Secret Police Filming, New Zealand

Remove all ads!

This probably isn't an issue that anyone is aware of, but it really is fascinating enough that I thought I'd share it. It's an interesting little story that highlights a few big issues in New Zealand politics.

A bit of background. A few years ago there was a large series of police raids on potential terror suspects, in some mountain ranges some where. These cases have slowly been going through the court systems and pretty much disappeared off the radar of the media (and hence nearly everyone else) until recently.

About a week or two ago, the Supreme Court issued a verdict on the use of evidence in these cases. The Supreme Court is New Zealand's highest court, however as there is no single constitutional document, any ruling the court makes can effectively be over turned through legislation. Now, it turns out that that a lot of secret filming was used by the police, on private land, during these raids. This evidence was vital in the prosecution. The Court has ruled that secret filming on private land is a breach of privacy (under some law or another) and any evidence obtained in this manner cannot be submitted to the courts.

Leaving the Judiciary, we jump across to the Executive. To set the scene here, the current government is National, a minority, centre-right government. They are relying on support in the legislature from a series of other minor parties - United Future, a conservative, centre-leaning party with 1 seat; Maori Party, slightly left-winged, with 5 seats; and ACT, a far-right classic liberal (free market) party with 5 seats. Of these, National really only needs 4 extra votes to make the majority, and tend to seek different parties support on different issues.

Following the Supreme Court ruling, the Prime Minister, John Key, held a press conference announcing that the government will seek to push through a 'patch up' bill, to supply a quick fix to previous privacy laws in order to retrospectively allow the use of the evidence. Key claimed that 40 prospective trails and 50 current police cases are at risk of going under if secret filming cannot be used. As there is only two more weeks left before the house rises and the election process begins, the government wants to pass this Bill under the Urgency procedures, which will skip out all public consultation and Select Committee hearings.

On the back of this, the government currently has a large bill going through the select committee process which, among other things, addresses this very matter of secret police filming on private lands. However, as it is a very large bill, there is no chance of it getting to it's second reading in the House in the next two weeks.

The proposed patch up bill has been an instant hit with the media. The media has taken a few big issues with it. First, the general argument is that such an important change should not be rushed through in Urgency. Second, is the whole privacy issue.

One large issue, that seems to have almost escaped the medias attention (other than to be included in the lower reaches of some of the larger articles) is the idea of rule of law - that no one is above the law, not even the law makers. Constitutional experts across the country have come out unanimously and stated that the retrospective applying of the Bill does breach the rule of law.

So back in Parliament, National needs the support of at least 4 other members (keeping in mind that, unlike in US politics, parties always vote as a bloc, except in rare circumstances).

• The opposition party, Labour (centre left), has stated that they will not support the Bill, as they say that there is no proof behind the claims that all these cases will have to be thrown out. However, they have previously agreed to support the large bill that is in the Select Committee stages, given a few minor changes.
  
• The Maori Party, one of National's allies, have come out against the bill in all forms (as have the two far-left parties, Greens and Mana).
  
• United Future, with their one vote, has stated that while they disagree with the method, it is vital for these cases to continue through the courts so will therefore support it.
  
• So National is left relying on ACT for support. ACT, traditionally, has two groups within it - the one that has dominated the last ten years has been the tough on law-and-order side, although the one that has traditionally dominated and is starting to again (after a leadership change a few months back) is the free-market side. Both sides do still have strong influences in the party - their only current Minister is the former leader, who is in the law-and-order camp, while their current leader (who is not in Parliament, strangely enough) is the former Reserved Bank Governor and definitely a Free-Market type. Anyway, to cut it short, after a few days of in-party discussion ACT has come out and said that they will not support the Bill in urgency, but may support it if it goes through the Select Committee process.

That's as far as the saga has gone, so far. We're now waiting for National's response, although it's unlikely they can do much now (given the short time frame and lack of support for Urgency) other than wait until after the elections.

The fascinating thing about this issue is the number of important points that it brings to the foreground.

(1) Privacy Rights
The obvious main issue here is the right to privacy vs the right of police to use what means they have to 'catch the bad guy'. It's a fairly straight forward issue and has caused a fair bit of debate.

(2) Retroactive Law Making
Due to the doctrine of Parliamentary Supremacy in New Zealand this is technically allowed. In the United States, as well as the vast majority of countries with a written constitution, such laws are unconstitutional. This is the big issue with the current law, in the academic community.

(3) No Written Constitution
New Zealand is one of three sovereign states without a written constitution (others are United Kingdom and Israel). Given the above two issues, the idea of New Zealand having a codified constitution was bound to come up. There is a fairly constant (although minor) stream in New Zealand politics calling for this, and they have jumped at the chance of using this situation as an example.

