A press release from the Attorney-General:
Attorney-General statement on select committee report on Video Camera Surveillance (Temporary Measures) Bill
“Our priority is to pass this legislation this week to allow the Police to resume video surveillance operations in investigations of serious offending,” Mr Finlayson said. Parliament rises this week and will not sit again until after the election.
“There is cross-party support for the Police to have appropriate surveillance powers to investigate serious criminal activity,” he said. “The Bill preserves the position as it was understood by successive governments and the Police, that covert video surveillance in an otherwise lawful search was not illegal.”
The position as government and the NZ Police understood it was wrong. They knew it was wrong too, so saying they always thought it was right is also wrong. They assert their current desires as facts and then put it into statute where the courts have to take their word for it. That is the illness in the system.
The Video Camera Surveillance (Temporary Measures) Bill expresses Parliament’s intent that any otherwise lawful search involving covert video surveillance should not be unlawful just because of the use of video surveillance.
The intent? Let's deal with the intent of the current parliament (National and Labour) - they are intent on re-writing the law to suit the cops who were caught with their pants down. To save face - and to save the embarassment of having to find a way to remove the unlawfully installed spy gear - they are trying to approve it.
As I pointed out when the Policing Act was going through a few years back they assert a history and assert what is common law in the statute and at that point it doesn't matter to the Courts whether those assertions are true or not because it is in statute they must defer to it. This means they have been able to extend their powers over time and this so-called "temporary measures" bill is just another example. By making it cover only the next 6 months they have also put pressure on the search and surveillence bill to go through quickly to suit the NZ Police agenda.
From suspicion they are able to get a search and now they claim that the search automatically means they have a right to plant spy devices. We are very far down the slippery slope on this one.
From the Policing Act 2008: section 37:
(4) Nothing in this section affects the right at common law of a constable to search any person on the person’s arrest.
The NZ Police themselves wrote this Act by the way - it's their own law for themselves - that's the first thing that must be mentioned. It is therefore, by any definition, self-serving. Section 37 is headed: "General searches of people in custody" and says if someone is taken into custody and is either in a police station or police vehicle and is to be taken to be securely detained (which I take to mean they are under arrest for a reasonably serious offence) then they may be searched and money and property taken off them. Note it does not say they are to be searched in the field - to the contrary they may only be searched on police premises. It says the police may use "any reasonable force necessary to conduct a search or take any money or property". That may seem OK, but subsection (4) asserts a common law right exists to search anyway. It may not have been a common law right at all, but by putting it in statute it makes it so, and it's open-ended because it doesn't qualify it with "lawful" or "reasonable" or "necessary" - just "on arrest." So arrest = search.
The notes to the "temporary measures" bill asserts that it was OK to put in spy gear during a warranted search. The Supreme Court determines common law and over-ruled them, so they change the law. So, search = surveillence.
The real danger is the extensions the authorities have gained and how that is to be read in conjunction with their other extensions of power.
The search and surveillence bill they want passed says unwarranted surveillence is OK for 48 hours, ie. a fishing expeditions are go. You see where this is going?
For example if it is alright to plant spy gear during a search and anyone can be searched upon arrest then the equation is arrest = search = surveillence. What is to stop them planting bugs on people during an arrest? Very little. They will get a legal opinion from their in-house lawyers to say it's OK and will claim it as a common law right. Then if the Supreme Court over-rules them they will turn around - as they have done in the Urewera case and get some weak politicians in parliament to change the law for them. That's how they roll.