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.