My prospects as a freelance fixer of public policy problems look distinctly unpromising .
I got a letter emailed to me today from Attorney-General Chris Finlayson. In it he thanked me kindly for my efforts, before in the nicest possible way telling me that my idea for fixing the "problem" of covert police surveillance created by the Supreme Court's decision in Hamed v R faced a number of complicating problems, required too much fiddling for the limited time left to this Parliament, and just generally wouldn't work.
Fair enough - I guess if it was that simple a solution, someone else would have thought of it before me. And to be honest, I'm not enough of an expert on the legislative framework surrounding search powers to confidently say my idea is the best available one (in the sense of being the least-bad approach to take, which is what we're faced with here). The Minister has lots of folks available to advise him on just that point, and if they say mine was a bad idea then I can't really gainsay that.
So what then is the Government proposing? Well, its "revised version of the bill" is intended to do this:
The Video Camera Surveillance (Temporary Measures) Bill will express Parliament’s intent that any lawful search in which covert video surveillance is used is not unlawful just because of that surveillance.
The bill does not provide any legal power that did not exist before the Supreme Court decision of 2 September to use covert video surveillance.
However, the Courts will continue to have the same power to exclude video surveillance evidence that has been obtained unreasonably, and in violation of the New Zealand Bill of Rights Act’s protections against unreasonable search and seizure, despite the provisions of the Bill.
So basically the Government is going to say that the use of covert video surveillance as part of a search is lawfully authorised ... unless that search (or the use of covert video surveillance as a part of it) is unreasonable ... in which case it is not lawfully authorised because it will breach s.21 of the NZ Bill of Rights Act 1990 (and so the evidence gathered by it may be tossed out of court, if the courts decide to do so under the Evidence Act 2006).
If that looks a bit complicated, then that's because it is. What factors will make an otherwise lawful use of covert video surveillance "unreasonable"? How much of the Hamed ruling survives this proposal? And is it really the case that:
The Bill will mean that Police will be able to resume operations involving surveillance. Around 50 operations were discontinued after the Supreme Court’s decision.
After all, does Parliament saying the general use of covert video surveillance is lawful really mean its use in every one of these 50 operations is "reasonable"? And if its use in these operations is (and was) "reasonable", then why were they stopped following Hamed? They can't all involve trespassory use of covert video - can they?
(On this last point, I note that the Attorney-General told Charles Chauvel back in this letter that legislation was necessary because of a number of ongoing investigations involving both search warrant based and "over the fence" video surveillance - but how is this latter form of evidence gathering affected at all by the proposed bill (or the Hamed ruling, for that matter)?)
One other issue with the way this bill is being portrayed. The Attorney-General tells us that:
“This Bill has been carefully drafted to have the effect of preserving the common law as it was prior to the Supreme Court’s decision of 2 September,” Mr Finlayson said. “It preserves the understanding shared by successive governments, Police and the Court of Appeal before that decision.”
I'm not sure this is entirely accurate. Certainly this post by Steven Price (along with a truly heroic comment by Felix Geiringer) would take issue with the Minister's claims. However, that may well be a point of rhetoric - the issue is not so much whether the proposal is or is not the same as the law before the Supreme Court's intervention in Hamed, but rather is it a good one for the present?
And fortunately people will get some chance to have a say on that issue. The Government has agreed that a shortened select committee process will be held for this measure. Good on it for doing so - and good on ACT and Labour for demanding that it do so.
I'll be making a submission to the Committee (when I've seen the revised Bill, of course). But I thought I might try a bit of crowd sourcing of its content ... what do you think I should say in it? The comments section below awaits your participation ...