Video Camera Surveillance (Temporary Measures) Bill — Second Reading In Committee Third Reading 
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Video Camera Surveillance (Temporary Measures) Bill — Second Reading In Committee Third Reading 
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Video Camera Surveillance (Temporary Measures) Bill 
Second Reading 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I move  
That the Video Camera Surveillance (Temporary Measures) Bill be now read a second time 
. I begin by thanking my colleague Chester Borrows for his chairmanship of the Justice and Electoral Committee and the members of the committee for their work. 
The bill we debate this afternoon is a slightly modified form of the bill sent to the select committee last week. Clause 3 states the purpose of the Act which is to preserve the rights of those persons who have the benefit of the judgment of the Supreme Court but otherwise to state the law as it was thought to be prior to 2 September the date of the judgment in Hamed’s case. 
As is now made explicit by clause 3(d) all of the protections available under section 21 of the New Zealand Bill of Rights Act are left intact. Additionally clause 5 enacts that the provisions of the bill will expire 6 months from the date of commencement rather than 12 months from the date as provided by the bill at the time of its introduction. 
The term “search” is defined in clause 4. It is best expressed in broad terms. The intention is that the term applies to a search when done in connection with a search warrant or otherwise in circumstances where no search warrant is necessary or available. Although the decision of the Supreme Court does not rule on covert surveillance from outside the boundary of a particular private property it has been thought prudent to refer to that form of surveillance in the bill. 
Clause 5 is really the essence of the bill. It provides that where covert video surveillance occurs as part of or in connection with a search whether with a warrant or otherwise the search is not an unlawful search only because of that feature. 
The bill does not assert that a search with the use of covert video surveillance is always lawful. There is an argument that such a rule may have been extracted from the pre-Hamed case law. However the committee has chosen the form of the words used in clause 5 as the least possible interference with the trial rights. The bill still preserves the ability for the police to continue to use the vital tools of covert surveillance in countering serious crime. 
Clause 5A reflects a decision of the committee to make one exception to the rejection of any retrospective element in the bill. The purpose of the amendment is to preclude persons convicted on the basis of evidence to which Hamed applies from gaining an acquittal new trial or appeal for the reason only that evidence admitted at their trial was illegally obtained in terms of Hamed. 
That covers the main points of the bill as it has returned from the select committee. I will make further comments in my third reading speech. I commend the bill to the House. 
CHARLES CHAUVEL (Labour) 
: 
 I want to make just a couple of points in this second reading speech on the Video Camera Surveillance (Temporary Measures) Bill. I differ from the Attorney-General in that I think it is fair to say that on any objective reading of the bill it is significantly reworked as a result of the scrutiny it received in the select committee process. It is by no means accurate to say it is somewhat or slightly modified. Let us be clear about just what changes were made in the Justice and Electoral Committee. 
First the powers of law enforcement are strictly confined to what they were prior to the Hamed decision in the Supreme Court not the enormous grab for power that was represented in the Attorney-General’s first effort on this matter. There is a significant narrowing down of the definition of the term “search” a removal of the outrageous reference that first appeared to the collection of information about any place person or thing—that is the breadth of the power that would originally have been allowed under the National Government’s initial proposal. There is an express preservation of the section 21 power in the New Zealand Bill of Rights Act 1990 that any search must be subject to the reasonableness criterion contained in that section. If it is not the courts will not uphold it. Again that is another protection inserted by the select committee and it would not have been there had National had its way originally. Also there is a removal of the Attorney-General’s attempt to nullify the discretion of the courts under section 30 to receive such evidence as they think fit under the Evidence Act notwithstanding the manner in which that evidence was obtained. We should leave these matters to the courts not try to interfere with them as a Parliament. 
The second most significant change wrought by and in the select committee is that the retrospective nature of the powers contained in Mr Finlayson’s original bill has been completely removed. Existing investigations and cases before the courts will be and must be untouched by this Parliament. 
The third significant change created by the select committee was to insist that the bill not apply for any longer than 6 months. The original proposal was 12 months. Parliament will have to get its skates on do what it should have done a year ago and pass the Search and Surveillance Bill which sets out powers of search and also protections for those who are subject to those powers. It is outrageous that that has not yet been done by this Parliament and by this Government. 
Finally the select committee insisted that as far as past court decisions were concerned where evidence had been admitted in good faith by a judge on the basis of good law applicable at the time those decisions should not be able to be disturbed. There are some who do not like that exercise of authority or recommendation by the select committee. They think that it should be possible to relitigate actions taken by law enforcement on the basis of an ex post facto application of the Hamed decision. I say to those people that that would be “dog law”. That would be like saying to one’s dog “Bad dog bad dog” after it had done something it did not know was wrong at the time. Either we oppose retrospective application of the law or we do not. 
In that regard I quote what a human rights commissioner said to the select committee. When asked whether existing court decisions ought to be preserved one of the human rights commissioners replied: “Well my view would be that the cases that have concluded have concluded. If the lawyers haven’t raised the point then it’s past and there would be no avenue to reopen the case. It presupposes of course behind your question that the only evidence was the video evidence. So I can’t see the Court of Appeal entertaining appeals on that basis.” So it is not in respect of that particular aspect of the recasting of the Government’s original bill any sort of offence to human rights to have protected existing court decisions in that way. 
I conclude this second reading speech by paying a tribute—but a limited tribute—to the parties in the House that like Labour were not willing to simply write the National Government the blank cheque that it sought on this legislation a couple of weeks ago. Obviously the Green Party the Maori Party and the Mana party are in that category but not Peter Dunne as was asserted in the  
New Zealand Herald 
 today in its editorial. I was at a public meeting with Peter Dunne on the night of the bill’s tabling when he was quite happy to write that blank cheque to the Government so we should get the record straight on that. I pay significantly more tribute to the ACT Party for remembering its traditions and protecting civil liberties. I hope that with Mr Banks and Mr Brash in prospect as potential future MPs that tradition is not in significant danger. But I want to pay the most tribute to my Labour colleagues for respecting the traditions of limited Government. They could have chosen to leave law enforcement with no surveillance powers. That would have been the easy option and it was the one urged by the Greens the Maori Party and the Mana party. But my colleagues avoided that trap. It would have been irresponsible at the time of the largest international event New Zealand has ever hosted to leave law enforcement powerless in that respect. 
So the least-worst outcome will be achieved out of this legislation. As a result of the select committee process that the Government was required to undergo police will get only the limited powers that they formerly held for 6 months only and Parliament will be prevented from doing something constitutionally repugnant—that is legislating retrospectively. Labour stood firm and achieved that outcome and for that I express the deepest respect gratitude and thanks to my Labour colleagues on this side of the House. 
CHESTER BORROWS (National—Whanganui) 
: 
 I think it is important to note that from time to time in response to courts’ rulings the Government has to respond or Parliament has to respond in respect of law and must do so through retrospective legislation. Retrospective legislation is a type that should be applied only with the strictest of criteria. 
It is true that the initial Video Camera Surveillance (Temporary Measures) Bill as proposed by the Government was modified somewhat through the select committee process and the Justice and Electoral Committee modified it after discussions across the parties represented in that select committee process. I am also pleased to be able to confirm that in the course of that process 438 submissions were received from the public. Twenty were heard orally and the others were received in a written form and we were able even within the narrow constraints of time to receive a departmental report in respect of those submissions. I thank those parties’ representatives who were involved in the committee for the way in which they engaged with each other. 
Bearing in mind the words of the previous speaker it is correct to note that the Green Party through its representative Keith Locke maintained its position throughout that process. I also acknowledge that although the Green Party was never going to vote or give any support for this legislation the fact is that the member engaged with the committee in the fairest possible and most reasonable way and his arguments were philosophical and never personal. It would have been good if that had been the manner whereby all parties engaged. But I am pleased with the way in which the members of the committee worked on this bill together. 
I also acknowledge the work of the Hon Rodney Hide in that committee process: the questions that he asked and the way that he too was able to engage. I have to align myself with the comments of Charles Chauvel in being a little suspicious as to whether such ACT engagement would continue past this election if we do not find Mr Hide back with us—although some of us have not given up hope on that score. 
I would like to say a thankyou once again to the committee but most of all to the members of the public who within a very short time constraint managed to put aside the duties of their day to be able to engage with the committee in a very reasonable and full way given the narrow constraints of time. I commend the bill. 
Hon DAVID PARKER (Labour) 
: 
 I want to catalogue some of the areas where I was unhappy with this process. I think we came close to getting it wrong in this Parliament and we would have but for the circumstances that Charles Chauvel has already outlined which involved all of the minor parties lining up with Labour to stop National pushing through this Video Camera Surveillance (Temporary Measures) Bill under urgency without a select committee process. 
The Supreme Court decision threw up three issues which the Government conflated. Those three issues were firstly whether the police and some other agencies needed a prospective power of surveillance which the Supreme Court found does not exist until this legislation is passed; secondly what the effect of the decision would be on prior convictions; and thirdly what the effect of the Supreme Court decision would be on illegally obtained evidence in respect of trials that are yet to take place. It was not until we got to the Justice and Electoral Committee and had input from other parties including Labour that light started to be shone on those three issues. Once we did that it was easier to cure the problem. 
