Thursday, September 29, 2011

My (late) representation to Parliament on the Video Camera Surveillance (Temporary Measures) BIll

The Chair
The Justice and Electoral Committee
Parliament Buildings
29 September 2011


Dear Chester and the members of the Justice and Electoral Committee

Firstly, I appreciate that the closing date for representations on this bill was yesterday. However given that the public was given just one day to lodge a view, I hope that you will consider receiving this brief late addition.

My views are as follows:

1. I totally oppose this bill as unnecessary, inimical to good policing and as offensive to justice and the rule of law.

2. I urge the committee to report it back to the House with a recommendation that it not proceed.


I sat on the Justice and Electoral Committee from 1999 until 2008. During that time the committee scrutinised the Evidence Bill (now Act). The very lengthy consideration the committee gave to section 30 (2) is what informs my view that this bill is simply not needed. As you well know subsection 2 (b) states that

“if the Judge finds that the evidence has been improperly obtained, (they must)
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.”

It is simply not credible that the judiciary will let serious accusations go undetermined, given their obligation to give proper account of the need for an effective and credible system of justice. The fact that the Supreme Court decision that led to this bill allowed the improperly obtained evidence that was the focus of appeal, be admitted in the prosecution of 4 of the defendents demonstrates that there is no need to violate the doctrine of the seperation of powers by retrospectively legitimising police activity.


The Law Commission report into search and surveillance powers had put the police on notice that the legality of the use of covert filming was questionable. The fact that the police continued to rely so heavily on these techniques demonstrates an attitude to the law that is careless at best.

Retrospectively legitimising this activity holus bolus rewards such an attitude and makes a powerful statement to the police that they can be haphazard in following the law when it comes to gathering evidence. The only real sanction that exists to keep the police within the law, and in conformity with the intentions of Parliament when it enacts laws proscribing search and surveillance powers, is for improperly obtained evidence to be excluded in court. I find it hard to believe that the intention of this Parliament is to condone police impropriety.


It seems extraordinary that a country that purports to be a democracy that respects the separation of powers and the rule of law can contemplate passing retrospective validation of illegal police video surveillance, under urgency, with a select committee process lasting one week and with one day for the public to prepare representations. I do not think I need to spell out further to this committee why
this bill and this process is offensive to justice and the rule of law.


I offer thanks in advance in the hope that the committee has agreed to accept this late representation. I urge the committee to send this bill back to the House with a recommendation that it not proceed and with a report that spells out clearly why this bill is ill-conceived and offensive.

Emergency surveillance law shows the Crown has too much power

New Zealand is not a democracy, if by that we mean government for the people, by the people. This was proven to me beyond a doubt when I was sworn in as an MP for the third time in 2005. MPs are required to swear allegiance to the Queen and her successors before they can take part in the Parliament. When I tried to add “to the people of Aotearoa New Zealand and the Treaty of Waitangi” (Parliament's true sources of legitimacy) I was forbidden to do so. MPs allegiance must be to the British Crown alone.

I was neither the first nor the last MP to attempt to add something meaningful to the oath, but it was a personal reminder about who the Parliament serves. Allowing New Zealanders to elect the people who serve the Crown in this country fools us into thinking that those representatives are there to serve us. More importantly, it obscures the lie that is at the heart of our constitution – that the source of political authority is the Queen.

The Parliament only sits after it receives Letters Patent from the Queen giving it the power to do so. Every Act passed through Parliament has to be signed off by the Queen, or her proxy the Governor General, before it becomes law. Regulations are actually Orders in Council from the Queen or the Governor General, made on the advice of her Minsters. Within our system, the Queen is the very source of political power and legitimacy.

This is not just abstract political theory. It distorts our very thinking about what the Government can and can't do. It is the reason why New Zealanders have so few real protections from the State, protections that would limit the power of the Crown. It is the basis for the Governments ability to sack an elected council in Canterbury and replace it with hand chosen appointees, or forcibly take over the administration of the waterfront from Auckland City. It is what allows the Government to seriously contemplate passing a law under urgency to legalise police surveillance that the courts have already ruled was illegal and that the police were repeatedly warned about. It was what allowed the last Labour Government to steal huge areas of land based on the ethnicity of its owners with the Foreshore and Seabed Act. The power of the Crown trumps the rule of law.

If we were a real democracy, our political system – our constitution – would be based on the recognition that sovereignty flows from the people, not from a monarch (and a foreigner at that). It would embody the idea that political power flows upwards. Sovereignty begins with our right as human beings to make decisions over our own lives. We express it in the collective decisions we make as communities. Elements of it can be passed on to the national parliament and to the regional and global governance bodies that we collectively choose to take part in.

