TID-BIT: Cabinet Collective Responsibility and Ministers Outside Cabinet

So, the Dominion Post reports ("Banks, Dunne strike a deal with National"):

"Dunne  - a strong 1080 opponent - will also keep his Associate Minister of Health post. He will be a minister outside cabinet, which means he is not bound by collective responsibility."

No. Not quite.

The position on this has been settled for a number of years now,* and is more nuanced than that.

Sharples and Turia appointed as Tohunga Kaitohutohu – perhaps?

After Saturday's election, it looks like we're now heading down a well-tread path as we settle our Executive arrangements.

Leaders from support parties – ACT, United, Māori Party – will be awarded ministerial positions outside Cabinet as part of confidence and supply arrangements.  The Greens might also be able to secure some policy initiatives on a case-by-case basis, recorded in some form of memorandum of understanding.

But I wonder whether one particular party needs to think outside the box a little more?

Governments in transition – some constitutional FAQs

Some FAQs about the process of post-election government transition. If other questions arise, I'll add to the list as far as I can.

Who decides who is appointed Prime Minister?
This tasks falls to the Governor-General. It's one of the so-called "reserve powers", that is, those powers where the Governor-General is required to exercise an independent judgement, rather than merely acting on advice of the incumbent government.

(As an aside, there used to be a view – apparently still held in the UK – that it is the responsibility of the outgoing Prime Minister to advise the Queen of his or her successor. But the view properly taken in New Zealand nowadays is that, following polling day, a caretaker Prime Minister does not have the constitutional mandate, by themselves, to tender advice on who should be appointed.)

Reading the tea leaves: the declaratory judgment application

The Teapot Tapes camera-man, Bradley Ambrose, has applied to the High Court to seek clarification on the legality or otherwise of his taping of the now famous conversation between John Key and John Banks over a cup of tea in Newmarket:

The legality of its creation affects not only any liability – criminal and civil – he may face, but also further dissemination of the tapes and transcript.  The stakes have been raised by the Police issuing search warrants for four media outlets, after initially issuing a strong warning about illegal publishing of the conversation.

Tinkering with the line of succession

So, we find (oddly, from overseas sources) that our government has agreed to a change in the line of succession.  The male primogeniture (boys before girls) and prohibition on marriage to someone Catholic are to be removed.

The change was heralded by David Cameron in a speech at CHOGM:

“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules on succession, just don't make sense to us anymore: the idea that a younger son should become monarch instead of an elder daughter simply because he's a man, or that a future monarch can marry someone of any faith, except a Catholic.  This way of thinking is at odds with the modern countries that we've all become. People have been talking about changing the rules for some time, but when there are 16 countries sharing the same head of state and each have their own constitutional, legal and political concerns, it's absolutely right that we should all discuss this together.  That's why I asked Prime Minister Gillard for the opportunity to chair this meeting today with the heads of government from all 16 nations.  I'm very pleased to say that we've reached a unanimous agreement on two changes to the rules of succession. First, we will end the male primogenitor rule so that in future the order of succession should be determined simply by the order of birth.  We've agreed to introduce this for all descendents from the Prince of Wales.  Put simply, if the Duke and Duchess of Cambridge were to have a little girl, that girl would one day be our Queen. Second, we've agreed to scrap the rule which says that no one who marries a Roman Catholic can become monarch.  Let me be clear, the monarch must be in communion with the Church of England, because he or she is the head of that church.  But it is simply wrong that they should be denied the chance to marry a Catholic if they wish to do so.  After all, they're already quite free to marry someone of any other faith.  We agreed today that this has to change.”

Hmmm. I think we’re meant to be excited by this.

Don’t get me wrong.  The changes are some improvement.  Republicans like me have been pointing out the daftness of these rules for years and years.

But there is still much wrong with a system that sees a British monarch automatically assuming the highest constitutional office in New Zealand.

The line of succession is not just a set of arcane rules about which of the Windsor off-spring next assume the British throne.  They’re also our own constitutional statement of the qualifications for the position of Head of State for New Zealand.

The changes announced do make some difference: in 60-70 years, assuming the Duke and Duchess’ first born is a girl, she will be able to be Queen before any younger brothers.

But limited modernisation of this senior constitutional office in three or four generations leaves me cold.  The office needs modernisation in this generation, now, in anticipation of the end of the present Queen’s reign.

For Kiwis, the main defects with the monarchy remain.  The essential qualification – being born a foreigner of “special” blood – basically prevents any Kiwi from acting as our Head of State.

Let’s be clear about that.  Even with these changes, no Kiwi – Pakeha, Maori, Asian, Pacifika – will be our head of state.  

Go back to Cameron’s speech and replay it with a Kiwi lens:

“Attitudes have changed fundamentally over the centuries and some outdated rules, like some of the rules on succession who can be New Zealand's Head of State, just don't make sense to us anymore: the idea that someone born to a particular British family younger son should become monarch our Head of State  instead of an elder daughter simply because he's a man someone born in Westmere, Wairoa, or Winton, or that a future monarch can marry someone of any faith, except a Catholic our Head of State must be British, not someone Kiwi, not someone Maori. This way of thinking is at odds with the modern countries that we've all become.”

And, also astonishing is the fact that the government unilaterally agreed to this change, without involving Kiwis in the change process.

Sure, the accord in an agreement-in-principle and legislation will still need to passed.  But the die has already been cast.  It's theoretically possible for some of the Realms to adopt a different course – but unlikely and impractical.

And we know that New Zealand isn't just a passive participant in the initiative.  Earlier reports from the UK indicated New Zealand was leading a behind-the-scenes working party on the issue.  And the CHOGM news indicates New Zealand will continue that role for the implementation phase.

