A reasonable compromise

October 4th, 2011 at 10:00 am by David Farrar

Andrea Vance at Stuff reports:

has forced the Government to back down over controversial video surveillance laws.

After insisting the legislation go before a select committee before agreeing to support it, Labour has secured changes to more contentious aspects of the proposed law. …

Labour will now lend its support after winning concessions from Attorney-General Chris Finlayson. It is understood ACT is also willing to support the revised legislation. The Green, Maori and Mana parties are all opposed to the legislation.

In pending cases, courts will be left to determine if evidence is admissible. To prevent convictions being overturned, the law that applied at the time of the verdict will stand.

The legislation will only apply for six months – not one year as National hoped.

It means the next government must make the passing of the Search and Surveillance Bill, which will replace it, a priority.

“Over the fence” surveillance – where cameras film property from outside its boundaries – will have to be “reasonable” as set down in the Bill of Rights Act.

And only police and the Security Intelligence Service will be allowed to carry out “trespassory surveillance” – when a warrant is used to place secret cameras on private land in the investigation of serious crimes.

Looks pretty reasonable to me, with an interesting compromise on the retrospectivity. There is still a degree of retrospectivity in that the it states the law at the time of previous verdicts will apply. The restriction on who can do a “trepassory surveillance” also seems a good improvement.

Kudos to Labour for some good changes.

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21 Responses to “A reasonable compromise”

  1. 3-coil (1,215 comments) says:

    We can only hope that the numpties that National uses to draft up its recobbled “Video” Surveillance Bill remember to allow for both VHS and Beta – don’t want any more crims slipping through the net thanks to shoddy legislation :-)

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  2. BeaB (2,104 comments) says:

    Ho hum. A lot of silly fuss kicked up by Labour over what should have been an easy tidy-up.
    Like Mallard’s time-wasting points of order. They have never minded wasting our money on trivia.

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  3. Lee01 (2,171 comments) says:

    Its a good outcome.

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  4. GPT1 (2,116 comments) says:

    This is a hell of a lot less worse than that first suggested. I disagree entirely with BeaB on this one – this is an important issue where Labour actually fulfilled its roll as Her Majesty’s Loyal Opposition.

    A fix is needed. Few would argue with that. Urgency may have been created by Parliamentary incompentence (just the 14 years notice of this issue) but nonetheless it is urgent. Labour could have just opposed completely but they engaged, generally constructively, with the government and select committee presenters. And, in fairness, the Government has moved as well (as they bloody should as an aside, should have known better than that retrospective outrate that was first proposed). The solution is far from perfect but in a creaking sort of way the Parliamentary process has more or less worked.

    I still do not understand why video surveillance could not have been grafted on to intercept warrants and I would have preferred appeals to be dealt with on the merits or otherwise of each case but the worst outrages of this Bill appear to be blunted.

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  5. Pete George (23,426 comments) says:

    This is a good example (in a less than ideal situation but it had to be dealt with) of a joint approach by government and opposition parties – as well as social media which had a significant involvement in the process.

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  6. tristanb (1,133 comments) says:

    Hang on. Now we’ve got a whole lot of drug dealers who we can’t prosecute because the cops were “trespassing” on criminal property.

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  7. lyndon (330 comments) says:

    the law at the time of previous verdicts will apply

    Ever since I got my head around the issues here that phrase has made no sense.

    I’m still not convinced it’s better than doing nothing, but you’re right – it’s a great improvement.

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  8. lyndon (330 comments) says:

    A lot of silly fuss kicked up by Labour

    And every other party except Peter Dunne. And every public submitter to the select committee, except this one guy. And every expert outside the Government. I think we should allow for the chance they might have a point.

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  9. Nick K (1,218 comments) says:

    Actually, Kudos should also go to ACT, and in particular Rodney Hide for these reasoned changes. They/he worked as hard as Labour to come to a sensible position.

    I still maintain it’s all mostly Simon Power’s fault for sitting on his hands with the bill for years, while focusing on populist and reactionary other changes (too many to list).

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  10. Manolo (13,517 comments) says:

    I agree: the entire cock-up can be attributed to the incompetence of Simon Figjam Power, the small town conveyance lawyer.

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  11. backster (2,140 comments) says:

    The result will I think will end in many of the big time criminals arrested in Nationwide drug raids of recent times walking. The millions of dollars worth of assets and cash estreated as the proceeds of crime may have to be returned. Labour/Act try to hide behind section 30 but I doubt that any such decision will favour the prosecution. Crime wins Truth and Justice the losers.

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  12. F E Smith (3,324 comments) says:

    What GPT said.

    backster,what Nick K said is correct. The search and surveillance bill has been before Parliament since 2009, and was reported back late last year. If it was so important to the politicians, they would have found a way to pass it.

    Anyway, s30 decisions tend to go with the Crown in the important cases.

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  13. GPT1 (2,116 comments) says:

    I still maintain it’s all mostly Simon Power’s fault for sitting on his hands with the bill for years, while focusing on populist and reactionary other changes (too many to list).
    Indeed. If the warning in 1997 from the CA was too subtle surely the decision by Winkelmann J that the surveillance was unlawful sometime ago (not sure when the decision was made but months if not over a year) would have set off the warning bells that the Search and Surveillance Bill needed urgent attention.

