Vote for Change Changes Pamphlet
November 14, 2011
I complained to the Advertising Standards Authority last week about Vote For Change’s pamphlet advocating SM. I thought it was badly misleading in several respects. Graeme Edgeler explains one problem with it here (where he also has a copy of the one side of the original pamphlet).
Another was that it tried to cash in on voters’ antipathy to 120-MP Parliaments by proclaiming that the other systems “could work with 99 MPs”. But they didn’t tell us that under the referendum legislation, all the systems are based on 120 MPs. They were trying to entice voters with an advantage that wasn’t on the table for the referendum.
Vote For Change has now addressed both of these problems (scroll down here), though there has not yet been any ruling from the Advertising Standards Authority.
I still think it’s misleading to say that under MMP, “Minor parties decide who is PM”. First, it’s not necessarily the case: National and Labour could form a coalition. Second, it’s not really true: if minor parties could decide, why wouldn’t they pick their own leader? It’s really the voters who decide who has the bargaining strength in coalition negotiations.
At the top of Vote for Change’s website, they set out the disadvantages of MMP, including:
MMP allows List MPs who have been voted out by their local electorates to sneak back into Parliament on party lists.
and
We want an electoral system that provides certainty for voters, rather than forcing Kiwis to wait for post-election negotiations.
The pamphlets strongly imply that the system they’re recommending, SM, doesn’t suffer from these flaws. Of course, that’s misleading too, especially with respect to the “sneaking back in” point. Let’s be clear: SM allows people we’ve voted out to “sneak back in” on the list, just (probably) not so many. It’s a difference in degree, not in kind. But because the “sneak back in” argument is such a trump card, the Vote For Change folks seem loathe to admit that their pick suffers from the same problem.
Those are the arguments I’ve put to the Advertising Standards Authority, anyway. It will be interesting to see what they do. But if, as looks likely, the complaint has prompted the changes they’ve already made, I regard it as a success for the ASA system already.
Topics: Advertising Standards | Comments Off on Vote for Change Changes Pamphlet
Of sneaky devices
November 13, 2011
John Key’s cunning plan to send a signal to the troops by sitting down for a cuppa with Act’s John Banks may have come undone by another sneaky device.
It seems that the conversation was recorded and may contain “game-changing” comments, according to the Herald on Sunday. The paper says a freelance cameraman was stopped from retrieiving his gear shortly before the cup of tea summit, and when he collected it afterwards, he found to his surprise it had been recording the whole 8 minute conversation.
The HOS says its legal advice said pubishing the contents would not be illegal, but the paper decided to ask for consent from the participants. When Key refused, the paper decided, out of ethics, not to publish the private conversation – though it did provide some general information about what was discussed, enough to whet our appetite and suggest there was public interest in the comments.
What’s the law here?
If this account is to be accepted, I think the HOS’s legal advice is probably on target. It’s a crime to intentionally intercept a private communication using an interception device. A private communication is one that is made under circumstances that may reasonably taken to indicate that any party to it desires it remain private, but:
does not include such a communication occurring in circumstances in which any party ought reasonably to expect that the communication may be intercepted by some other person not having the express or implied consent of any party to do so.
Although a battalion of journalists were about a metre away behind a window, let’s assume that Key and Banks couldn’t reasonably expect it to be overheard, and that the circumstances indicate that both desired their conversation to remain private.
The only issue, then, is whether the interception was intentional. On the paper’s account, it was inadvertent. In fact, it says, the cameraman tried to retrieve his recorder before the conversation but was stopped by Key’s security folk, and didn’t know that the recording was even happening. Now, I don’t know anything more than has been reported. But I wonder whether there is room for doubt about whether the cameraman genuinely didn’t know that the conversation was being recorded.
If it could be established that he did know, then he has committed an offence. The paper would then also commit an offence if it published the contents of the communication without the consent of one of the parties (interestingly it only needs the consent of one).
On the other hand, if he didn’t know, then he’s in the clear and the paper can publish at whim and not breach the criminal law.
