The Government's "fix-it" bill for police use of covert video surveillance gives police and all state agencies too much power, has insufficient checks and balances, and breaches constitutional principles, Parliament has been told.
Representatives from the Law Society, the Law Commission, the Criminal Bar Association and the Bar Association all rejected the Government's Video Camera Surveillance (Temporary Measures) Bill in select committee submissions yesterday.
The bill would make legal covert video surveillance by state agencies on private property under a search warrant, a practice the Supreme Court has ruled was illegal.
Any use of hidden cameras would also still be subject to protections in the Bill of Rights Act against unreasonable search and seizure - though this was challenged as unclear by the Law Society and Otago University Professor Andrew Geddis yesterday.
Former Prime Minister and constitutional law expert Sir Geoffrey Palmer was scathingly critical of the need for urgency and retrospectivity, which he said was unprincipled, oppressive and highly undesirable.
"Laws should be prospective, open and clear ... that is what fairness requires."
Overturning the Supreme Court in this case was also a "constitutional perversion", effectively elevating the Court of Appeal above the Supreme Court.
"Some people may be deprived of a defence as a result of this legislation. That is the clear intention of the measure. That is unacceptable.
"The result may be inconvenient, but I don't see why principle should be trampled on when it is, if I may say so, parliamentary negligence that has brought this about."
He fired a shot at Government ministers and told other MPs to be more rigorous.
"Parliament is not obliged to pass this law because the Executive wants it.
"If Parliament is to be supreme as the law-maker, then it needs to take principle seriously and not brush it under the carpet."
The committee also heard from Police Commissioner Peter Marshall, who said evidence was being lost and safety put at risk.
"I am aware of a particular situation which involves the safety of community members and we have been trying to identify a particular offender. It is a serious top-end scale offence likely to be committed.
"We have turned off the cameras. We are still working hard but are somewhat disadvantaged."
He said there were 47 pending trials that involved covert video footage as evidence, affecting 229 suspects, 13 police operations where cameras had been switched off, and 15 operations that had not been started.
There is close to a political consensus that there needs to be a prospective solution, but the bill's provisions were described as too broad in empowering all state agencies with the ability to install hidden cameras, under a Summary Proceedings Act search warrant.
Such a warrant can be issued to investigate an offence carrying a potential jail term, a far lower threshold than exists in the Search and Surveillance Bill (offences punishable by seven years' jail or more).
The bill has been idle since being reported back from select committee last November.
Commissioner Marshall said he did not have a preference on what the threshold should be, as long as the law made it clear.
For police to get a warrant under the Crimes Act to spy on private communications, it has to be signed off by a High Court judge and usually in connection with gang-related or serious violent offences.
"Why would you bother getting a warrant under the Crimes Act if you have the capacity to record audio and visual with a video camera [under a more easily obtained warrant]?" said Ken Johnston from the Bar Association.
REACTION TO THE LAW
The bill applies to all state agencies, including customs and fisheries officers. Do all those agencies need this power?
The bill misrepresents the law before the Supreme Court decision and could potentially be interpreted as making all past police covert video surveillance lawful, even if in breach of the Bill of Rights Act.
Criminal Bar Association
The bill has insufficient judicial oversight. A search warrant is commonly signed off by a low-level court clerk, such as a deputy registrar.
Insufficient constraints on the police use of covert video surveillance. It should be limited to specific agencies including police, signed off by a judge, and only used for investigating serious crimes.
Sir Geoffrey Palmer
"Parliament is not obliged to pass this law because the Executive wants it. If Parliament is to be supreme as the law-maker, then it needs to take principle seriously and not brush it under the carpet in a fit of expediency."
Police Commissioner Peter Marshall
There are 47 police cases before the courts that involve covert video footage as evidence, affecting 229 suspects; 13 police operations where the cameras have been switched off; 15 operations that were not initiated. "It is a very serious situation."