I am disappointed and extremely surprised that yet again we have had a failure of Parliament’s processes in respect of the vet in terms of the New Zealand Bill of Rights Act. That Act requires the Attorney-General to report to Parliament when any legislation breaches it. We have adverted to this in our minority report. On this occasion we did not have a report from the Attorney-General signalling that this legislation infringed the New Zealand Bill of Rights Act. It has taken Labour to elucidate that in our minority report. 
The Supreme Court found that the police acting without express authority in the use of surveillance devices was in breach of the New Zealand Bill of Rights Act and that stands as the ratio of the court’s decision. This legislation as it was introduced to the House retrospectively made that illegal evidence legal. That must—must—infringe the New Zealand Bill of Rights Act provisions in respect of freedom from inappropriate search and surveillance. How could the Government conclude that no warning was necessary for this House? It would have highlighted to the House that care needed to be taken in respect of the retrospective application of this legislation. The select committee did get to the bottom of it but it was no thanks to any warning which was properly required under the New Zealand Bill of Rights Act. 
That is not a fault of the Attorney-General because in respect of this legislation he had delegated it to Kate Wilkinson. In fairness to her she acted on advice from the Ministry of Justice. But that is the third instance in this Parliament where in my opinion we have had poor process within the ministry and it has advised Ministers that no New Zealand Bill of Rights Act vet was necessary. We had it in respect of the earlier attempt to remove the unconditional right of accused persons to appear at their own defence when they wanted to. We also had it in respect of some of the provisions that would effectively abrogate part of the right of silence of defendants. In the criminal procedure legislation the defence was going to be required to disclose the nature of its defence to the prosecution. And we have had it again in respect of this legislation. I say to the Attorney-General that there is a need to review that office because these are three instances where I think complications in terms of the New Zealand Bill of Rights Act ought to have been brought to the attention of this House. 
In respect of the prospective power of the police I am disappointed with the attitude of the Greens. It is absolutely clear that the police on some occasions need the right to surveillance techniques—it is absolutely clear. The select committee was told of one example that speaks volumes which is that drug dealers who know they might be subject to listening devices close the curtains and write instructions on whiteboards. The only way the police can gather evidence in respect of that situation is through the use of cameras. That is the only way so for the Greens to deny that a prospective power is necessary for the police is quite wrong. 
The other point I raise is that it is true also of the SIS. The SIS is affected by this legislation. I was disappointed that I learnt that only at the select committee. It might have been raised with some other people at briefings prior to that but it was not raised with me and it was not raised in any of the Minister’s speeches in the first reading. This legislation does not apply just to the police; it applies to other agencies. 
This legislation could have been better. As Sir Geoffrey Palmer said within a day’s drafting we could have specified that it was to be a warrant only from judges we could have listed the level of seriousness needed before the police could exercise this sort of warrant and we could have had a list of the agencies to which it applied. If we had had those things we would have greater protections than this bill provides. 
Having said that Labour is satisfied to vote for this bill because we accept that a prospective power is needed for the police. We are pleased that there is not retrospectivity in respect of the trials yet to take place and we think it is appropriate that we not reopen convictions that have previously been entered. We will be supporting this legislation with those reservations. 
KEITH LOCKE (Green) 
: 
 I was not going to give another speech in this House after my valedictory last Wednesday but I have finally been persuaded by the argument that because I was the Green representative on the Justice and Electoral Committee hearing the Video Camera Surveillance (Temporary Measures) Bill I do have a duty to speak on the committee’s report back to the House. 
The Greens support most of the changes that the select committee made to the original bill—those that were for the better—but we still cannot support the bill. We particularly thank those who submitted to the committee who inspired many of the changes for the better. I must congratulate the 438 people and organisations who submitted written submissions and the 20 who spoke before the committee—all in the 2 days after the bill was tabled in the House. This level of concern—almost all submissions opposed the bill—is another reason why this bill should not have been rushed through this House in a week. What we are making here is rushed law which is bad law and also unnecessary law. Here is a temporary measures bill in an area where there is no demonstrated need for temporary measures; it is legislation in search of a real problem. It also threatens the rule of law. 
The rule of law requires us to respect the law. This is a sorry saga of disrespect for the law and the courts. First the police in the Operation Eight case deliberately broke the law by putting a video camera on private land and not trying to get a warrant to do that because as the Chief Justice said they knew they could not lawfully get one. When ruling on that case the Supreme Court on 2 September said that the use of covert video surveillance involving trespass is unlawful. As a result the charges against 13 of the Operation Eight defendants were dismissed. That upset the Government but instead of accepting the verdict it is rushing through a bill to override the general impact of that judgment and also to make the new law retrospective. The Government then scaremongered by claiming that all kinds of investigations and court cases would be affected but when I and others interrogated that fact at the select committee it was found to be incorrect. 
Rodney Harrison QC said that if there were court cases where the police had been using search warrants to authorise camera surveillance involving trespass those cases would have come to the attention of criminal lawyers and he doubted that the police had been doing that. The Law Commission thought that there had been “one or two” court cases that dealt with trespassory video surveillance. 
It is common sense that most surveillance cameras have been the ones used to check the comings and goings to and from a property through cameras in the street or with permission cameras used from a neighbouring property. None of those cameras were ruled unlawful by the September Supreme Court decision. Of course their operation would have had to meet the test of reasonableness meaning that they did not in the circumstances unreasonably intrude on the privacy of people as guaranteed by section 21 of the New Zealand Bill of Rights Act. 
So what was the video surveillance bill all about? Whether or not there was any conscious intention it was about the State flexing its muscles particularly against the courts. The Supreme Court clarified the law in a way that the Government did not like so what was the Government’s response? To simply change the law immediately. The Government seems quite happy that this bill will give a range of State agencies with search powers—the police the Ministry of Agriculture and Forestry the Customs Service the Department of Internal Affairs etc.—pretty much untrammelled powers to use covert video surveillance. 
If the surveillance is over-the-fence surveillance a warrant will not be required; if it involves trespass there needs to be a warrant—except that the warrant does not need to specify that there would be any surveillance just that the property will be searched. All of those State agencies are now able to leave a hidden camera behind after their search. Yes there has been a concession in that some of the retrospectivity in the bill has been removed and that is good. The bill no longer blankly validates all video surveillance done in the past. All the arguments from the police etc. about the practical need for retrospectivity collapsed. But it is still bad and unacceptable to the Greens that the revised bill gives free rein to use video surveillance to a range of State agencies for 6 months into the future. 
To make matters worse a new bad retrospective clause has been added—that is clause 5A—which denies a convicted person the right to use in their appeal the fact following the Supreme Court decision that covert video surveillance involving trespass is unlawful. This is constitutionally repugnant being contrary to the New Zealand Bill of Rights Act sections 21 to 28 inclusive which deal with search and seizure and the rights of accused persons. It is a fundamental principle of law that people engaged in court proceedings have the right to access the law as it applied at the time of the alleged offence. I will be moving an amendment to delete clause 5A. If my amendment fails then the application of this retrospective clause could easily be challenged at the United Nations Human Rights Committee as in contravention to the International Covenant on Civil and Political Rights which prohibits such retrospectivity. 
Let us be clear: the Supreme Court ruled that covert video surveillance involving trespass is unlawful now and has been unlawful in the past. The court was clarifying the law not making new law; only Parliament can make new law. I say this because there has been a lot of talk from the Government about the Supreme Court changing the law as previously understood or in respect of common law. That is not correct. The New Zealand Law Society’s submission to the committee agreed with the Law Commission’s 2007 paper  
Search and Surveillance Powers 
 saying: “The paper correctly assumes (in accordance with the previously decided case law) that covert camera surveillance which involves trespass to land will be regarded as unlawful conduct …”. 
National and Labour members say the Law Society is out of date and that there were subsequently “three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance.” That is trespassory surveillance. Respected lawyer Steven Price said that two of these three cases  
R v Gardiner 
 and  
R v Fraser  
were not about trespassory surveillance at all. So Labour and National are relying solely on the Court of Appeal Operation Eight ruling which was overturned by the Supreme Court. That National and Labour could get this so wrong is another reason why it is such a travesty of parliamentary process to so abbreviate the select committee scrutiny of this bill and rush it through Parliament. The Supreme Court decision was not some rogue decision that Parliament had to overrule in haste as we are doing today to the discredit of Parliament; it was a perfectly just decision. 
Let us look at the fundamental substantive issue in all of this for the people of New Zealand. That is in simple terms do we want to give a range of State agencies the right to enter our homes and without us knowing put a camera in our living room or bedroom that can record and transmit our most intimate family activities? Do we want such a camera put covertly in a company boardroom? The police in their submission indicated that they had already done this even though there have been no reports of such a case coming to court. The Greens say now as we did in the select committee report back on the Search and Surveillance Bill that putting a covert camera in someone’s house or office is a step too far. It is not justified by the perhaps one or two extra criminals it might catch. 
The Greens do allow for covert video surveillance without trespass. I note to the two previous Labour speakers that the Greens do allow for covert video surveillance without trespass—say to monitor people entering a house where P is being produced—but it has to have all the controls that are in the Search and Surveillance Bill on special surveillance warrants report-back procedures tapes being subsequently destroyed and after the fact people being told that they have been under surveillance. None of these controls are in the Video Surveillance (Temporary Measures) Bill. Why not simply wait until February when the now fine-tuned Search and Surveillance Bill with all its controls will be debated in Parliament? Thank you. 