A New Zealand democracy would be based on the Treaty of Waitangi, which reinforces the local decision-making rights of hapu over the things that affect them. In the Maori language version of the treaty that the chiefs and Governor Hobson signed, Maori never ceded sovereignty to the Crown. The idea that the Queen is the sovereign power is simply incompatible with the tino rangatiratanga of hapu. That is why the courts have had to invent the “principles of the Treaty of Waitangi” in an attempt to sidestep the international legal doctrines that give priority to the Maori language version.

A real New Zealand democracy would provide protection for all its people from the arbitrary use of power by the State. It would safeguard our human and civil rights from those given enforcement power over us, such as the police, prison system, customs, and increasingly food and medicines regulators. At present New Zealanders have no constitutional protection at all. It is only the lack of a simple majority due to MMP that has slowed the Government from ramming through an emergency retrospective law to give police carte blanche powers of video surveillance.

Finally a real democracy would not have local councils made and unmade by the whim of the Crown, but as expressions of people's inherent right to make decisions at a local level over the things that affect them at a local level. The ability to sack a properly elected council and replace it with Government appointees is an outrage, made possible only by a distorted view of political legitimacy and power.

New Zealand will become a republic sooner or later. The real question we need to ask ourselves, though, is much deeper. Does the power of our Parliament come from some person because they are more divine than the rest of us, more imbued with wisdom and justice? Or rather does it come from the people and their inalienable right to rule their own lives, and their choice to bestow on the Government the ability to make decisions in the best interests of the nation? Once we have decided that, eveything else will become clear.

Thursday, September 8, 2011

Take prosecution power away from police

A young man I know was in court recently. He and some friends were drinking round the back of a sports club and they decided to smash a window. It was typical dumb drunk stuff and they deserved to get caught. He didn't deserve a conviction for attempted burglary, which was what the police charged him with.

I asked the police prosecutor how he justified an attempted burglary charge when the window was visibly barred and impossible to enter. He said that if the window hadn't been barred he was pretty sure the kids would have tried to get inside.

I don't need to mention that the young guy was Maori. Of course he pleaded not guilty, on the reasonable basis that he wasn't trying to burgle the place, he was just being a vandal. The case dragged on for about a year, wasting police and court time and costing who knows how much money. Eventually, frustrated over police delays and deferred proceedings, he pleaded guilty on the promise of a community sentence. I guess you could call it conviction by attrition. If the charge had been willful damage or some such, however, there would have been a guilty plea and the case could have been dealt with straight away.

For me it was just another example of why prosecuting practice needs to change. The case didn't make the national news, but it illustrated the point just as well as the infamous case of the autistic light bulb collector Cornelius Smith-Voorkamp. Mr Smith-Voorkamp was accused of being a looter, detained in custody for 11 nights (and his partner for 6 weeks) and prosecuted for 6 months before the case was dropped in August. All for taking two light bulbs. Then there is the case of singer Tiki Taane who was charged in April with disorderly behaviour likely to incite violence. He sang the NWA song 'Fuck the police' while police were in the club he was performing at. The case was dropped this week but it is hard to avoid the suspicion that the police deliberately wasted months of court time and fistfuls of public money for a bit of personal revenge.

The Minister of Justice Simon Power, like Justice Ministers before him, has recently introduced changes to the legal aid rules in a bid to cut costs. It's time his officials pointed out to him that a more effective, although less populist, way to cut spending on lawyers, as well as get the courts running more smoothly, would be to crack down on ridiculous prosecutions.

The problem is that the police seem to lose perspective. That's understandable – they are in the thick of things. But it means that we cannot rely on the police to not prosecute matters that just shouldn't ever go to court. It means we cannot rely on the police to always lay charges that are in proportion to the offense that was actually committed.

That's without even mentioning those cases where police perjury is involved, as when then-senior constable Neil Robert Ford caused a traffic accident, lied about it and persuaded a to blame the victim. Shane Cribb, 17, was charged and found guilty. Mr Cribb and his supporter Steve Potter spent 5 years fighting for justice. After it was over Mr Potter said that he worked out what really happened within days of the accident. He commented that "If I could see what was gapingly wrong, why couldn't the authorities? That's the thing that I really still struggle with."

This case also demonstrates that the police find it hard to make objective decisions when it comes to prosecuting police officers who may have broken the law. The failure of the police to prosecute Constable Abbott after he shot Steve Walla dead in Waitara in 2000 is another example. The family had to bring a private prosecution before the legality of that killing could be tested, even though the courts found there was a case.

We have to take prosecuting decisions out of the hands of the police. We need an independent Public Prosecutors Office with responsibility for deciding when to prosecute and what charges to lay. The job of the police should be to investigate crime, interview suspects and gather evidence. Having a prosecutors office which can then evaluate the evidence without any prior stake in the case would clear the crap out of the courts as well as give citizens a bit more protection from malicious prosecutions. Who knows, it might even have saved those Operation 8 defendents who have just had their cases dropped after four years of legal hell.

from my Monkeywrenching column 8 Sept 2011)