Wednesday, September 28, 2011


Below is the draft of my submission on the Video Camera Surveillance (Temporary Measures) Bill. I have no idea if the committee is actually accepting submisisons from the general public (rather than only from invited experts), but hopefully it will be accepted.

  1. I oppose the Video Camera Surveillance (Temporary Measures) Bill and ask that it not be passed in its present form.
  2. The bill is a response to the ruling in Hamed & Ors v R [2011] NZSC 101, in which the Supreme Court ruled that the police had behaved unlawfully in their use of video surveillance. The ruling obviously requires that Parliament put in place a framework to allow such surveillance to be conducted lawfully and under judicial oversight. But the bill does not do this. Instead it simply declares this surveillance retrospectively lawful, and allows it to continue for a year without any proper checks and balances.
  3. The retrospective component is a constitutional outrage. It has the effect of intervening in ongoing criminal trials for the benefit of the prosecution. This is a blatant violation of the rule of law, and if it was proposed in Fiji we would condemn it. We should not commit such outrages here.
  4. The prospective component is inadequate. Video surveillance is highly invasive. It requires proper checks and balances. The framework in the bill does not include such balances. It allows the police to break into your home on the basis of a warrant to search for something, then stick a camera in your bedroom while they are there. There is no requirement on the police to prove that video surveillance is necessary for the investigation, or that the invasion of privacy is proportionate to the offence. The absence of any need to prove necessity allows the police to go on fishing expeditions, using warrants to plant cameras in the hope that something will turn up. And the lack of any proportionality requirement allows them to use extremely invasive surveillance for minor crimes.
  5. Because of these flaws, I do not wish to see the bill passed in its present form.
  6. As for what should be passed, I recognize that Parliament needs to set in place a framework to allow for future searches. This must involve proper judicial oversight, be limited to serious crimes, and intrude on privacy only where necessary. The framework from the existing Search and Surveillance Bill is one option. The framework used in the Crimes Act and Misuse of Drugs Act to cover audio interception devices is another. The latter has the advantage that police and judges are already familiar with the law, meaning it should not lead to unforeseen consequences or implementation problems. I do not believe that it is beyond the ability of the Committee, Parliamentary Counsel's Office, or Ministry of Justice to draft the necessary amendments in the available time.
  7. As for past searches, I do not believe that retrospective validation is desirable. The police knowingly and deliberately broke the law, and they need to pay the price for that. Parliament should not let a state agency off the hook for flouting the law in this fashion. To point out the obvious, it will simply encourage them to do it again.
  8. I do not wish make an oral submission to the Committee