More tyranny

The regime introduced a bunch of bills today: an Immigration (Enhanced Risk Management) Amendment Bill to introduce a "papers, please" regime for anyone MBIE (which also means the police) suspects they may be liable for deportation or in breach of their visa conditions; a Corrections (Management of Prisoners, and Prisoners’ Property) Amendment Bill to enable them to torture prisoners with solitary confinement more easily and stop them from writing books about it; a Fisheries Amendment Bill to make the Quota Management System a matter of ministerial fiat and introduce a secrecy regime for boat camera footage; and a Policing Amendment Bill, to allow the police to arbitrarily close public places and spy on people without warrants. There's a couple of themes across these bills. The first is overturning court decisions, including some that have affirmed quite significant protections for human rights. The second is replacing statutory protections with executive discretion, which means executive arbitrariness and corruption. And the third, linking the two, is tyranny. Because that's what we call an arbitrary executive which does not respect human rights: tyrants.

The Fisheries Bill secrecy clause deserves its own post, so I'm going to talk about the policing bill here. And it is awful.

One part of this is the creation of a new regime allowing any police officer to close access to any "accessible area" - meaning "an area of land that is accessible to the public, or a section of the public, by motor vehicle", and apparently including private property. So anywhere that is a road, or connected to a road. They're probably thinking of car-parks, but of course the definition also applies to your backyard, and even your house if you have an indoor garage. These closures can be done for a variety of reasons, some of which are good (for example, if there is a danger to the public, like a gas leak or incipient landslide, or a serious offence has been committed and there is a need to secure the crime scene). But most of it is of course aimed at one of the regime's perennial targets: boy-racers. So they can close roads to everyone if an "antisocial road use offence" is being committed or might be committed; if people are operating (or are expected to be) motor vehicles in an antisocial way; or if people are creating (or are expected to create) excessive noise with a motor vehicle, or if there is (or is imminent) "public disorder". If they close an area, its an infringement offence not to leave immediately.

The regime will be looking at this and thinking "anti boy-racer law". But the public disorder and noise clauses also make it an anti-protest law, because the police have a history of regarding public protest as inherently disorderly, and noise (say, from a vehicle-mounted PA system leading a protest march) which upsets those in power as "excessive". Naturally, there's no protection against this - no Terrorism Suppression Act-style clause saying "for the avoidance of doubt, protests, strikes, lockouts, and industrial action are not 'disorderly', and their noise is not 'excessive'". The drafting is so shoddy they haven't even excluded dwelling-places or marae from the definition of "accessible area". And given the regime's anti-protest noises, this should be regarded as deliberate until proven otherwise.

That all stinks, but its not the worst of it. The other part of the bill "reaffirms" the rules about the police collecting intelligence and recording people in public places. I put "reaffirms" in quotes because it does nothing of the sort. The courts and the Privacy Commissioner, in a long series of judgements (Tamiefuna v R, but also Hamed v R), have said what the law is, and that the police have been systematically breaking it. The regime's response is to dramatically broaden the law, and legalise the police's unlawful behaviour.

The new amendments start with a list of "purposes for which Police may collect information", which is a good start. It then says that the police can record anything they can see or hear in or from a public place, or anything they can see or hear on private property if they are lawfully there. No warrants required. To see how much of an intrusion this is, we have only to look at the police's illegal photographing and databasing of young Māori, or the Supreme Court's ruling in Hamed v R, which found that the police could not just covertly film and record people on private (but generally publicly accessible) property under "implied licence" without a warrant. That ruling led to a temporary law change, which was later incorporated into the Search and Surveillance Act 2012, which set limits on the police's ability to spy from public places without a warrant. The amendment bill would void that long established law.

