMPORARY MEASURES) BILL
- We
have considered whether the Video Camera Surveillance (Temporary Measures) Bill
(PCO 15516/7.4) (‘the Bill’) is consistent
with the rights and
freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of
Rights Act’). We understand
that the Bill will be considered by the
Cabinet at its meeting on Monday, 26 September 2011.
- We
received the current version of the Bill on 25 September 2011. In the short time
available to us, we have concluded that the Bill
appears to be consistent with
the rights and freedoms affirmed in the Bill of Rights Act. In reaching that
conclusion, we have paid
close attention to the consistency of the Bill with the
right to be secure against unreasonable search and seizure as affirmed in
s 21
of that Act. In light of the significant issues raised by the Bill in respect of
that right, we have consulted the Human Rights
team of the Crown Law Office. The
Crown Law Office agrees with this advice.
PURPOSE OF THE BILL
- The
Bill responds to the decision of the Supreme Court in Hamed & Ors v R,
in which a majority of the Court held, inter alia, that the use of
covert video surveillance in that case was unlawful because the installation and
use of video cameras had not (and
could not have) been authorised by a warrant
under s 198 of the Summary Proceeding Act 1957. [1] This has created some degree of
uncertainty about the admissibility of evidence obtained through the use of
covert video surveillance.
- The
Bill provides a temporary period (of one year) for Parliament to address the
implications of the Supreme Court judgment. The Bill
ensures that during this
period the use of covert video camera surveillance as part of, or in connection
with, a search does not,
of itself, render the search unlawful.
- The
Bill applies to acts done by a person or body referred to in s 3(b) of the Bill
of Rights Act. This provision applies to any person
or body in the performance
of any public function, power, or duty conferred or imposed on that person or
body by or pursuant to law.
- The
Bill covers any act that:
- is, or is in
connection with, a search in respect of which a search warrant has been issued,
or
- is a search
where surveillance is conducted from outside the boundaries of the land or place
under observation, and
- includes the
acquisition of information about any person, place, or thing.
- The Bill applies
to searches conducted both before and after the Bill comes into force. However,
it preserves the outcome of the Supreme
Court decision in Hamed for the
benefit of specified persons. [2]
SECTION 21 OF THE BILL OF RIGHTS ACT
- Section
21 of the Bill of Rights Act affirms the right of everyone to be free against
unreasonable search and seizure. The analysis
under s 21 is a two-step
process:
- does
the activity constitute a search or a seizure?
- if
so, is that search or seizure unreasonable?
- If these
questions are answered in the affirmative, the provision is inconsistent with s
21. [3] Where a provision appears to be
inconsistent with a particular right or freedom, it would normally be consistent
with the Bill of
Rights Act if it could be demonstrably justified under s 5 of
that Act. However, in respect of the right to be free from unreasonable
search
and seizure, it is unnecessary to carry out a further analysis under s 5. If a
search or seizure is unreasonable it cannot
be justified. [4]
- The Court of
Appeal has said that the “touchstone” of s 21 is the protection of
reasonable
expectations of privacy: [5]
- The main aim of
s 21 of the Bill of Rights is to protect privacy interests. It is only where a
person's reasonable expectations of
privacy have been breached that a personal
remedy under the Bill of Rights ... is available. The reasonable expectation of
privacy
enjoyed by a person is to be judged largely objectively. A broad view of
privacy interests should be taken
.... [6]
- The
determination of whether a search is reasonable requires a balancing of the
legitimate public interest in the search (such as
the detection of crime)
against any intrusions on individual interests (the reasonable expectation of
privacy). [7]
- Reasonableness
can only be assessed in light of the facts and circumstances of a particular
case. It will depend upon both the “subject
matter” and the unique
combination of “time, place and circumstance” of a particular case.
[8] A search is unreasonable if
the
circumstances giving rise to it make the search itself
unreasonable or if a search which would otherwise be reasonable is carried
out
in an unreasonable manner.