But might there be civil liability for doing so? There are two possibilities here: breach of confidence and invasion of privacy. Breach of confidence can be established if information is imparted (Key to Banks and vice versa) in circumstances importing an obligation of confidence. That’s probably the case here. That confidence then binds third parties into whose hands the confidential material falls if they know it’s confidential. That’s also the case here. The publication of the conversation is prima facie a breach of confidence.
Invasion of privacy can be established where private facts are disclosed in a highly offensive way and in breach of a reasonable expectation of privacy. That’s a bit more questionable here. But if a confession of murder can be a private fact (in the Rogers case) then probably the contents of the conversation here are private facts too, even though they don’t really relate to intimate and sensitive matters. There probably is a reasonable expectation of privacy. It’s at least arguable that publishing would be highly offensive.
But that’s not the end of the story. In both torts, there’s a defence of public interest. If the material disclosed reveals a matter of legitimate public concern, then no tort has been committed. That would certainly be the case if Key or Banks said anything inconsistent with what the public was being told, and probably also if it revealed any significant matter that the public wasn’t being told. It’s possible that some of the conversation is in the public interest and some of it isn’t.
A couple of final matters. The Privacy Act does regulate the collection of information, but doesn’t apply to the news media in its news-gathering activities. Given that the collection of this information was said to be inadvertent, there might be an argument that the Privacy Act applies, and that, for example, the collection of the information was unfair, unlawful or unreasonably intrusive. The Act isn’t enforceable in the courts and a complaint would have to be made to the Privacy Commissioner.
There’s also the possibility of a complaint to the Press Council. I doubt that this could apply to the actions of the cameraman. But it certainly could apply to the actions of the paper in deciding what to publish and what to hold back. The key issues here are the requirements of fairness and privacy. The privacy principle states:
Everyone is normally entitled to privacy of person, space and personal information, and these rights should be respected by publications. Nevertheless the right of privacy should not interfere with publication of significant matters of public record or public interest.
It’s arguable that these provisons have already been breached. Is there really public interest in revealing that the men discussed “Act’s future and its leadership, New Zealand First’s electoral chances and the percentage of the vote the National Party would secure”? Is it fair to hint at further explosive material and put pressure on the politicians to give consent?
Still, I’m inclined to think that the Press Council will find that the paper has so far managed its ethical duties responsibly.
In any event, it will be fascinating to see how this pans out. In cases like this, the people in the conversations can easily be accused, perhaps unfairly, of having “something to hide”. The usual PR response is to get it out into the public domain and deal with it quickly, rather than let it build up a head of steam.
And then attack the messenger.
Topics: Breach of confidence, General, Media ethics, Press Council, Privacy Act, Privacy tort | Comments Off on Of sneaky devices
Horsing around
November 1, 2011
Did the fact that the Melbourne Cup is being run within 24 hours of the leaders’ debate cause TVNZ to mix them up?
There’s a terrific book called “Breaking the News” by James Fallows that excoriates the US media for treating election coverage like a horse race. When voters ask questions of politicians, he points out, they want to know what their policies are. What are you going to do about X? Why didn’t you do Y?
When journalists talk about politics, he notes, they become obsessed with who’s winning. How will policy F play with the voters? Will gaffe G affect the party’s polling?
The TVNZ debate struck me as having quite a lot of substance to it. Guyon Espiner was asking many of the important questions. What they gave us wasn’t all flannel. Viewers could understand the basic policy differences between the leaders.
At times, it even sounded like an actual debate. Unfortunately, some of the most interesting direct exchanges between the leaders were cut off – because TVNZ had to make time for some asinine horse-race analysis. I can decide for myself whether I thought Goff looked nervous or Key seemed relaxed or Goff “attacked” Key by asking him questions directly. I don’t need “experts” to tell me that.
These segments trivialised the debate, belittled the leaders and patronised the viewers. Please stop it, TVNZ. Or at least consign it to some analysis segment later on that I can switch off.
If TVNZ really wants to add value to the debate, how about having some experts on who can provide some context to what the leaders are saying? What are they artfully leaving out? Are the statistics they’re citing misleading? How does what they’re saying compare with what they said last election? What are other countries doing about that particular issue?