If this passes, the police will be able to park outside your house with a camera and spy on you in your yard or through your windows, and record anything visible (to what wavelength?) or audible (with how much amplification?), without needing any type of warrant. They won't even need to be physically present, because the "by any means" allows remote cameras and microphones. Or they can use a drone, with thermal cameras and high-gain directional microphones and just spy on you 24/7, without any warrant, oversight, or reporting. Those are unquestionably "searches" in terms of the BORA (clearly being interference with a reasonable expectation of privacy) - but they'll be lawful. And of course they can hassle people on the street, photograph them, database them, and record their conversations without any suspicion of a crime.

This is obviously very convenient for police. But it is not the sort of thing done in a free and democratic society. We need to stop it. We need to topple the tyrants at the election.

What is the government's answer on video surveillance?

Last year, in the wake of a court ruling that police video surveillance in the Urewera case was unlawful, the government rammed through the Video Camera Surveillance (Temporary Measures) Act to give the police carte blanche to continue spying. However, the measure was only temporary, lasting only six months from the date it became law. Which means it expires on April 17.

The temporary patch was supposedly necessary to give the government time to craft a permanent response as part of the Search and Surveillance Bill, which they have been sitting on for the last eighteen months. That bill is back before the House today for its second reading. So what's the government's solution? Unfortunately, they're not telling us. No statement has been made, and no amendments have been tabled. The biggest civil liberties issue of the last few years, which governs whether the police can videotape you in your own bedroom, and the government is planning to do it all in secret.

This pathological secrecy is unacceptable. The government needs to come clean about its plans, so that the public can debate them. It is not acceptable in a democracy for something like this to be sprung on people at the last minute. And it would be nice if the opposition - or our media - would say so.

Urgent, my arse

When the government rammed through the Video Camera Surveillance (Temporary Measures) Bill, it told us that the legislation was urgent. When it refused any amendments designed to ensure that future police surveillance required warrants for the invasion of privacy as well as property, they said there was no time. The government had to be allowed to do what it wanted, immediately, with no questions asked, because the police had been forced to turn off surveillance cameras in ongoing investigations, and needed to turn them on again as quickly as possible.

As usual, they lied.

The bill was passed by Parliament during its last sitting on October 6. It was only given the Royal Assent yesterday, and became law today. Some urgency. I guess the police weren't in as much of a hurry as they said they were.

And so now we're saddled with a bad law which gives the police a blank cheque to film in our bedrooms for the next six months, all because the government lied and MPs were too fucking lazy to do their jobs properly. They really have earned their reputation with this one.

Passed

The Video Camera Surveillance (Temporary Measures) Bill has just passed its third reading. The final stages of the debate were pushed through under urgency, and took all of two hours. There were strong speeches by Keith Locke, Rahui Katene and Hone Harawira in defence of civil liberties - and a lot of excuses from Labour about why they were voting for it. While the debate was going on, I took the opportunity to read through all the submissions on the bill. There were 438 submissions - and only 6 in favour. So, we have a government of the 1.5%, stomping on the human rights of the rest of us.

Ironically, at the end of his third reading speech, Labour's Charles Chauvel called for an entrenched Bill of Rights Act to prevent further discredits to Parliament like this one. Then he voted for it. No, it doesn't make much sense to me either.

As Keith Locke pointed out, the prospective powers in the bill apply far beyond the police, to customs, fisheries, CYFS, internal affairs, and the SIS. For the next six months, any of these bodies will be able to get a warrant to search your house, then stick a camera in your bedroom. Unlike a wiretap or audio bug, there will be no limits on what they can do with the information, or requirement that irrelevant records be destroyed. If they feel like it, they can stick the footage on YouTube. That's the law our parliament just passed: one which lets any government body videotape you in your home without oversight, and post the footage on the internet. Today, they really have earned their reputation.

The fix is in

The government has accepted the recommendations of the Justice and Electoral Committee on the Video Camera Surveillance (Temporary Measures) Bill. So, the fix is in. The bill will be rushed through under urgency on Parliament's last day, and it will be open slather for the police by next week. As for the public, who were overwhelmingly against the bill, well, its not as if our opinions matter to them, is it?

