Locke Keith: Video Camera Surveillance (Temporary Measures) Bill — First Reading 
Locke Keith: Video Camera Surveillance (Temporary Measures) Bill — First Reading 
[Volume:676;Page:21456] 
KEITH LOCKE (Green) 
: 
 The Video Camera Surveillance (Temporary Measures) Bill is one of the worst bills to pass through this Parliament. It is being rushed through completely unnecessarily. It is a retrospective bill that legalises illegal behaviour by the police and other agencies. This Parliament is here to make laws and people are punished for breaking those laws. In this case we are doing the very opposite. 
Parliament has found that the police and people in other State agencies—and the bill does talk about other State agencies; it is important to know that this legislation is not just about the police but it is about other State agencies that have search powers as well—have been breaking the law by engaging in covert video surveillance without authority. Rather than bringing the police to account or giving them some sort of punishment what are we doing? We are passing a law in a rush to make that illegal behaviour legal going way back to the time when video cameras were invented—there is no start date to this bill—and for a year into the future. 
I think the essence of this issue is that we are overriding one of the most important laws on our statute book—that is the New Zealand Bill of Rights Act. Section 21 of the New Zealand Bill of Rights Act protects the public from unreasonable search and seizure by State agencies including unreasonable surveillance. Chief Justice Sian Elias in her 2 September judgment explained this. She said: “Covert surveillance by the police of people who do not know that they are being observed collides with values of freedom and dignity in the same way as search of their correspondence or interception of their conversations. The right to be ‘ 
secure 
 against unreasonable search’ underscores a purpose in allowing citizens to relax vigilance and live their lives with freedom.” That is what the highest judicial officer in the land said. She made it clear in her judgment that the police and other agencies are able to do such covert video surveillance in breach of the New Zealand Bill of Rights Act only with lawful authority. 
There has been a lot of talk here about how we did not know that the police were doing wrong. Well the judgment of Sian Elias said the opposite. She talked about the deliberate breaking of the law by the police in this case. She used the word “deliberate”. She said: “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.” She is not pulling punches at all there. 
This idea that we all thought it was part of the common law is rubbish. It is wrong because even in recent times we know that the Law Commission in its report on search and surveillance laid out very clearly that there was not lawful authority for covert video surveillance. The report highlighted that and from that point on every police officer and every State agency would have known that they were breaking the law. 
Then there was the High Court decision in the Operation Eight case on 7 October 2009 which specifically said that it was unlawful to conduct video surveillance. That was what that case was about. Of course the decision used section 30 of the Evidence Act and said that despite the evidence being unlawfully collected the court would accept it because the crimes it was talking about were pretty serious. That was its decision. From that High Court decision on 7 October 2009 it was over a year later that the Court of Appeal came down with its judgment on 17 November 2010. The police should absolutely have been instructed to cease video surveillance. They knew and that is why Sian Elias the Chief Justice said that they were deliberately breaking the law. They knew of that High Court decision and of other decisions like the Gardiner decision and they consciously broke the law. 
This bill here provides for almost all video surveillance except covert video surveillance involving trespass. It allows for example sticking a video camera on a building next door to a place that the police or some other State agency wants to spy on. For a person inside the backyard bedroom or living room who is being spied upon who does not know that he or she is being spied upon—and if it is in a high place that person would not expect to be spied upon—his or her guarantee under the New Zealand Bill of Rights Act against unreasonable search and surveillance is very much violated. That person would be expecting privacy. 
As I said this applies not just to the police but also to any agency with warranted search powers which can include the Commerce Commission the Department of Conservation the New Zealand Customs Service the Department of Internal Affairs and the New Zealand Food Safety Authority—to name a few. They are all to be given carte blanche for all past video surveillance and for any future surveillance for a year. 
Why is this bill being rushed? That is what we want to know. It is very rushed. We did not even get a copy of this bill until the first speaker the Attorney-General started his speech. It is impossible to have a proper process when speakers in the first reading have had virtually only a few minutes in which to absorb the bill. It is important in the first reading to give the public and any submitters to the select committee process a bit of a steer by the different parties putting in their considered views. That has not been able to happen in this case. I have heard that there will be a select committee tomorrow morning at 9 o’clock. Somebody said that. I do not know whether that is the case. I have heard reports that it will be a very rushed process particularly for voluntary groups like the New Zealand Council for Civil Liberties the Human Rights Foundation or any groups like that which do not have full-time staff and are not full-time lawyers etc. to really contribute to such a rushed select committee. That is important if we are to get the right determination here. 
Why is there all of this rush? Would it not be much easier to wait just a month or two down the track until the next Parliament to pass the Search and Surveillance Bill? The Green Party would support giving priority to that bill. It is important because complex issues are involved here which is why the Justice and Electoral Committee—upon which I sat for the Green Party on the Search and Surveillance Bill—spent 2 years discussing all the complex constraints and procedures around search and surveillance. Since then that bill has been waiting in the parliamentary hopper for the second reading. When we discussed that bill in the select committee we actually went back—unusually for any bill—to submitters for a second round because it was very complicated and we wanted to get it right. 
The Greens think there are a lot of good things in the Search and Surveillance Bill although we are critical of some elements of it which is why we have not been supporting it as a whole. We do not want a provision in there for covert video surveillance involving trespass. We are very much against that. 
What is the argument for haste for the Video Camera Surveillance (Temporary Measures) Bill? There are 40 current trials and 50 police investigations that might be compromised but are we really sure about those figures? I asked a question today about how many trials involving this form of surveillance have been completed in just this last year and I was not given a figure at all. It was too hard to even work out a figure apparently so I do not necessarily trust those figures of 40 trials and 50 police investigations. 
There are two other things. Most trials and investigations involve a lot of other evidence. How do we know that the covert video evidence is critical? In any case section 30 of the Evidence Act allows illegally obtained evidence to be accepted in a court case if the case is serious enough. 
I do not see that more than one or two criminals would get off if we left it for a month or two until the next Parliament. That can be the price of civil liberties. The price of civil liberties is that some criminals actually get off. That is the price of civil liberties. All we are talking about here is a temporary period. 
Thinking back years ago there has been a whole tradition in the protection of privacy. I will perhaps finish on one good quote which is from former Prime Minister William Pitt or Pitt the Elder who said: “The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter—the rain may enter—but the King of England cannot enter—”. I think the essence of that quote is that we should very jealously protect our privacy from unreasonable surveillance by State forces. Thank you.