While I’m steamed up about this, here are a couple of other things. Why bother inviting the panel of journalists if they’re only going to get one question each? Together with the host’s questions, the video questions and the twitter feedback, the debate was too crowded. It meant that the leaders seldom had to have more than 30 seconds to say about any issue and were shut down when they actually wanted to debate each other. That was really annoying to watch and sometimes actively unfair to one or other of the leaders.
Last of all, why invite an audience when they had to sit there looking at the backs of the politicians? It seemed rude.
Topics: Media ethics | Comments Off on Horsing around
Radio NZ supports SM?
October 31, 2011
I’ve just listened to all four of Radio NZ’s primers on the various options for the referendum and noticed an interesting thing. (I found them on the Morning Report segments: the Supplementary Member on is here, for example. I couldn’t get the relevant links on the special RNZ election page to work).
They are generally admirably well done: succint, accurate, balanced, and authoritatively sourced. At about 3 minutes long each, they don’t go into all the arguments, but they make a fair fist of the important ones.
But there’s one exception. The item on the Supplementary Member option stands out as surprisingly supportive. SM is introduced as “shaping up as a main contender”. RNZ describes it as “somewhere in between” the proportional systems and the FPP-type ones. Two sources – Jordan Williams and Michael Bassett speak glowingly of its advantages. There’s a good explanation of how the system operates. One source – Teresa Arsenau describes it, not in a derogatory way, as three quarters FPP and one quarter proportional.
Nobody speaks against it. Where’s the bite from someone saying something like, “SM was rejected by the Royal Commission, is basically FPP in drag with most of its attendant disadvantages, and is being used as a stalking horse by the anti-MMP crowd”?
[I’ve changed that from “roundly rejected by the Royal Commission” in response to Graeme’s point below that it’s an overstatement.]
Topics: Media ethics | Comments Off on Radio NZ supports SM?
Political protesters
October 31, 2011
Interesting that both our major parties’ election events had speeches interrupted by protesters over the weekend. Protesters reportedly urged John Key to “stop the war against the poor”, began to unfurl a banner and tried to throw something onto the stage.
A protester at Labour’s transport policy launch called out to ask what the party was going to do about the homeless and mentally ill.
It seems that in both instances the protesters were removed.
I don’t know any more details. But I have more respect for leaders who try to engage with hecklers before biffing them out. Stage-managed, invitation-only launches like National’s don’t feel like authentic democratic politics to me. And one might have thought that given Labour’s opening address emphasising the party’s roots as champions of the disadvantaged, its spokespeople should be more accommodating toward questions like that one.
If protesters can get our politicians off their scripts, more power to their elbows, I say. I don’t hold out much hope though.
[PS See the comment below. It seems I’m being unduly harsh on Labour. Perhaps my fire should be aimed at the reporting…]
Topics: Protest speech | Comments Off on Political protesters
Told you so
October 28, 2011
High Court agrees with me
You might remember that I argued (here and here) that the Broadcasting Standards Authority’s decision to uphold complaints against TVNZ’s documentary on the Aramoana massacre on grounds of taste and decency and children’s interests, was wrong.
The High Court has agreed with me. It has upheld TVNZ’s appeal. (I should disclose here that I did a bit of research work for TVNZ on this appeal, though it was Julian Miles QC who argued the case).
The programme
TVNZ had interviewed one of the police officers who was there, 20 years ago, when David Gray went on a shooting spree, killing 13 members of the public and a police sergeant. Officer Tim Ashton recalled that he had yelled out to Gray, who was raining shots through the window of the house he was bunkered down in, “You’re fucking good with women and kids. Come out here and have a go at us”.
Gray emerged with a concealed gun; when he revealed it there was a shoot-out and he was shot. Ashton tells us:
He screamed when he was on the ground: kill me, fucking kill me! He repeated that quite a few times. I did think for a second of shooting him. I pointed the firearm at him directly as he was on the ground. For a brief second it crossed my mind because of the horrendous things he’d done, but I’d like to think I didn’t shoot him for two reasons: one, our training and professionalism and another one – just the code of human decency that we not lower ourselves to the standard of a murderer.
