The Dim-Post

September 20, 2011

Bureaucratic capture

Filed under: Politics — danylmc @ 11:32 am

There’s a tendency for John Key’s opponents on the left to dismiss him as stupid – which is, in itself very stupid since Key is plainly as cunning as a snake. What they mean is that Key isn’t an intellectual. He probably doesn’t know who John Rawls or Isaiah Berlin are! And that’s also, mostly an asset, since it makes it easier to identify with ‘ordinary New Zealanders,’ and many of his challenges as a leader are technical rather than philosophical.

But I think it makes him vulnerable to mistakes like this decision to retrospectively validate illegal activity undertaken by the New Zealand police. The bureaucrats embarrassed by the Supreme Court’s finding that the police acted illegally can argue that it would be awfully practical and convenient for the state to pass legislation dumping the Supreme Court’s interpretation of the law, and the Prime Minister doesn’t have the intellectual clarity to say, ‘Hold on a minute. That violates almost every principle my own party is supposed to stand for!’

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44 Comments »

  1. look, danyl … Greg O’Connor has said that this is necessary. Are you going to stand up and say Greg O’Connor is wrong? ARE YOU?

    Plus, the Police only target criminals. If you aren’t a criminal, what are you worried about?

    Comment by Andrew Geddis — September 20, 2011 @ 11:35 am

  2. “…That violates almost every principle my own party is supposed to stand for..!’

    The National party stands for the principles of the white rentier classes. Everything is just window dressing.

    Comment by Sanctuary — September 20, 2011 @ 11:36 am

  3. Are you going to stand up and say Greg O’Connor is wrong? ARE YOU?

    I guess it’s possible for O’Connor to come around to my house, beat the shit out of me and then convince the government to pass laws retrospectively legalising his assault. So no, I’m not gonna say that he’s wrong.

    Comment by danylmc — September 20, 2011 @ 11:38 am

  4. “I guess it’s possible for O’Connor to come around to my house, beat the shit out of me and then convince the government to pass laws retrospectively legalising his assault.”

    Better this than that a criminal should walk free … .

    Comment by Andrew Geddis — September 20, 2011 @ 11:39 am

  5. Will be interesting to see where the ACT Party stands on this one. Retrospectively validating unlawful trespasses by the State onto private property must surely be too big a dead rat for the self-styled party of property rights to swallow. Or do they have no principles at all these days?

    Comment by toad — September 20, 2011 @ 11:46 am

  6. Surely he knows who John Rawls is, after all his farewell tour of NZ starts next month…

    Comment by James Stephenson — September 20, 2011 @ 11:51 am

  7. Why is Greg O’Connor standing up and saying this and not the Commissioner of Police? If it were that vital shouldn’t the Commissioner be the one arguing for it as he is responsible for the actual operation of the police force? It’s irritating how O’Connor is used by the media and the hierarchy as a proxy for management views on policy.

    PS – I just listened to Kathryn Ryan bashing away at some worthy barrister about the human rights implications of a law change but they didn’t isolate the issue. Can someone please clarify the issue re illegality of urewera video surveillance. Was it a) because the warrants did not stipulate the use of video, even though its absence implied it was there; b) they did but the law does not allow video so the warrant was invalid even with the invisible ink bit only visible to police eyes that said it was ok to go ahead anyway; c) you can’t do surveillance on private land even with a warrant, unless you think you can because you always had before; d) some other reason which a good hearted soul will helpfully explain. Thanking you in advance.

    Comment by insider — September 20, 2011 @ 11:59 am

  8. insider, Dean Knight has some good analysis and background here.

    Comment by toad — September 20, 2011 @ 12:04 pm

  9. The government is in an untenable situation. It’s incompetent management of the house and desire to delay anything that might be controversial until after the election so it can then ram the search and surveillance bill through under urgency is solely responsible for this abominable attempt to overturn the rule of law.

