Secret filming fix 'legal magic dust'

Police Commissioner Peter Marshall is appearing before an open parliamentary hearing on the Urewera fixit law.

Justice and electoral committee chair Chester Burrows allowed him the option of giving evidence in private.

A government spokesman earlier said he would be appearing behind closed doors.

Marshall said covert surveillance was "very necessary" and only for very serious cases of organised or trans-national crime.

Officers say 50 undercover operations are under threat after a Supreme Court ruling on the Urewera terror cases.

The new legislation has taken a pummelling at the hearing which began this morning.

Legal experts gave evidence to the justice and electoral select committee, with one calling the emergency solution ''legislative magic dust'' and other branding it ''a late night special.''

The criticism came despite Attorney-General Chris Finlayson asking for their feed-back before the legislation was introduced to Parliament yesterday.

An alternative measure - taking extracts from a pending Search and Surveillance Bill - put forward by Labour was also dismissed as ''difficult.''

The government says a new temporary law is necessary to prevent 40 trials and 50 police investigations collapsing in the wake of a Supreme Court ruling that deemed covert surveillance in the 2007 Urewera terror investigation unlawful.

Both the Criminal Bar Association and the Bar Association dismissed this argument.

Wellington Vice-President of the Bar Association Ken Johnston, a barrister since 1979, said: ''In prosecuting over a number of years and in some defence work, I don't think that I have ever seen a case where video surveillance material is the sole evidence. There is almost always substantial additional evidence.''

Barrister Robert Lithgow from the Criminal Bar Association said he has seen no evidence that trials or operations are in jeopardy.

''I would be amazed if those cases turned solely on illegal video surveillance, that there wouldn't be perfectly legal audio surveillance - which often makes up drug cases…it would seem extraordinary that there are these set of cases where there is [no] evidence that will assist the inquiry other than, miraculously, a video image with nothing else.''

He said the Bill was an attempt to have the Crown win in the Supreme Court. '' The Crown want to win when they lost.''

Making provisions retrospective ''is really legislative magic dust. I'm not saying it's never necessary, but it's a bad way to go about things.''

Lithgow said there are no protections against unfair surveillance built into the new law, which apply for a year until the Search and Surveillance Bill is passed. ''That doesn't seem to make any sense at all.''

Law Commissioner John Burrows agrees the fixit bill offers no protection. And he pointed out the new law would also allow filming by agencies other than police, such as Fisheries or Customs officers. "Do we really want powers as wide as that?" he asked.

But he said there is merit ''in giving the police some certainty in what they can go.''  The Commission supports the purpose of the bill, but have ''concerns about the way this is being done.''

The Law Society's Grant Illingworth said the bill is ''objectionable'' because it misrepresents the legal position before the Supreme Court ruled on the Hamed v R. case.

The society has drafted an alternative - amending section 30 of the Evidence Act 2006 - to preserve the discretion of judges to allow any relevant and cogent evidence.

Hearings resume this afternoon when Otago University constitutional law professor Andrew Geddis, an outspoken critic of the bill, is expected to give evidence.

In a blog posted yesterday he wrote that the bill was ''an overreaction that is based on a misunderstanding of the Supreme Court's ruling.''

The committee will hear from the public all week and report back to Parliament on Monday.

The Dominion Post