CONSISTENCY OF THE BILL WITH SECTION 21
- As
discussed above, cl 5(2) of the Bill provides 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.
- It is clear that
the use of covert surveillance equipment will, depending on the circumstances of
a particular case, constitute a
significant intrusion into personal privacy. We
note that the Bill would apply retrospectively. That is, the Bill would apply to
surveillance activity that has taken place before it comes into force. This
appears to mean that where a court might have held a
past search to be unlawful
solely because of the use of covert video surveillance, the court cannot now
make such a finding.
- In our view, the
Bill raises a significant issue about the balance between the reasonable
expectation of privacy of the individual
and the legitimate public interest in
detecting potentially serious criminal activity.
Lawfulness of a search
- In
the Hamed decision, the Supreme Court identifies a close nexus between
the lawfulness and the reasonableness of a search. Blanchard J notes
at para 174
that:
- Normally, a
conclusion that there is a breach of s 21 should follow once it is found that
the police have acted unlawfully in relation
to a search, leaving the
consequence of the unreasonableness of the search to be considered under s 30.
An exception can be made
in cases where the breach is minor or technical or
perhaps where the police had a reasonable (although erroneous) belief that they
were acting lawfully.
- We have
considered whether cl 5(2) of the Bill could require a search to be considered
reasonable in circumstances where it would
otherwise be found to be unreasonable
by virtue of being unlawful (i.e. because the only ground for finding the search
to be unreasonable
is that there is no express legislative authority to use
covert video surveillance).
- We understand
that the intention of this provision is to ensure that a search is not held to
be automatically or inherently unlawful
solely because covert video surveillance
has been used as part of (or in connection with) an otherwise lawful search.
Clause 5(2)
is intended only to correct the technical deficiency in the
lawfulness of past video surveillance activity and to provide a lawful
basis for
the future use of video technology in connection with covert surveillance.
- We have also
considered the effect of cl 5(3). Clause 5(3) provides that evidence obtained
as part of, or in connection with, a search
is not to be treated as improperly
obtained for the purposes of s 30 of the Evidence Act 2006 merely because the
evidence was obtained
by video surveillance. In our view, the purpose of cl 5(3)
is to avoid doubt rather than to extend the effect of cl 5(2).
- On the basis of
this interpretation, we are satisfied that cl 5(2) does not prevent a court from
finding surveillance activity to
be unlawful because of any other deficiency in
the authorisation or execution of the search. The Bill does not confer any new
power
to search or prevent the person authorising the warrant from placing
conditions on the use of covert video surveillance. That authorising
power must
be exercised in a manner consistent with the Bill of Rights Act.
- Furthermore, cl
5(2) does not prevent a court from finding a search to be unreasonable because,
taking into account all the circumstances
of the search, it was unreasonable to
undertake covert video surveillance in a particular case.
Application to searches without a warrant
- The
Bill applies to searches conducted without a warrant where the surveillance is
conducted from outside the boundaries of the land
or place under observation.
This would enable video surveillance to take place without a warrant from a
location where the person
conducting the surveillance is lawfully
entitled to be present (such as a public street or a neighbouring property with
the permission
of the occupier).
- In its report
Search and Surveillance Powers, the Law Commission noted that the courts
have tended to adopt a case-by-case approach to assessing the reasonableness of
non- trespassory
surveillance, rather than finding it to be necessarily
unlawful. [9]
- In R v
Fraser, the Court of Appeal found that there was nothing objectionable in
the police employing a video camera to record that which could have
been seen by
the eye. The Court noted that “reasonable expectations of privacy for
activities readily visible from outside
the property must be significantly less
than, for instance, for activities within buildings”. [10] In R v Gardiner, [11] the Court of Appeal said that
“such is the importance of personal privacy that it will be a case out of
the ordinary where
surveillance by video is reasonable when
it
encompasses the interior of a dwelling”, but held that its
task was to conduct a case-by-case assessment of all the circumstances.