    But Mana, The MP and the Greens are opposed to this legislation. If Labour opposes it as well, does National even have the numbers? If Goff had any political sense – or even just some mongrel in him – he would use this situation for some brinkmanship to acutely embarass Key andf the government, expose the governments mismanagement, and even possibly demand the heads of the ministers of police and .justice be delivered to him on a platter as the price of backing the government.

    But Goff won’t. He is above all loyal to a self-serving political class of which he is a member, so he will immediately succumb to a craven fewar of the law and order lobby and give reign to the authoritarian instincts of his own class and back the government – just you watch.

    Comment by Sanctuary — September 20, 2011 @ 12:05 pm

  10. Danyl calls it a mistake, which it is, by any moral and constitutional measure.

    But Key has no such measure, so he just goes down the checklist:

    – Public outrage … No. Distracted and indifferent.

    – Media … ditto.

    – Labour … will oppose feebly, or fall into line, feebly.

    – Maori Party … will be genuinely appalled. And then will fall into line for the baubles, post-election.

    – Lawyers … won’t be happy, but who loves lawyers?

    – ACT … (collapses in fits of laughter).

    Comment by sammy — September 20, 2011 @ 12:07 pm

  11. Yeah, I don’t think Key has made a ‘mistake’ from his point of view here. It’s not a matter of his ignorance being used against him by cunning bureaucrats (that’s just a story to preserve his image as dumb but nice). Key has long, long form of not giving a damn about the rule of law and our constitution.

    Key knows perfectly well that this violates rule of law, he just doesn’t care.

    And it’s a bit naive to think that National has ever regarded the rule of law as one of its principles. National is about the rule of the elite and, throughout its history, it has violated the rule of law to maintain it – 1951 and the Springbok Tour are just two prominent examples.

    Comment by Deano — September 20, 2011 @ 12:19 pm

  12. Dean Knight’s analysis is really useful, thanks toad. Unfortunately retropectively altering some pretty fundamental constitutional rights under urgency really doesn’t seem to matter to the vast majority of voters so Key doesn’t care.

    Comment by garethw — September 20, 2011 @ 12:23 pm

  13. Please can somebody explain further if I am wrong on this issue but isn’t it a procedural correction needed for existing legislation enacted by the last government?
    Personally I am opposed to granting the filth any more powers and would like to see the traffic branch (which seems to be around 90% of them up in my little slice of paradise) given a haircut.
    Goff was sending us to sleep this morning on the electric fishtank but before we nodded off I got the impression that he would support it. Retrospective legislation is more labours bag anyway so he should support it.

    Comment by Barnsley Bill — September 20, 2011 @ 12:25 pm

  14. but isn’t it a procedural correction needed for existing legislation enacted by the last government?

    You are wrong.

    The law has never ever allowed the police to plant video recording devices on private land. The Police have known this for a number of years. Parliament has known this for a number years. There’s currently a bill before the House (the Search and Surveillance Bill) which would give police this power. The advice and evidence to the Select Committee, and the discussion at it traversed the fact the Police simply do not have this power.

    But even though police have known this, they’ve been doing it anyway.

    Comment by Graeme Edgeler — September 20, 2011 @ 12:42 pm

  15. But even though police have known this, they’ve been doing it anyway.

    Presumably so they could then approach the government and then say, ‘you need to make this legal, because otherwise all these ‘guilty’ criminals we’ve caught using illegal means will have to be set free!’

    Comment by danylmc — September 20, 2011 @ 12:47 pm

  16. “Presumably so they could then approach the government and then say, ‘you need to make this legal, because otherwise all these ‘guilty’ criminals we’ve caught using illegal means will have to be set free!’”

    Rather, because when they get into court with the evidence, the court can decide to allow it anyway … which it will, if the offences are serious enough. The problem for the police is that three of the Supreme Court judges have decided to put their feet down and tell the cops “this is NOT LAWFUL and if you do it, you CAN’T USE THE EVIDENCE.”

