The pit­falls of rush­ing it

Kapi-Mana News - - OPINION/NEWS -

In early Septem­ber, the Supreme Court ruled that when the po­lice placed hid­den video cam­eras on pri­vate prop­erty in 2007 to col­lect ev­i­dence against the Urew­era de­fen­dants, the po­lice were act­ing il­le­gally – and thus, the charges against 13 of the 17 Urew­era de­fen­dants should be scrapped.

How­ever, the Govern­ment has cho­sen to re­spond to the Supreme Court rul­ing by seek­ing to pass fresh leg­is­la­tion that will le­galise po­lice use of hid­den video sur­veil­lance in all cases – now, ret­ro­spec­tively, and in fu­ture – ex­cept for the Urew­era cases.

The new leg­is­la­tion would be a stop­gap mea­sure un­til Par­lia­ment next year passes into law the ma­jor Search and Sur­veil­lance Bill be­fore the House.

This head­long rush to le­git­imise po­lice ac­tions has raised hack­les among some Op­po­si­tion politi­cians – Labour has been de­mand­ing that any new law should un­dergo se­lect com­mit­tee scrutiny, while the Greens op­pose it al­to­gether – and le­gal aca­demics alike.

To Prime Min­is­ter John Key, the move was nec­es­sary given his es­ti­mate of 40 pend­ing cases and 50 on­go­ing po­lice op­er­a­tions that could pos­si­bly be af­fected by the Supreme Court rul­ing – such that, Key ar­gued, peo­ple who pose ‘‘ a se­ri­ous risk to the com­mu­nity’’ could walk free.

Key’s claims have proved to be some­thing of an ex­ag­ger­a­tion. Shorn of their covertly filmed ev­i­dence, the po­lice cases could still rely on the tra­di­tional, le­gal ways of gath­er­ing ev­i­dence in use be­fore the covert tech­nol­ogy was in­vented.

More­over, even if the Govern­ment did noth­ing at all, the courts would still re­tain their dis­cre­tion to weigh whether the ‘‘il­le­gal­ity’’ of the sur­veil­lance was suf­fi­ciently bal­anced by the se­ri­ous­ness of the charge and the weight of re­lated ev­i­dence.

Af­ter all, that is pre­cisely what the Supreme Court did in its Urew­era rul­ing. Some charges were dropped, but the charges against four Urew­era de­fen­dants have been al­lowed to stand.

To some crit­ics, the rushed leg­is­la­tion will re­ward the po­lice for us­ing il­le­gal means to gather ev­i­dence.

Ar­guably, it will also give them vir­tual open slather to in­stall sur­veil­lance tech­nol­ogy on pri­vate prop­erty in fu­ture, while re­mov­ing the courts’ cur­rent dis- cre­tion to weigh whether the wider cir­cum­stances did in fact jus­tify the po­lice us­ing covert film­ing to gather ev­i­dence.

Hence­forth, even if covert film­ing is car­ried out in the con­text of a war­rant­less search, the new leg­is­la­tion ap­pears to re­quire the courts to find that the po­lice were act­ing legally.

To pre­vent Par­lia­ment from hand­ing the po­lice a blank cheque in this fash­ion, Otago Univer­sity law pro­fes­sor An­drew Ged­dis has sug­gested a com­pro­mise – namely, that the Govern­ment should im­port all the safe­guards set out in the pro­posed Search and Sur­veil­lance Bill and to use them as the ba­sis for the stop­gap leg­is­la­tion as well.

At least those safe­guards have al­ready gone through the se­lect com­mit­tee process, Ged­dis rea­soned, and would go some way to bal­anc­ing the oper­a­tional needs of the po­lice against the free­doms set out in the Hu­man Rights Act. It would also leave the courts’ cur­rent dis­cre­tions un­touched.

At time of writ­ing, it was un­clear whether the ‘‘Ged­dis so­lu­tion’’ would be in­serted into the mea­sures due to be passed un­der ur­gency.

In pass­ing, the episode has raised the is­sue of whether those who en­force the law should al­ways be re­quired to re­spect it, and ap­ply it to them­selves.

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