- As with searches
conducted under warrant, the Bill does not create any new power to conduct
non-trespassory searches. The lawfulness
of a search must be established
elsewhere, either by the existence of a valid warrant, the invocation of a
statutory provision empowering
search without warrant, or by pointing to an
express or implied licence justifying what was done. [12] The Bill provides only that the use of
covert video surveillance (as part of, or in connection with, an otherwise
lawful search)
is not of itself unlawful. It does not preclude a finding that
the search or surveillance was itself unlawful for some other reason
or that it
was unreasonable in the circumstances.
- We have also
considered the fact that, in warrantless searches, there are no “up
front” legislative safeguards to prevent
the risk of unreasonable searches
or an unreasonable use of covert video surveillance as part of a search (for
example, a prescribed
time limit for the use of video surveillance).
- However,
arguably the degree of intrusiveness into the privacy of a person is much less
in these types of non-trespassory searches
than in searches of a trespassory
nature that require warrants.
- Accordingly,
while prior judicial authorisation for such non-trespassory searches would be
preferable we do not consider it is essential
to a finding of reasonableness
under s 21. In coming to this conclusion we have also taken into account the
temporary nature of the
legislation.
- The analysis of
available case law suggests that the courts will continue to adopt a case-by-
case approach to assessing the reasonableness
of video surveillance and will
scrutinise such activity closely.
CONCLUSION
- The
Bill raises complex and significant legal issues in relation to s 21 of the Bill
of Rights Act. On balance, and in the time available
to us, we have concluded
that the Bill appears to be
consistent with the rights and freedoms
affirmed in the Bill of Rights Act. This advice has been prepared by the Public
Law Group
and the Office of Legal Counsel, in consultation with the Crown Law
Office.
Jeff Orr
Chief Legal Counsel Office of Legal Counsel
Footnotes:
1. [2011] NZSC 101
- Under
cl 4 of the Bill ‘specified person’ means any person charged with
offences against the
Crimes Act 1961 or the Arms Act 1983 following
a police investigation into events in the
Urewera ranges in 2006 and 2007 that is known as “Operation
8”.
- Hamed
& Ors v R [2011] NZSC at [162]
- Cropp
v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774, 788; see Hamed & Ors v R
[2011] NZSC at [162]
- R
v Williams [2007] NZCA 52; [2007] 3 NZLR 207, 227; see also R v Fraser [1997] 2 NZLR
442, 449
- R
v Williams [2007] NZCA 52; [2007] 3 NZLR 207, 268
- See
R v Grayson & Taylor [1997] 1 NZLR 399, 405 (CA) for a discussion of
the principles underpinning the analysis under s 21 of the Bill of Rights
Act.
- Rishworth,
Huscroft, Optican, Mahoney, The New Zealand Bill of Rights (Oxford
University Press, 2003), 434-435; see also R v Grayson and Taylor [1997]
1 NZLR 399, 405 and R v Jefferies [1993] NZCA 401; [1994] 1 NZLR 290 (CA), 319 and
306
- Report
of the Law Commission on Search and Surveillance Powers (Wellington, June
2007),11.25
10. R v Fraser (1997) 3
HRNZ 731 743
- R
v Gardiner (1997) 4 HRNZ 7, 13
- Hamed
& Ors v R [2011] NZSC at [161]
In addition to the general disclaimer for all documents on this
website, please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Video
Camera Surveillance (Temporary Measures) Bill. It should not be used or acted
upon for any other purpose.
The advice does no more than assess whether the Bill
complies with the minimum guarantees contained in the New Zealand Bill of Rights
Act. The release of this advice should not be taken to indicate that the
Attorney-General agrees with all aspects of it, nor does
its release constitute
a general waiver of legal professional privilege in respect of this or any other
matter.
Whilst care has been taken to ensure that this document is an accurate
reproduction of the advice provided to the Attorney-General,
neither the
Ministry of Justice nor the Crown Law Office accepts any liability for any
errors or omissions.
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