Chauvel Charles: Video Camera Surveillance (Temporary Measures) Bill — Second Reading In Committee Third Reading 
Chauvel Charles: Video Camera Surveillance (Temporary Measures) Bill — Second Reading In Committee Third Reading 
[Volume:676;Page:21822] 
CHARLES CHAUVEL (Labour) 
: 
 We are where we are in respect of this Video Camera Surveillance (Temporary Measures) Bill. I am somewhat disappointed that despite the attempt of the Attorney-General just now to reach a degree of graciousness he could not simply have picked up the phone and sought a bit of cross-party consensus on the legislation itself. It was very difficult to get a copy of the original bill that was considered by the House in first reading speeches in order to analyse the changes that had occurred between the publication of the consultation draft and the introduction of the legislation. 
None the less as I said in my earlier speech I am very pleased that Labour working on this occasion with the ACT Party was able to force the Attorney-General into agreeing to a select committee process. It would have been completely unacceptable if this legislation had not had at least some public input into it and it is pleasing that it was possible to override his instincts against the rule of law and the Standing Orders on that count. 
It is incumbent I think on me to thank the Office of the Clerk for the drafting assistance I had from its staff and in particular from Tim Workman. We have heard a reference to a “hotchpotch” solution concerning warrants that “was never going to fly”. Well the Office of the Clerk and I did our best to do the Attorney-General’s job for him on that point. Unfortunately he is right in the sense that in the time available to the House—and this is not a matter in which anybody should take pleasure; it is a matter for regret—it was not possible to put in proper controls around the sorts of powers the police ought to have. 
That tells us all that it is absolutely a matter of priority that the next Parliament should pass the Search and Surveillance Bill so that enforcement agencies have clear powers and also clear controls on those powers. As I have said previously it is a terrible indictment on members opposite that that legislation has languished on the Order Paper for a year in the face of a bipartisan offer of support because those members have preferred to pursue window-dressing options in the law and order and justice sphere rather than get on and protect New Zealanders in the way they ought to protect them. 
Having said those necessary preliminary words I turn to one or two things that were said in the Committee stage of the debate. I think the first thing I am bound to address is the contention by Mr Locke a member for whom I have great respect that Labour and National simply have the same position on the lawfulness of trespassory search and surveillance. I have to say to Mr Locke that that suggestion is beneath him. He knows that it is not right and he knows that it is not right because Labour set out in our minority report what our position on trespassory search and surveillance was. It was not clear as to the lawfulness or otherwise of such surveillance. We said: “There has been much discussion about whether covert video camera surveillance is lawful. Labour members think the fairest summary of the position is that while it had generally been considered permissible an influential body of opinion had been growing prior to the Hamed decision that covert video camera surveillance had an unsatisfactory legal footing. This is because in many cases it was not positively authorised by any statute or rule of law—it was simply not prohibited. This view is reinforced by the Law Commission report and its call for a statutory basis for the activity which we hope will be provided as soon as possible with the prompt passage in acceptable form of the Search and Surveillance Bill.” That is very clearly and on the record Labour’s position on this matter. 
We heard David Parker describe earlier the evidence that was heard at the Justice and Electoral Committee as to why some form of temporary fix was required in the interests of justice in order to go forward. He referred to the position where some quite serious offending around the drug-dealing activities of organised crime has to be dealt with by trespassory video surveillance despite Mr Locke’s contention. 
That position is that very sophisticated criminals have got into the habit of not using telephones or talking to one another about what they are doing. They write what they are doing and what needs to be done on whiteboards for one another and that is how they communicate messages. Well I guess they do that with the curtains drawn I tell Mr Locke which is why there is—I agree with him—not a wide case but a case none the less subject to section 21 and subject to section 30 for some of this type of activity to be required in rare cases. 
That is why Labour has taken what we think is the responsible position: do not prohibit it outright do not leave a legal lacuna lend some credibility and some legal authority to activity in the most serious cases and try to put checks and balances in while restricting the whole temporary fix to 6 months. I am very satisfied that that is the responsible position to have taken. 
I just want to say one other word on the speeches that we heard in the Committee stage. I listened carefully as I always do to Rahui Katene and I was embarrassed to hear her speech because she was speaking quite clearly on an earlier draft of the bill not the bill that has come back from the select committee. If she actually read the bill—and she is legally trained—she would realise that significant changes have been made to it that answer the criticisms that she dealt with in her speech. 
Again Hone Harawira who is somebody for whom I have a lot of respect just got it wrong in his speech. He said for example that the lawyers had all come along and made criticisms of the bill. Well he needs to realise that the Law Society and Mr Knight for example have both said that the changes the select committee made to the legislation are very positive and actually satisfy most of the concerns that were raised. Let us just remember that those changes were made at the behest of the select committee and in the face of what would have been opposition to a select committee process by Christopher Finlayson. 
My two final words are these. It is quite right that the House’s activity is disrespectful of the Supreme Court of New Zealand. This Parliament in a future session will have to address that issue. We have a Supreme Court now. We do not have judges in England to run to if we get things wrong. But we have to accept that a corollary of that is that generally speaking the law as it is declared by the Supreme Court is the law. It is not for us to pick and choose how the law should work. 
So we have to look at equipping the Supreme Court with appropriate powers for the exercise of their authority. In Canada for example the Supreme Court can declare the law in a certain way and then it can suspend the law for a certain period of time to allow the executive or the legislature to bring the necessary legal technicalities into line. We have never given the Supreme Court that particular express authority. 
I personally believe that it has that authority at common law and I am sad that the Attorney-General is not willing to send Crown lawyers over the road into the Supreme Court to ask them to exercise authority in that way because he is concerned about what other parts of Pandora’s box he might open. But if we are not to invite the Supreme Court to find inherent jurisdiction and to be more flexible about the way it applies remedies we have to legislate to give it those powers. 
My final word is this. It has to be time for us to think about entrenching the New Zealand Bill of Rights Act. We cannot continue to go through these exercises that discredit the way in which the rule of law is observed in New Zealand. Certainly for my part and the part of my colleagues on this side of the House we are very clear that that needs to be very firmly on the legislative agenda.