    Instead we have had three years of populist reform and deconstruction (to use a Christchurch-ism) of the Defence Bar. Quite a commitment to Justice really.

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  14. brucehoult (199 comments) says:

    Why are Labour getting the credit for this? Are the changes still not enough for ACT, so they’re voting against?

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  15. Pete George (23,426 comments) says:

    A number of parties, organisations and individuals should share credit for this so it’s more credit to inclusive democratic process rather than any one. If they add “do it sooner and allow longer” to the process it could be a good formula for getting more stuff done.

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  16. AG (1,823 comments) says:

    “The restriction on who can do a “trepassory surveillance” also seems a good improvement.”

    It WOULD have been a good improvement. But it isn’t what the Bill actually says. See http://www.pundit.co.nz/content/some-praise-for-parliament-rare-though-that-may-be

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  17. AG (1,823 comments) says:

    @backster: “The result will I think will end in many of the big time criminals arrested in Nationwide drug raids of recent times walking.”

    Why? Have the police been in the habit of heavily using covert video in situations where people reasonably would expect privacy when there are other ways they could have gathered evidence, then sought to use that evidence for offences that did not justify the illegal means of gathering it? If so, does that fact not concern you a bit more than the issue of a few crims “getting off”?

    “The millions of dollars worth of assets and cash estreated as the proceeds of crime may have to be returned.”

    Why? Forfeiture is a civil process which does not depend on any actual finding of criminal guilt. So how does this Bill touch that issue?

    “Labour/Act try to hide behind section 30 but I doubt that any such decision will favour the prosecution. Crime wins Truth and Justice the losers.”

    What do you base your doubt on? Have you read the C. of A. in R v Williams? Or in Hodgkinson v R? Or the Supreme Court majority in Hamed? If not … are you just venting some preconceived notion about how the criminal justice system just MUST be soft on crims? If so, carry on.

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  18. F E Smith (3,324 comments) says:

    Have the police been in the habit of heavily using covert video in situations where people reasonably would expect privacy when there are other ways they could have gathered evidence, then sought to use that evidence for offences that did not justify the illegal means of gathering it?

    :)  Of course, the answer to that question is yes!!!

     Now, the Law Society pointed out in its submission that not only had the police been doing this, but

    if the quoted number of cases is correct, it must mean that the police have been using covert video surveillance unlawfully in a wide range of cases over an extensive period.  But if this is so, why have these unlawful activities not been disclosed to defence counsel in any of these other cases?  To fail to make proper disclosure of such matters would almost certainly breach the obligations of the police under the Criminal Disclosure Act 2008 and, if there has been a widespread breach of those obligations, Parliament must be entitled to be properly informed about that subject before validating or condoning possibly widespread police misconduct ex post facto

    Now, the quoted number of cases is 40 before the Courts and 50 under investigation.  So that is 90 cases, a number of which must have been begun or continued after Winkelmann J pointed out the unlawfulness some time ago (which is the most kind view as set out by GPT above.  The unkind view is that they have known for over a decade of the illegality).

    But, to make it worse, they haven’t been disclosing these breaches, either.  Of course, there is no real sanction for non-disclosure, so we might conclude that a) the Criminal Disclosure Act is a damp squib and b) the police only have to obey such laws as they want to obey.

    Come on, backster, give us a follow up on this!

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  19. AG (1,823 comments) says:

    FE Smith.

    (1) Labour proposed these changes.
    (2) Labour is bad.
    (3) Therefore, the changes are bad.
    (4) Criminals escaping punishment for breaching the law is bad.
    (5) Therefore, these changes will lead to criminals escaping punishment for breaching the law.

    You see how any actual reference to facts is not necessary in this area?

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  20. F E Smith (3,324 comments) says:

    AG,

     (1) Labour proposed these changes.

     Yeah, a bit disappointed that they had to do so, really.  Very poor of the Nats.  Says a lot that everybody else other than Peter Dunne was opposed.

    (2) Labour is bad.

    Of course.

    (3) Therefore, the changes are bad.

    Just stands to reason, really.  After all, you cannot possibly separate the policy from its proposer, can you!

    (4) Criminals escaping punishment for breaching the law is bad.

    No argument here.

    (5) Therefore, these changes will lead to criminals escaping punishment for breaching the law.

    Ah, I see.  Hmm.

    You see how any actual reference to facts is not necessary in this area?

    AG, I have seen the light!  Thank so much for explaining to me how backster and his ilk see this issue.  I think you forgot one, though:

    (6) The Government breaking the law is perfectly acceptable if it means criminals are punished.

    Like you, I had thought this was a principle thing, but it seems not…

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  21. Repton (769 comments) says:

    (6) The Government breaking the law is perfectly acceptable if it means criminals are punished.

    And, of course, if the government punishes someone then it must be because they’re a criminal. The crime rate may increase, but that only justifies the increased surveillance (and it may require us to further streamline court processes).

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