Hon RODNEY HIDE (Minister of Local Government) 
: 
 I believe that this bill the Video Camera Surveillance (Temporary Measures) Bill shows our Parliament working at its best. I think we should take a minute to respect our Parliament and the work it has done on behalf of the people of New Zealand in this regard. In my 15 years here—short as they have been—this has been in my view Parliament at its very best under very pressured circumstances. 
First I congratulate the Minister in charge of the bill the Attorney-General. Such is our constitution and system of Government that a select committee can never get on and do its business freely unless a Minister is prepared to allow it and to accept the recommendations of the select committee. I thank the Minister for that. 
Second of all I congratulate the Justice and Electoral Committee. The critical part of getting this bill right and satisfactory was getting it to the select committee where the advice that officials were providing could be contested by members of the public and by people with expertise and where members outside the executive could scrutinise it. Without the work of that select committee we certainly would not have had an improved bill that is satisfactory like the one we have today. 
I particularly thank all the submitters particularly the lawyers—and they were high-priced lawyers. They take a lot of stick from members of the public and from politicians but there they were on their own time in the best interests of justice for all taking time out of their weekend and their day to come to Parliament in what might have been a forlorn hope of making a submission about what the law should be. Certainly they changed my thinking and I believe the committee’s thinking on this bill and they greatly improved it. So I pay tribute to all those who made a submission to the select committee. 
I believe that Chester Borrows did an outstanding job chairing that select committee. I am sounding a bit twee in my dotage but what was interesting to me was that under the pressure of time all members of the select committee decided to work really in the best interests of getting the result. Amazingly there was not much difference amongst all of us about what we were trying to achieve. I thank the members for that. 
I had not worked with Charles Chauvel before and I have to say that it was a huge delight and privilege to work with Charles on this bill. I found him to be a man of some remarkable intelligence. He also interested me because he did not play the “Opposition card”; he actually worked in the committee to achieve a result. I think it is very easy in Opposition to just be in opposition. But actually Charles was prepared with Labour to step up and see that there was a problem and to work with Government members and the select committee to get a result. 
It would be very remiss of me not to acknowledge Keith Locke my colleague and his opposition to the bill. It is very easy to sit in this Parliament and pick on the party and the individual that stand aside from the rest. But I believe it is the party and the individual that stand aside from the rest that give us the best insight into what we are doing and why we are doing it. I think it is quite marvellous that Keith Locke has ended his week and his last day in Parliament exactly—exactly—as he started. I congratulate him on that. Thank you. 
Amendments recommended by the Justice and Electoral Committee by majority agreed to. 
A party vote was called for on the question  
That the Video Camera Surveillance (Temporary Measures) Bill be now read a second time. 
Ayes 105 
New Zealand National 57; New Zealand Labour 41; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 14 
Green Party 9; Maori Party 4; Mana 1. 
Bill read a second time. 
In Committee 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I seek leave for all the provisions of the Video Camera Surveillance (Temporary Measures) Bill to be taken as one question. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave is sought for that purpose. Is there any objection? There is no objection. 
Clauses 1 and 2 and Parts 1 and 2 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I listened very carefully to what Mr Locke said and there are just two matters I want to bring to his attention that may allay some of his fears. 
The first point relates to clause 3(d). Although strictly speaking from a legal point of view the subclause was not needed it has been inserted to emphasise to those reading and dealing with this legislation that section 21 of the New Zealand Bill of Rights Act is unaffected. That is very very important. 
The second point relates to what he said about the breadth of clause 5. I will emphasise certain words in clause 5(2) and it is important to read them. The use of this type of surveillance “does not of itself render the search unlawful.” Of course I acknowledge that when the preliminary consultation exposure draft went out for consultation there were the words “or unreasonable” in there. Those were deleted at the time the bill was introduced. It is important to emphasise those words “does not of itself” because it could be unlawful on other grounds. It could also be unreasonable depending on the circumstances. So to take a particular hypothetical there might be a prosecution body that commences this type of surveillance for an offence that clearly does not warrant that degree of intrusive surveillance and it could be challenged on section 30 of the Evidence Act grounds at some stage as being unreasonable. It is very important—and I hope this helps the member—that that unreasonableness limb is there and that in appropriate circumstances even if this type of surveillance is not of itself unlawful it may still be unreasonable. 
KEITH LOCKE (Green) 
: 
 I thank the Attorney-General for his comments. I appreciate that the reference to the New Zealand Bill of Rights Act has been put in the Video Camera Surveillance (Temporary Measures) Bill in clause 3(d) but I think that it is still in conflict with clause 5A which I have tabled an amendment to omit. 
The way I read clause 5A it is in direct contravention to the New Zealand Bill of Rights Act because the fundamental principles as I indicated in my initial speech were that people have to be tried found guilty and conduct their appeals etc. on the law as it applied at the time. In relation to covert video surveillance involving trespass the Supreme Court has indicated that that was unlawful at the time and unlawful in any previous trial. 
So if for example just as a hypothetical example the entire evidence against somebody who was convicted or the absolutely primary evidence even was on the basis of covert video surveillance involving trespass now that the Supreme Court has ruled this year that somebody who was convicted say a couple of years ago on that basis could come back for an appeal potentially—they might not succeed and there are all the other issues involved in appeals—we should not as a Parliament rule out their right to apply the law applying at the time. This is against the International Covenant on Civil and Political Rights and people like Tony Ellis in their written and oral submissions to the Justice and Electoral Committee did indicate this. 
Tony Ellis has taken appeals to the UN Human Rights Committee. I think he won three of them on such similar substantive legal grounds where the New Zealand jurisdiction seems to be at odds with international law. So I think I was right to put in my speech that we could potentially face a challenge at the international bodies if somebody had an appeal denied on that basis. 
I take the other point the Attorney-General made about clause 5(2) that the surveillance does not in and of itself render a search unlawful. It is similar to the point I made in my speech. I emphasise—and Charles Chauvel and David Parker are wrong here—that the Green Party is not against covert video surveillance with the proper controls. The whole issue today with this bill is what the Supreme Court dealt with which is covert video surveillance involving trespass not without trespass. 
I totally agree and I said so in my speech and it is quite clear that if the police or any agency engage in covert video surveillance without trespass then they are still subject to a test—which they might succeed on or might not—about whether that was reasonable in terms of section 21 of the New Zealand Bill of Rights Act. 
We had instances of this in the select committee. If the camera is in the street and it is just keeping an eye on someone’s front gate covert but checking who is going to and from a P lab that would not be considered unreasonable in most cases. They would get away with it. If the camera was high up in a tree on a neighbouring property and people thought they were in a private space and it was focused through their bedroom window or on the backyard and they were doing naughty things in their backyard or whatever it would be considered unreasonable and may be ruled out by the court. 
That is why I said that this bill is a bill looking for a problem—because 99 percent of the surveillance that the police are doing now is covert video surveillance without trespass subject to the New Zealand Bill of Rights Act and subject to the reasonableness criterion. Even the material collected unlawfully is still subject to section 30 of the Evidence Act and usually it can be included if the crime has been serious enough. There are all of these fall-back positions in the existing law without this bill. We do not actually need this particular bill. 
The other thing—and this came up at the select committee; the Criminal Bar Association made the point in particular—is that in most cases the case does not turn on the video evidence. There might be a little bit of video evidence or photographic evidence or whatever but it turns on all sorts of other things. All I am saying is that the police have so many fall-back positions when prosecuting a case even when they are using unlawful evidence that is trespassory evidence. They have section 30 of the Evidence Act that can rule the evidence in they have the reasonableness side of it as long as they cover that and also they have a whole pile of other evidence. 
It is probable in my opinion that most of the covert video surveillance without trespass is just working out who is involved in a P lab or whatever. Then they have piles of other evidence including all the evidence they now get rightly or wrongly from intercepting electronic communications and texts. If we look at the Operation Eight case there were masses of electronic interception and other forms of surveillance material that they presumably were trying to hang their case on in certain cases. 
The Supreme Court’s decision in Operation Eight is an interesting illustration in that the Supreme Court allowed the use of section 30 of the Evidence Act and said that yes the evidence collected against the four remaining on the organised criminal group charge was collected unlawfully but the court would allow that case to continue because it found the organised criminal group charge and the other charges as sufficiently serious enough. That is why I say it is very hard to argue for this. I think it is important because of the conflict between the New Zealand Bill of Rights Act provision in the Act and the fact that under clause 5A of this bill a person cannot use the fact that evidence found on him or her was illegally collected—that is covert video surveillance involving trespass—in an appeal. That is quite unjust and I think it will come under quite a bit of criticism from the law profession because it is a retrospective provision that is generally unacceptable. It is in conflict with the New Zealand Bill of Rights Act. 
Generally the Supreme Court is our highest court and we should not treat its decisions lightly. It does not have quite the strength of the US Supreme Court. If one wants to overthrow a US Supreme Court decision one has to have a two-thirds majority in two Houses and all kinds of things. Things like its abortion decision back in 1973 still stand because even though there was quite a big religious right and all the rest of it they cannot overturn that decision. 
