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.

I’ve attached my email exchange with the Office of the Clerk, the new SOP and a Media Statement by the Justice and Electoral Committee to this post. They all show that Finlayson’s attacks on me yesterday are wrong.

If people want to submit on the Bill, they should use the online method outlined in the press statement or, if in Wellington, come along to the committee meeting this evening. This is not an ideal situation by any means but is better than not being able to submit at all and is what we have managed to get the committee to agree to.

Media statement 110928

KT SOP VCS (TM) Bill(2)

Exchange of Email with Office of the Clerk Showing that SOP criticism from Finlayson Unjustified

Chris Finlayson has changed his Urewera fix it bill, but he won’t say when he will make it publicly available.  He didn’t seek leave to table it in the House today, despite the fact that people are expected to speak to it in select committee in less than 20 hours time.  Great to see his commitment to democracy on show.

Worse, National stopped Labour from tabling in the House our amendments to improve the fix it bill by inserting already agreed provisions of the Search and Surveillance bill that would control the exercise of police powers.

Here, consistent with our commitment to transparency, is the SOP.  We’ll post the bill as well when it becomes available.

KT SOP VCS (TM) Bill

In the interests of transparency, I am continuing to put up the correspondence between Labour and the Government on their draft video surveillance Bill.

Below is the link to the latest response from the Attorney General: Letter – AG to Labour MPs (September 26 2011)

My first post is here and the other posts in the series are here and here.

[UPDATE]: Here is Labour’s response – Letter – Labour reply to AG (September 26 2011)

Here’s the letter making our clear position in response to the Government’s proposed legislation:

Response to AG (23 September)

The first post in the series is here: Overturning the Supreme Court and the second here.

Here’s my media release from this morning regarding the letter the Labour Party wrote to the Government last year confirming its support to pass the Search and Surveillance Bill.

Surveillance bill letter on public record

[UPDATE] In addition, here is the correspondence exchange between Labour and the Government on the Supreme Court decision so far:

Letter – AG to Labour MPs (September 19 2011)

Letter – Labour reply to AG

[ANOTHER UPDATE] As mentioned in the comments below, here is the Government’s latest response, with the draft Bill attached as well.

Draft Bill – Video Camera Surveillance (Temporary Measures)

National announced yesterday that it will introduce legislation under urgency to overturn the effect of the Supreme Court decision in Hamed v R – the appeal concerning the charges against the so-called “Urewera defendants”. The proposal is not to disturb the dismissal of charges against most defendants, or the confirmation of charges against the remaining 4. It is to suspend the general effect of the decision concerning police surveillance for a year. Under the proposal, Parliament would have the opportunity over the year to consider whether to legislate to further define what surveillance powers police should have, while the law reverted temporarily to the state it was in before the Supreme Court decision.

National didn’t consult any other parties, including Labour, over this proposal, or ask in advance for support for the decision. There is no legislation published or available for comment or review. If the proposal for urgency means not sending a bill to a select committee, there will be no opportunity for expert or public comment on whatever bill does get drafted.

Clearly there are issues arising out of the Supreme Court decision that Parliament needs to look at. The Court said as much. One of them is the extent to which Police should be able to engage in video surveillance, and then use the results of that surveillance. (Personally, I think they should have the power, at least for serious allegations, but that it should always be exercised under a warrant granted by a judicial officer that defines the extent and length of the surveillance permissible.)

Another is whether those powers should be conferred prospectively only. (I think they should be, although I need to get my head fully around exactly what powers that would leave the police with between now and whenever any new legislation came into force; whether those powers are sufficient to deal with allegations of serious offending; and where that leaves cases already in the courts or under investigation – and on these we clearly need much more and better information than what John Key seemed to be equipped with post Cabinet yesterday).

A further one is what should happen if people convicted of serious crimes on the basis of what would now be classed as illegally obtained evidence applied to overturn their convictions, or compensation. (Presumably, if their convictions were based on serious enough charges, the courts would find that the evidence was properly admitted – as they did for Iti and the 3 remaining Urewera defendants – so this is something we can and should leave to the courts to sort out).

So apart from the question of whether the police will have the necessary powers to gather evidence relating to serious offending between now and whenever Parliament can review that issue, and just maybe what should happen to cases already in train, it seems to me there is no possible case here for legislating urgently, and certainly no case for preventing legislation going to a select committee for scrutiny and public and expert input.

It is the height of arrogance for National to assume that there is such a case, and to announce that it will put the House into urgency to deal with it. I doubt they will get the support they think they will to do this.

We have a Supreme Court now. National need to learn not to engage in knee-jerk, urgent legislation to overturn its decisions if we don’t like them. The debate here need only be about the position we should put the Police in until we have had time to consider the Court’s decision and work out whether their powers need to be supplemented, better regulated, or both.

A Red Alert reader recently asked about the 12 members of the Constitutional Advisory Panel appointed by the Government.

They are:

• CO-CHAIRMEN – John Burrows, QC, a law commissioner, and former Ngai Tahu chairman Sir Tipene O’Regan.
• Former New Zealand netball captain Bernice Mene
• Lawyer and former Dunedin Mayor Peter Chin
• Former New Plymouth Mayor Peter Tennent
• Journalist and former ACT MP Deborah Coddington
• Former Deputy Prime Minister Michael Cullen
• Maori researcher Leonie Pihama
• Former National Cabinet Minister John Luxton
• Te Kura Kaupapa teacher Hinurewa Poutu
• Waikato University Pro Vice-Chancellor Linda Tuhiwai Smith
• Waitangi Tribunal member Ranginui Walker.