And then politicians wonder why they are viewed with contempt by the public...

Reported back

The Justice and Electoral Committee has reported back [PDF] on the Video Camera Surveillance (Temporary Measures) Bill. As expected, they have ignored submitters and endorsed Labour's surrender, putting in place a prospective regime which requires warrants for trespass on property but not privacy, with a six month sunset clause (which will be repealed the moment it becomes a problem after the election). While surveillance is not declared retrospectively lawful, convictions already entered will not be able to be challenged. So, people convicted on the basis of unlawful evidence will remain in jail, while those unconvicted will be able to challenge the lawfulness of any video evidence against them. This isn't justice, so much as a temporal lottery. Yes, its better than the original version of the bill - but not by much, and it would still be better if it was not passed at all.

Video Surveillance: The Submissions

Last week, the government pushed the Video Camera Surveillance (Temporary Measures) Bill through its first reading under urgency, and sent it to an abbreviated select committee process. The bill went online on Tuesday evening, and submissions opened mid-morning on Wednesday and closed at midnight, giving the public around fifteen hours to submit on it. Despite the tight timeframe, over 80 people and organisations managed to (thanks in no small part to Labour's Clare Curran, who dropped off around 20 submissions forwarded to her, including my own). It's a good showing, especially given the tight timeframe; most bills are lucky to get half as many.

Not all submissions are online (for example, there's no submission from the police, and at least one person has reported that theirs isn't up yet). But of those 80-plus submissions on the bill which are online so far, how many supported it? I've spent the past hour skimming them, and the answer seems to be one [PDF]. Yes, one. As for the rest, there was universal condemnation of retrospective authorisation for unlawful surveillance, and a widespread demand that future surveillance only occur under proper judicial supervision. Plus of course a lot of disquiet that this was happening under urgency.

So, the question now is whether the select committee will listen to the public or not. Sadly, given Labour's surrender, I'm expecting not. In the process, Parliament will earn its reputation and further delegitimise itself and our democratic process. And then they'll ask whining questions about why the public has such contempt for them.

Update: According to the select committee report [PDF] there were 438 submissions, so we're only looking at a subset which may not be representative of the whole. I'll skim the rest when they are published and do a summary.

A quick and dirty fix

The Justice and Electoral Committee is due to report back on the Video Camera Surveillance (Temporary Measures) Bill tomorrow. I don't know what they'll come up with or how they will respond to the overwhelmingly negative submissions, but given Labour's surrender, I don't expect it to be good. Meanwhile, I've been thinking about it, and here's a quick and dirty fix:

4. Interpretation
In this Act, unless the context otherwise requires,—
private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed or recorded by no one except the participants
trespass surveillance means surveillance that involves trespass onto private property
visual surveillance device—
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision
visual trespass surveillance means trespass surveillance involving the use of a visual surveillance device.

5. Use of visual surveillance devices
(1) Part 11A of the Crimes Act 1961 applies, with the necessary modifications, to visual trespass surveillance and to the use of visual surveillance devices to observe or record private activity in private premises.
(2) Sections 14 - 29 of the Misuse of Drugs Amendment Act 1978 apply, with the necessary modifications, to the use of visual surveillance devices to observe or record private activity in private premises.

6. Expiry
This Act expires six months after the date on which it comes into force.

It's ugly, but it does the job: video surveillance of people in their homes or workplaces, or which requires the police to trespass to plant cameras, will require a warrant from the High Court and be limited to the offences for which a wiretap can be granted (organised crime, terrorism, serious violent crimes, and drug dealing). While "necessary modifications" clauses are generally undesirable, in this case they're significantly less undesirable than the proposed alternative - open slather for the police to film anyone they want - and the limited duration means it should not be a problem for too long. I've gone with Labour's six months rather than National's twelve because Parliament needs to focus its mind on passing the Search and Surveillance Bill to fix the problem permanently.