It is not respecting the Supreme Court when we see the police deliberately breaking the law as the Chief Justice said in the Operation Eight case. They do not get any penalty whatsoever so then a certain disrespect for the law is generated. Some of the submissions particularly I think from Tony Ellis in quoting learned judges and what not on that say that it creates a disrespect for the law when the State breaks the law and there is no penalty. Then the law changes and some retrospectivity is put in there. 
It is true that in the system we have Parliament is supreme but we must always guard the sanctity or whatever we want to call it of the judicial system and the court system particularly of the Supreme Court. I think rushing this legislation through is not achieving that. 
I also wanted to talk a bit about the extension of these powers beyond the police. That has been too little covered both in the political debate and in the media. I went through the search powers of various other agencies that have search powers such as the Ministry of Agriculture and Forestry the Department of Internal Affairs the Commerce Commission the Customs Service etc. and all of these agencies for the next 6 months until we deal with the Search and Surveillance Bill will have these powers to leave covert video cameras on private property. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 In speaking to the Video Camera Surveillance (Temporary Measures) Bill I want to first acknowledge the incredible act of democracy demonstrated by the fact that 438 submissions were received in the space of 24 hours. This bill was referred to the Justice and Electoral Committee last Tuesday 27 September and a day later submissions closed. Our appreciation as a House must be expressed to those ordinary New Zealanders who made considerable efforts to provide comments despite the difficulties associated with rushed legislation. 
A common theme throughout many of the submissions was to draw on the advice and counsel of Dean Knight who suggests that claims about the implications of the ruling for other cases are overstated. Mr Knight’s view is that although the Government claims there may be about 40 current cases that will be prejudiced by the ruling the Supreme Court’s decision is relatively nuanced and will allow for the admission of unlawfully obtained evidence in serious cases. In the purpose expressed in clause 3 of this bill we read that the legislation is required “(b) to provide a temporary period that will enable Parliament to address … the matters raised in the decision regarding the lawful and appropriate use of video camera surveillance as part of law enforcement;”. And although the bill itself does not mention the current cases the threat of these cases certainly looms large through the framework of the bill. 
I want to bring to the Committee the expert view of barrister Tavake Barron Afeaki who urged Parliament to consider that the voice of reason must resound. In his email he made some extremely salient points which I wish to lay on the floor for further debate. I quote: “The presumption of innocence must remain for those who are entitled to it and it is not for the police and politicians alone without the independence of the judiciary overseeing the process to merely deem that the 40 cases before courts and 50 current investigations are justified in having law-breaking surveillance. The law should be certain and the police should get it right when they exercise the powers we the electorate give them.” 
I think these points are really critical and I am in full agreement with Mr Afeaki that injustice is the price of making laws that break laws. I remind the Committee of some statements made earlier in the debates this week around public confidence and trust in the police. If two out of three victims will not go to the police then surely we have a problem. 
I return again to the words of Mr Afeaki to place on record another interpretation that might fit within the purpose statement of this bill. “Police powers should be used for serious crimes: nasty evil violent acts; P dealers real gangs robbers murderers and rapists not for stifling political dissent by Maori political activists greenies animal rights people and the like.” 
The law already has safeguards which the operation and Supreme Court judgment demonstrate. Mr Key in his initial comments on this new law made the broad claim that if the Government could not get the numbers that would mean there would be some serious criminals who would not be brought to justice. I think it is really disturbing to note that the initial thought was not about developing a workable solution to a problem but more akin to a crude ultimatum: all other parties would have to support ramming through the legislation or they would be soft on crime. I have to conclude that this legislation is politicking by both National and Labour to create a perception for voters that they are actually acting in the interests of the electorate by putting up this legislation. The Maori Party says that is absolutely blatantly untrue and we continue to oppose this bill at every step that we can. 
KEITH LOCKE (Green) 
: 
 I will just continue explaining how the Video Camera Surveillance (Temporary Measures) Bill covers a whole lot of Government agencies that have search powers—well beyond what most New Zealanders think this bill is about: just the police. 
For instance fisheries officers have search powers. The chief executive according to the law can grant powers to an honorary fisheries officer—not even a full-time person it seems. This fisheries officer can wander along to a registrar or perhaps talk to a deputy registrar who probably is not an expert in the area of fisheries who just ticks off something. Then this fisheries officer can as part of a search enter a private dwelling and leave a covert video camera. That is what this law allows. 
The Department of Internal Affairs can get search warrants for a whole lot of things. The first one I came across was search warrants for people engaged in email spam. An officer of the department can go along to a registrar get a search warrant and go inside a building and leave a video camera looking presumably at the computer screen of an alleged offender etc. Gambling inspectors can go into presumably some gambling institution with a search warrant and leave a video camera there. Implementing liquor by-laws is another area of the law that allows for an officer to go inside a liquor establishment and leave a covert video camera there. 
The Commerce Commission has search powers under the Fair Trading Act. Its officers can go into a shop and leave a covert video camera there. The shop owner does not know about it. Of course other agencies concerned with white-collar crime could leave covert video cameras all over boardrooms. In fact when the Search and Surveillance Bill first came up it was actually the big company lawyers who really got stuck in because they themselves were worried about covert video cameras being put in boardrooms. There is also the Customs Service. Its officers have to get a District Court judge to give them a search warrant. They have quite significant search powers and they can put video cameras wherever they like so all of this is quite dangerous. 
I went through all the consideration of the Search and Surveillance Bill on the Justice and Electoral Committee representing the Greens. The whole thing started off with the 2007 Law Commission report which said in black and white that that form of surveillance was unlawful. It was all a bit unclear about video surveillance in general; the only thing that was clearly unlawful was trespassory covert video surveillance. The commission said to the Government—Labour at the time—to get its skates on and develop a bill. Labour did and presented it to Parliament in 2008. Then for 2 years the select committee under the fine chairpersonship of Chester Borrows really scrutinised it. There were two sets of public submissions and all sorts of changes. The Law Commission made submissions particularly Warren Young who came to the recent select committee process very critical of the Video Camera Surveillance (Temporary Measures) Bill—he played a huge role in the thing. So everyone knew that there was a big issue that it was unlawful and that there were not a lot of these so-called subsequent court cases. In fact there was only one subsequent court case the Court of Appeal case on Operation Eight. 
In these 2 years of select committee hearings the police were there. Presumably they were taking notes and were not just treating it as a day away from the office. They knew precisely that the Law Commission had said it was unlawful—the select committee was dealing with it partly and significantly because covert video surveillance involving trespass was unlawful—and there was all the interchange that went on. 
The select committee reported back last November and the whole thing has just been sitting there awaiting its second reading for all that time. The Government knew as early as May this year when according to Steven Price in one of his blog posts over the last day it got a bath—that is the term he used—in the Supreme Court hearings on this unlawfulness thing. The Government knew from May precisely that the Supreme Court was likely—or there was certainly a fair chance—to rule in its latest September ruling that covert video surveillance involving trespass was unlawful. So it was not as if people did not know what the hell was going on. 
It just surprises me now that previous to September people thought it was common law that anything was lawful etc. when we had all of that evidence and all of that argument over from 2007 a 4-year period. Even on the court cases it was really only a short period of time from the Court of Appeal ruling on I think 19 November 2010 until the Government was in Steven Price’s words given a bath at the Supreme Court in May 2011. It was only for that 6-month period that the Government thought it had a chance at all. All of the other evidence was the other way. 
There was a lot of confusion about what the police were actually doing. There was all this talk about 40 or 50 cases but when it came down to it at the select committee the police said there were 13 investigations under way involving covert video surveillance and the bulk of those were in public places. They were not even sure that any of them involved trespass and that any of them therefore were illegal. The Supreme Court had ruled that only covert video surveillance involving trespass was illegal. But there was no clear indication that there were any current police cases of that type. 
As I said this bill is legislation that has been looking for a problem and there is no reason at all why we could not have gone for another 6 months under the present system. The police would have been—should have been—happy. They could just continue on with what they were doing and go before the court on the reasonableness criterion under the Evidence Act. If they had a problem and if there were a serious P case they could use section 30 of the Evidence Act to rule in illegally obtained evidence etc. It just somewhat amazes me that we got as far as this on such a rushed bill. 
I said in my second reading speech that it was wonderful the way everyone responded at the select committee process. Lawyers all of a sudden stayed up all night and came hung-over with tiredness the next morning just to put the case. There does seem to be quite a consensus amongst all of the leading lights in the country in the legal community that showed up that there were so many things wrong with the bill. Some of them have been addressed and I thank the committee for that but several of them have not. Thank you. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 I will start with the notion of police impropriety within the context of the rule of law. Clause 5 of the very brief Video Camera Surveillance (Temporary Measures) Bill deals with the “Temporary continuation of lawfulness of certain uses of video camera surveillance”. I am fascinated by the use of legislation to create lawfulness for agencies that are charged with implementing and monitoring the law in the first place. The starting place for all criminal law is to protect the rights of an individual against the State lest the individual become oppressed. That is why one does not allow Parliament to take away a person’s rights lightly which is why there are real restrictions on the police in the way of search warrants. With this new bill we now have before us provisions 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.” 
I refer to an article by Dean Knight entitled “Elephants and the Law” which tells us that although the Supreme Court did not rule that the police acted with bad faith the majority indicated that the police’s attitude to the unlawfulness of the covert surveillance was at best reckless and perhaps deliberate. 