Set this against the government's domestic position on any changes relating to our Head of State.  They opposed the Head of State (Referendum) Bill, opposed any updating of the appointment process for Governor-General, and deliberately omitted the Head of State question from the constitutional review.

Also, the government has said elsewhere it will not be making major constitutional changes without "a broad base of support", either "broad cross-party agreement or the majority support of voters at a referendum".

The government is desperate to suppress any debate amongst Kiwis about whether we should have a home-grown Head of State.  Yet it is happy to tinker with the line of succession, without any public involvement or discussion.

The sooner we have a genuine discussion between government and the people about whether a Kiwi should hold our most senior constitutional office, the better!

Covert surveillance: post-Select Committee and pre-Hamed

A quick post to close the circle, following the release of the Select Committee report on the Bill.  Labour's bottom lines have effectively been endorsed by the Select Committee and the passage of a watered-down Bill now looks to be assured.

Some thoughts:

1. It is quite extraordinary that the Select Committee received 438 submissions in less than 24 hours.  While a number of these are form submissions, others are tailored and substantive.  I haven't done the analysis myself but someone suggested that all bar one were opposed to the Bill.

Quite an incredible response to a Select Committee process that originally wasn't going to happen.  

(As an aside, I am especially heartened by the number of law students who took the time out of their studies to make personal submissions. One of the things I've been trying to encourage and cultivate at Vic over the last few years is a culture of participation and engagement - we need "good citizens" contributing to our civic process, just as they did here.)

2. On the merits of the post-Select Committee position, see my earlier post on Labour's bottom-lines.

One additional point, I am worried about the extension of the temporary measures to numerous other agencies. Andrew Geddis has covered the issue here.  He notes the Bill still enables "all the State's investigative agencies" to engage in covert video surveillance.

This doesn't worry me so much for non-trespassory "over the fence" surveillance.  But for trespassory surveillance it is troubling.

Might we be concerned if local authority enforcement officers are engaging in covert filming as an adjunct to searches warranted under the Resource Management Act? Or the Standards Committee of the Law Society when searching the premises of a practitioner pursuant to a warrant under the Lawyers and Conveyancers Act? No thanks!

3. The Select Committee report and ministerial interviews that followed still seem to perpetuating the view that covert video surveillance had sanctioned by the Court of Appeal for the last 15 years, justifying the police action and the quick fix.

The Select Committee said:

"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 report was issued prior to three Court of Appeal decisions that we are advised affirmed the lawful use of such surveillance."

I still don't get it. That doesn't accord with my reading of the cases.  Or the reading by others.  Steven Price has explained things well here.

Last week I asked the Attorney-General's office for clarification of what cases were being referred to, after the Attorney made a similar claim.  I'm still waiting for a response.

Given the centrality of this point to the government's position, it would be helpful if the advice they have received was released (in some appropriate form) - rather than being advanced by oblique and unsubstantiated assertion.

UPDATE: Lyndon Hood at Scoop has been working on this line and has an interesting article here.  The PM's office seems to be referring to Fraser and Gardiner - both cases which deal with non-trespassory surveillance!   

Covert surveillance: Labour’s bottom line

Labour have announced their position, following Select Committee hearings, on the covert video surveillance Bill.  Given the numbers in Parliament, it’s an influential position – and will represent the position adopted, unless the National Party can win some other votes for a more restrictive position.

But I have mixed feelings.

On the one hand, it’s a vast improvement on the government’s original position.  The temporary legislation will apply for a shorter period.  And it will not apply to current investigations and prosecutions.  Both would be significant improvements.  

On the other hand, I’m disappointed by a couple elements.  It’s too late, apparently, to draft and implement a regime of judicial warrants for surveillance.  And convictions already obtained won’t be able to be challenged on the basis of unlawfulness – that is, some retrospective validations will apply.

It’s a mixture of principle and pragmatism, as Charles Chauvel had candidly admitted on Red Alert.

Covert surveillance: some more musings

1.  When the Video Camera Surveillance (Temporary Measures) Bill is introduced into Parliament today, will it be accompanied by the report by the Attorney-General that it is inconsistent with the NZ Bill of Rights Act?  It difficult to see how the Bill, as it has been foreshadowed, can be consistent when: (a) it removes remedies (both tort compensation and evidence exclusion) for breaches of rights that have already crystallised; and (b) overturns the Supreme Court’s Bill of Rights-informed ruling about the existing legal position.

2.  If the government is so keen to “restore the common law” by reverting to the previous position before the Supreme Court ruling -- purportedly on the basis that this was the position as understood by all involved, then why does the legislation not unwind the court decisions to preserve the first-instance position set out by Winkelmann J? Or is that problematic because, like the Supreme Court, she ruled the actions of the police were unlawful (even though she would have admitted more unlawfully obtained evidence)?

3.  Is the elephant in the room the government’s exposure to claims for compensation as a result of the illegal searches? The validation of past illegal actions will absolve the government for any liability for trespass, breach of privacy and NZ Bill of Rights Act claims.  But how exposed is it?  Certainly it is a live issue.  But I doubt the exposure is great.  The NZ courts have been very modest in awarding compensation for Bill of Rights breaches, particularly to those who do not have clean hands themselves.  And trespass claims might be tricky – for example, a claim in the Urewera case is unlikely because those filmed were not legal occupiers of the land.  Exemplary damages might, though, be a problem, especially in the light of the Supreme Court findings about the deliberateness or recklessness of the police’s resort to unlawfulness.

