Red Alert

Bottom Lines on Search and Surveillance

Posted by on September 30th, 2011

I’ve been using this site a lot more than usual over the last week to make available to the public relevant material over National’s attempts to put in place a temporary fix on surveillance powers.  Yesterday, I issued 4 bottom lines that Labour says any legislation must meet in order to receive our support.

Someone told me today that No Right Turn - which I know often contains good commentary – has been critical of the bottom lines I issued yesterday on the temporary surveillance bill.  So I just took a look.  He has a right to his opinion, but I don’t think this is his best work.  If you read his blog and are forming a view about Labour’s surveillance bottom lines, please read what I say below first.

Labour is a mainstream political party.  We seek to act with principle, but also to apply pragmatism.  Sometimes this means that we oppose implacably.  But sometimes it means that we can’t be as pure as the driven snow.  Last week’s debate on the Criminal Procedure Bill is a good example.  We saved the right to silence, and stopped the Government from being able to try people in absentia.  We got the usual level of credit – none –  from the media, and from left-wing commentators.  Ah well.

Did we stop poor un- or under- represented people being tricked into being sent to jail by giving high-minded speeches in the House and refusing to engage?  No. We got our hands dirty.  We sat down with the Nats and negotiated.  That’s how we sometimes get change when we are in opposition. Labour has always had to take this approach when National is in government, otherwise the people we represent get screwed.  We look out as far as we can for their interests, rather than shout ineffectually from the sidelines and maintain our purity until the political cycle turns in their favour again.  I make no apology for that.  I’m proud of it, even if those who can afford the luxury of purity of thought without action like to criticise us when we take that approach.

It’s the approach we have also taken on the Nat’s temporary fix to surveillance laws.  Do the maths.  There are 57 Nats.  Peter Dunne gave them a blank cheque on day 1 on this issue.  ACT has 5 MPs.  That adds up to 63 and it’s a parliamentary majority.  So if ACT are going to support the fix, the fix happens, and we open the door to a whole lot of human rights abuses.

Labour and ACT joined forces to make National hold select committee hearings on the fix.  There was limited time for sumbissions.  No Right Turn made one, and Labour MP Clare Curran turned up to hand it in (she got the usual credit for this, by the way - none.  Ah well.)  So unless we wanted to just stand aside from the process, the question became how to apply the evidence we heard at select committee to narrow down the scope of the fix to only what it absolutely needs to be, in a way that allows ACT to support such a narrow solution rather than the Nats’ excessively broad one.

We applied the evidence to our analysis of the political solution, and we came up with 4 fundamental positions:

- The Nats’ bill was too wide.  In particular, there is no need to interfere with existing investigations.  Despite all John Key’s rhetoric, the Courts have all the powers they need to control these, and we don’t need to and won’t agree to confer any more on a retrospective basis.

- 12 months is too long a period to apply a temporary fix to an issue that the Nats should have moved on ages ago in the current Parliament instead of pushing through law and order window-dressing like 3 strikes, depriving inmates of the right to vote, and boot camps.  6 months will do.

- Ideally, we’d require warrants for all surveillance, but the experts were emphatic that drafting the regime required in the few days left – even if based on existing law – could leave big loopholes.  Meanwhile, we should limit any powers to strictly and only those that could be exercised before the Supreme Court decision.

- And what should happen to cases already decided in good faith by the courts on the basis of what they thought was settled law?  Should those cases be able to be reopened by applying the Supreme Court decision retrospectively?  The Human Rights Commission said – emphatically - that they should not.  I agree.  The Courts are busy enough and those currently accused of crimes – and everyone else in the system – should not be made to wait longer for justice because of the need to deal with a flood of post hoc appeals. 

If we get legislation that complies with the four points I just summarised, the Nats will have lost big time in a major attempt to interfere with our human rights.  And it won’t be because MPs from a couple of minor parties stood clear of the debate and held their noses.  It will be because Labour pushed the envelope as far as possible given the numbers in the House.  In most democracies, that would be regarded as a pretty significant achievement given the right:left imbalance in Parliament right now.  Here, expect us to get the usual level of credit.  Ah well.


45 Responses to “Bottom Lines on Search and Surveillance”

  1. idlegus says:

    thank you for fronting up.

  2. Stan says:

    Well explained. Thanks.

  3. Pete George says:

    “Peter Dunne gave them a blank cheque on day 1 on this issue.”

    He didn’t, last I heard he’s having ongoing discussions with National without feeling a need to publicly explain his every step.