    Then Greg O’Connor kicks into gear and tells the Government what it has to do in response …

    Comment by Andrew Geddis — September 20, 2011 @ 12:53 pm

  17. SO if the police have ben acting illegally and knowingly so, will that result in a complaint to the PCC and disciplinary action against the officer in charge/a promotion and QSM (delete applicable)

    Key won’t lose changing the law in a rushed way and Labour will only offer token resistance around urgency because most people will look at this and go “it is effing stupid that we can bug phones, cars and bedrooms with listening devices, but not have moving pictures to go with it. Make the law make sense.”

    Comment by insider — September 20, 2011 @ 1:23 pm

  18. I think people have become a little over-excited about all of this. My understanding is that prior to the Supreme Court decision, the Courts had allowed Police to enter on to private land (using a search warrant) and install hidden cameras to collect evidence. This wasn’t expressly authorised under the Summary Offences Act. But it wasn’t prohibited either. Now the Supreme Court has decided that the mere absence of prohibition isn’t enough to make the use of hidden cameras lawful. There must be express statutory authorisation, which only Parliament can provide. The Court has expressly said that this is a problem only Parliament can address.

    So the only real issue here is that the law change will be retrospective – although it won’t affect anyone charged in the Ureweras case. That is not ideal, but bear in mind that the Supreme Court did not say evidence gathered using hidden cameras was always inadmissible – it is still subject to the discretion in the Evidence Act to admit improperly obtained evidence. So really the main problem is that in each case where this sort of evidence was obtained, there would have been an application to exclude the evidence and the Court would have had to consider that, make a ruling etc. Then there would be an appeal. All of which would have cost time and money. And at the end of it a lot of illegal evidence would have been admitted anyway. After all, the Supreme Court found that the conspiracy offences (with a maximum penalty of 5 years in prison) were serious enough to warrant admitting the evidence, even though it had been obtained illegally. Following that reasoning, more serious offences (drugs trials etc with maximum penalties of 14 years or life) would have warranted the admission of illegally obtained evidence almost as a matter of course.

    So yeah – not a good look. But hardly a constitutional outrage either.

    Comment by Nick R — September 20, 2011 @ 1:30 pm

  19. Edit – that should say Summary Proceedings Act…

    Comment by Nick R — September 20, 2011 @ 1:30 pm

  20. But even though police have known this, they’ve been doing it anyway.

    The law may well be an ass, but the police are supposed to uphold it regardless. It’s a bit hard to tell the general public to abide by the law when the enforcers are seen to not do so themselves. Idiots.

    Labour will only offer token resistance around urgency

    Any effort by Labour to stymie National on this will only show them to be hypocrites, given their use of Parliament to side-step a court ruling regarding ownership of the foreshore.

    Comment by Ataahua — September 20, 2011 @ 1:33 pm

  21. Hmm, Nick R’s contribution puts a new light on this…

    Comment by Ataahua — September 20, 2011 @ 1:35 pm

  22. Nick,

    Not quite. A couple of Court of Appeal cases said filming from outside a person’s land/house was OK. But the courts have NEVER said it is OK to go to private land to install a video camera. And the Supreme Court is pretty clear that the Police knew their actions were pretty dodgy, and at the least avoided getting legal advice on them because they didn’t want to be told they couldn’t do it.

    As for “it’s just Parliament fixing a problem Parliament made” … sort of. But what’s the cash value of an independent judiciary that proclaims the law that governs how the Police and others in power must act if, whenever the court says something that those in power think is inconvenient/makes their life harder, the law is changed root and branch to remove that inconvenience? That’s the “constitutional outrage” here … the effective neutering of the courts as any sort of effective check on the exercise of public power.