4.  Given the widespread engagement in unlawful covert surveillance by the police, where is the inquiry in the systemic cause of this problem?  Is an investigation by the Independent Police Complaints Authority inevitable?  Has a complaint already been lodged?  Or is one in the pipeline?

Covert surveillance: process and principle

Haste is the enemy of good law-making.

Too often in recent memory we have seen controversial legislation passed under urgency, often in one day.  It is pleasing therefore to see yesterday’s announcement that the Video Camera Surveillance (Temporary Measures) Bill would be referred to a Select Committee for public submission and scrutiny, albeit for less than a week.  Of course, that was inevitable given the government did not have the numbers to push ahead with urgency without some form of select committee scrutiny.

Kudos to those parties -- particularly ACT and Labour, whose votes proved crucial -- who saw sense and insisted that the government take a breath before pushing ahead with this egregious legislation.

As an aside, we might have been lucky last week was a recess week.  If Parliament had been sitting, there was a real prospect that the legislation might have been progressed through all stages under urgency on Tuesday or Wednesday, as has been the case in the past.  Parties would have been called on to make snap-judgements about whether to support the Bill or not.  There would have been little, if any, time for critical analysis in the media.

Thankfully, we have seen (largely) informed debate in the media about the proposed law. Over the week, politicians, media and commentators have been discussing the intricacies of s 30 of the Evidence Act, the differences between trespassory and non-trespassory searches, the power to grant search warrants in Summary Proceedings Act, and numerous paragraphs from one of the longer Supreme Court judgments.

The government’s assertions about urgency and necessity have largely been debunked.  The mischievous rhetoric originally deployed – “You’re either with us or you’re with the crims” – has been side-lined in favour of genuine analysis and debate.  

And, it’s notable that following this public discussion, almost all major newspapers have come out with editorials against the Bill, along with numerous opinion writers.  Leading practitioners have also lined up against the Bill. The academy has been vocal -- and this time couldn’t be dismissed pejoratively as “latte-sipping Aucklanders”. Professor Geddis gets a particular mention, as he’s been doing much of the running on this one. But others have been chipping in with helpful analysis: some public, some behind the scenes.

But a reminder that this public discourse takes time to percolate.  If we prefer informed debate over meaningless rhetoric, time and effort is needed.  As an example, my initial blog post took some 6 hours to construct (luckily, the UK daytime gave me a head-start while NZ was sleeping!)  I know others also dropped things to devote time to researching, analysing and commenting on the issue.  Political parties were presented with similar challenges – needing time to digest the Bill and its implications.

That bring me to my final point.  A few have attempted to cast the ACT and Labour Party positions as quibbles about process.  Where do they stand, they say, on the principle?  At the end of the day, will they support the Bill or not?  Are they trying to have it both ways?

Well, I think this line of attack misses the point.  It is in cases like this that process and principle intersect.  Robust and reflective process ensures that principle is preserved.

These issues are rarely open-and-shut issues. Not all instances of retrospective legislation can be condemned.  Validation of state unlawfulness is not always bad.  Bills abridging rights are not automatically objectionable.

But we need to be vigilant against such measures and ensure they are vigorously scrutinised.  The government must justify – to Parliament and the people – its resort to these measures.  Assertion and executive say-so is not enough.

That’s where process becomes important.

Considered scrutiny of a proposal, through select committee processes and public discourse, tests the justification advanced by the government. It may be that a genuine case can be made for the use of what otherwise would be malignant measures.  It may be that the claimed justification is weak and the legislation is truly objectionable.  And the process allows alternatives – less harmful alternatives that still achieve the important objective – to be promoted.

Here, of course, we see the government’s claim about urgency and necessity unravelling as it has been exposed to scrutiny over the past week.  And credible alternatives have been feed into the mix.  It will be interesting to what comes out of the select committee process next week and how the parliamentary votes shake down.  

But, what a difference a week makes, eh!  

Covert surveillance: if it ain't unlawful then it's lawful?

A quick comment on one point arising from the debate about covert video surveillance.

The Police, Police Union and some others are peddling a line that the retrospective validating legislation is justified because of previous uncertainty about whether covert video surveillance was authorised or not.

They admit covert surveillance wasn’t expressly authorised but argue they could rely on the fact it wasn’t illegal .  If it wasn’t unlawful then, they say, like ordinary people, the Police were entitled to engage in the activity.  But this was turned on its head, they say, by the Supreme Court decision in the Urewera case.

Baloney!

Let me explain briefly.

Covert video surveillance and the (c)overt erosion of the Rule of Law

The government has just announced that, following the Supreme Court’s ruling in the Urewera case that unlawful covert video surveillance is inadmissible in criminal cases (at least in relation to some charges), it intends to pass legislation under urgency to authorise covert video surveillance by the police.

The legislation is slated to authorise future surveillance -- temporarily, until comprehensive legislation addressing this and other search issues is passed next year. But it will also apply retrospectively, making unlawfully obtained evidence already obtained admissible in court, except in the Urewera case itself. In other words, the government is seeking to overturn the effect of the Supreme Court ruling by legislative decree, for both past and future cases.

This move is egregious for many reasons:

- First, retrospective validation of unlawfulness here undermines the Rule of Law. It does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.

- Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. There was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway. Most of the discussion in the Supreme Court case concerned whether the unlawfully obtained evidence should be admitted regardless, with little or no doubt about the fact that covert video surveillance itself was not authorised. This is not a surprise ruling which has been sprung on an unaware police force.

- Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases. Whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment of the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences. Indeed, the Supreme Court in the Urewera case ruled that the illegally obtained covert evidence could be admitted in relation to the more serious charges of “participation in an organised criminal group” – just not in relation to the lesser Arms Act charges.

