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Video Camera Surveillance (Temporary Measures) Bill - Submission to the Justice and Electoral Committee [2011] NZHRCSub 7 (28 September 2011)

Last Updated: 31 May 2015

28 September 2011


Chester Burrows
Chair Justice and Electoral Committee
Parliament Buildings
Wellington


Dear Sir,

Submission by the Human Rights Commission on the Video Camera Surveillance (Temporary Measures) Bill

1. The Human Rights Commission (the Commission) appreciates this opportunity to comment on the proposed temporary Video Surveillance legislation.

2. Under the Human Rights Act 1993 (HRA) a primary function of the Commission is advocating and promoting respect for, and an understanding of, human rights in New Zealand society. This proposal - and its impact - therefore falls squarely within the Commission’s mandate.

3. The Commission believes that the legislation is both unnecessary and undesirable. The effect of the Supreme Court’s decision is not simply that evidence will automatically be excluded because it is obtained unlawfully. Section 30 of the Evidence Act 2006 makes it quite clear that a court has a discretion whether to allow such evidence - the Hamed case itself is an example of this.

4. We are aware that applying s.30 involves the exercise of a discretion by a Judge in applying the (non-exhaustive) list of factors in subs (3) and deciding the issue one way or the other. Clearly this can lead to different outcomes depending on a variety of factors but in our view this reflects the importance of balancing the rights of the accused against the public interest.

5. As Blanchard J put it in Hamed [at para 189]:

It is because of the tension between these societal interests that subs (2)(b) speaks of giving “weight to the impropriety but “tak[ing] proper account” of the need for an effective and credible system of justice. Bearing this in mind, the most straightforward way to proceed is for the judge to identify and evaluate relevant matters which weigh in favour of exclusion and then those which are against that course. Some may potentially go either way. In light of what emerges from that process, the judge should then determine whether, overall, exclusion of the evidence would be proportionate to the impropriety.

6. Whether evidence is allowed involves balancing the significance of the crime against the nature of the impropriety but the decision of the Supreme Court stands as testimony that where a matter is so serious that evidence should be allowed, then it will be. It is unlikely that evidence of “serious criminal offending” – as the Explanatory Note claims - will be exempt from challenge simply because of the Hamed decision.

After all, the majority found that all the disputed evidence was admissible against the appellants charged with the more serious offences [Elias, J at para 89(a)].

7. The Explanatory Note also justifies the legislation as necessary because ongoing investigations by the Police and other law enforcement agencies would otherwise be jeopardised – presumably because those agencies will now be aware that their behaviour is unlawful. We recognise that this may be a problem but would argue that only surveillance deemed unreasonable under the New Zealand Bill of Rights Act 1990 (BORA) is likely to be called into question. Other methods of gathering evidence that are lawful are still also available.

8. What the present situation highlights is the omission to address issues relating to new forms of technology in relation to search and surveillance legislation generally. One of the reasons that first the Law Commission - and then Parliament - recommended the introduction of comprehensive legislation in this area was because of the lacunae that exists as a result of recent developments in surveillance techniques.

9. The Search and Surveillance Bill has already undergone extensive scrutiny by a Select Committee and it has been suggested that the relevant provisions could be fast tracked through the House. However, the Commission recognises that this is not without its problems. Alternatively, legislation such as the Crimes Act and the Misuse of Drugs Act which allow warrants to be issued allowing for the use of interception devices could be extended to include video recording.

10. From a human rights perspective, the most significant implication of what is proposed is that the Bill is designed to override a fundamental right - the right to freedom from unreasonable search and seizure, a right guaranteed at international law^[1] and in section 21 of the BORA and it does so with little public debate and by enacting legislation that will impact retrospectively.

11. The Chief Justice was influenced in her approach by the fact that section 21 is properly interpreted as requiring “the authority of law for State intrusion upon personal freedom” [at para 35]. It followed that because the surveillance was not authorised by law it was unreasonable and, therefore, in breach of the BORA.

12. While it might be argued that the proposed legislation would have the effect of negating the unlawfulness of any future surveillance and any allegation of arbitrary interference with a person’s privacy, the General Comment by the UN Human Rights Committee on art.17 suggests that even interference provided for by law may be considered arbitrary in some situations^[2].

13. At para 8, the General Comment suggests that compliance with art.17 proscribes “surveillance, whether electronic or otherwise, interceptions of telephonic, telegraphic and other forms of communication, wiretapping and recording of conversations should be prohibited”. The Commission recognises that this should not be relied on to excuse serious criminal offending, however, it is worth noting that much of the Court’s decision in Hamed was swayed by the fact that the surveillance took place on private land.

14. The General Comment also notes that even where a law conforms to the Covenant’s requirements it must state with precision when the interference is permitted and apply on a case by case basis [at para 8]. The Commission considers that this requirement would arguably be consistent with the present situation under the Evidence Act but not with the Bill which would apply overall to “current prosecutions before the courts, convictions entered as the result of past prosecutions and existing investigations involving the gathering of evidence for potential future prosecutions”.^[3]

15. The Bill would validate activity that was - or is – unlawful. This retrospective validation of unlawful activity is problematic. As Burrows observes^[4] although it happens, retrospective legislation offends a basic principle of justice and is thus undesirable. This is reflected in a presumption against retrospectivity. He goes on to note, however, that “not all legislation that is clearly retrospective is equally unjust or objectionable ... in essence, retrospective legislation is only objectionable (inter alia) if it takes away existing rights or defences.

16. Given that reliance on s.30 of the Evidence Act would address much of the concern about serious criminals “getting off or away with it” we consider that it is a moot point whether retrospective legislation is necessary. But perhaps a more pernicious result is that enacting retrospective legislation of this type undermines the Rule of Law and the basic constitutional principle that public authorities should only do what they are legally authorised to.

17. When the law change was first suggested, it was described as designed to state the law as it was on 2 September and resolve a problem that had arisen as a result of the Supreme Court judgment^[5]. The legislation itself describes the substantive part of the bill as a “declaration of continued lawfulness”. This is incorrect. The effect of the proposal is to change the law to make legal what was - and still is - potentially illegal.

18. However, such comments together with the use of urgency unnecessarily cloud public perception and recall the situation that arose when the Foreshore and Seabed Act (FSA) was introduced to deal with the Court of Appeal’s decision in Ngāti Apa v Attorney-General^[6].The Commission considers it would be unfortunate if a similar situation arose here and the Government was seen as legislating simply to avoid the repercussions of a court decision that it disagreed with.

19. The Commission wishes to constructively engage with the Committee to find a human rights compliant solution to this issue but considers that this legislation is unwarranted and unnecessary and, if proceeded with, could have some serious implications for human rights and the rule of law in New Zealand. We strongly recommend that it does not proceed.

Yours sincerely

David Rutherford

CHIEF HUMAN RIGHTS COMMISSIONER

^[1] Art.17 International Covenant on Civil and Political Rights
^[2] United Nations Human Rights Committee CCPR General Comment No.16: Article 16 (Right to Privacy): The Right to Respect of Privacy, Family, Home and Correspondence, and protection of Honour and Reputation (1988) at [4]. Such comments are considered the most authoritative interpretation of the relevant treaty.
^[3] Video Camera Surveillance (Temporary Measures) Bill, Explanatory Note at 2
^[4] J F Burrows, Statute Law in New Zealand (3ed) LexisNexis 2003 at 401
^[5] Attorney General Chris Finlayson, Morning Report 22/9/11.
^[6] [2003] NZCA 117; [2003] 3 NZLR 643