  4. Anne says:

    Here, expect us to get the usual level of credit. Ah well.
    Forgot to insert the “none” Charles. :wink:

    Disappointing you can’t go further but the numbers constraint makes it impossible. Thanks for the huge effort on behalf of those of us who deeply value fairness and justice for all.

  5. Jeff L says:

    Great to see a pragmatic approach in opposition. I have new-found respect for you personally and Labour. Crap, that’s twice in a week!!

    Keep that up and the votes will follow. (Well, assuming you guys don’t attack the mad butcher again… ;-) )

  6. Spud says:

    Yee haa! Labour kept the right to silence and stopped the creepy trying people in absentia! :-D :-D :-D :-D :-D !!!!!!

    Nice work! :-D

  7. GPT says:

    A good use of social media given the speed this issue has had to be dealt with. In terms of your bottom lines my comments:
    1. You are quite right regarding retrospectivity. Quite apart from it being wholly offensive to the rule of law and constitutional norms IT IS NOT NECESSARY. The exception in s30 (as applied by the majority in Hamed to the defendants facing the most serious charges) would continue to apply. That is the principled way in which the admissibility of unlawfully evidence should be decided.
    2. Good luck given the speed the parliamentary process works but some valid criticism. This issue has been floating around for some 14 years after CA commentary in 1997 that there did not appear to be statutory authority for trespassory video surveillance. On a more generous view the HCT decision should have been a clue to the government that the search and surveillance bill needed advancing. Giving the police the tools to lawfully investigate potentially serious crime would seem more important than window dressing such as getting rid of provocation.
    3. I do not understand how a warrant based approach could not, for example, be patched on to intercept warrants (s312A Crimes Act) as that test at least has High Court judicial oversight and the test includes balancing rights to privacy. The way I read the draft Bill is that any video surveillance undertaken as part of a s198 warrant will be deemed not unlawful. s198 is wholly unsuitable as a vehicle for such an invasive search being concern with search and seizure – not a prospective search. I also do not agree that this puts the position back to pre SC decision – there was no statutory authority for such a search – merely deeming that it is not unlawful undermines the integrity of our highest court.
    4. I do not agree with this argument. The appeals process is the best system to decide on merits of appeals/time arguments etc.

    The “least worst” result that would not be a total outrage would be the removal of retrospective elements but we can still hope for common sense to prevail.

  8. Charles Chauvel says:

    @petegeorge, Dunne rolled over on day one. I’ll post the link if you like. And he told people in KoroKoro at a candidates’ forum that night that he’d done so, parroting Key’s now abandoned rhetoric about criminals going free. Betcha he feels exposed now, huh? Don’t you dare pretend he’s negotiating behind the scenes. He never does. Because he doesn’t believe in anything. He’ll be a postscript to history on 27 November. Deservedly so.

  9. old sammy says:

    I think you’ve got this more right than wrong, Charles.

    I assume that National won’t agree to all these changes. If they do, then it makes a mockery of Key’s original grandstanding and scaremongering. They will be tacitly (in fact, quite obviously) conceding that Key over-cooked the threat to current cases (see Charles’ first of the four points).

    So I guess they’ll reject it and push ahead with ACT MPs providing a majority. It’s then that the heat will go on Labour (“soft on crime” blah blah). I hope you can stand your ground.

    I respect a lot of NRT’s work, but I think he’s rushed to the wrong conclusion on this one.

  10. Pete George says:

    Big claims Charles. I’m interested to see how you back your claims with such certainty what Peter doesn’t do. Do you use covert video surveillance?

  11. Charles Chauvel says:

    @oldsammy – I never though I’d say this, but hide was onto the issues in the select cttee. I don’t get the sense that they’ll give national the sort I’d blank cheque they got from the old Dunne-y brush. I think they’ll have to look carefully at our bottom lines as a good balance between the civil liberty protections we’d all like and the conferral of limited powers that will be needed here. I’m hopeful on this issue after we helped nudge them to do the right thing on criminal procedure last week.

  12. Charles Chauvel says:

    @petegeorge, I don’t need video surveillance. I’m just a good judge of character – or lack of it in this case. Someone who is so desperate to keep a ministerial limo will do anything to curry favor. At least Hide and Boscawn have backbones.

  13. Pete George says:

    You’re a different judge of character than Helen Clark was then? You’ve confirmed you’re just trying to smear a competitor. You may not be aware that a lot of people are fed up with negative politics.

    It’s good that you are working to get a better compromise on this fixit bill. Concentrate on doing what you can there before claiming too much praise.