- Finally, the legislation is set to be passed via a bad process – urgency once again. Retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.

The Urewera case: R v Hamed
Some brief background.

Earlier this month the Supreme Court determined appeals relating to the admissibility of covert video surveillance in the Urewera18 prosecutions (R v Hamed [2011] NZSC 101). Rather dramatically, the Supreme Court ruled that such evidence was inadmissible in relation to 14 of the accused (those facing the less serious Arms Act charges), leading to the charges being withdrawn. However, the evidence was ruled admissible in relation to the four accused facing the more serious charges of “participation in an organised criminal group”. The key evidence in dispute was “film obtained from motion-activated hidden cameras placed by the police over a number of months on the Tuhoe-owned lands in the areas where the [military-style] exercises were expected to be held”.

The Supreme Court decision is rather long, with five separate judgments which agree and disagree on various technical points and the overall evaluative judgement about admissibility. But for present purposes the gist of the decision is clear.

Covert video surveillance was not and is not authorised by legislation. Search warrants obtained by the police under s 198 of the Summary Proceedings Act 1957 only authorised other types of search and seizure, not covert video surveillance. Indeed, although the police alerted the issuing judge to their intention to engage in such video surveillance, they did not seek search warrants for that purpose. The officer in charge of the case gave evidence that at the time they were aware that s 198 did not provide legislative authority to engage in covert video surveillance.

All members of the Supreme Court agreed the covert video surveillance was unlawful and was not authorised by any search warrants. On the latter point, the Supreme Court disagreed with the Court of Appeal (the Court of Appeal had assumed that search warrants couldn’t be obtained for covert video surveillance but took the view that video surveillance was incidental to search warrants obtained for other investigative steps and therefore was lawful). As a consequence the video evidence was obtained unlawfully because it was obtained via trespass without any legal authorisation and also amounted to an unreasonable search and seizure under s 21 of the NZ Bill of Rights Act.

The balance of decision turned on whether the unlawfully obtained evidence ought to be admitted in the criminal cases anyway. Section 30 of the Evidence Act requires judges to engage in a balancing process to decide whether improperly obtained evidence can be admitted:

"(2) The Judge must—
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety."

It’s on this point that the Supreme Court judges differed.

The upshot was that (by a 3-2 majority) most of the covert video surveillance evidence that was unlawfully obtained was ruled inadmissible against those only facing the lesser Arms Act charges. But (by a different 3-2 majority) this evidence was still admissible against those facing the more serious participation in a criminal group charges under the Crimes Act. (Other rulings were made about the admissibility of other video evidence (footage of vehicles travelling down a road and video evidence of the scene filming contemporaneously with physical searches), but that’s not as relevant here.)

Admissibility under s 30 is ultimately a value-laden judgement depending on a number of factors. In this case, the most central factors were as follows.

First, rights to property, privacy and dignity are fundamental values, enshrined in the protection against unreasonable search and seizure in s 21 of the NZ Bill of Rights Act. The unlawful trespass and associated surveillance amounted to a serious breach of these rights. The breaches were numerous (some seven occasions over 10 months).

Secondly, the police impropriety was significant. While the Supreme Court did not rule they acted with bad faith, the majority indicated that the police’s attitude to the unlawfulness of the covert surveillance was at best reckless and perhaps deliberate.

The Chief Justice said (para 73):

“In circumstances where the police officer in charge of the inquiry knew that there was no authority to be obtained for such filmed surveillance, the deliberate unlawfulness of the police conduct in the covert filming, maintained over many entries and over a period of some 10 months, is destructive of an effective and credible system of justice.”

Blanchard J said (para 194):

“But the police understood that the warrants did not authorise the video surveillance and that their conduct in relation to the video surveillance might well be legally questionable. Winkelmann J made a finding that ‘the police continued to use surveillance cameras with the knowledge, at a senior level at least, that they had no lawful authority to do so’. Despite being aware that they lacked statutory authority for the surveillance, they proceeded without taking legal advice, which they had plenty of time to obtain. Having failed to get advice, the police cannot rely on the fact that they were operating in circumstances of legal uncertainty and argue that they should be ‘cut some slack’. Their conduct was reckless in the sense that they took the risk that it might be found to be unlawful.”

Tipping J said (paras 233 and 235):

"I do not consider there is any escape from the view that the police deliberately breached the appellants’ rights. Detective Sergeant Pascoe acknowledged that he knew there was no legislative authority to install surveillance cameras. This, no doubt, is why he did not seek a warrant to do so. The Detective Sergeant did not profess to have authority from any other source. … If the breach was not deliberate it was undoubtedly reckless because, at best, the position in law was decidedly unclear and, in the very difficult and unusual circumstances facing them, the police, extraordinary as it may seem, did not obtain any legal advice. It is difficult to resist the inference that formal legal advice was not sought because the police knew or strongly suspected what the advice would be and that it would make it more difficult for them to proceed as they intended. … In view of the conclusion I have reached, it is not necessary to determine whether this state of affairs amounted to bad faith. It is enough to say that I find it impossible to hold that the police honestly believed that the video surveillance was lawfully undertaken. The various aspects of this feature point powerfully to the exclusion of the improperly obtained evidence.”

(McGrath J was more sympathetic towards the police about the lack of authority, a treated it as a neutral factor; Gault J expressed no view on it.)

Thirdly, there was no other way for the breach of rights to be adequately remedied or for the court to formally hold the police to account for their unlawful behaviour.

Fourthly, the seriousness of the situation and charges ultimately laid, along with the absence of alternative practicable investigatory techniques, supported admission of the unlawful evidence.

