An effective and credible system of justice

Following the Supreme Court decision delivered on 2 September 2011 (but only recently released to the public, with some parts still suppressed) in Hamed v R [2011] NZSC 101, John Key today announced that legislation would be introduced to the House next week to "temporarily" (and retrospectively) authorise the use of covert video surveillance by the Police in criminal investigations and subsequent prosecutions.

According to the Prime Minister (who has the advice of Crown Law), up to 40 current trials and 50 current investigations could be jeopardised as a result of the decision. It is clearly Cabinet's view that this would be an undesirable situation for the criminal justice system to find itself in, and therefore propose to validate evidence already (illegally) obtained by passing the proposed legislation under urgency.

Though I hesitate to suggest any measure of respect for the frankly pitiful reporting on this issue, I have to acknowledge the articles published this afternoon by Tracy Watkins at stuff.co.nz (which at least includes a brief video of the Prime Minister's press statement) and Claire Trevett at nzherald.co.nz as the source of this information.

I don't have a developed view on the substantive issue of covert Police surveillance, though I admit that my instinct is to suggest that its availability should be tightly controlled and monitored by the Courts through warrants and reviews. The issue that I do have is with the proposed Government response to the Hamed decision.

As is pointed out at a number of places in the judgement, and most forcefully by Chief Justice Elias, the shortcomings in the law relating to video surveillance have been well known for some time now. The Law Commission said, in 2007 - Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [11.9] - :

Other than the general prohibition on unreasonable search and seizure in section 21 of the Bill of Rights act, New Zealand statute law has not sought to deal with the field on any comprehensive basis. in particular, there is virtually no statutory regulation of visual or video surveillance or other non-auditory forms of surveillance.

And yet the Government's response is one of surprise. They act as if this decision was unprecedented and irrational in order to justify the knee-jerk reaction that they propose to respond with.

Elias CJ makes a familiar argument for the hesitation on the part of the Courts to intervene in these matters at paragraph [42] of the decision:

Secondly, Parliament is better placed than the courts to undertake the s 5 assessment. As La Forest J pointed out in R v Evans in the Supreme Court of Canada, while it can be accepted that the police may have difficulty in investigating and prosecuting crime without the authority to undertake surveillance, "[i]f the issue is sufficiently serious, it is for Parliament to amend the law":[R v Evans [1996] 1 SCR 8 at [4].]

Parliament is in a better position to obtain evidence supporting the need for a change and to assess the extent to which the change may affect householders who are not guilty of any crime. Judges are not in a position to receive such evidence, and they deal with specific cases that ordinarily involve people who have broken the law, a fact that does not encourage the broader perspective that should be brought to the issue.

This is a compelling argument, and one that is often presented by the Courts when they consider themselves bound to apply a law that they perhaps have misgivings about. It is an argument rooted in respect for our constitutional separation of powers doctrine. Interestingly it is exactly this doctrine that the present Government seems to have so little respect for.

The problem in the present case is that the argument made by Elias CJ and others relies on Parliament to act in a way that we expect it to act. Parliament is expected to be the representative of the people. It is seen as a deliberative, participatory and process-driven decision making body. Where all of these assumptions hold true, Parliament is an excellent authority for the determination of issues like the one currently in hand.

But these assumptions do not hold true. Graeme Edgeler recently opined that "Legislating in haste may sometimes be necessary, but it is always a bad idea" [Graeme Edgeler "Legislate in haste..." (19 August 2011) Legal Beagle <http://publicaddress.net>] and the Urgency Project, organised by the Centre for Public Law and the Rule of Law Committee of the New Zealand Law Society, said in their submission to the Standing Orders Committee: [The Urgency Project "Standing Orders Review 49th Parliament Submission to the Standing Orders Committee" at 10]

• The stand-down periods between legislative stages play an important role in allowing legislation to proceed through the House at a measured pace, and in providing opportunities both for members of the House and for interested members of the public to digest and  respond to developments. For example, the stand-down period between the second reading stage and committee of the whole House may provide an important opportunity for members to consider what amendments they might wish to propose. 

• When urgency is accorded to the introduction and first reading, there may not be any opportunity for opposition and support parties (as well as members of the public) to see and digest the legislation prior to the first reading debate.  

• Where urgency is taken for one stage at a time, the impact on principles 1-6 may be minimal. Nevertheless, even here, there is an impact on principles 7 and 8. That is because the use of urgency contributes to a public perception – whether fair or not – that Parliament is not following its own rules, and that legislation is being “rammed through” the House. These matters are returned to below.

The Supreme Court, particularly Elias CJ and McGrath J, spend considerable time talking about the importance of an "effective and credible system of justice", which is a requirement under the Evidence Act 2006 s 30(2) where the prosecution seek to have evidence admitted that was improperly obtained. McGrath J, at paragraph [258] says that, "an effective and credible system of justice must also maintain the rule of law by ensuring that police impropriety when gathering evidence is not readily condoned." This is of course an important consideration for the Court in the balancing exercise required by s 30, but it is an equally important consideration for the Government and Parliament when they turn their minds to their response over the coming days.

An "effective and credible system of justice" does not allow the Police to illegally collect covert video surveillance for years, fail to do anything about it when the problem is brought to light, and then retrospectively authorise the illegal actions of the Police once it finally becomes impossible to ignore the issue any longer. Moreover, such a system most definitely does not do so using the dubious tool of Parliamentary urgency.

Indeed, as Elias CJ said at [73]:

In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.

For Parliament to retrospectively authorise similar acts (though notably not this particular case, as the Hamed case is to be excluded from proposed legislation) is far more damaging.

The final point I wish to make concerns the retrospective effect of the proposed legislation. As I said at the outset, I do not have a developed view on what the law should be vis-a-vis covert video surveillance, but it is crucial that the law as it currently stands is upheld as it applies to all events up to the date that a new scheme is enacted.

Discussing s 21 of the Bill of Rights Act, Elias CJ said at [44]:

The purpose of protecting individuals from unjustified intrusions on their privacy requires statutory authority for authorisation in advance to prevent unjustified searches before they happen.

To retrospectively authorise illegal searches made by the Police, with the knowledge that those searches were illegal, is an unjustified limit on the s 21 right to security against unreasonable search, unduly disregards the importance of an "effective and credible system of justice", and is an affront to the rule of law and the separation of powers.


Update: I used this post as a basis of a submission to the Justice and Electoral Select Committee on the version of the Bill that was eventually introduced. Note that this post was written before even the consultation version of the Bill was made available by Charles Chauvel over at the Labour blog Red Alert. The Bill as introduced (333-1) made some changes to that draft version. The Bill has now been reported back from the committee (333-2) and is apparently going to be passed under urgency on the final sitting day of this term of Parliament - Thursday 6 October. The text of my submission is available on the Parliamentary Website.