  14. Charles Chauvel says:

    @GPT I’m starting to love this blogging business!I think I’ll spend all my time online from now on instead of tryingto persuade people by speaking in the House. THANK YOU for your post because you want to debate the issues!! I was EXACTLY where you are before we made the Nats hold a select committee. I wrote a warranting procedure – was up till 3am on Tues am trying to do Finlayson’s job for him- on the Search & Surveiilance Bill. Everyone except the Privacy Commissioner said it wouldn’t fly so what do you do? I’ve had to agree that the only practical qlternative is limiting powers to no motor than what they were before Hamed. On reopening appeals – fair point – but again the evidence was strong – what do you do if you insist on select cttee then all the experts say no reopening? On my approach, at least we will get rid of interfering with investigations, and force the next Parliament to confront the issue – as you say it’s disgraceful this hasn’t happened so far

  15. Charles Chauvel says:

    @petegeorge I will if you will. Just don’t try to defend the indefensible. Or the unspeakable.

  16. Pete George says:

    What is indefensible? Your accusations based on electoral jealousy? Or my conversations with Peter?

  17. Charles Chauvel says:

    His opportunism. And your naïveté. To give you the benefit of the doubt.

  18. hellonearthis says:

    You say, “Ideally, we’d require warrants for all surveillance, but” well um that’s a cop out. It’s worse than a cop out, it’s basically support the fact that they can spy with out the need of a warrant, while sounding like your against it. There is already laws on the books for dealing with warrants for searches, it would not be difficult to expand on that.

    And what’s all this crying about oh we want more credit, dude, your just doing your every job, it’s what we expect from you. Begging for credit is just childish, like oh yes your a good boy, didn’t you do well at doing what you get paid to do…

  19. Pat says:

    Sorry, but I do not want you to be pragmatic about my human rights. I want you to stand up and be counted, not seeking to exercise “pragmatism”. If National is defining what is “mainstream” and you are seeking to negotiate a bit of a better deal – well that is nothing short of sad. I would be much happier for you to be steadfast in pointing out how much our human rights are being taken away from us. And in the last few years that has been quite a long list.

    To use an analogy, your rationalisation sounds to me like the partner of an alcoholic trying to talk the drunk into drinking less. If you want “credit” for that you are not going to get it from me.

    I will give you credit when you start saying that human rights are not to be bartered over pragmatically and that the police have violated not only the law but also their fiduciary relationship with the people of NZ. As such they should be held accountable. The fact that some criminal cases can not move forward should mean even greater accountability for the police.

    You may see this as a numbers game – however, it is more than that, it is a question of integrity. If National, Act and Peter Dunne decide to collude in this abuse of our human rights then why not stand up and say that you, as the next government, will repeal such a law and will not participate in such a cowardly subversion of our human rights.

  20. Pete George says:

    Charles, I value my political naïveté as a strength, and see it as distinctly different to the political childishness many people in the outside world have had a gutsful of.

    I agree with other posts here that suggest it’s hard to appear as principled while be derogatory of others when the main message seems to be “I’ll talk against it until I have to vote for it”.

    And all Labour aspirants would be naïve not to be concerned about this post:
    http://blog.labour.org.nz/index.php/2011/09/29/beer-and-apology/comment-page-2/#comment-204843

  21. Appleheart says:

    As I predicted at the start, Charles, your campaign at the beginning to attack National over it really was just rhetorical bullsh*t. You knew you would support it, but you were worried about the fallout from the Left if you indicated it early on. So you blustered about, and then bumbled a bit, and now you’re going to annoy many many people who believed you when you indicated your party wouldn’t support the Bill for playing dancing games with veracity. It was totally cynical to play your voters like that. The Greens will be the beneficiaries of your dishonesty.

  22. Charles,

    I guess the essence of compromise is that no-one is entirely happy with the outcome reached … which is why it is a “compromise”. And that’s the nature of politics … you have to aim for the least bad achievable outcome, not the perfect one.

    For what it’s worth, my 2 cents are:
    - leaving already collected evidence in current investigations (and I assume pending cases?) to be dealt with under the Evidence Act s.30 is good;
    - a 6 month window is better than 12;
    - if warrants can’t be done, they can’t be done. That’s not your fault;
    - I wonder if already disposed of cases would actually be a problem. (I know the Committee asked me about this – I wasn’t quick enough on my feet to deal with it at the time.) Does a court ruling that says a particular form of evidence is to be treated/viewed in a different manner to that which previously applied impugn its use in previous cases that have already been heard and decided? I’m not sure it does – I think the approach would be that people only have a right to a fair trial under the rules of evidence that apply at the time of their trial, and if those rules change later on then that only affects current and future cases. Otherwise every change to the rules of evidence could threaten to reopen every previous case – with major consequences for the court system. As a result, I don’t have much of a problem with ring-fencing existing convictions … people don’t have a right to a perfect trial process, just a fair one.