Finally, the need to maintain an effective and credible system of justice was added to the mix. This encapsulated both “that offenders be brought to justice” and “impropriety on the part of the police should not readily be condoned by allowing evidence thereby obtained to be admitted as proof of offending” (para 187).

Ultimately, it came down to the sense of proportion between these conflicting factors. Two judges said that evidence should be admitted for all charges (McGrath and Gault JJ). Two judges (Elias CJ and Tipping J) ruled the evidence should not be admitted for any charges. One judge (Blanchard J) ruled the evidence should be admitted for the more serious criminal group charges but not the lesser Arms Act charges. Hence, in the end, the charges being dropped for some charges, but not others.

The important thing, though, is the nuanced approaches from all judges, assessing the proportionality between the serious of police impropriety and the serious of the criminal offending. The judges that differed took slightly different views on the assessment of seriousness and overall balance. It is the basic methodology, particularly the seriousness thresholds, that might have implications beyond this particular case because each case will generally turn on its own circumstances.

The legal position following the Urewera case
Let’s recap now. As a consequence of the Supreme Court ruling, the police do not have any legal power to engage in covert video surveillance – but they knew that anyway. For investigations already undertaken, whether or not unlawfully obtained video evidence can be admitted in court depends on the context. For serious charges, it will probably still be admissible. For less serious charges, it will not be admissible. It might also turn on how significant or insignificant the degree of intrusion was and rogueness of police actions or attitudes.

The urgent (and retrospective) legislative fix
So, this is where the government steps in.

Cabinet has received advice that covert video surveillance – although unlawful – is systemic. The police have deployed this investigative technique widely. There are around 40 cases presently before the courts where such evidence is to be relied on, and another 50 active investigations that might be compromised without being able to engage in covert video surveillance.

Hence, the intention to next week pass legislation under urgency to authorise such surveillance and to retrospectively validate such surveillance already undertaken.

We haven’t yet seen the draft legislation. Nor has the advice been released. But the gist of move is apparent. (See http://www.radionz.co.nz/news/national/85615/govt-to-use-urgency-to-change-law-on-covert-filming)

Now, for present purposes, I don’t quibble with legislative authorisation of covert video surveillance in future investigations (well, I have no view on whether that wise or not – but will assume that it’s wise to fill the gap). My beef is with the retrospective validation of previous unlawful actions and its effect on criminal proceedings.

Retrospective legislation - why its egregious and unnecessary
Retrospective legislation is generally seen to be contrary to the Rule of Law. As the Legislative Advisory Guidelines say (LAC Guidelines):

“The general principle is that statutes and regulations operate prospectively, that is, they do not affect existing situations. This principle is set out in s.7 of the Interpretation Act 1999 which provides that enactments do not have retrospective effect. … The general principle is strongest in the case of criminal liability and this is seen in particular provisions in the criminal law area, namely, s 10A of the Crimes Act 1961 and s 4 of the Criminal Justice Act 1985. Section 26 of the New Zealand Bill of Rights Act 1990 is to similar effect. Section 26 repeats New Zealand's international obligations in this area which are found in Article 15 of the International Covenant on Civil and Political Rights. At common law, there are general presumptions of interpretation which also have the effect of applying the law prospectively. Clear legislation is needed to displace these presumptions.”

As I’ve mentioned in the past, it is not an absolute principle though. Even the LAC Guidelines refer to situations where retrospective legislation is not objectionable:

“However, while the general principle is that legislation is prospective, not all examples of legislation which impacts on existing situations will be unfair (see Burrows, Statute Law in New Zealand, 1999, page 358). Examples of retrospective provisions which are seen as having only a benign effect include those which validate appointments, or provide for backdated salary and benefit payments and new superannuation arrangements. The impact of the legislation on those affected can be assessed by considering a range of factors including the purpose of the legislation and the hardship of the result on those affected. For example, individuals may have a reasonable expectation based on entering into legal obligations, such as contracts, on the basis that the law will have a certain impact.”

The question here is whether it is justified. For a number of reasons, I think resort to retrospective legislation is unnecessary and egregious.

First, retrospective validation here does not fall within the narrow range of situations where this type of validation is benign. Indeed, it is particularly pernicious because it interferes in the criminal domain, leading to people being convicted in circumstances in which they otherwise wouldn’t be found guilty.

Secondly, the basis for retrospective validation is feeble. This is not a situation of tweaking the law to reflect Parliament’s original intent or to ensure the law conforms with people’s reasonable understanding of the law. As we can see from the Supreme Court case, there was no legal basis for covert video surveillance, the Police were aware that covert video surveillance was not legally authorised, but they proceeded anyway.

Further, the lack of any legal foundation for covert video surveillance was addressed by the Law Commission in its comprehensive report on search and seizure powers in 2007 (Law Commission, “Search and Surveillance Powers”, ch 11):

“11.9 Other than the general prohibition on unreasonable search and seizure in section 21 of the Bill of Rights Act, New Zealand statute law has not sought to deal with the field on any comprehensive basis. In particular, there is virtually no statutory regulation of visual or video surveillance or other non-auditory forms of surveillance.”

Most of the detailed discussion focuses on the “non-trespassory surveillance”, that is, video surveillance that does not involve entry onto some other person’s land without their consent. You will recall that all the covert video surveillance in the Urewera case was worse – it took place on private land not visible from any public land, that is, it was trespassory.

