Mapp Wayne: Video Camera Surveillance (Temporary Measures) Bill — First Reading 
Mapp Wayne: Video Camera Surveillance (Temporary Measures) Bill — First Reading 
[Volume:676;Page:21466] 
Hon Dr WAYNE MAPP (Minister of Defence) 
: 
 I open my remarks by noting that the Video Camera Surveillance (Temporary Measures) Bill proposed will not actually affect the parties in the Supreme Court case. They will—all of them—have the fruit of the result. But the Supreme Court decision raised wider questions which the bill has to deal with. One of the questions that has been raised in the House today is the issue of retrospectivity. The bill provides that video surveillance pursuant to a warrant on private property is lawful—future surveillance but also previous surveillance. To that extent the bill negates the finding of the Supreme Court. For some commentators and indeed some members of the House such legislation—even if it were not retrospective—would in any event be wrong. However the Supreme Court itself has conceded that such surveillance would be legal provided that it had specific statutory authority. The Supreme Court in essence invited this House to pass such legislation. 
Of course any such legislation will always be subject to the section 21 test of the New Zealand Bill of Rights Act. In other words such surveillance has to be reasonable. Presumably therefore what Mr Price and others are really concerned about is the fact that past surveillance will be deemed to be lawful and that is actually the essence of the retrospective issue. 
There are essentially two questions here. First what is the legitimacy of retrospective legislation? In short can any form of retrospective legislation have legal and moral legitimacy? Second does this particular bill pass such a test? Is it a reasonable use of retrospective legislation? For many people it is axiomatic that all retrospective legislation is bad. The reason is simple: retrospective legislation typically makes something unlawful that previously was lawful. But there are degrees of retrospective legislation and this distinction is made by Burrows and Carter in  
Statute Law in New Zealand 
 page 588. They say this: “In essence retrospective legislation is only objectionable if it takes away existing rights or defences makes unlawful things that were lawful when they were done or attaches a tax or other liability to something done in the past.” 
In short in respect of bad retrospective legislation people’s rights are being removed in a way that they could not have anticipated. That has been a common feature of tax law. People have legal arrangements Parliament then passes law that makes such arrangements unlawful and of course it is regarded as objectionable because people cannot change their circumstances. How could they do so? They would in fact have to be time travellers to unravel what they had done in order to make it lawful. 
One of the fundamental tests therefore of any law is that it has to be predictable and certain. Retrospective legislation—the bad kind—offends against that principle because citizens cannot know whether their currently lawful actions will be rendered unlawful ex post facto by legislation passed by a future Parliament. Ironically in this case it is the Supreme Court that has passed a retrospective decision. It has rendered unlawful what was previously considered by the courts—a number of courts in fact—to be lawful. The police use of surveillance was undertaken on the basis of Court of Appeal decisions in 1997— 
R v Gardiner 
 and  
R v Fraser 
. In both of those Court of Appeal decisions video surveillance evidence had been allowed because it was deemed not to be unlawful. So the intent of this bill is essentially to restore the status quo ante. It is to make lawful today what had previously always been considered to be lawful until the Supreme Court decision. Therefore it actually meets the test laid down by Burrows and Carter and that is— 
Hone Harawira 
: It was unlawful then; it’s unlawful now. 
Hon Dr WAYNE MAPP 
: I say to Mr Harawira that in addition to that any such video surveillance evidence has to satisfy a test of reasonableness. In short any evidence that comes before the court as a result of video surveillance still has to be considered by the courts pursuant to section 21 of the New Zealand Bill of Rights Act. New Zealanders still have that fundamental protection. It has not been altered in any way by this legislation. What we are doing today is allowing video surveillance on private land pursuant to a warrant. Such a warrant has to be granted judicially and that is what it allows. Then that evidence gained has to be tested as to whether it was reasonably gained. In that case the courts will be applying section 21 of the New Zealand Bill of Rights Act. There is substantial law on that issue as to what constitutes a reasonable search. 
In that sense the bill proposed does not change the requirement for a reasonable search pursuant to section 21 of the New Zealand Bill of Rights Act and that ultimately is the key issue in this bill. Under this bill any video evidence will be assessed by the courts. They will apply a test of reasonableness to it; whether gained in the future or in the past they will apply the New Zealand Bill of Rights protections. That is why in fact there is no New Zealand Bill of Rights Act statement by the Solicitor-General. It actually meets the New Zealand Bill of Rights Act tests. The New Zealand Bill of Rights Act still fully applies to any video surveillance evidence gathered pursuant to this legislation. That is an extremely important point that members of this House and perhaps more important members of the public should understand—that they have all of their protections and all of those issues will be raised by them and their counsel and the various courts. 
Can I also say that the Attorney-General has taken substantial trouble to get this bill right. Members of the House will know that the bill presented today is different from what was proposed a few days ago. In short we have ensured that lawfulness is the test and that reasonableness still continues pursuant to the New Zealand Bill of Rights Act. I say to members on the other side of the House that that fundamental protection has been preserved by this legislation and that is something that the select committee will need to analyse carefully.