    However, there’s still the point as to exactly what is being validated/made lawful here. It’s just the basic use of this technology in conjunction with an otherwise lawful search, right? So a specific use of covert videoing in any particular case can still be an “unreasonable search” under the NZBORA, s.21 (and hence be unlawful)? Does Labour favour inserting a provision into the Bill to make it explicit that this is the case?

  23. Clare Curran says:

    @Appleheart
    You are of course entitled to your opinion. But I believe it’s an uninformed one. Please take the time to read carefully everything Charles has written on this issue and what is available in the public arena on the implications of this law and the “problem” it is trying to fix.

    Labour has done its utmost to be honest with the public about its position, its intentions and its analysis of the situation. We have also tried to provide the public with as much information and opportunity to submit and be part of this process as we possibly can.

    Labour is not the government. The National Party is the government. Labour provides you with this forum for your input, opinions and feedback. National does not provide such a forum.

    It is a healthy thing to have a good discussion and argument. But remember. Politics is about numbers. We don’t have them until the country decides to make us the leading party again.

    As Andrew Geddis said (above)
    “I guess the essence of compromise is that no-one is entirely happy with the outcome reached … which is why it is a “compromise”. And that’s the nature of politics … you have to aim for the least bad achievable outcome, not the perfect one.”

    I believe as much as possible we should aim for the least bad achievable outcome, because it’s about people.

    In the meantime, many bad laws are being passed.

    Labour can either stand back and protest from the high moral ground and then oppose. Or we can try to make the law that may actually (with the government’s numbers) get passed a better law.

    As a member of the Labour caucus I find it really hard to sit back and allow that to happen. If there’s anything we can do to try to make the law better, we’ll do it. That’s what Charles is doing. And good on him.

  24. Dean Knight says:

    Andrew:

    We’re on the same page on the retro validation of past convictions. I did some quick research (even though it’s not my thing) and have penned some thoughts here:
    http://www.laws179.co.nz/2011/10/covert-surveillance-labours-bottom-line.html

  25. ghostwhowalksnz says:

    We know what happened after the Pragmatic Sanction of 1713. After agreeing to it beforehand , once Maria Theresa became ruler, the other European countries repudiated it and went to war.

  26. Gregor W says:

    I believe as much as possible we should aim for the least bad achievable outcome, because it’s about people.

    ….

    Labour can either stand back and protest from the high moral ground and then oppose. Or we can try to make the law that may actually (with the government’s numbers) get passed a better law.

    @ Clare

    Surely the least bad outcome would not be compromise but absolute repudiation.

    Then at least the NZLP could have held its head up on this one. You’re always going on about (rightly) this government’s aggregious use of urgency.

    Now this watered down support just looks like a cop-out.

    Better to have forced the Nats to run with rushed, draconian legislation in toto and used its repeal as an election plank (or at least, ammo for the next run).

    As Appleheart has said, the Greens will make hay on this one and deserve to.

  27. ghostwhowalksnz says:

    GW,have you just got out of bed ? Its only a temporary measure ( 6mths). No one will be going back to revise this situation after the election.

  28. Appleheart says:

    Clare, a lot of people will be angry about this. Charles framed it from the beginning, refusing to say that your party would oppose this law. Instead it was all bluster. Charles had tried to take cheap shots and bumbled along the way when he was called on it, only to have your party turn around and say that you’re supporting it. It isn’t good enough to say that the Nats have a majority. If you don’t stick to your principles then you don’t deserve to have even a minority. It’s because of this cowardice that you will bleed votes to the Greens. Big facepalm for your team this week. You don’t have many chances left before November 26. Next time put substance ahead of spin. Don’t try and outsmart your supporters by playing with them like this. Treat them with respect. If you’re going to alienate them by supporting legislation like this, at least be honest with us and explain your reasons from the start.

  29. Gregor W says:

    @ghost

    Spare me the hypocrisy, mate.

    It doesn’t matter whether it’s 6 months or 6 years.

    This about the principle of stymying anti-democratic and ill-conceived lawmaking.

    Its about not accepting retroactive signoff of illegal, intrusive and oppressive measures by the State and its institutions against the citizenry.

    I’m all for well thought out/revised legislation to close the loopholes around electronic surveilance but this is a weak and unprincipled stand for the NZLP to take.

    This is realpolitik in action.

    It won’t matter if there is a revision in 6 months or not; National will have a larger majority for the next electoral cycle so at a time of its choosing, a more oppressive and wide reaching law can be positioned once time has passed and precedent has been set.