The BSA decision
A majority of the BSA held that the use of the words “fucking”, twice, at 7:30 pm on Sunday, breached standards of good taste and decency and children’s interests, since children may have been watching. They pointed to research showing that 71% of people disapproved of the use of this word in interviews, and an earlier decision in which they upheld a complaint about a man shown swearing on a documentary. They accepted that the programme was important, but felt that the standard was too, and it would have been easy to bleep the words or broadcast the programme later.
The BSA minority’s dissent
The BSA’s chair, Peter Radich, dissented, saying the word was “an expressive and natural use of language in an extreme and dire situation”; Ashton was “considered and sober” during the interview; bleeping the words would have demeaned him; the broadcaster provided two clear warnings about the content; and the use of the words was not disturbing or upsetting but powerful.
The judge’s decision
Essentially, the judge agreed with Peter Radich. When you look properly at the context of the programme, it was simply wrong to call this a breach of standards.
In an appeal like this, the broadcaster has a fairly stiff task. It has to show that the BSA acted on a wrong principle, took into account irrelevant considerations or failed to consider relevant ones, or was “plainly wrong”.
Justice Simon France accepted that the majority decision traversed most of the relevant contextual factors, but – interestingly – he said:
The real debate is whether, having been noted, [the factors] were taken into account in reaching the conclusion.
This suggests that it’s not enough for the BSA to set out the arguments or list the considerations – it must actively grapple with the relevant factors in its reasoning process.
The relevance of earlier decisions
France J accepted that the BSA need not refer to past decisions, or even act consistently with them, though he said overlooking a very similar case that was decided differently may support a finding that the decision was “plainly wrong”. (Here, he referred to four BSA decisions, some of which I mentioned in earlier posts, that allowed the f-word to be used. It’s noteworthy here that all four decisions are more than 12 years old. Were BSA members a bit more liberal about swear-words in the 1990s?)
The majority’s failure to properly consider context
He said the upshot of the majority decision was that “fuck” could never be used in early evening. He essentially found that they had fettered themselves by not considering whether an exception could be made, because if ever an exception should be made, it should be made here. He emphasised that it’s still not open season on “fucking” (actually, that’s not quite the way he put it). The general rule is still that this sort of language will be unacceptable when children might be watching.
France J felt that the majority didn’t properly consider the context of the use of the words: the importance of the historical narrative, the lack of gratuitousness, the difference between this programme and a typical interview.
The majority judgment does not discuss the minority reasoning, and thereby fails to explain why the context of the show, and the various features that have been discussed, do not properly make it an exception to the general rule.
The NZ Bill of Rights Act
Perhaps most important – at least for Bill of Rights trainspotters like me – is this paragraph, late in the judgment:
In terms of the New Zealand Bill of Rights Act 1990, I consider that requiring the deletion of this word from the programme is an unjustified limit. Whilst the children’s interests standard was rightly accorded high value, so too was the programme. Within that programme the word occurred as part of an accurate narration of past events, it was used in context, and had no stand alone emphasis. The slot was within the period that might mean some children were watching or present, but the programme was not itself likely to be of interest to children. The words occurred halfway through it and were preceded by a general language warning that would have alerted parents. Balancing these factors, and the general context earlier discussed, in my view a prohibition is not a reasonable limit.
What is significant about this is that it seems to be an independent ground for upholding the appeal. The decision is plainly wrong because the limitation imposed was not a reasonable limit, demonstrably justified in a free and democratic society, under s 5 of the Bill of Rights Act. I think we must read this as saying that this question of reasonabless/proportionality is a question of law, and one that the BSA can get wrong.
Simon France J is not just saying that proportionality requires that the BSA follow a particular methodology. He says the decision was not substantively proportionate. The decision to uphold the complaint wasn’t a justified limit on TVNZ’s speech.