I will read from the actual ruling of the Chief Justice in paragraph 73 of the Urewera case of  
R v Hamed 
: “In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance the deliberate unlawfulness of the police conduct in the covert filming maintained over many entries and over a period of some 10 months is destructive of an effective and credible system of justice.” 
Justice Blanchard went even further in describing this deliberate unlawfulness and the detail around the activities which served to destroy the credibility and effectiveness of the system of justice: “Despite being aware that they lacked statutory authority for the surveillance they proceeded without taking legal advice which they had plenty of time to obtain. Having failed to get advice the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be cut some slack. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful.” 
No one can read through those words—failure to get advice reckless risk deliberate unlawfulness—without a sense of horror that we are not talking about criminals. They are not those whom society should fear; these are the very agents of the State who are meant to uphold the rule of law. 
I cannot ignore the findings of a PricewaterhouseCoopers report released in February last year that found that the police had made little progress in implementing Dame Margaret Bazley’s findings. PricewaterhouseCoopers referred to the in-house engagement survey that confirmed that 67 percent of police employees are ambivalent about their job and 16 percent are completely disengaged. I do not know exactly— 
The CHAIRPERSON (Lindsay Tisch) 
: I just remind the member that you must be more succinct. Although you can refer to the case you must keep it within the confines of what this bill is. I ask the member to come back. 
RAHUI KATENE 
: Thank you Mr Chairperson. I am pointing out that this bill is making lawful what was unlawful and we cannot have that. We cannot allow that. We cannot have Parliament make lawful something that was unlawful. Where do our constitutional rights stand? 
I go back to what the police were doing; they were ambivalent and disengaged. The Maori Party does not want people with that sort of attitude having prospective surveillance powers let alone police officers who promote one another who cover for one another and who allow sexual predators to prosper. This Parliament cannot let the New Zealand Police continue in the way that it is. The Maori Party for one is prepared to do something about it. We have— 
The CHAIRPERSON (Lindsay Tisch) 
: I just remind the member. I mentioned before that you must come back. There is a very narrow scope to this bill and although you can refer to the case remembering that it is still before the courts we must be very careful that we just stay within the scope of what this bill is about. 
RAHUI KATENE 
: Thank you Mr Chairperson. I make the point that this bill should not be making lawful that which was unlawful. 
HONE HARAWIRA (Leader—Mana) 
: 
 I have to say first of all that I am disappointed with Mr Chauvel’s position on this. I am absolutely convinced that if Labour was not involved in this whole case he would be the first to condemn this legislation the Video Camera Surveillance (Temporary Measures) Bill. The fact that the Tuhoe raids were conducted in Labour’s time is the reason it wants to get out from under this as quickly as National does right now but that is no reason to support the legislation which I suspect Mr Chauvel knows and I know Mr Finlayson knows is flying in the face of justice particularly in terms of the way in which the bill has been brought to the House. 
This bill gives extraordinary powers not just to the police—this is not just about the police any more—but to the Inland Revenue Department the Department of Internal Affairs fisheries officers and the Commerce Commission. I can think of innumerable families in and around where I live who are likely to wake up with a camera in their house. If they ask the police they will not tell them anything. There is no obligation on the police to tell them that there is a camera in their house. There is no obligation on the police to tell them that there is a camera on the marae. There is no obligation on the police to tell them that there may be a camera in the toilet block just in case somebody might be going around there and smoking a bit of dope. 
This is terrible legislation. It enables those State agencies to invade the privacy of citizens without having to go before a judge with proof of a good reason for doing so. We already know that information has been gathered in the past and it has been gathered illegally and used to destroy political careers in this country in the past. I know too for example of a very high-profile politician of very recent years—very recent months—who was caught during surveillance of a woman as part of a P investigation. It was not the politician under surveillance but this woman as part of a P operation. She was having an affair with a very high-profile politician. 
Hon Rodney Hide 
: Not that high-profile—Michael Laws. 
HONE HARAWIRA 
: No no. Just because Rodney is leaving it does not mean it is him. But these sorts of things can happen. Where does this sort of thing stop? And there is the fact that it is retrospective legislation. You know retrospective law is bad law. I have heard that on numerous occasions from law lecturers and lawyers. In fact every submission from lawyers and legal organisations civil rights organisations and individuals on this legislation has said “Don’t do it.” In fact I understand that the only ones who support it are the police. There has to be something wrong with legislation if the only people who support it are the police—and of course National and Labour. 
This kind of retrospective legislation contravenes basic human rights and legitimises the illegal behaviour of the State and its agencies. Just because Labour got caught out on this in the Tuhoe raids and because National is getting hung out with it because of the decision of the Supreme Court that is no reason to race through special legislation. There is nothing that is currently going on that means it could not wait. The police might say that there will be problems with the trials of 40 to 50 serious criminals but it is one thing to say that and another thing to prove it. If they are not prepared to put the information on the table then we should not be foolish enough to just accept it. And there was the indecent haste with which the whole select committee process went through. It was indecent. The select committee process allows the public to have their say on the lawmaking process and in this case I just heard the previous speaker Rahui Katene talk about how many submitters the Justice and Electoral Committee managed to cram in in just 1 day. On legislation as important and fundamental to our human rights as this bill is there should have been far far more time to consider it. I suspect that the Minister in the chair the Attorney-General knows this and I know that Mr Chauvel agrees with that. 
The select committee process also allows politicians to consider bills in a more relaxed environment but in a compressed time frame that is never going to happen. The good thing about a decent select committee process is that it minimises the chance of having knee-jerk legislation like this bill which comes about as a specific response to a particular event. The Supreme Court nailed it. Really we should have asked what action we are taking against the police. But no all we are going to do is grant the police more powers. A good select committee process is fundamental to good lawmaking and a weak select committee is really an insult to the people and to the parliamentary process. 
Is there not something wrong with legislation when every lawyer whom Mr Finlayson knows and Mr Chauvel knows opposes it? The Law Society opposes it the Criminal Bar Association opposes it all of the civil society organisations oppose it and hundreds of individuals oppose it and they had only a day to put in their submissions. How they even got a chance to read the bill I do not know. But hundreds opposed it and they made comments about how New Zealanders need confidence that the principle that public authorities can do only what they are authorised to do under law should continue to apply. In fact instead of restricting the police’s ability to do certain things we are not only granting them extra powers but also granting everybody else those powers. 
There are doubts about whether those promoting this bill understand that it compromises the right to be free from unreasonable covert surveillance by the State. One of our genuine freedoms has to be that we can wake up in our own bed and know that there is not some bloody camera watching. I am not saying that that will happen to everybody but Mr Finlayson knows a lot of the people whom I know in the north and he knows of some of the discussions around land and how to go about acquiring land and whether there need to be steps taken to acquire that land which may not necessarily always be within the law and that they will be reason for the police to surveil them. I know of people who march to Waitangi every year and who are likely now to have given the police the reason to stick a camera in their rooms. I know that at the Waimanoni Marae the Mahimaru marae and a whole range of maraes people discuss these kinds of activities. They will now be open ground for the police to put in cameras. 
This bill is a serious violation of our human rights. We do not have a Privy Council to oversee the Government’s actions or an Upper House to monitor legislation like this. We do not even have a written constitution. And the first time the Supreme Court comes up with something like this the Government instead of standing back and taking a breath along with the support of the main Opposition just goes bang and rides roughshod right over the top. 
This bill is an overreaction and is designed to be used in conjunction with the enormous resources that have been given to the police and the SIS since 2001 to protect us from so-called terrorism. But we are not a terrorist target except for the French bombing of the  
Rainbow Warrior 
 of course. The scary thing is that we have a history—I know this to be true—of passing laws for one purpose and then using them against those who dissent. The charge of breach of the peace which I have been arrested for on numerous occasions was introduced originally to justify giving police the power to stop gangs intimidating people but has been used more against protestors arrested at Waitangi and elsewhere than against gangs. Trespass orders were sold as a way to help farmers keep unwanted hunters off their land but have been used willy-nilly ever since by police against protestors. This new bill is being sold as a means to catch really bad criminals but I guarantee—and I think the Minister knows this is true—that it will end up being used to monitor and suppress dissent. 
Freedom from surveillance is the right to be left alone. The police abuse of the law regarding surveillance should be punished not rewarded. This bill is getting pushed through while our whole nation’s attention is being diverted by the rugby. The bill is an expansion of the power of the State that New Zealanders would not support. It legalises illegal police activity. It grants powers to police instead of charging them for their illegal actions. It is a breach of human rights. It is being rushed through Parliament without proper debate. It will impact directly on Maori activists beneficiary rights activists unions environmentalists and I am sad to say ordinary New Zealanders. Mana opposes it and more intelligent members of this House do so as well. Kia ora tatou. 
The question was put that the following amendment in the name of Keith Locke to clause 5A be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 14 
Green Party 9; Maori Party 4; Mana 1. 
Noes 105 
New Zealand National 57; New Zealand Labour 41; ACT New Zealand 5; Progressive 1; United Future 1. 
Amendment not agreed to. 
The result corrected after originally being announced as Ayes 15 Noes 105. 
A party vote was called for on the question  
That clauses 1 and 2 and Parts 1 and 2 be agreed to. 
