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Broadsides: Police surveillance bill

Labour MP Jacinda Ardern and National MP Nikki Kaye.
Labour MP Jacinda Ardern and National MP Nikki Kaye.

Labour's Jacinda Ardern and National's Nikki Kaye on the police surveillance bill.


You know that an issue is particularly difficult when a Minister calls an opposition spokesperson to pre-brief them on a bill that's yet to come before Parliament. That's exactly what happened several weeks ago when it became clear, via the Urewera raids case, that we had a severe problem with our search and surveillance laws and practices in New Zealand.

This should not have come as a surprise to anyone in Parliament. A bill modernising Search and Surveillance practices in New Zealand was introduced back in 2009 because it was clear (and because the law commission told us) that the law needed to be updated significantly. Not only did the old law neglect to take into account the new technology available, used particularly within organised crime, it didn't clearly define who could and couldn't use surveillance powers.

The Justice select committee took public submissions on the bill, recommended changes, and sent it back to Parliament. And that's where it has stayed.

We could see the need for the bill to be progressed, so much so that on the 9th of November last year, Labour MP David Parker wrote to Simon Power as Minister of justice telling him that we still believed amendments needed to be made to the bill in order for it to progress. These amendments included appropriate protections for the news media, bringing search powers for the serious fraud office in to line with the police, and ensuring that only serious offences punishable by 10 years or more should be subject to examination orders under the Act. If these changes were made to the bill, we would have supported it; it could have been progressed and we wouldn't be in the situation we found ourselves last month.

So, back to that phone call...

In August of this year, we learnt of a Supreme Court ruling that found that surveillance undertaken by the police two years prior as part of the Urewera raids was unlawful. For the case itself, it had the effect of charges against 13 defendants being dropped, but it also had the wider effect of 40 other cases reliant on similar evidence being thrown into question and cases where similar forms of surveillance were being used had to be suspended. All eyes then turned to Parliament for a response.

The Attorney General, Chris Finlayson, knew that he needed the support of other parties to get any bill through parliament to clarify the law. John Key immediately started calling for 'urgent retrospective legislation.' There is no question that a response was required, but there is also no question that National's version went too far.

The first battle was to get the bill before the public. After opposition from Labour and the Greens, the Government eventually conceded and allowed the bill to go to a Select Committee for five days. Despite the short time frame, the public and legal fraternity still voiced significant concerns, including the Law Commission and the Law Society, who called it unconstitutional. The bill was essentially a blank cheque; the definition of search was too wide, the law was retrospective and would have essentially allowed Parliament to interfere with cases before the court, and the bill applied for too long when it should have only been a temporary measure.

And herein lays the tension. Of course, Labour never wanted to see anyone who had been convicted of a serious crime walk away from a sentence because we couldn't sort this issue out or see the police hamstrung completely when pursing serious criminal cases, and with the final resolution we negotiated, they won't. But, equally, it was incumbent on us to make sure that the necessary checks and balances in place were in line with the public's expectations and with appropriate safe guards.

On this occasion, I believe Parliament eventually got it right. The law doesn't apply retrospectively for trials where evidence has been gathered but are yet to go before the court; it sets in place the threshold for surveillance for serious offending only; and it only lasts for six months until the next Parliament can consider the full Search and Surveillance bill that is still waiting to have its final hearing. Had the Government had the ability to pass this law without the support of other parties, we would have had a vastly different outcome. As we loom closer to a general election, that's definitely a point worth keeping in mind.

Jacinda Ardern is on Facebook and Twitter @jacindaardern


One of the things that I have learned is that in Government sometimes all of the options presented to you are hard, but the responsibility lies with us to make the tough calls.

The recent issues involving surveillance laws were difficult because at the heart of the issue was a need to balance one of Government's core functions - to protect New Zealanders from some of our most dangerous criminals - with important principles of our legal system.

When National came to office, law and order wasn't good. Violent crime was increasing, gangs were growing in strength, P was rampant, and prisons were facing a capacity crisis. National promised to take action on violent crime and we're delivering on that promise. We've passed 18 laws to help make families safer. We're addressing the drivers of crime, have put more police officers on the frontline, are developing laws to minimise alcohol-related harm, and we are putting victims at the heart of the justice system.

