[Video Camera Surveillance (Temporary Measures) Bill select committee report (PDF)]

Video Camera Surveillance (Temporary Measures) Bill

Government Bill

As reported from the Justice and Electoral Committee

Commentary

Recommendation

The Justice and Electoral Committee has examined the Video Camera Surveillance (Temporary Measures) Bill and recommends by majority that it be passed with the amendments shown.

Introduction

The bill introduces temporary measures to provide a framework for the use of covert video surveillance in the wake of the decision in Hamed and Ors v R [2011] NZSC 101, 2 September 2011 (the Hamed decision).

Before the Hamed decision, the use of covert video camera surveillance by State agents had been considered by New Zealand courts, and was found to be permissible under common law whether the surveillance was conducted on private property entered pursuant to a search warrant, or from a place not requiring a warrant to enter.

We note the Law Commission’s 2007 report questioned the legal basis of trespassory video camera surveillance. We note that this re- port was issued prior to three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance.

In the Hamed decision the Supreme Court decided that covert video camera surveillance conducted on land entered pursuant to a search warrant and without any form of “prior judicial authorisation” that specifically authorised the use of video cameras was a trespass, and therefore unlawful. The Court’s decision has immediate effect and has had a substantial impact on past and present criminal and proceeds of crime proceedings and current police investigations into very serious crime. We were advised by the New Zealand Police that they have stopped all covert video surveillance following the Hamed decision.

We believe that in the wake of the Hamed decision three distinct questions are posed:

1 What prospective powers should state agents who seek to use covert video camera surveillance be granted, and how should those powers be authorised?

2 What effect does the Hamed decision have on proceedings awaiting trial and current police investigations?

3 What effect does the Hamed decision have on decisions made before 2 September 2011 in cases which involved evidence obtained through covert video surveillance?

Consideration of the bill and these questions has been limited by the short time available before Parliament dissolves for the general election.

In the brief time the bill was before the committee we received 438 submissions and heard 20 submissions. We were greatly assisted in our consideration by the submissions we received.

This commentary covers the major amendments we recommend to the bill. It does not cover minor or technical amendments.

Types of surveillance

Covert video camera surveillance can be broadly divided into two categories—trespassory and non-trespassory.

Trespassory surveillance generally means covert surveillance conducted on private property as part of a search warranted under section 198 of the Summary Proceedings Act 1957. This type of surveillance was ruled upon in the Hamed decision.

Non-trespassory surveillance, or “over the fence” surveillance, is conducted from a position such as public land, or a neighbouring property with the full knowledge and consent of the property owner.

Non-trespassory surveillance was not ruled upon directly in the Hamed decision, and there is a view that nothing in the judgment could affect the use of non-trespassory surveillance.

Prospective surveillance powers

We believe that the Police require prospective surveillance powers in some form. Surveillance is an important investigatory tool, particularly as criminal networks become more sophisticated. The bill would allow the Police and other State agents to continue to rely on a section 198 search warrant until the Search and Surveillance Bill is enacted and a more comprehensive framework can be established.

In the case of trespassory surveillance the current practice of the Police is to obtain a warrant pursuant to section 198 of the Summary Proceedings Act, in order to authorise their entry onto private property without consent. We expect this practice to continue, and any application for such a warrant to expressly indicate the intention to perform video camera surveillance, and to be made to a District Court Judge.

Non-trespassory video camera surveillance, by its very nature, does not require the authorisation of a search warrant. Its admissibility as evidence will remain subject to the judgment of the court on the basis of the reasonableness requirements of section 21 of the New Zealand Bill of Rights Act 1990 and section 30 of the Evidence Act 2006.

We are aware of concern that the bill would significantly widen the surveillance powers available to the Police and other State agents to potentially include audio recording. We were advised and assured that the video cameras currently in use by law enforcement agencies have the sound recording function disabled, so this appears not to be the case. Obtaining audio recording without an appropriate interception warrant remains unlawful.

In addition to the issue of sound recording we were concerned to ensure that any search or gathering of evidence that could have been challenged as to its legality prior to, and without reliance on the issues raised in the Hamed decision would have all such challenge grounds preserved. We are satisfied that this is the case however the committee is also recommending the inclusion of new clause 3(d) in the purpose clause of the bill to reinforce this.

At the same time the committee was also concerned to ensure that the effective parts of this legislation would provide sufficient certainty to enable prospective covert video camera surveillance to continue, subject to other challenge grounds, for the 6 month period created by the bill. We are advised that the bill as reported provides a sufficient framework for law enforcement agencies to recommence covert video camera surveillance (both trespassory and non trespassory) with some expectation that if no other challenge grounds are established the evidence so collected will be considered to have been lawfully acquired.

Current investigations and operations

We believe that the judicial process can be relied upon to determine the lawfulness of evidence obtained by the use of covert video camera surveillance case by case. This would apply only to cases that were before the courts or waiting to go before the courts and investigations that were active at the time of the Hamed decision.

Past court decisions

The Hamed decision was issued on 2 September 2011. Prior to that date, covert video camera surveillance was not prohibited under common law, and convictions were lawfully obtained on the basis of its results. We asked the Human Rights Commission if it would be undesirable or a breach of human rights to prevent the reopening of such convictions, and the commission told us that it would not be.

We have inserted a provision accordingly, which makes it clear that appeals on other grounds are unaffected.

Sunset clause
We recommend reducing the period to which the provisions of this bill apply from 12 to 6 months after the date on which the Act comes into force. This bill is intended to provide only a temporary solution until the passage of the Search and Surveillance Bill, which we believe should occur as soon possible in the new Parliament.

Passage of Search and Surveillance Bill

We strongly recommend that the new Parliament make the Search and Surveillance Bill a priority and expedite its passage. That bill has had the benefit of a full select committee process, and has been thoroughly tested and reviewed in a way that has not been possible with this bill.

Definition of search

We are aware of concern that the definition of search in the bill as introduced is too wide. We recommend removing paragraph b from the definition in order to make it narrower.

Bill of Rights

The bill would in no way limit the rights conferred by the New Zealand Bill of Rights Act 1990. Its role is preserved, and the unreasonableness test, which has previously been applied to the use of covert video camera surveillance, remains.

Savings

We would point out that the bill as introduced would have no effect on the implications of the findings of the Hamed decision regarding any specified person.

[...]

[Video Camera Surveillance (Temporary Measures) Bill select committee report (PDF)]

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