The Justice and Electoral Committee has done a good job on the issue of covert video surveillance. Mostly.

So the Justice and Electoral Committee has reported back on the Video Camera Surveillance (Temporary Measures) Bill.

While not everyone is happy with the Committee's proposal, I'd probably vote for it if I were an MP. (Which perhaps indicates that I should never be elected to anything ... but so it goes.) Given the starting point the Government chose to work from and the constraints of time, it's probably as good a measure as you can get. And politics oftentimes is about getting the least worst outcome in less-than-ideal circumstances.

The changes to the Bill are (on the whole accurately) summarised in this Stuff story. However, it gets one point wrong when it says:

"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."

I actually think this would have been a good idea. I, along with a number of other submitters on the Bill, questioned whether all investigative agencies should have the power to use covert videoing. I mean, even if the Police ought to be able to plant a video camera to see who is involved in dealing P out of a house, does this mean a fisheries officer should be able to stick a camera in a person's boatshed to see if they are landing fish in excess of the recreational quota?

So there would have been some merit in restricting the use of video surveillance on people's land and in their houses to just the Police and SIS - at least till the issue of just who ought to be able to use this technology can be sorted out in full next parliamentary term.

However, the Bill as reported back from the Justice and Electoral Committee continues to read:

"search" means an act done by a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990—
(a) that is, or is in connection with, a search in respect of which a search warrant has been issued; or
(b) that is a search where surveillance is conducted from outside the boundaries of the land or place under observation.

(A "a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990" means anyone who is "exercising a public function, power or duty" ... which effectively encompasses all activities by all the State's investigative agencies.)

The Bill then states that:

The use of covert video camera surveillance as part of, or in connection with, a search does not of itself render the search unlawful.

Consequently, once this Bill passes, it is "not of itself ... unlawful" for any investigative agency to use covert video cameras on anyone's land or in anyone's home, provided they have a general warrant to enter onto the property to search it physically. And once this Bill passes, it is "not of itself ... unlawful" for any investigative agency to use covert video cameras to spy on someone's land or home from outside of its boundaries without any sort of authorisation at all.

Of course, a specific use of a hidden video camera still may become unlawful if it amounts to an "unreasonable" search under the NZBORA, s.21. The Bill, as amended by the Committee, expressly makes that clear. And it may well be that a decision to stick a video camera in someone's boatshed to see if they are catching too many fish would be more quickly adjudged so intrusive as to be "unreasonable" in the circumstances than the use of a video camera to get evidence that someone is dealing P.

But that question requires a judicial answer in individual cases. And given that one of the purposes of this legislation was to provide some certainty around the use of video surveillance, this ongoing "we'll just see what the courts say about it" approach seems a bit contradictory.

Admittedly, this is probably just carping about the minor details because the main ones have been resolved adequately. So good on Labour and Act for forcing this issue to select committee, to the Committee members for working hard on it (if you want to see MPs in a far, far better light than they usually appear in, have a read of the transcript of the Committee's interaction with submitters here), and to the Government for choosing not to play hardball "laura 'norder" politics with it once the Committee had reported back.

There we are. Some praise. Next post, I'll go back to throwing stones.

Comments (9)

by alexb on October 04, 2011

Doesn't the compromise ignore one of the fundamental objections to the law in the first place though, that it is dangerous to allow the police such powers to spy on citizens? It just seems like a dangerous law, perhaps reasonable when applied to the much talked about and hypothetical P dealer, but we cannot be sure that there won't be some reason in the future that causes the police or the government of the day to abuse that law. Once it is on the books, it would be very difficult to remove, especially if it began to be used as an instrument of tyranny.

by on October 04, 2011

There's an interesting connection between your comment:

"Given the starting point the Government chose to work from..."

And step 4 of what Patrick Gower calls National's "Working Group Strategy" in his Metro piece this month:

"4. The final, inevitably more conservative, more acceptable than expected decisions on what to do."

A cynic might say that they knew all along that this is where they'd end up and that they've just extended the step 4 approach to a three-part process: let Labour leak the first, utterly repugnant, Bill; introduce a watered-down version of that and let it go to Select Committee; and then accept the even-further-weakend version that comes out of the committee. That way they get to say "we tried" to the hard liners (and blame Labour along the way), and "we listened" to everyone else.

Meanwhile the Bill remains at least partially retrospective (appeals are disallowed), possibly for no good reason, and the powers are granted far more widely than they needed to be (beyond the Police and SIS).

by mudfish on October 04, 2011

does this mean a fisheries officer should be able to stick a camera in a person's boatshed to see if they are landing fish in excess of the recreational quota?

I'd be quite happy if it did. So long as the fisheries officer uses some discretion, e.g. issues a warning for 10% over. But just as likely to leave it there and find that they've got a repeat offender in their sights. Would be a great deterrent.

Uh oh. Just caught myself reenacting 1984. Seriously. I'm going to have to think this one through a bit more. 

But John Key would be such a nice big brother to have, wouldn't he?

by Frank Macskasy on October 05, 2011
Frank Macskasy

"But John Key would be such a nice big brother to have, wouldn't he?"


So was Stalin, according to my mother. His Cult of Personality made him a much loved figure in Eastern Europe to many people.

Not that I'm comparing Key to Stalin. Stalin had a moustache. And Key hasn't killed 30 million Soviet citizens, as far as I know.


by Pete Sime on October 05, 2011
Pete Sime

I'm not entirely happy with the definition of covert video surveillance in the bill, which is defined as meaning "the use of a video camera for surveillance". Would this extend to thermal imaging - which I know in the US has been ruled as a search? The police could quite easily do a sweep from the streets (or a helicopter) looking for a heat signature that indicates cannibis cultivation under grow lights, for example.

by Andrew Geddis on October 05, 2011
Andrew Geddis

Thanks for the comments, folks.

alexb: There is a real question whether the Police need to use this sort of technique at all - certainly Keith Locke disagreed with it on principle in his minority views in the Committee's report (plus the Maori Party and Mana also reject the powers on principle). As I said in an earlier post, I'm prepared to give the Police the benefit of the doubt when they say they really do need to do it.

As for the issue of controls on the use of the power - while I would prefer to see specific warrants required for its use (given only for investigating truly serious offences) there is still the NZBORA's general prohibition on "unreasonable" uses of the power. That can be used to challenge hypothetical abuses of it. And as for "Once it is on the books, it would be very difficult to remove, especially if it began to be used as an instrument of tyranny" - if this hasn't been removed in 6 months and replaced with a much more comprehensive set of controls, I'll join you on the barricades.

Brendon: Maybe. But Labour didn't leak the original bill - John Key himself announced it was going to be passed under urgency the week after a parliamentary recess. I think it is more likely that National assumed they would be able to pressure Labour/ACT into supporting it, as they couldn't risk looking "soft on crime" that close to an election. (See also this John Armstrong column saying exactly that.)

Pete: I don't think such searches are touched by this Bill. Thus, the use of thermal imaging from public streets has not been deemed "lawful" as such. However, what law would the Police be breaking by using this technology? Remember, it still remains the case that the Police are allowed to do anything that the law does not specifically prohibit them from doing. Therefore, until the use of thermal imaging becomes so intrusive as to be "unreasonable" as per s.21 of the NZBORA (at which point, it would be unlawful for the Police to carry it out), the Police can still do it.

That said, your example of just driving around the streets/flying over houses looking to see how much heat everyone is giving off may well be "unreasonable" ... just as (say) driving a car around the streets looking into people's living rooms with binoculars to see if there's anything suspicious going on may well be.

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