Note that there's nothing in there about past surveillance; that's for the courts to decide. There's also nothing about non-trespass surveillance e.g. pointing a camera at someone's front door or sticking one over a fence with permission from the relevant landowner; the courts have already shown they can decide such cases, and there isn't the same need for a prospective framework in such cases.

This was not difficult to draft, and I am surprised that both National and Labour seem to lack the wit to come up with it. Or else they regard ugly drafting as a greater sin than letting the police do whatever they want (which is, I think, getting things arse-backwards).

When the Select Committee report comes out, I'll draft this up into an SOP. And then we'll see if there are any politicians who support proper oversight of the police, rather than open slather.

Labour folds on rule of law repeal

Having pushed hard for a select committee process, and listened to the evidence which has universally panned it, Labour has released its position on the Video Camera Surveillance (Temporary Measures) Bill. The result? Sadly, they support it. Yes, there's good points: they draw a line in the sand against interfering with cases currently before the courts, and they want a six month rather than 12 month sunset clause, to ensure that Parliament really does pass the Search and Surveillance Bill. But on the big things, its a total fold. They're not demanding the police get warrants for future surveillance, on the grounds that its too hard (which effectively makes our current wiretap laws a dead letter - why jump through hoops and prove necessity, when you can get an ordinary warrant, leave a camera, and get video far easier?) And they want to ensure people already convicted can't have those convictions overturned or even investigated over little things like deliberate police misconduct and unlawfully obtained evidence.

And this, dear reader, is why you can never trust the Labour Party, and why you should not vote for them in November. While there are plenty of good people in Labour, when push comes to shove, they've got no backbone. They won't stick up for you, so why stick up for them?

The best we can hope for at this stage is that this surrender is still not enough for the government, that ACT doesn't offer them easier support, and therefore that the bill is not passed before the election. This won't help in the long term (unless the electoral dice come up "20"), but it will allow cases to be filed and justice to take its course before the new Parliament puts its foot down.

Submitters hate the video surveillance bill

Yesterday the Justice and Electoral Commission began hearing submissions from invited experts, mostly lawyers and legal groups, on the Video Camera Surveillance (Temporary Measures) Bill. Their overwhelming view? They hate it. Here's some examples:

• The New Zealand law Society says the bill is "objectionable", an interference in the judicial process, and an attack on the rule of law. They think it effectively amends the Bill of Rights Act to nullify the right against search and seizure (because if it allows the police to stick a camera in your bedroom with no real oversight, what doesn't it allow?), and that it systematically misrepresents the legal position around the Supreme Court's judgement.
• The New Zealand Council for Civil Liberties agrees, and notes that police have an obligation to uphold the law, which they appear to have violated.
• The Human Rights Commission says that retrospective legislation is unnecessary, and that the bill is contrary to the ICCPR. Enacting it would invite challenges under the First Optional Protocol to the International Covenant on Civil and Political Rights, which would damage our international reputation.
• The Law Commission says it is overbroad, allowing Customs, Fisheries officers, or any other government agency to stick cameras anywhere they want. They criticise the lack of safeguards in the bill.
• Former Prime Minister, Law Commissioner, and architect of the BORA Geoffrey Palmer calls the bill "oppressive" and a "constitutional perversion" which would deprive people of a legal defence.

And that's just (some of) the experts. The public have also been having their say, with Labour's Clare Curran personally delivering "about 20" submissions, and an unknown number of people submitting via the online form or other MPs. Which is quite good compared tot he number of submissions bills usually get, especially in the rushed circumstances.

The consensus so far from the experts is that there is no need for retrospectivity, and that the prospective authority needs more safeguards than the government's proposed blank cheque. The question is whether the Select Committee will listen, or whether National will just use it to rubberstamp this bill, then dare ACT and Labour to vote against it. Sadly, I'm expecting the latter.