But even in relation to non-trespassory surveillance the Law Commission noted the risk of findings of unlawfulness:

"11.25 There has been little case law to date on the impact of section 21 of the Bill of Rights Act on non-trespassory surveillance. The Court of Appeal has even refrained from expressing a definitive view on whether or not non-trespassory audio and visual surveillance amount to searches or seizures for section 21 purposes. Moreover, the Court has resisted calls from defence counsel (based on European and Canadian precedents) to use section 21 as the source of a principle that non-trespassory surveillance that is not specifically authorised by statute must necessarily be unlawful. Rather, in the absence of statutory regulation, the Court has preferred to adopt a case‑by‑case assessment of reasonableness under section 21.”

Indeed, it echoed the Court of Appeal’s recommendation that the matter be addressed by legislation:

"11.41 From cases such as Gardiner it can be inferred that the Court of Appeal is of the view that the whole field of audio and visual surveillance could usefully be the subject of statutory regulation. Gardiner involved visual surveillance, using a long lens video camera positioned in a neighbouring property and trained on a room of the target premises. While the Court of Appeal held that in the particular circumstances of that case the surveillance was not unreasonable for Bill of Rights Act purposes, it nonetheless took the opportunity to state: 'Parliament has not yet chosen to legislate on the subject of video surveillance as it has done for the use of devices enabling interception of private communications: … The situation may be thought to be unsatisfactory for the police as well as the citizen. The police may invest substantial time and resources in such a surveillance operation, unable to obtain authorisation because there is no power for anyone to grant it, but exposed to the risk that afterwards a Judge may hold their actions, in a relatively untested field, to be an unreasonable search.’”

The Search and Surveillance Bill currently before Parliament explicitly addresses this (Search and Surveillance Bill 2009). The Explanatory Note explains:

“The law has also failed to keep pace with technology. Criminals have increasingly been able to use computers and other electronic devices to commit or facilitate illegal activity. The Bill provides for the appropriate legislative powers to enable law enforcement and regulatory agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity.”

Part 3 of the Bill proposes an explicit regime authorising “surveillance device warrants”, including covert video surveillance. This issue was also at the forefront of the mind of the Select Committee considering the Bill – the proposed regime was specifically mentioned and varied in its reports issued in August and November 2010.

So, the ruling in the Urewera case is not a surprise ruling which has been sprung on an unaware police force. It’s a lacuna which has been identified previously. And Parliament has been working on fixing any gap over the last two years.

Thirdly, claims about the implications about the ruling on other cases are, I think, overstated. While the government claims there may be around 40 current cases which will be prejudiced by the ruling, the Supreme Court’s decision is relatively nuanced and will allow for the admission of the unlawfully obtained evidence in serious cases.

As explained earlier, whether unlawfully obtained evidence is excluded turns of a number of factors, which, amongst other things, includes an assessment at the proportionality between the nature and extent of police impropriety and the seriousness of the alleged offences.

This contextual approach to admissible means the decision is not the opening of the gates to allow criminals to avoid prosecution. In all likelihood, the unlawfully obtained evidence will still be able to be used against criminals facing serious charges – or the “serious criminal offending” that the Prime Minister is worried about. Proportionality is the key.

Notably, I think, the Supreme Court ruling admitted the unlawful evidence for charges in relation to the offence of participation in an organised criminal group. I suspect this is one of the key charges used against gang drug cartels and the like, where, again I suspect, covert video surveillance is probably deployed . It seems unlikely therefore that the Supreme Court ruling will undermine those types of investigations.

And doubly bad when passed under urgency
Finally, the legislation is set to be passed via a bad process – urgency once again. The objections to this are well-known and have been canvassed here before.

In this case were are talking about retrospective legislation affecting fundamental rights and the criminal process is being passed without a public submission process. The public and learned groups should be able to carefully scrutinise and directly challenge the move while it passes through the parliamentary process.

As a minimum, the government ought to open up the move to a week’s public submission, allowing people like the Legislation Advisory Committee, the NZ Law Society and others who are expert in the area to advise MPs on the necessity or otherwise for retrospective legislation and any other problems that may arise from this rushed move. The sky won’t fall in the meantime; rulings in the other cases are unlikely to be rushed through before legislation is passed. And if a case is made for retrospective legislation, then it will trump anyways.

A footnote - the Rule of Law as a vulnerable constitutional norm
In closing, it is worry how often these Rule of Law issues need to be raised nowadays. And equally worrying is how often they are dismissed by the government and largely ignored by the general populous. Each time I am reminded of the remarks from one of our leading constitutional scholars about the vulnerability of the Rule of Law in New Zealand’s constitutional culture (M Palmer, “New Zealand’s Constitutional Culture” (2007) 22 NZULR 565:

"To the extent that [the rule of law] requires valuing the role and voice of the judiciary compared to elected politicians then ... it is not well entrenched in New Zealand constitutional culture. It is not clear to me that the norm of the rule of law and judicial independence is reinforced by New Zealand constitutional culture. ... There are regular examples of behaviour by governments that could be characterised as breaches of elements of the rule of law. ... While the legal and judicial establishment is a forceful source of support for the constitutional principle of the rule of law, to a realist, its power is ultimately dependent on popular understanding and support. In my view the rule of law, supported by the principle of judicial independence, is and should be a cornerstone of New Zealand’s constitution. In terms of my formulation of the notion, it is a key constitutional instrument by which the coercive powers of the state can be contained. But I sound a word of warning to the legal establishment. I am not confident that New Zealanders currently understand the rule of law or, in a crunch, would necessarily stand by it as a fundamental constitutional norm. ... The rule of law and judicial independence is not reinforced by a New Zealand cultural value. Neither is this surprising given its lack of academic and legal articulation. Without academic and judicial clarification of the meaning and importance of the concept of the rule of law and judicial independence, and some concrete event or debate that generates public appreciation and regard for it, I believe the rule of law is a vulnerable constitutional norm in New Zealand."