Ayes 105 
New Zealand National 57; New Zealand Labour 41; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 14 
Green Party 9; Maori Party 4; Mana 1. 
Clauses 1 and 2 and Parts 1 and 2 agreed to. 
The result corrected after originally being announced as Ayes 105 Noes 15. 
Bill reported without amendment. 
Report adopted. 
Third Reading 
Hon CHRISTOPHER FINLAYSON (Attorney-General) 
: 
 I move  
That the Video Camera Surveillance (Temporary Measures) Bill be now read a third time 
. I endorse what Mr Hide said; I think this bill is the result of political parties working together to find a solution to a problem. It is not the result of any one individual it is not the result of any one party; it is the work of Parliament. The sequence of events leading to this third reading goes something like this. On 2 September the Supreme Court gave its judgment in the Hamed case. It was suppressed so applications needed to be made so that suppression orders could be varied. The decision to lift suppression on most of the judgment was finally issued on Thursday 15 September 3 weeks ago today. From that point the Government worked as fast as possible to find a solution to the problem. After a week of consultation by me when the House was in adjournment a paper went to Cabinet on Monday 26 September. The bill was introduced on 27 September and was reported back on 3 October. This afternoon this Parliament will hopefully have solved the problem in the 3 weeks since the judgment was unsuppressed. 
Some have suggested that the Government has moved too fast to fix the problem. I reject the submissions of some of those who said that this Parliament is “the fastest lawmaker in the West.” If members want an example of fast lawmaking they need only look at the Westminster Parliament which in July this year passed the Police (Detention and Bail) Act 2011. That bill was a legislative response to a problem presented by a court decision that changed a longstanding law concerning aspects of bail. The legislation reversed the judgment. It started and completed its Commons stages on Thursday 7 July. It also had its first reading in the House of Lords on 7 July. It passed all these stages with the support of the Conservative Party the Labour Party and the Liberal Democrats. Its effect was fully retrospective; it was not a temporary measure. That is not what is happening here; this is a temporary measure. I believe it is an example of Parliament working well and I endorse the excellent editorial in the  
New Zealand Herald 
 today in that regard. From the time the judgment was unsuppressed we have approached this situation with an open mind. I have tried to include the other political parties and groups in discussions. I acknowledge the assistance of the Acting Leader of the House who gave me tremendous assistance to ensure that this bill could finally go to a select committee. 
There are a number of members in this House who deserve credit for getting us to the point we are at this afternoon. First I acknowledge my colleague Chester Borrows and thank him for his chairmanship of the Justice and Electoral Committee. I also acknowledge Keith Locke and Te Ururoa Flavell two members for whom I have enormous personal respect. Both Mr Locke and Mr Flavell have been troubled by this bill and it is apparent that their parties will not vote for it today. They are both principled members of this House who have engaged in arguments on policy. Neither is interested in self-promotion and I say to Mr Locke that I shall miss his contribution in this House very much. I thank my colleague the Hon Peter Dunne the member for Ohariu. As it turns out I met him a number of times after the decision was released. I valued his advice and contribution particularly on the sunset provisions. 
I also thank my colleague the Hon Rodney Hide. He is another principled member of this House. From the outset it was clear he had problems with the bill. He was prepared to support it to a select committee. His first reading speech I thought was very sincere and eloquent and it rightly received a lot of praise. He played a very constructive role in the select committee and I thank him for it. Like the Criminal Procedure Bill which passed the other day the bill we are debating is testament to his tenacity and his intellectual input. I acknowledge and endorse his generous comments about the Law Society and other individual submitters like Associate Professor Andrew Geddis of Otago University. 
I thank the Hon David Parker who in all my dealings with him for example on legislation concerning the foreshore and seabed and on this sort of bill shows himself to be entirely trustworthy. I think he is a genuine parliamentarian. At an early stage he recognised the importance of the situation that faced the Government and this Parliament. I believe that Mr Parker is a tough principled opponent who always maintains personal confidences and observes parliamentary conventions. I think he is wrong on section 7 but as he said on the section 7 report that task was assigned to my colleague Kate Wilkinson and the report concluded that section 21 of the New Zealand Bill of Rights Act was not engaged. 
The bill we debate today is to all intents and purposes the bill sent to the select committee. The difference is that certain elements of retrospectivity have been removed. I say “elements” because I do not see how the barring of appeals from people already convicted can be anything other than having a retrospective element although I do say to Mr Locke that it could also be categorised as a legislative stay of proceedings for a period. The Search and Surveillance Bill does not contain those provisions so it will have to be looked at again when the new Parliament is convened; that may give him some comfort. The important point is that this is not a new bill as I emphasise; it is not a victory for any one political party. As I said I agree with Mr Hide that it is a bill that is a product of this Parliament—it is a credit to this House. I was pleased that the evidence submitted supported the Government’s original contention that elements of the Search and Surveillance Bill could not be plucked out in some kind of hotchpotch fashion and rearranged into some new scheme. That idea was never going to fly. I think everyone now recognises that those complexities were too large. 
In conclusion I thank all those officials for their hard work on the bill. I particularly acknowledge John Pike general counsel at Crown Law and Elizabeth Grant of the Parliamentary Counsel Office for their hard work and effort on the bill. I believe that they are examples of the first-class public servants we have and it is right and proper that their efforts are recorded in  
Hansard 
. As is now tolerably clear—and again I am sure this will give Mr Locke some comfort—it will be the task of the new Parliament to pass the search and surveillance legislation into law. I commend the bill to the House. 
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. 
The ASSISTANT SPEAKER (Eric Roy) 
: Before I call the next member I wish to correct the record. The votes on the amendment in the name of Keith Locke and that the provisions of the Video Camera Surveillance (Temporary Measures) Bill be agreed to were incorrectly announced as Noes 115 Ayes 15 and Ayes 105 Noes 15 respectively. The correct result on the Locke amendment is Ayes 14 Noes 105 and on the main question Ayes 105 Noes 14. The record will be corrected in both cases. 
KEITH LOCKE (Green) 
: 
 I am very sad; I seem to have lost one vote in that correction. I will go home very sad. 
I think this has been a very intelligent debate on the Video Camera Surveillance (Temporary Measures) Bill and I commend all the members who have spoken for addressing the issues in a very good way. I thank Chester Borrows Rodney Hide Chris Finlayson and Charles Chauvel for their comments about me and this being my last afternoon in Parliament. I also agree with the  
New Zealand Herald 
 editorial even though I did not entirely agree—it was a bit too positive about the resulting bill. But I think it did highlight a point about the importance of MMP in resolving issues in this House and the role that smaller parties play in resolving those issues. I think that all of the parties represented including the Green Party made some contribution to the positive changes that happened in relation to the bill. 
I did a bit of arithmetic about how the 12 months could be changed to 6 months. I might not have been the only one doing the arithmetic but I think it all helped to shorten the time frame of this particular bill. I thank Christopher Finlayson for reminding me and us here that the bill lasts for 6 months so the question of appeal rights being not available because of clause 5A—unfortunately my amendment to omit it went down in the vote—lasts for only 6 months. 
I will make one or two more general points. I made some points about what could happen with agencies—the fisheries ministry the Commerce Commission the Customs Service etc. etc.—leaving covert video cameras as a result of exercising search warrants on private property and Hone Harawira talked about the possibility of video cameras on marae and all the rest of it. That might seem a bit extreme and one might think it would never happen. I think that reflects a problem we have in some of the debate in this Parliament in terms of two things. 
First I say that a lot of MPs get emails from people who are quite paranoid already and think that people are spying on them following them and all the rest of it. I think that response in terms of the number of such emails would increase if we give State agencies the power to put covert video cameras in private houses or private offices so that would be a downside. 
The other side to it is that often we think in terms of our current Government and the political character of our current Government. When Labour was in Government I often used to get: “Oh Helen Clark would never do that.” in response to my criticisms of some increase in State powers. I said that the issue was not whether Helen Clark would do it; the issue was whether a more repressive Government say a Muldoon-type Government or whatever would do it. Similarly it is not a question of whether a John Key Government would do it; it is a question of whether a more repressive Government might do it. So we always must frame laws with the idea that some nastier Government might come into office and use these laws in a more repressive way. 
I think one of the reasons why in Europe there is quite a consciousness—possibly a stronger consciousness—of civil liberties is that they have been through some quite repressive government situations and they hold on jealously to their human rights and have European human rights courts and all kinds of things. I take Chris Finlayson’s point that stuff can go through the British Parliament pretty quickly as well but I think we have to bear that in mind much more. Tony Ellis talked about international law and the United Nations Human Rights Committee and the human rights cases he had taken and won there. When he said that a case relating to this bill could go before the United Nations Human Rights Committee on the basis of the International Covenant on Civil and Political Rights he was trying to look at our law—and I think that is useful; Tony Ellis is a respected lawyer—in an international context. 
This relates to what Charles Chauvel just said: it may be true that there are some criminals who write things on whiteboards and escape the attention of the law because of it and they might be serious criminals but the fundamental issue that we have to always bear in mind is that the protection of civil liberties—and keeping the State out of people’s bedrooms and offices with its video cameras is part of it—does mean some guilty people some criminals some serious criminals go free. But it is a balance. It is a balance of the rights one applies to the total population which might diminish to some extent the powers the police and other State agencies have but that is the balance we should have in a free and democratic society. I appeal to future parliaments to really look closely at that balance and where it should lie. 