He doesn’t tell us much about how we work out what’s proportionate and what’s not though. Looking at the things he considers, it’s fair to say that:
– an inquiry into the value of the speech is required;
– we should also look to the value of the standard: and here it seems implicit in his reasoning that we need to look at the value of the standard in the particular circumstances: how much was the objective of the standard threatened in this case? Not much, he concludes. It was part of an narration of past events, used in context, not unduly emphasised, in a programme unlikely to interest children, and preceded by a warning. He’s saying: whatever harms the use of the word “fucking” does to the vulnerabilities of children or societal norms of decency, those harms are not very great in this case;
– the two sides need to be balanced. Here, the judge evidently thought it was a no-brainer.
For my part, I think this is pretty significant. It’s one thing (albeit rare) for a judge to overturn an administrative decision as “plainly wrong” or for failure to properly consider relevant considerations (here, context). That’s standard administrative law. It’s another to say that a decision breached a broadcaster’s speech rights under the Bill of Rights and overturn it for that reason. Here, both are in play, and they overlap. But I think this case shows that the Bill of Rights is starting to earn its stripes.
Topics: Broadcasting Standards Authority, NZ Bill of Rights Act | Comments Off on Told you so
NZ Lawyer column
October 19, 2011
In my recent NZ Lawyer column, I reverted to a blog format:
Let’s face it. You’re busy people. You have short attention spans. So let’s move to a blog format and you can graze the bits you find most interesting.
Pride or prejudice?
Over the next weeks and months, we will see how much harm the book does to our national security. My prediction: about none. That’s what happened in the Pentagon Papers case, and in the first tranch of Wikileaks releases. Despite vociferous claims that the sky would fall, the sky didn’t fall. Governments are far too ready to invoke the mantra of national security when they’re really seeking to protect themselves from embarrassment or accountability. Too often, I think, the courts defer.
Judges hold they are not breaking the law
Media misreporting suppression order? Surely you jest
Still, the BSA started warning him a few complaints ago that if he kept up the nit-picking about immaterial matters, they would penalise him with a costs order. This time round, they followed through. They ordered him to pay $50 as “some form of deterrent”.
Some have noted that it is a little odd to deter people from correcting errors. And that, in a story about how extraordinary it is that a child could discover something so damned far away, the actual distance involved might be thought immaterial. I’m inclined to think that the BSA might have got confused about the various thresholds involved here. Maybe it’s defensible to say this wasn’t a material error of fact, since the story focuses on a child’s discovery. It’s a different thing to say that the complaint was frivolous and trivial. In this case (though not in some of Mr McDonald’s other complaints), that’s going a bit far, I think. In any event, it’s a different thing again to say that this is one of the set of trivial cases warranting a costs order against a complainant, something the BSA has imposed only a handful of times. This wasn’t the one to pick out and ping him for.
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Topics: General | Comments Off on NZ Lawyer column
Staggering bunk from Collins over surveillance bill
October 4, 2011
Apparently, Police Minister Judith Collins has a law degree. That was not evident during her performance on Morning Report today. Was she deliberately misleading us, or did she simply not know what she was talking about?
She said:
Actually, video surveillance has been used by the police with the support of the Court of Appeal for around 15 years…
[Police] have always felt that their actions were legal because they have been supported by the Court of Appeal time and time again in the last 15 years.
Bollocks. The first time the Court of Appeal ruled clearly that search warrants authorised video surveillance was on 19 November last year, in the Ureweras case. That finding – which the Court of Appeal said the Crown didn’t “really” argue for – was overturned by the Supreme Court about nine months later.
Let’s stretch a point and note that about a month before that, on 7 October last year, the Court of Appeal had indicated that it thought there was a strong argument that search warrants authorised video surveillance, though it said there was “doubt” and noted some contrary arguments. Again, the Court of Appeal didn’t have the benefit of argument on the point, because the Crown conceded that the surveillance was not lawfully authorised.
Let’s just let that sink in. As recently as last year, the police’s own lawyers were not arguing for the power to do what the Police minister says the courts have long accepted they can.
The year or so since those two cases is the only period of time when the law clearly supported video surveillance on private land during a warranted search, and even then the police knew that the issue was an open one and shortly to be ruled on by the Supreme Court. The case was argued in May, and from what I can gather, the Crown lawyers took such a bath at that hearing that they could not have had any confidence of victory.