We, as a country, should be embarrassed by this.

Nationalisation of RWC party central?

Much has been made of Murray McCully’s so-called “nationalisation” of the waterfront for RWC party central, through the exercise of reserve powers under the special legislation for the Rugby World Cup. 

The legal position is, however, very different.  While some regulatory approvals for standard event-based activities may be fast-tracked through a special process under the RWC 2011 (Empowering) Act, the RWC Act does not give the Minister the ability to “take control” of the waterfront.  The Minister’s statutory role is reactive only, namely, considering applications made to and assessed by the independent RWC Authority. Any ability for the government to “take the lead” on the party central activities must have been garnered collaboratively, and does not come from the exercise of power under the RWC Act.

In any event, the applications presently being made urgently are conjoint applications from the Ministry of Economic Development and the Auckland Council’s events team.  These applications were, I understand, in the process of being prepared collaboratively before the Minister’s announcement. And the fast-tracked approvals currently being sought are largely mundane.

Finally, I think McCully may well be forced to relinquish that power to sign-off the applications to some other minister, because his actions may have predetermined the outcome and created a disqualifying conflict of interest.

Freedom... from unnecessary legislation?

The Local Government and Environment Select Committee is currently hearing submissions on the Freedom Camping Bill, a Bill which will enable local authorities to pass bylaws to prohibit freedom camping in designated areas and to issue infringement notices to people who breach the prohibition.  Others have criticised Bill for a number of reasons.

But my beef with the Bill is that it is, I think, unnecessary and another instance of ad-hocery creeping into the local government legal framework.  First, local authorities already have an existing power that enables them to pass such bylaws.  Secondly, there is an existing power in the Local Government Act 2002 that allows specific bylaw offences to be designated infringement offences. The claimed mischief that has been advanced to justify the Bill just isn't there.

Same-sex prom kings, cornrows and school rules

I've been following with interest, and some dismay, the coverage of St Pat's decision to prevent boys from taking other boys to the school ball:

- DomPost: "School denies pupil bringing boy to ball"

The School's position was invidious, mean-spirited, unjustified and - I think - unlawful.

TELEGRAM FROM LONDON: I love voting but...

Today, I wandered down the road with the intentions of casting a Yes vote for AV in UK's referendum on electoral systems.  However, I ended up only have a flat white in a local cafe instead. Sigh.


While I am entitled and registered to vote, I couldn't, in good conscience, express my preference. The choice in this referendum is about the long-term political and constitutional affairs of a country and community in which I am an alien. It's therefore a choice for locals, not interlopers like me.

Anyways, for those interested in the referendum itself, I did find this pod-cast by Johann Hari interesting and amusing:
- http://www.mixcloud.com/TheIndependent/the-johann-hari-podcast-episode-13-the-avs-vs-the-av-nots/

A kiwi republican stranded behind enemy lines

Through accident, not design, I found myself in London at the time of the Royal wedding.  As you might expect, torture for a card-carrying republican.  Wall-to-wall coverage. The dissection of every minutiae of Will and Kate’s big day.  Royalistic wallowing at every turn.

But it’s a big civic and tourist occasion , so I had to go and have a look.  The lack of a personal connection or animosity towards the institution was no excuse – after, all I’ve followed other big international civic events like such as Obama’s inauguration and the papal conclave.

Privately Public

I presented a paper at the Legal Research Foundation's recent conference "Judicial Review in the Commercial Context: The Ongoing Struggle for Simplicity".

The paper examines the amenability of private incorporated bodies to judicial review, focussing particularly on the impact of the Judicature Amendment Act 1972:

Constitutional change, the Crown, and the voices of citizens?

John Key has said that New Zealand will support moves to change the line of succession for the monarchy, removing the present discrimination against women and Catholics:
http://www.youtube.com/watch?v=QnOCwdpM5pw

Of course, I think the old rules are daft and should be changed (but I think the whole idea of hereditary succession based on a family in a foreign land is stupid anyways).

What's most striking, though, is John Key's unilateral commitment of New Zealand to such constitutional change without any involvement of the public.  But this government has been all over the place on the question of whether New Zealanders should have a say on who our Head of State should be.

On the one hand, the government has said, in the context of the constitutional review, there needs to be widespread public endorsement of any constitutional changes.  Bill English said specifically:

 “Of course, we will keep in mind that enduring constitutional changes generally require a broad base of support. Significant change will not be undertaken lightly and will require either broad cross-party agreement or the majority support of voters at a referendum."

On the other hand, the government shuts the people out of discussions about the Head of State.  First, government MPs blocked Keith Locke's Member's Bill on the Head of State at its first reading – preventing the public from having their say on whether or not they wanted to retain or ditch the monarchy. Secondly, the government failed to expressly include the republic issue in the terms of reference for the constitutional review, even though they noted there was some support for this.  It seems they didn't want "popular" changes overshadowing their – arguably, less popular – other ideas for constitutional reform.  And now, this week, John Key unilaterally announces New Zealand's support for changes to the line of succession – changes that are being negotiated behind closed doors amongst the British Monarchy's various realms.

This is all disappointing – and inconsistent.

Appointees and local democracy

Brian Rudman again rails against the automatic appointment of members of the Maori Statutory Board onto Auckland Council committees:

"At the time I tried to think of any model of democracy that involved members of a committee of government appointees, not elected by the people they purport to represent, sharing voting rights on a city council with elected councillors. This system of Maori representation doesn't fit the ideal of any form of democracy that I know of this side of the old communist world."