    Once again, Labour fails in its duty as HMs opposition.

  30. Augie says:

    Charles, are you concerned that outlining Labour’s position while the select committee is deliberating may mean that you are breaching privilege. It’s fine for parties to state their position prior to a bill going to a committee, but not once it’s being deliberated upon, and your four points are not the same as Labour’s position going in (since you wanted parts of Search and Surveillance to be considered as an SOP). Or is your new position just a reflection of a compromise that has already been reached by the committee, allowing you to claim the credit (since that appears to be so important to you when the committee reports back? If so, it’s an even more egregious breach of privilege.

  31. Thanks for all the comments – especially Andrew and Dean – your thoughtful and generally favourable evaluations of the bottom lines is appreciated. I have been too busy to respond over the weekend – so apologies for that. The only valid new point raised above is Andrew’s – whether a s 21 BORA protection could also be inserted, given the failure of the warrants process. It’s a really good idea and I will take it on board.

  32. George says:

    The only valid new point raised above…

    And there, in seven words, is encapsulated the huge problem that the parliamentary Labour Party has at the moment.

  33. Gregor W says:

    Don’t be so hard on Charles, George.

    After all without Charles deciding who had valid points and who’s concerns and opinions could be sanctimoniously ignored and publicly snubbed, where would we be?

    Props to Prof. Geddis though.

  34. Anne says:

    Btw, Thank-you again for keeping us so well informed on this topic Charles. I’m no legal expert, but I can appreciate the potential for injustices to innocent people if this bill does not include proper police accountability.

  35. Spud says:

    It’s creepy Anne :-(

  36. tracey says:

    “He didn’t, last I heard he’s having ongoing discussions with National without feeling a need to publicly explain his every step.” Ah Always the champion of transparency and accountability is Mr D.

  37. DonG says:

    No Charles, No Left Turn is correct. And that is why many of your most repetitive low demand voters will not vote for you this time. A basic belief that when push comes to shove you give in. We each in our own little worlds have this experience.

    I do not believe a short law was impossible. They said it was so often that they got away with it. They got away with it and in the end, Labour let them.

  38. tracey says:

    Maybe I misunderstand, but didn’t Labour have something about this before parliament, and the Government changed at the last election? So long as Labour’s current stance matches that previous Bill then where is the duplicity, or back down?

  39. Tracey – Labour’s stance is consistent with the position we took on the Search and Surveillance Bill (SSB). The bottom line here is that the police need surveillance powers, but not the blank cheque that Key and Finlayson propose writing for them. Labour’s solution will ensure that happens until the SSB can be passed, while ensuring that safeguards such as s30 Evidence Act and s21 Bill of Rights Act remain, and that existing investigations are untouched. If we get those things out of the process, it will be an important victory for the rule of law.

    DonG – you are free to believe what you want. I sat up till 2am on Tuesday writing a warranting procedure, then sat through the evidence and received the advice. If our bottom lines are accepted, no-one will get away with anything. If you read the original bill and compare it with the bottom lines you will see how much change is required for us to support the bill. Please do that instead of just relying on the No Right Turn blog.
    Others – sorry if my post ignoring the points you made hurt your feelings. But honestly. I’m happy to respond to analysis and argument. Come up with some and you’ll see what I mean.
    The committee will report back to the House tomorrow. I look forward to people making their own judgments then.

  40. tracey says:

    Charles this government doesn’t care about pesky little things like natural justice and the rule of law. Apparently neither do the 50+% who support it. It’s a sad commentary about us all.

  41. Augie says:

    Standing Order 401: the House may treat as a contempt any of the following:
    (p) divulging the proceedings or the report of a select
    committee or a subcommittee contrary to Standing Orders.

  42. Augie says:

    Speaker’s Ruling 187/4:
    The deliberations of the members of a committee and any draft report are not available for release and any unauthorised disclosure of them is a breach of
    privilege. This is not a mere technical rule. It is essential, if members are to work well together on a committee, that the integrity of the process be
    maintained by respecting each other’s confidences. Furthermore, the House is entitled to the first advice of the conclusions of one of its committees in a report rather than individual members of the committee taking it upon
    themselves to communicate committee decisions to individual journalists.
    1997, Vol. 562, p. 3232. Kidd.

  43. Gregor W says:

    It’s not about hurt feelings, Charles.
    It’s about contempt for democracy, the Courts and political expediency.

    Sugar-coat it as you wish.

  44. Pete George says:

    Charles, it would be good to hear your side of the story as claimed on Kiwiblog.