There was a reference by Charles Chauvel about entrenching the New Zealand Bill of Rights Act. I constructed a member’s bill with the help of various members of this House from other parties—I am very pleased they engaged in that process with me—to try to strengthen the section 7 process of checking legislation and strengthen up the application of the New Zealand Bill of Rights Act in the judicial system. The bill has languished because there have not been many members’ bill ballots if any for several months so my bill did not come out into the public space to the extent that I would have liked. I invite any other member of this House to pick it up and carry it in either its present or an amended form in the next Parliament. 
I think the fact that we have had such a discussion of the New Zealand Bill of Rights Act around this bill is very valuable. I appreciate what Chris Finlayson said about there being a bill of rights clause in this particular bill. I look forward to the next Parliament really taking up these issues in a serious way. Thank you. 
Hon NANAIA MAHUTA (Labour—Hauraki-Waikato) 
: 
 I am pleased to take a third reading call on the Video Camera Surveillance (Temporary Measures) Bill and to have been a member on the Justice and Electoral Committee. The contributions to this debate from the first reading to now have been thoughtful and a lot of issues of principle have been brought to the House to consider. 
That is not to mention at the outset the issue of retrospective law change. When this bill was introduced I said in this House that as a parliamentarian I found it difficult to entertain retrospective law changes because I believed that the threshold was quite high and that we should err on the side of caution when we make any consideration of that sort. When this bill was introduced with the wider ambit of retrospective law change I had a big pause and thought no we need to think further about this. 
My colleagues Charles Chauvel and David Parker have both outlined the Search and Surveillance Bill as being the broader framework by which search and surveillance powers could be better addressed in an ideal world. That bill has been delayed for far too long in this House. 
I say from my perspective in the time I was Minister of Customs in the last Government that the search and surveillance powers of border agencies need to be far more sophisticated than many lay people will ever know. It is not about just domestic crime; it is about the international crime networks that New Zealand must be in a position to respond to. When we were considering the prospective powers of police to utilise covert video surveillance we were very clear on the Labour benches that they need those types of powers going forward to ensure that they can enforce the law as it is intended to be in order to keep our communities and our citizens safe. We were very clear about the prospective powers of the police going forward. 
Again at the first reading we raised the issues of civil liberties. Whenever one ascribes powers to the police they must be balanced with protections for the public. We were very mindful that the bill was somewhat lopsided ascribing powers to the police without adequate protections for the public. That matter had to be considered somewhat through the select committee process. I am glad that we had that process. 
The other issue we needed to question was the Government’s claim at the time it introduced this bill that 40 or 50 cases would simply lapse or have to be released as a result of these changes not going through. Well in fact when we got to the select committee and heard submissions from the New Zealand Law Society the police and some legal experts what they were saying was that provisions within the existing law could deal with those types of issues. They all urged us to reconsider retrospective changes which did not need to be applied to these particular cases. 
One of the benefits that I had from the expertise that came to the select committee was to understand the nature of the difference for those people who have already been convicted and are currently serving time. We gained greater clarity as a result of the select committee process to make clear that those cases should be left alone and that they should remain untouched and be treated as the law was understood to have applied prior to 2 September. 
This is a temporary fix. I am glad that the time has been shortened from 12 months to 6 months. It does put urgency on the next Parliament to pass the Search and Surveillance Bill. No matter who is on the Government benches the general public needs to know that that bill has already gone through a full and comprehensive select committee process. It has some support across the House and it addresses this issue of balance of interest between the public good and powers ascribed to enforcement agencies but also it is very prescriptive as to which enforcement agencies should have certain powers. I regret that in the solution that has been agreed to by the House today the warranting method of ascribing powers to the police for covert video surveillance was not able to be achieved but this was somewhat offset against shortening the time for this temporary measure to go forward. 
There was nothing more compelling for me in the select committee than two lots of evidence. The first bit of evidence was from the legal profession and it affirmed in my view the view that Labour took at the very outset with this bill that there must be a strong balance between the rights of citizens and the rights of the police that that balance must be made clear and that retrospective law change is not a solution in this particular instance. The second compelling bit of evidence was from a member of the public who was caught up as a third party to covert video surveillance. She spoke quite evocatively about the emotional stress and pressure of being in that situation. Again that reaffirmed to me the caution that we as parliamentarians should have when we are considering these types of measures and that we need to consider the civil liberties of individuals and society at large whenever we are addressing the question of more powers for those who are required to enforce the law in order to keep our communities and society safe. 
I thank the clerk of the committee the Parliamentary Counsel Office Crown Law and my colleagues Charles Chauvel and David Parker for the thoughtful contributions they made at the select committee. I certainly thank all those submitters who in a short time frame made submissions to the select committee.  
My last comment is really to the Maori Party. Given the legal expertise the Maori Party has I urge its members to look at the changes to the bill and at some of the recommendations of the select committee which I think got to a reasonable way forward to ensure that we have a safe society that the police can carry out lawful activities and that we have been very clear as legislators to ascribe the types of powers that the police should have for the short period before we pass the Search and Surveillance Bill. Kia ora koutou.  
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 The Video Camera Surveillance (Temporary Measures) Bill cuts to the core of some deeply held concerns within our community around transparency accountability trust and corruption. This legislation has been put forward by the National Government with Labour and ACT’s support. It asks us to suspend the law temporarily to condone an unlawful act by the police and then to add fuel to the fire by introducing legislation to make the unlawful lawful. We believe that there has been politicking by both larger parties to create a perception for voters that they are tackling the tough issues that they will not be soft on crime and that they are making their mark. If they thought it was such a problem they would have dealt with it earlier when the Law Commission raised it and when the courts previously raised it. Why wait 3 months or even less before the election to raise it? Why wait until the last week that Parliament is sitting to bring in this bill to deal with that issue? The question we have to ask is what sort of justice system we have if the upholder of the law is allowed to break the law and get away with it. If the police want to forge relationships with the community then breaking the law—and the Government then introducing new law to make those breaches lawful—is not the way to achieve public trust and confidence. 
I cannot help but think that when we are thinking about public trust and confidence in the police we are walking through some very treacherous waters at this time. Although the Government has been at pains to say that this bill is not about Tuhoe the people of Tuhoe are the silent ones sitting through this debate. Their experiences cannot and must not be forgotten. 
In this third reading I will focus on one thing and one thing only: corruption. The Maori Party wants to sound out a loud warning against corruption. In doing so my colleague Dr Pita Sharples has already announced that the Maori Party will be taking a stand against corruption in the upcoming election. As a Parliament we cannot allow for corruption in our police no matter how loud the Police Association screams for it. The police are supposed to be protecting our citizens not running roughshod over the law. They are supposed to be stopping criminals not acting like criminals. Make no mistake as much as some want to deny it the trust that New Zealanders have in the police is tenuous at best; more accurately it is fragile. Yes some want to hide that fact. Well it is time to call out the open secret not because we want to undermine the police—quite the opposite—but because we want to be able to expect a lot more from them. 
It is time to say that there is an elephant in the room and that elephant’s name is a police force that is at the tipping point of corruption. We ignore it at our peril. Look beyond the spin; look at their own documents. What we will find is that full trust and confidence in the police is at an all-time low. Only 28 percent of New Zealanders have full trust and confidence in the New Zealand police. We also find that for those people who have contact with the police not criminals but victims the confidence rating declines. That is right. We all want to believe that the police are a force for good but when we actually need them and have experience of them we are confronted with the reality that causes our confidence to decline. 
If we want more evidence we can look at the most recent crime survey the New Zealand Crime and Safety Survey 2009 which reminds us again that only one out of every three victims reports a crime to the police. Why is that? The survey says it is because victims are too ashamed or embarrassed to go to the police. That is right; the worst sorts of criminals—sexual predators—are going free because according to the Government’s own survey the police could not or would not do anything to help. If the police are not embarrassed by that then they should be embarrassed by the fact that the women who were brave enough to speak to Dame Margaret Bazley about police cover-ups in relation to sexual assault allegations have not been apologised to by this Government and have not received any compensation. 
We cannot let declining trust and confidence in the police impact any more on the social fabric of New Zealand society than it already has. Whether it is the women who spoke up against police sexual aggression and cover-ups whether it is the 500-odd cases of child abuse in the Wellington region alone that were not investigated whether it is the few bad apples and the people who cover for them that erodes the public’s trust and confidence or whether it is the people of Tuhoe who were terrorised by the State on that fearful and dark day the Maori Party will not be party to any legislation that further compromises the fragile trust and confidence that New Zealanders have in their police force. We will be part of the solution; not the problem. 
The starting point for us is that the Supreme Court cannot be bent or dictated to by expediency. Absolute vigilance must be taken and a proper informed debate needs to happen unless there is a truly exceptional reason not to do so. All criminal law must protect the rights of an individual against the State lest the individual becomes oppressed. That is why one does not allow Parliament to take away a person’s rights lightly and it is why there are real restrictions on the police in the way of search warrants. The Hamed decision made it clear that covert video surveillance that involves trespass is unlawful. We are a rule-of-law society and we cannot retrospectively criminalise what is not criminal. Let the courts decide. They have much more experience and more ability than Parliament to decide these things. 