What Court of Appeal cases can the Minister be referring to? I can only guess that it’s cases like Gardiner and Fraser. In those cases, the Court of Appeal could indeed be said to have “supported” the police use of surveillance cameras. But those cameras were not used on the target’s land. They did not involve search warrants. They were “over-the-fence” surveillance from a neighbour’s window, with the permission of the neighbour. So they say nothing about any power to instal hidden cameras on someone’s land.
In fact, they don’t even say that police can always use over-the-fence surveillance. The Court of Appeal has explicitly left open the question of whether these might count as a search under the Bill of Rights. If they were pointed at a bathroom or bedroom, they might well violate the Bill of Rights protection against unreasonable search and seizure.
Later in the Morning Report interview, there was this exchange:
Q: But we will now get warrants which will specifically say that we’re using video surveillance in this case.
Collins: Well, actually, they’ve always had warrants.
Q: But the warrants didn’t actually cover this, did they, before?
Collins: Because the Supreme Court, by a majority decision of 3-2, said that the warrants, although they were issued by the courts, were not able to be issued by the courts for video surveillance because there was no specific law allowing video surveillance by the police or any other agency.
No, Minister, they have not “always had warrants”. There has never been a statutory power that expressly includes the power to conduct video surveillance. Anyway, as far as I know, up until October last year, the Court of Appeal cases that dealt with video surveillance did not involve search warrants at all. The cases were the over-the-fence variety. Again, those cases are largely unaffected by the Supreme Court’s decision, and didn’t need a fix-up law.
We should also note that the Bill does not provide for any warrants. It doesn’t create a new surveillance warrant regime – that option was rejected. Nor does it require police to tell this issuers of search warrants over private land that they plan to instal cameras, though that seems to be the expectation.
But the Minister’s most astonishing statement is the last one. The Supreme Court did not rule 3-2 that the warrants were “not able to be issued by the courts for video surveillance”. There was no thin majority for that ruling. All five of the Supreme Court judges said the warrants were not able to be issued by the courts for video surveillance.
Two of them found that, notwithstanding this illegality, the evidence should be allowed in. One found that, notwithstanding the illegality, some of the evidence should be allowed in. But that is a far cry from a ruling that the issuing of warrants was lawful.
It is hard to believe that the Minister of Police does not know the difference.
Topics: Privacy tort, Search warrants, Trespass | Comments Off on Staggering bunk from Collins over surveillance bill
NZ tops OIA study
October 4, 2011
A new international study ranks NZ number one for freedom of information. Countries around the world were sent information requests relating to their budgets. We passed with flying colours. A depressing number of other countries flunked.
Topics: Official Information Act | Comments Off on NZ tops OIA study
Submission on the Video Camera Surveillance Bill
September 29, 2011
Felix Geiringer and I drafted a submission on the Bill, and got it in with 5 minutes to spare before the midnight deadline. (Hope you enjoyed your opportunity for public input, people.)
Here it is:
Submission to the Justice and Electoral Select Committee
SUMMARY OF VIEWS
We oppose the Bill in its entirety.
The Bill is unnecessary. Section 30 of the Evidence Act enables the courts to admit unlawfully obtained evidence where the seriousness of the offending justifies it.
The Bill is too broad. We ought not to be giving the every public official blanket immunity for unlawfully installing hidden cameras on private property during a search.
The Bill is undesirable. It violates the rule of law and fundamental liberties. It breaches constitutional norms. If the Police have been behaving in a flagrant or unjustifiable manner then there ought to be repercussions.
The Bill is partially ineffective. The only impact that the Supreme Court’s decision in Hamed has on “over-the-fence” surveillance is in relation to Bill of Rights considerations. However, the Attorney-General twice stated in the house that surveillance will not affect human rights challenges under the Bill of Rights.
If the Bill is to be passed notwithstanding these objections, the following amendments are imperative:
- Make it certain that s 21 New Zealand Bill of Rights Act 1990 considerations are preserved. The Attorney-General twice assured the house that this was what is intended, but it is not unambiguous on the wording of the Bill.