We declared a war on drugs with a crackdown on precursors and drug supply chains. Police have new powers to intercept gang communications and dismantle gang fortifications, and a new police Assets Recovery Unit is hunting down and seizing the profits of organised crime. This year more than 24 kilograms of methamphetamine and $40 million of criminal assets have been seized.

Despite the recent drop in crime - in the Auckland district alone illicit drug offending has dropped 25.1 per cent, and robberies have dropped 6.7 per cent - we know there are some criminals that are very sophisticated in how they evade Police. They include child sex offenders and gang leaders, some of which are caught through the Police being able to gain crucial evidence to convict them via surveillance footage.

Recently the Supreme Court made a decision that said it was illegal to place covert electronic surveillance on private property, even if Police were legally on the property with a search warrant. So as of early September almost all electronic surveillance on private land became illegal, and the police had to turn off their cameras in dozens of continuing investigations into serious crime.

The Supreme Court decision came as a surprise to most people. As far as the Government, the police and the previous government were concerned, electronic surveillance was not illegal. Based on previous Court of Appeal rulings over 15 years, it was widely understood that covert video surveillance by the police was not prohibited by law.

We were left with a situation due to the court's decision whereby we had only a small number of sitting days of Parliament to clarify the law. We made a decision to introduce legislation that had the effect of temporarily suspending parts of the Supreme Court's judgment, so that the legal position would be returned to the understanding of the law on 2nd September, before the Court's decision.

The temporary legislation, the Video Camera Surveillance (Temporary Measures) Act has provided us an opportunity to consider careful law changes in this area to clarify Parliament's intent, while protecting the public for the next six months of its operation.

Our preference if we are re-elected, is to pass the Search and Surveillance Bill in the next Parliament, which is a wider law aiming to regulate the whole area around search and surveillance. The new law does not affect the Urewera defendants - they get to keep their win and it would be wrong for the Government to overturn a particular result in a specific case it didn't like.

Some lawyers said we didn't need a temporary law before the Search and Surveillance Bill could be enacted by the next Parliament (probably next year), and because illegal or improperly obtained evidence could still be admitted by the Court if the case was serious enough. However, we decided we could not have a situation where government agencies were knowingly breaking the law. We considered it would be unacceptable for Police to be in a situation whereby they could be acting unlawfully in their ongoing operations.

Government will always be a balancing act. Passing legislation in two weeks is not ideal, but we believe it was better than the alternative; a six month gap where the Police would have essentially been stripped of the ability to use an extremely effective tool for fighting crime.

We held a select committee process and consulted with numerous legal experts and the police, as well as hearing public submissions. In the limited time that we had available it was a very thorough process, and allowed the issues around the Bill to be aired.

I believe the right to privacy is very important. That is why the law requires the Police to be on private property legally - for example, through a search warrant possibly granted because the Court thinks there is evidence of a crime on that property.

However, we believe that serious offenders should not be able to get away with criminal activity because they thought no-one would be able to prove it. That's why the law we voted on also has a retrospective effect.

It prevents those who were convicted before the Supreme Court's ruling, on the basis of evidence that had been collected by the Police in good faith, from appealing on that basis. There has been concern expressed regarding retrospective law-making. National's preference was that the new law would also apply to trials that had not yet come to Court.

A number of parties disagreed with that position (but agreed with the retrospective barring of appeals), and we compromised in favour of the priority of getting the cameras turned back on and allowing the Police to continue doing their jobs.

As the President of the Law Commission John Burrows pointed out; it just allowed evidence to be used that quite clearly showed suspects doing things they knew to be illegal at the time. All parties who voted for the law considered barring appeals was a reasonable retrospective effect. It's not a human right to expect people to turn a blind eye while you are breaking the law.

It was a difficult balance to try to protect New Zealanders from some of our most dangerous criminals while trying to preserve the integrity of our legal system. I think there is more work to be done in this area and the Search and Surveillance Bill will give us the opportunity to take the time to improve the law for all New Zealanders

Nikki Kaye is on Facebook and Twitter @nikkikaye

Do you have a topic you would like Nikki Kaye and Jacinda Ardern to tackle? Email us.

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