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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


  1. 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.
  2. 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


  1. 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.
  2. 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.
  3. 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.
  4. The Bill covers any act that:

SECTION 21 OF THE BILL OF RIGHTS ACT

  1. does the activity constitute a search or a seizure?
  2. if so, is that search or seizure unreasonable?

expectations of privacy: [5]


.... [6]

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


Lawfulness of a search


Application to searches without a warrant


conducting the surveillance is lawfully entitled to be present (such as a public street or a neighbouring property with the permission of the occupier).

encompasses the interior of a dwelling”, but held that its task was to conduct a case-by-case assessment of all the circumstances.

CONCLUSION


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

  1. 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”.

  1. Hamed & Ors v R [2011] NZSC at [162]
  2. Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774, 788; see Hamed & Ors v R [2011] NZSC at [162]
  3. R v Williams [2007] NZCA 52; [2007] 3 NZLR 207, 227; see also R v Fraser [1997] 2 NZLR 442, 449
  4. R v Williams [2007] NZCA 52; [2007] 3 NZLR 207, 268
  5. 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.
  6. 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
  7. Report of the Law Commission on Search and Surveillance Powers (Wellington, June 2007),11.25

10. R v Fraser (1997) 3 HRNZ 731 743

  1. R v Gardiner (1997) 4 HRNZ 7, 13
  2. 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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