We do of course appreciate the move that the Minister has made to remove the retrospective application that was introduced in the original form of the bill. We were utterly opposed to the initial intention to make the law retrospective. It is an outright constitutional challenge a mechanism to flout our constitutional rights and ignore the responsibilities of Government to protect and uphold the law. The judicial process itself already has sufficient checks and balances in place to determine the lawfulness of evidence obtained by the use of covert video camera surveillance under section 30 of the Evidence Act. 
I come back to the focus of my korero. Corruption constitutes a major obstacle to democracy and the rule of law. The police lose their legitimacy when they misuse power for organisational advantage. For those members in this House who may think we are overstating the facts let me finish by drawing their attention to the most recent global survey by Transparency International. In that survey 73 percent of New Zealanders said that corruption had increased over the past 3 years. Those same New Zealanders regarded political parties as the most corrupt. The least corrupt were the military then teachers then judges then the non-governmental organisation sector then the police. A close reading of the data says something that should worry us all. Only 10 percent of people surveyed did not think that the New Zealand police were corrupt. Everyone else thought the New Zealand police came between somewhat corrupt and extremely corrupt. 
The Maori Party will not support any legislation that further undermines people’s trust in the political or judicial system its institutions and its leadership. We do not support this bill. 
Hon DAVID PARKER (Labour) 
: 
 I think that some of the misrepresentations of the legislation by the last speaker Rahui Katene are regrettable. With respect to her she should know better. Her irresponsible conduct is one of the things that undermines public confidence in our important democratic institutions. Labour is already on record and in fact I am on record in the first reading of the Video Camera Surveillance (Temporary Measures) Bill as saying that I too was dissatisfied with some of the police conduct in respect of the Tuhoe raids. They were wrong. I still think there is a need for us to scrutinise whether it was right to have black-suited men with high-powered rifles crawling over school buses. I thought that was an overreaction by the State. 
The ASSISTANT SPEAKER (Eric Roy) 
: I am sure the member is aware of something that is sub judice. I want the member to talk in principle without referring to the level of specifics he is getting into. 
Hon DAVID PARKER 
: I was referring to things that were on the news and I was not held up in the first reading debate. I do not need to take it any further but with respect— 
The ASSISTANT SPEAKER (Eric Roy) 
: It is a different rule for the media. 
Hon DAVID PARKER 
: —I am quite entitled to say what I have said. For the member of the Maori Party to then go on to suggest that this legislation is making the unlawful lawful is not correct. What is actually being done here is the giving of a prospective power legally as this Parliament is entitled to do. 
I take issue also with something Mr Locke said. I have considerable respect for Mr Locke and I wish him well in his retirement but to use the example of Europe as if it is some reason that New Zealand law enforcement officers ought not to have a prospective power of surveillance appropriately prescribed is plain wrong. I would be surprised if there is one country in Europe where the police or the security agency does not have a power of covert surveillance albeit with judicial— 
Keith Locke 
: With trespass. 
Hon DAVID PARKER 
: Trespass; getting a warrant and going into someone’s house or into business premises and putting in a video camera to surveil people who are alleged to be conducting very serious crimes. I am sure that those powers are held in just about every European country. To suggest that the European experience is a reason why New Zealand ought not to have appropriately prescribed powers for our police and security agency is wrong. 
I refer to something the Attorney-General said. He took a flick at my colleague Charles Chauvel. I have to give credit to Charles Chauvel for having actually put the welly in. He did more work on this bill than anyone else in this House—and that is giving due respect to the attention it was paid by those in minor parties including Rodney Hide. It was Charles Chauvel who stayed up to 3 a.m. to draft a Supplementary Order Paper that listed powers for the police appropriately prescribed requiring a warrant having a minimum level of seriousness of offence and prescribing a list of agencies to which the legislation applied. 
I do not accept what the Attorney-General said—that there was an impossible attempt to lift powers from the Search and Surveillance Bill. Yes it is true that Sir Geoffrey Palmer says the Search and Surveillance Bill powers could not be lifted holus-bolus because there are things like training regimes and reporting regimes. Well we did not have to lift those provisions. The Parliamentary Counsel Office had no other drafting on its books Parliament is about to rise there was no other legislation required to be drafted and this was the most important constitutional issue to arise. In a matter of days the office could have done the appropriate drafting of the legislation—which was quite simple and which Charles Chauvel had done the bulk of anyway—to list that agencies had to get a warrant the warrant had to be from a judge there had to be a minimum level of seriousness of offending before agencies got it and there had to be a list of agencies to which it applied. If that list was short and it missed out an agency those people could get a warrant through the police if it were a serious matter. 
So this legislation is not as good as it could have been. It is better than it was. It does leave to the courts the exercise of their discretion with illegally obtained evidence and I trust them to exercise that discretion wisely. We have given that discretion so that they have the ability to exercise it if necessary. 
I am not going to say anything else. I think it is unfortunate that we have not passed the Search and Surveillance Bill. I have a suspicion that the reason it has not been passed is the three conditions Labour raised. One is that we need to constrain the powers which are currently too broad of the Serious Fraud Office which has at times abused those powers. Given that we are giving examination order powers under the Search and Surveillance Bill that override the right to silence that should be more prescribed. We also need to be clear about press freedoms. I have a suspicion that the intention of the Government is to ignore those three reasonable conditions and try to whack the bill through after the election. I invite the media to watch this space in respect of that because I can see no other reason why we have not had a response to the letter I sent on behalf of Labour a year ago. With those reservations I am happy to record that Labour is supporting this bill. 
Hon RODNEY HIDE (Minister of Local Government) 
: 
 I will take just a short call hopefully on the third reading of the Video Camera Surveillance (Temporary Measures) Bill. If the bill did what Ms Katene said and Mr Locke alleged I for one would not be voting for it. In fact the bill does no such thing. Previous to 1996 it will be remembered that MPs were not allowed to read speeches and I think that was a much better system. Those speeches have clearly been prepared before the Justice and Electoral Committee did its work and changed the bill; it is a substantially different bill we are talking about. 
Let me make just a couple of things clear. Firstly there is no retrospectivity in this legislation which is actually what was so upsetting to everyone bar for one point—that no one who currently has a conviction can use  
R v Hamed 
 as the basis of an appeal. I think that is a bit egregious but we made that decision on the basis that the submitters were very clear it would not affect anyone and in a way we were trying to quieten down our caucuses who were alarmed that that was the case. So in a way no harm has been done and we actually had a bit of comfort. I would make the point also that the legislation is for 6 months only. 
Secondly and this is the critical bit there is no retrospectivity for anyone in the system. I think that is a very very important achievement of this Parliament and indeed for the Attorney-General and for the executive. It would be shocking if we think about it to be before the courts the Supreme Court makes a decision and then Parliament comes along and retrospectively denies someone their rights and in fact their defence of criminal charges. Parliament has done no such thing with this legislation. Thirdly it is only going forward that this legislation applies to beyond that point made about those with a conviction. So it is entirely prospective and the Supreme Court decision stands. 
It is perfectly correct that Parliament makes the law. What it has done with this law is make a fix. The reason for that was there were a lot of dangers in running around trying to produce a warrantable procedure in a couple of days. We were likely to make more mischief than we actually saved. So essentially what we have done is codify the practice that was in place and allow it to go forward—confident by the way that no cases that are before the courts will fall over. If one or two do actually that is correct because the evidence was obtained unlawfully and improperly. And those cases should fall over because that was the law at the time the evidence was collected—clearly. 
Going forward we have to thank Chester Borrows for this. We were quite happy I believe that the police could get an ordinary search warrant and have video surveillance powers under that warrant for 6 months. I am going to lay this on Chester: it was Chester Borrows ex-policeman prominent lawyer and fantastic MP for Whanganui who suggested—and I was not up on the practicalities and I ask members to understand that this was moving pretty fast—that if the police were going to carry out surveillance they would need to put it in their application for a warrant and it would be noted on the warrant. That is a huge advance over our situation. 
It is not the case as I think Mr Locke suggested that people can just go along and get an everyday warrant and then undertake covert surveillance. They will not be able to do that in their application to the District Court. They will have to say they are applying for a search warrant and that they will be doing video surveillance. I think that is a very very important feature and I thank Chester Borrows for that suggestion. 
On over-the-wall surveillance—and I think Keith Locke accepts this—subject to section 21 of the New Zealand Bill of Rights Act people can actually do over-the-wall surveillance because if they are out on the street they can film and that is what will continue. Crown Law wrote to all of the agencies and said people could not do that. This law makes clear that people can do that but members should understand—and again this is Parliament—that it is only for 6 months because there is not one member of this Parliament who thinks the present situation is satisfactory. We have a patch we have a fix-up it is there for 6 months and in 6 months this Parliament will have to come back and fix it. I think that is a great result and I am a bit sorry that Mr Locke and the Maori Party—and I understand that Maori Party members were not at the select committee—have actually given speeches on an earlier version of the bill. Thank you very much. 
A party vote was called for on the question  
That the Video Camera Surveillance (Temporary Measures) Bill be now read a third time. 
Ayes 105 
New Zealand National 57; New Zealand Labour 41; ACT New Zealand 5; Progressive 1; United Future 1. 
Noes 14 
Green Party 9; Maori Party 4; Mana 1. 
Bill read a third time.