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.

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

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

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)

Response to AG (23 September)

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

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 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.

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.

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.

I’m opposed to this proposal because, from an environmental perspective, it just doesn’t make sense. Dr Jan Wright, Parliamentary Commissioner for the Environment is correct, when she observes that “the plans to increase lignite use are extremely concerning as they would produce huge quantities of carbon dioxide which contributes to climate change”.

We won’t be arbitrarily prohibiting such mining operations simply because we don’t happen to like them. We will apply an appropriately calibrated Emissions Trading Scheme to them. Under any such scheme, its highly unlikely that the Southland proposal by Solid Energy would make the cut.

Lignite mining and conversion would only be likely to be viable under a properly calibrated ETS if forests of new trees were planted to off-set the increased emissions, and currently experimental carbon capture and storage technology were deployed commercially.

Unfortunately, we have a government that believes that the environment should be sacrificed for economic growth. John Key is on the record as saying, “At the moment companies like Solid Energy are growth companies and we want them to expand in areas like lignite conversion”. What he needs to realise is that for New Zealand, economic and environmental well-being are intertwined, not two separate, competing considerations.