- Remove any doubt that the location of a camera is relevant to its lawfulness. The courts need to be able to distinguish between cameras in hallways and cameras in bedrooms.
- Eliminate the retrospectivity. This is the element of the Bill that is an affront to the rule of law and violates constitutional norms. This element is also unnecessary.
- Limit the Bill to its stated purpose, namely preserving prosecution evidence. To achieve this purpose it is unnecessary to insulate the Government from all civil or criminal liability for any unlawful surveillance.
- Limit the Bill to the Police. These broad powers and immunities ought not to be conferred on every single person conducting a public function.
RECOMMENDATIONS
Do not pass this Bill.
If our primary recommendation is not followed then, in the alternative, amend the Bill as follows:
- Expressly preserve the jurisdiction of the courts to consider the legality of a search (including the use of video surveillance cameras) in accordance with the New Zealand Bill of Rights Act 1990, by inserting a new clause 4(2) to read as follows: “Nothing in this Act limits the rights contained in s 21 of the New Zealand Bill of Rights Act 1990.”;
- Clarify that the use of a video surveillance camera can be unreasonable and therefore unlawful by virtue of the manner of its use, by removing the words “(without limitation)” and “positioning” from the definition of “use” in clause 4;
- Make the Bill prospective only and not retrospective, by removing clause 5(1)(a) (which would also remove the need for paragraph 3(a) and clause 6);
- Make it clear that the Bill is not intended to include warrantless searches of private land by inserting a subparagraph (a)(iii) in the definition of search in clause 4 to read as follows “does not include a warrantless search of private land, and”, replace the word “and” with the word “but” in subparagraph (a)(ii) of the definition of search in clause 4, and replace the word “includes” with the word “is” in paragraph (b) of the definition of search in clause 4;
- Preserve the state of the law outside the question of evidence in criminal trials, by removing subclause 5(2) (and therefore removing the need for the words “without limiting subsection (2)” in subclause 5(3)); and
- Limit the scope of the Bill to the Police, by replacing the words “a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990” with the words “a constable of the New Zealand Police as defined in the Policing Act 2008”.
The truth about Hamed
New powers not justified by Court of Appeal cases
The Attorney-General in the First Reading Speech states that “[o]n two very recent occasions, the Court of Appeal ruled the use of covert filming to be a legitimate component of a power to search pursuant to a warrant.” He therefore concludes that “the police were accordingly fully justified in their belief that the use of covert video surveillance in connection with a search warrant was not unlawful.” It is understood that the Attorney-General is referring to the cases Hodgkinson v R CA221/2010, 7 October 2010 and the Court of Appeal’s decision in Hamed. In fact, a review of those cases does not support the Attorney-General’s contention.
In Hodgkinson, a case argued in September last year, the Crown conceded that a search warrant could not lawfully authorise the trespassory planting of a camera. In its decision, the Court of Appeal expressed “some doubt about that conclusion” and considered that “it is strongly arguable”. However, the Court also acknowledged that there were arguments the other way and went on to reach its judgment on the assumption that the camera’s use was unlawful.
In Hamed, argued before the Court of Appeal last June, again the proposition that the search warrants did not authorise the surveillance operations “was not really challenged” by the Crown (para [36], CA decision). Even so, the Court of Appeal found that the wording of the warrant in question was sufficiently broad to include the capturing of video images by planting surveillance cameras. This turned on the Court’s view that the warrant was able to able to extend to anticipatory evidence. This ruling was in November of 2010. This could not give rise to long standing belief in the legality of such surveillance.
It is difficult to accept the proposition that the Government had a reasonable belief that trespassory searches were lawful without express authority. The contrary principle was established in the case of Entick v Carrington in 1765. That decision has been consistently followed around the common law world in the intervening 246 years, including expressly in New Zealand.
The fact that the Government was aware of this limitation on police powers is also apparent from the discussions surrounding the Search and Surveillance Bill (2009) and the associated Law Commission report in 2007.