(4) The use of Urgency
The urgency procedure is provided to rush laws through parliament in cases of emergency, skipping all the public consultation and Select Committee stages. The previous government (the 5th Labour Government) served for 3 terms (each term is 3 years), and passed an average of 4 bills under urgency for each term. The current National government passed 17 bills under urgency in their first two years. This abuse of urgency has been one of the biggest criticisms against the government this year, and is bound to be a big election topic.

(5) Minority Governments
Going into last election, the National party promised that it would review our current electoral system (which tends to produce minority governments) and put out a referendum in the 2011 elections. I disagree strongly with the idea that we need a change, but that's another story for another day. What this Film issue has done is brought to light the ability of a government with a very-near majority to be held back from passing stupid laws, showing the power of the need to compromise. Under a majoritarian system, this law would have been pushed through with no issue.

Now, I usually find New Zealand politics pretty dull and boring (especially at the moment when National is led by a hugely charismatic and popular man, and Labour by a foolish, reactionary oaf, making for some not-so-fun interactions), but the fact that this small issue has managed to hit at the heart of some of the big topics in politics at the moment really stands it out from the crowd.

 

I have a problem with retroactivity. Somebody screws up and you want to let them off the hook? - retroactive law. Somebody does something you don't like, but it's legal? - retroactive law.

Ignorance of the law is no excuse. Especially if you're the ones who are supposed to know the law.

Privacy: I think it would depend on whether privacy was actually violated.

I assumed that the filming took place on the land owned by the people they were investigating, so getting permission would be unlikely.

 

@Rotku, do you know if the private land violations were the authorities doing the filming while on private land, or is it that the suspects were simply on private land while being filmed? Generally if you're doing something illegal in plain sight, it doesn't matter if you're on private property or not, but if somebody sneaks up to your window at night and films you in your jammies behind closed doors it does (though I have no specific knowledge of NZ law).

With todays' technology and optics, being up close is not always necessary, but if we're talking about mountain range distances and terrain, that could be problematic. It's kind of an interesting situation.

 

None of those issues are keeping me awake at night. New Zealand government processes are infinitely more streamlined and efficient than in the USA, judging by the sorts of other discussions that go on around here.

 

Well, if the law says you can't secretly film on private land, I'm not sure how that would be misinterpreted (although not having seen the exact wording, I can't say that definitively). Anyway, the law would seem to apply precisely to the people who would do such filming (i.e. law enforcement officers), and I imagine this would have come up before (in the sense that filming has happened in the past and was the evidence was thrown out, or it was decided not to film because of the privacy laws), so I can't see how it could be reasonably misinterpreted by the people who should know its implications.

Ah, I see. I misinterpreted () your comment. In that case, I agree.

 

Really? You have an emasculated judiciary system. Don't like a ruling from the judiciary? Just pass a law in Parliament that is the opposite of what the judicary decided, and apply it retro-actively. Yeah - that's streamlined - if you don't give a rat's ass about how the judiciary branch functions. If ex post facto is fine and dandy, is doubly jeopardy, habeus corpus, and cruel and unusual punishment applied optionally in New Zealand as well?

 

I've got to admit I was very disappointed by this topic. I mean seriously near where I live an off-duty cop was having wild sex in a hot tub during the day, in full view of the public, with a "friend." She was caught on tape by a neighbor and turned in ... now that is a secret police filming I'd be interested in.

 

Bad girl ... was she on duty at the time?

 

Well, USA has all these fancy constitutions and amendments and branches and houses and an election process that pretty much takes up the whole time between elections and I can't think of any tangible benefits that have resulted over our system. I've lived in a few countries and the system in NZ seems to work pretty fine to me.

 

There's absolutely no way to tell, other than by relying on this very vague and inconclusive comment:

 

LOL ... pay no attention to me.

(It would have been hotter if she was on duty though.)

 

That kind of scenario is generally reserved for porn movies.

 

The main cases involved (these so called terror ones) were on large rural properties in the middle of no where, so highly likely the films were taken on private land.

 

I see ... thank you. That kind of begs the question: if you have large expanses of private land, are you basically free to commit criminal acts on them with impunity (for all practical purposes)?

 

For the life of me I can't figure out why they didn't get warrants, giving them permission to film these things. But I'm no law expert, so I'm sure there is some reason other than absolute foolishness.

 

Just have to ask: You are cool with your government passing a new law and applying it retroactively?

 

Aldeth,
I see where you're coming from but you need to differentiate between creating a new crime and applying it retroactively, making illegal conduct that was legal before - and changing procedural rules about what s permissible as evidence, like raid documentation video. I'd be up in arms against the former - the latter is a different matter.

The crimes they use this evidence for have been crimes before the new law; they must have had enough evidence to establish grounds for a search warrant (i.e. to mount the raids) without these videos, and the content of the videos appears to be about the digital equivalent of the written documentations of an ordinary search.