An exercise in disingenuity

I was wondering yesterday whether the Attorney-General had made a section 7 report on his Video Camera Surveillance (Temporary Measures) Bill, because the bill seems so obviously inconsistent with the Bill of Rights Act. He didn't, of course. The reason why is quite surprising: he doesn't think the bill is a justified limitation to ensure the police can do their jobs; he actually believes it is consistent with the BORA because it "does not confer any new power to search".

Yes, really.

This is nonsense upon stilts, the sort of exercise in disingenuity that gives all lawyers a bad name. And it shows that Finlayson is not doing his job properly. As Attorney-General, he is supposed to protect our rights against assaults by the executive, and give honest advice to Parliament. He has failed to do that, instead excusing police misconduct and misleading Parliament. And for that, he should resign.

Another question

The Video Camera Surveillance (Temporary Measures) Bill is being sold as being about the police, who supposedly need the power to stick a camera in someone's bedroom in order to prevent unspecified Bad People from "getting off" (i.e. being found innocent by a jury of their peers). But if you look at the bill, it doesn't just apply to them. The definition on search now says it applies to "an act done by a person or body referred to in section 3(b) of the New Zealand Bill of Rights Act 1990", which means:

any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

So here's another question: which other government body or bodies has been using unlawful camera surveillance in such a widespread manner that they need retrospective validation? And why doesn't the government want to be honest about it?

(My guess is (of course) SIS, whose intelligence warrant system appears not to include video surveillance, though it does include communications, documents, and electronic tracking).

Submit!

The Justice and Electoral Committee has called for submissions on the Video Camera Surveillance (Temporary Measures) Bill. Submissions are due by Wednesday, 28 September 2011, and can be made through the online form here.

This is an important bill and I encourage everyone to have their say on it. It interferes directly in ongoing criminal trials to the benefit of the prosecution by retroactively legalising unlawful police behaviour. It also gives police a blank cheque to conduct video surveillance without proper judicial oversight for the next year. These are not things which should be happening in a democratic society under the rule of law.

If you're not sure how to make a submissions, there's an online guide here [PDF]. If you're not sure what to say, there's plenty of good material from Dean Knight and Andrew Geddis.

Submission

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

Submitting on the spying bill

The Video Camera Surveillance (Temporary Measures) Bill is finally online. There's been a small change since the draft version, or removing the word "unreasonable", but that's it. The bill still retrospectively legalises unlawful police spying, saying that it was lawful and is not to be treated as improperly obtained. And it lets the police keep doing exactly what they're doing for the next year, without any requirement to change their behaviour.

Interestingly, Chris Finlayson did not issue a section 7 report on the bill. So he thinks that retrospectively legalising improperly obtained evidence and allowing it to be used in criminal trials is perfectly consistent with the Bill of Rights Act. So much for his credibility as Attorney-General.

The bill is still going through its first reading, but Maori Party MP Te Ururoa Flavell says it will be open for public submissions, and he's encouraging everyone to submit on it. Hopefully, the bill will show up on the list here in the near future. Alternatively, Flavell has offered to assist people to make a submission, so if it doesn't, then you can email him at teururoa.flavell@parliament.govt.nz.

A good question

Over on Elephants and the Law, Dean Knight poses an interesting question regarding the whole police video surveillance scandal:

Given the widespread engagement in unlawful covert surveillance by the police, where is the inquiry in the systemic cause of this problem? Is an investigation by the Independent Police Complaints Authority inevitable? Has a complaint already been lodged? Or is one in the pipeline?

Its a good question. The police have been found to be breaking the law in a deliberate and systematic fashion, potentially putting 50 serious criminal cases in jeopardy due to tainted evidence. We deserve some answers on how that happened - and some accountability. Sadly, I don't think we'll be getting either under the current police minister.

A possible solution?