Section 30 already solves the problem for past searches
A suggestion used to justify the Bill is that without it serious criminals may escape justice. Many people have pointed out the problem with this claim. Section 30 of the Evidence Act allows courts to admit evidence even if it has been illegally or improperly obtained. Essentially the courts must balance the extent of the impropriety against seriousness of the crime and make a decision that protects an “effective and credible system of justice.” Indeed, the Supreme Court in Hamed admitted all of the evidence against the defendants in that case who had been charged with serious offences.
The Attorney-General expressed his concern in paragraph 6 of his 21 September 2011 letter to Charles Chauvel that the Bill was necessary notwithstanding s 30. This was because “in cases where there was a high degree of expected privacy and other investigative techniques were available (however difficult to deploy) the risk of exclusion is much higher than it was in respect of Operation 8.” In short, the Bill of Rights balance might favour defendants in other cases.
There are several objections to this. First, the courts in the past have not been slow to admit improperly obtained evidence. Second, the Attorney-General omits to mention the trespass element, which weighed heavily in the Hamed balance, but may not be present in other cases. Third, the “however difficult” bit is an overstatement because actually the courts have never required the police to show that other methods were impossible, just impractical.
Finally, and most significantly, if the police have seriously infringed privacy rights without good justification during a search, it is right and proper that they should be penalised.
The Attorney-General tells us that the government has listened to these reasonable criticisms and undertaken to preserve s 21 of the Bill of Rights. Therefore there is now no need for this Bill to deem all past uses of surveillance cameras during searches to be lawful.
Constitutional impact
As drafted, the Bill violates the rule of law and constitutional norms. There is nothing wrong with Parliament prospectively overturning the effect of a court decision. However, the retrospective nature of this Bill and the way it has been expressly presented as a preference for the views of the New Zealand Court of Appeal over the views of the New Zealand Supreme Court risk undermining the constitutional relationship between those courts and parliament.
It is not the case, as has been suggested, that this Bill merely returns the law to the ‘common law position’ before the Supreme Court’s decision. Instead, it retrospectively validates illegal actions by the Executive branch of government. The Supreme Court did not make new law, but merely applied existing law, passed by Parliament, but which had previously been wrongly interpreted by the Court of Appeal. The Supreme Court decision therefore determined that the Police had for some time been acting illegally. To retrospectively validate such behaviour by the Executive is highly dangerous and sets a most undesirable precedent.
It is common to distinguish considerations of unreasonableness under s 21 of the Bill of Rights from other forms of unlawfulness. The courts will usually consider other forms of unlawfulness first, and their conclusion will be a factor in considering unreasonableness. However, ultimately it is also unlawful to breach s 21. A finding that a search was in breach of s 21 is a finding that that breach was “unlawful.”
Clauses 5(2) and 5(3) of the Bill are therefore ambiguous as drafted. If it is genuinely intended that this Bill not affect Bill of Rights considerations it needs to say so expressly. Otherwise there is a danger that arguments about unreasonableness under the Bill of Rights will be fatally undermined by the fact that the behaviour is deemed lawful.
Positioning should be considered by the Courts
The Bill expressly deems the use of video surveillance as part of a search to be lawful. “Use” is defined in the Bill to include a number of things “(without limitation)” including “positioning”. It therefore appears that the courts are being prohibited from considering the lawfulness of cameras based on how they were positioned.
It is paramount that the positioning of the cameras remains something that the courts can consider in each case. A camera that is lawful in a P-lab should not necessarily be lawful in the lab’s shower. A camera that is lawful at the front desk of a brothel should not necessarily be lawful in the bedrooms. A camera that is lawful at the front gate of a high school should not necessarily be lawful in the changing rooms.
The Bill should not cover warrantless searches of private land
The Police have the power to undertake searches of private land without a warrant in certain circumstances. For example under s 18(2) of the Misuse of Drugs Act the police can enter and search premises without a warrant where the police have reasonable grounds to believe that illegal substances are on the premises in breach of the Act.
If warrantless searches of private land are covered, then if the police believe on reasonable grounds that you have so much as a joint of marijuana in your house then it will be deemed lawful for them to come into your house and install hidden video cameras. This is too broad a power.
Topics: General | Comments Off on Submission on the Video Camera Surveillance Bill
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