ACT won't support 'fixit' law under urgency

07:58, Sep 21 2011

National's bid to overturn a Supreme Court decision to allow secret police filming on private property under urgency is in trouble.

The Government said 40 trials and 50 police operations were in jeopardy because of a Supreme Court ruling over the Urewera "terror raids" and said the legislation would apply retrospectively to prevent appeals.

The temporary move would quash the decision that evidence from covert filming on Tuhoe land was obtained illegally, which led to charges against 13 Urewera "terror raid" defendants being dropped. It would apply until the Search and Surveillance Bill was passed, likely next year.

But, today, the ACT party told the Government they wanted a select committee to hear submissions on legislation.

The Government needed the support of ACT to pass the bill and its MPs were yesterday briefed by the Solicitor General David Collins.

At that stage, a spokeswoman for ACT said the party would take its time to make a decision.


Today, parliamentary leader John Boscawen said the party would not prejudge the outcome of the committee and his party would support it at the first reading.

Hearings over 36 hours would see it reported back on Thursday, if it was introduced to Parliament on Tuesday.

His party had not yet seen the bill. They told the Government of their decision this afternoon.

Labour have also demanded the "fixit" legislation go through a select committee.

The Greens, Maori and Mana parties opposed the legislation, while United Future's Peter Dunne said he would support it.

Legal experts criticised the measure as "constitutionally objectionable", however, the Police Association said the temporary measure was necessary.

While Dunne was supporting the Government's proposed urgent legislation to quash the Supreme Court's decision on covert filming, he admitted the move was ''not very satisfactory at all''.

Dunne said he would ''far prefer'' it if the Search and Surveillance Bill - which was introduced to Parliament in July 2009 and enables covert filming - had been passed by now.

''But I think that we are in a situation that given the Supreme Court ruling and the number of cases that are potentially effected, we've got to do something to revert to the status quo while the major bill is passed.

"So I'm supporting an interim legislation that would effectively take us back to where we were before the court ruled. That should be in place for a limited time only to allow Parliament to pass legislation next year.''

Dunne said the Search and Surveillance Bill was too complicated to be passed in the two sitting weeks remaining before the House rose for the election.

It is understood the urgent bill, which is still being drafted, would be a short declaration that the Supreme Court judgment wasn't in force.

Labour's justice spokesman Charles Chauvel today released a letter Labour wrote to the Government last year confirming it would support the passing of the Search and Surveillance Bill with three amendments which did not relate to covert filming.

Those changes were around protection for the news media, the powers of the Serious Fraud Office and having measures in the Bill only apply to serious offences punishable by more than 10 years imprisonment.

''It would have been a major step toward putting in place the sort of surveillance framework called for by the Supreme Court if National had taken up Labour's offer and progressed the Search and Surveillance Bill.''

Labour wanted the urgent bill to be scrutinised by a select committee.

Dunne said he would not oppose sending the bill to a select committee if there could be a guarantee it would still pass before the election.

Meanwhile, leading legal experts and academics have rounded on the Government over the 'fixit' law plan.

Professor Philip Joseph of Canterbury University's School of Law said the Government's actions undermined the rule of law: the basic principle that no-one is above the law. The move was "constitutionally objectionable", he said.

"If a lawyer lodged an appeal on the basis of the Supreme Court decision ... when the legislation is introduced it simply wipes away the whole substantive basis for the appeal. Now that is direct interference in the administration of justice by retrospective means."

Auckland barrister Grant Illingworth, QC, said the Government would be taking away the "fundamental" right of citizens not to be monitored in their private lives. "By retrospectively validating searches that never had proper authority, what's happening is that the right to be free from unreasonable and unlawful search and seizure is being over-ridden without the safeguards that normally apply."

Academics took to the internet to criticise the Government.

Otago University's associate professor of law, Andrew Geddis, wrote that "the law is meant to be there to constrain power ... but if that law, as interpreted by the courts, gets dumped whenever it happens to be inconvenient to those who govern us (or those who enforce their rules), then what is its point?"

Victoria University's Dean Knight wrote that "retrospective validation of unlawfulness ... undermines the rule of law" and its basis was "feeble". "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."