The government will introduce its Video Camera Surveillance (Temporary Measures) Bill to the House today and send it to select committee. Meanwhile, Attorney-General Chris Finlayson has rejected the proposal to pass the surveillance measures in the Search and Surveillance Bill because they're too complicated. So, he'd rather hand the police a blank cheque to stick cameras in our bedrooms rather than do his fucking job. Why are we paying him $250,000 a year again?

Fortunately, there's another, easier solution out there. The Crimes Act already includes provisions allowing for the use of interception devices - wiretaps and hidden microphones - to intercept private conversations. These provisions could be modified to allow use of video surveillance, or if that is too complicated, cloned and reinserted.

This has several advantages. The Crimes Act provisions are limited to organised criminal offending, serious violent offences, and terrorism. They require the police to get warrants, and prove that their surveillance is actually necessary, that they can't get evidence in less intrusive ways. And the law is well understood by both police and judges, meaning that it is unlikely to have unforeseen consequences.

I am not a lawyer. But I have drafted legislation before, and it does not seem too difficult to modify those clauses in the desired way. So why doesn't Parliament do this for future surveillance, rather than just giving the police a blank cheque?

The latest on rule of law repeal

The government has announced that its Video Camera Surveillance (Temporary Measures) Bill (AKA Rule of Law Repeal Bill) will be going to select committee. The bill will be given its first reading tomorrow, then sent to the Justice and Electoral Committee for a week of considerations, before being reported back next Monday. This is not an ideal process, but its better than the original plan of ramming it through all three stages without any select committee consideration at all.

Tomorrow I'll post details on how to submit on the bill. If we're lucky, the Parliamentary website will have the usual webform up. Otherwise I'll be looking for an MP to take submissions by email and submit them personally. This bill isn't just of interest to legal academics and constitutional lawyers - its of interest to every single one of us. And we should all have our say on it.

A blank cheque

Thanks to the Labour Party, the government's draft Video Camera Surveillance (Temporary Measures) (AKA Rule of Law Repeal) Bill is now available [PDF]. The bill is very short, and is basically a blank cheque for police. Whatever video surveillance they've done, now or in the past, is declared lawful, except in regards to the Urewera 18 case. And they get to keep doing whatever they're doing for the next year, with no requirement for warrants or to prove that such surveillance is necessary.

Its hard to see how such a bill can pass the test of being "demonstrably justified in a free and democratic society" required for consistency with the BORA. Free and democratic societies do not give their police a blank cheque to spy on the general populace whenever and however they want. They require warrants, and for more intrusive surveillance measures (such as using cameras where there is a reasonable expectation of privacy), some test of necessity and proportionality to the crime. The relevant part of the Search and Surveillance Bill contains such safeguards. And that is what the government should be passing, with prospective force. As for their past surveillance activities, the police knowingly broke the law, and they should pay the price - not just in lost cases, but in sackings and resignations. A lawless police force acting under colour of authority is simply a criminal gang by another name, and it must be held to account.

Labour on rule of law repeal II

Labour has put the final nail in the coffin of the government's plan to oust the rule of law and retrospectively validate unlawful police surveillance under urgency, announcing that having seen the bill, they cannot support it in its present form. They will support it to committee, in the hope of getting it changed - but if it isn't, then National are on their own.

Meanwhile, it seems that the government's real problem is with section 30 of the Evidence Act. This allows evidence obtained by unlawful means - e.g. unlawfully placed video cameras - to be admitted, if its exclusion is disproportionate to the impropriety, taking into account a number of factors including the seriousness of the crime and whether there were alternative means of investigation available. We saw from the Urewera 18 trial that this is perfectly adequate to deal with the problem; its a case by case decision, but on serious crimes, the courts may allow the evidence anyway. Sadly, it seems that that degree of uncertainty is too much for the Attorney-General; anything less than the admission of all evidence, no matter how it was obtained, is insufficient. So, the Cabinet Minister charged with upholding the law and protecting our rights wants to ignore both, simply to protect police from criticism that they behaved unlawfully. And people wonder why I think we need an enforceable Bill of Rights...