Hmmm.  Rudman appears to have overlooked that local government legislation in New Zealand has for a long-time provided for exactly that.

CERA Mark II: Purposes - a starter for 10?

One of the most egregious features of the new CERA legislation is the wildly expansive purpose clause and the pretense - perpetuated by many - that the requirement to act consistently with the legislative purpose operates as a constraint or check-and-balance on executive action.  It does not - it constrains executive action as much as a sieve holds water.

CERA Mark II: Henry VIII clauses

The new CERA rolls over, with minimal changes, the Order-in-Council regime which allows ministers to amend or suspend existing laws by executive decree:

http://www.legislation.govt.nz/bill/government/2011/0286/latest/DLM3653522.html

My previous objections – objections shared by many of my colleagues, the Law Society and other folk – to the Henry VIII regime are well-known.  I had hoped that the government had more time to reflect on the democratic and constitutional issues and to develop a more robust and legitimate regime.  Unfortunately, they have not.

There is some improvement with provision for some independent review (but there remains problems with that).  But the regime is now worse because: (a) the pressing need for such executive law-changes has diminished; (b) the horizon for Orders has been extended for up to 5 years; and (c) the purpose for which they may be issued has been enlarged.

It is a shame that the government has seen fit to unnecessarily roll-over these excessive and largely unconstrained executive powers, especially when there are more democratic and more legitimate processes available.

CERA Mark II: My Submission

The new Canterbury Earthquake Recovery Bill passed its first reading late this afternoon and has been referred to the Select Committee for less than 48 hours for consideration:

http://www.legislation.govt.nz/bill/government/2011/0286/latest/whole.html#dlm3653522 

I understand key stakeholders have been invited to address the Committee: tonight in Wellington and Christchurch tomorrow.  As one of the scholars who actively expressed concerns about CERRA Mark I and  one who has already publicly commented on the proposals for CERA Mark II, I have been dutifully awaiting an invitation to address the Committee - I fear I have not yet received one.  However, below is the submission I would have made to the Committee.

[UPDATE 13/4/2011: Unbeknown to me, I understand a helpful member of the public printed my blog post/submission below and at the conclusion of hearings late last night presented it to the Committee, who received it.  I have been advised, though, that the Committee is not generally accepting other unsolicited submissions on the Bill.]

The (r)evolution of collective responsibility

Collective responsibility is dead! Long live collective responsibility!

I've been wittering on about for this time (see, for example, here). But I think this week's Question Time confirms (finally) that the conventions around collective responsibility have evolved again.

We have new operating arrangements governing the expression of dissent by Ministers of the Crown. Under MMP we have seen the incremental loosening on the unanimity element of the convention of collective responsibility. But, responding to questions about public remarks from Ministers Hide and Sharples about the independent Māori statutory board for the Auckland Council, Prime Minister indicated – whether consciously or not – that the present government is operating under even looser arrangements than before. The Prime Minister condoned deviations from the existing "rules" about collective responsibility recorded in the Cabinet Manual. That probably means that the underlying convention has evolved and that the Cabinet Manual rules will need to be re-written to reflect the new operating arrangements.

Republic can be a simple matter

[This OpEd appeared in the DominionPost on 2 February 2011]

New Zealand could and should easily become a republic, says Dean Knight.

MOVING to a republic involves changing our head of state from a hereditary monarch based abroad to a local, chosen by us. The easiest path is to simply promote the governor-general from being our de facto head of state to a real head of state.

Same powers, same functions, same duties, some Treaty obligations, same House - even the same name if we wish.

Despatches from a new HQ

Oh.  I should mention that, for a while, blog posts will be despatched from new headquarters - from London.

I'm presently on sabbatical from Vic and have commenced working on a PhD at the London School of Economics and Political Science (http://www.lse.ac.uk/collections/law/
subjects/phd_students/dean-knight.htm).

They have elephants here too, including one in the main street of the university (see photo).

For my PhD I'm thinking about (and writing 100,000 words on!) the different ways the courts calibrate - or should calibrate - how closely they scrutinise the decisions of public bodies and officials when determining applications for judicial review.  More on that later, once I get some words on paper...

Anyways, blog posts will continue sporadically on whatever I deem interesting - whether from here or there...

Constructing and deconstructing the EPA?

I was interested to hear of the government's proposal to merge and reconfigure the government departments to reduce the size of the public service.

The announcement prompted me to recall a tender advert from the new Environmental Protection Agency I noticed in newspapers just before Christmas.  I'll get to that in second.

Pimping Proscriptions

The new Auckland Council has announced that it will be supporting a local Bill which proposes to give it the power to prohibit street prostitution in specified places throughout the city.

This is a bad Bill.  It is unnecessary law-making and lazy regulation. 

Alcohol, driving and the precautionary principle

- RadioNZ: "Joyce still not convinced about lower alcohol limit"

RadioNZ reports that Minister of Transport, Steven Joyce, says "more evidence is needed before the Government will consider lowering the general drink-driving limit".  Others such have David Farrar have echoed the claim that specific evidence is needed that lowering the drink drive limit will have an instrumental effect on the number of road deaths and accidents.

Baloney.

A Kiwi New Year message - from our de facto Head of State

Sir Anand Satyanand has released his regular New Year message:

- http://www.gg.govt.nz/node/3488

The New Year is a time when we look ahead, and also a time to consider the year that has passed. Any year inevitably has its highs and lows but 2010 is one that New Zealanders will remember for its tragedies and natural disasters, including the deaths of members of the New Zealand Defence Force and, most recently, the terrible loss of 29 miners at the Pike River coal mine.