Ministers Simon Power and Pita Sharples announced in late 2009 that “addressing the Drivers of Crime would be a whole-of-government priority to proactively address the underlying causes of crime.”

They’ve spoken about this Drivers of Crime Strategy recently and how its’ supposedly “made significant progress” and “producing some early results”.

Unfortunately, it is quite clear that too little is being done too late.

If the government were serious about addressing crime rates in this country and making communities safer they would have made a priority of programs that seek specifically to do that.

For example, not nearly enough is being done to deal with the problems with young Maori and the number of offenders with drug and alcohol treatment as a condition of sentence soaring. This has doubled since 2006.

Another unacceptable and saddening example is that restorative justice services are reaching less that 5% of people eligible.

These are just two examples of areas in the justice sector that should have been prioritised.

I’m all for focusing on the causes of crime. I know that when tackling these issues the best approach is to focus on the roots of the problems and start from there. This is what reduces crime and making our communities safer.

We reduced crime when we were in Government. Since 1999, according to 2007 police statistics, the crime rate per 10,000 reduced by 11%. Our strategy worked.
 
How did we do it? We focused on the causes of crime. We focused on the programs that matter. We know that cutting legal aid and curtailing rights to a jury trail doesn’t reduce crime and make our communities safer. It’s about prioritising what works. It’s about focusing our resources on what is going to make a difference.

New Zealand faces a big problem about how to deal with e-waste as we switch to digital TV over the next year or so. In most cases, when people make the change to digital TV, they will simply buy a set top box, new aerial or satellite dish, depending on where they live and what equipment they already have. This is no problem as they will still continue to use the same television so there is no waste.

However, it is estimated that 400,000 televisions will be ditched when others choose to upgrade to a new TV with the digital network functions inbuilt. This will create a very big problem. If the government does not create a plan for how to deal with old analogue TVs, we are set to have tonnes of waste heading straight for the land fill, and that’s certainly not a good scenario!  We don’t want toxic lead glass from old TVs, as well as other chemical and metal components, in the ecosystem.  Once they get there, they’re there forever, and they can do a lot of damage.

E-day, created by the last Labour Government, has been a great opportunity for kiwis to dispose of their e-waste. But there is no certainty that e-day will even go ahead this year. Besides, E-day doesn’t take TV’s, and what about the other 364 days in the year when e-day isn’t on? Where are old TVs going to be disposed of then?

The Government does currently have contracts with the Community Recycling Network and recycling company RCN. These are to set up 20 permanent recycling facilities for electronic waste. I’m glad these exist, but we have a big problem. They charge for waste disposal. Overseas experience shows that this is a major disincentive using this method.

It would be much better for Nick Smith to put a product stewardship scheme in place so that retailers can collect old TVs, computers, mobile phones, etc from customers when they buy new gear.  They could then be collected straight from retailers for recycling.  If people know they can dispose of their old electronics in this way they will get into the habit of bringing it with them when they make a new purchase.  We can fund the whole thing with a levy of a few dollars incorporated into the price of new TVs which, with the level of competition over sales, people will hardly notice.

What I want to see from the Government is a plan to have the TVs disposed of in an environmentally friendly way where they’re not just going to end up in the landfill. Decisive and timely leadership is needed, Dr. Smith.

Last week, Simon Power announced a number of changes to curb what he calls the “open chequebook” of legal aid [link here].

The big increase in legal aid spend over the past 3 years (38%) has been in family law cases.  Part of the solution here is to make that court a lot more efficient, as its Chief Judge, Peter Boshier, has been asking for help to do now for some time.  Any recent user of the Family Court would sympathise.

Another part of the solution is to make a lot more of the aid spend more of a loan than a grant.  Of the roughly $170m spent last year in legal aid, the government only bothered to recoup around $9m.  I’ve seen calculations that around $30m more could have been recovered. So instead of big cuts in entitlements that will mean erecting big barriers to justice for a whole heap of people, Power could do a lot more that is meaningful in this area.

But, no surprise, Power is concentrating on criminal defence legal aid.  It is much easier to paint this part of the legal profession as a bunch of greedy bottom-feeders and to target them in any budget cut.  Unfortunately, that picture just isn’t true, and the numbers just don’t stack up.

The Public Defence Service (PDS) was created by the Labour Government in 2008 to help manage cases, and provides in-house advice to defendants by salaried lawyers.  National wants the PDS to take over up to 50 percent of criminal legal aid cases.  Problem is that no-one ever intended the PDS to get this big.  Its expansion will come at the expense of a quality private sector.  Senior lawyers currently are unlikely to be attracted by the salaries offered by PDS and so the danger is that inexperienced lawyers will be hired to do this work.

There is further cost in having PDS employees undertake legal aid cases, as currently private lawyers act as “independent contractors” for each case, and therefore manage their own benefits like sick pay and annual leave that the employees of the PDS will have to be paid.  It actually costs $1,612 for PDS to undertake a criminal legal aid case as opposed to $1,343 for an independent lawyer to do the same case.  When the PDS is expanded into smaller centres, these costs are likely to increase due to the location as well as the complexity of cases.  So if the PDS ends up doing 50% of the cases, it will actually cost an EXTRA $8m per year.

Plus, Power has told community law centres that there is no more money for them.  So the bit of the system that includes volunteers is under threat.

This is going to end up in a big mess.  I wonder how many other rushed, ill-thought out cuts with a populist twinge are going to be wheeled out before the May budget, and how much extra they will all cost us taxpayers in the long run.