    Comment by Andrew Geddis — September 20, 2011 @ 1:40 pm

  23. The problem for the police is that three of the Supreme Court judges have decided to put their feet down and tell the cops “this is NOT LAWFUL and if you do it, you CAN’T USE THE EVIDENCE.”

    the judges said that about some of the accused but not all. They have allowed the evidence in 4 cases where they consider the charges to be serious enough. So they’re quite

    Comment by NeilM — September 20, 2011 @ 1:43 pm

  24. Neil,

    True that – 3 of the judges did (while a different combination of 3 said it couldn’t be used against the 13 discharged). Which gives lie to the Government’s claim that without this retrospective law change, a bunch of crims will walk. The courts still have a discretion whether or not to admit evidence unlawfully obtained (ie by video surveillance that breaches the NZ Bill of Rights Act) – and if the affected cases are as serious as the PM and all say they are, the courts will let it in. So the retrospective law change is simply a matter of convenience, taking the discretion out of the hands of the courts.

    The more important point is the Court telling the cops that video surveillance is unlawful (if an “unreasonable search”) … because that means they have to stop such activities immediately. A law change to let them start again (with some constraints on when they can do so) would not be a problem, imho.

    Comment by Andrew Geddis — September 20, 2011 @ 1:51 pm

  25. has evidence acquired in this manner been presented and ruled admissible before?

    Comment by NeilM — September 20, 2011 @ 1:56 pm

  26. SO if the police have ben acting illegally and knowingly so, will that result in a complaint to the PCC and disciplinary action against the officer in charge/a promotion and QSM (delete applicable)

    You’d think that any time a court decides to allow evidence despite it having been obtained illegally (ie Police Broke The Law!), it would at the very least have to be noted by Police and considered in performance reviews and similar records. An OIA request could be interesting if it were phrased well enough.

    Comment by MikeM — September 20, 2011 @ 2:08 pm

  27. Imagine if the Supreme Court had decided that video surveillance was lawful. Whither the Search and Surveillance Bill then, I wonder?

    Comment by Trouble Man — September 20, 2011 @ 2:09 pm

  28. “Which gives lie to the Government’s claim that without this retrospective law change, a bunch of crims will walk. The courts still have a discretion whether or not to admit evidence unlawfully obtained”

    Yes, but the SC has put a fairly arbitrary line on which evidence may be used. The problem here is that Parliament hasn’t had the opportunity to discuss whether the SC line is reasonable.. for instance the police might be able to argue successfully that stopping a minor crime in its tracks now stops a worse crime later on. It seems reasonable to me to carry on with normal policing processes now which have been accepted by the police, public and Parliament for years until a better law is enacted.

    JC

    Comment by JC — September 20, 2011 @ 2:11 pm

  29. it seems the sticking point about surveillance is that it currently has to be authorised via a search warrant> but a search warrant allows for the search of already existing material whereas surveillance of course is set to search for material not yet in existence. its almost être-en-soi vs être-pour-soi

    Comment by NeilM — September 20, 2011 @ 2:19 pm

  30. tries again,

    it seems the sticking point about surveillance is that it currently has to be authorised via a search warrant but a search warrant allows for the search of already existing material whereas surveillance of course is set to search for material not yet in existence. its almost être-en-soi vs être-pour-soi.

    Comment by NeilM — September 20, 2011 @ 2:21 pm

  31. The Act party isn’t whipped, so the MPs can vote in different ways if they want. So National can afford to have one Act MP vote against (or 2 if Peter Dunne supports).

    Comment by BeShakey — September 20, 2011 @ 2:25 pm

  32. Danyl, without some harder evidence/information I’m exceptionally skeptical that this move originated from the ‘bureaucracy’. In my personal experience the officials at the Ministry Justice have a high regard for concepts like the Rule of Law – certainly higher than senior Police management (and arguably some current Ministers) seem to.

    Comment by NBH — September 20, 2011 @ 2:25 pm

  33. As I understand it it will only validate certain material collected as evidence for cases not yet prosecuted.
    It is not the same thing as changing a law and then arresting and presecuting a person. Any person brought to trial will be tried in the normal way and if they have commited crimes will be dealt with as per normal. Evidence collected in the past will be allowed into court once the new amending legislation is passed. No person will be charged till after such legislation is passed. So what is the problem
    There is a lot of noise about the so called “Fruit of the poisoned tree” but as far as I know that particular defence is not part of our legal system. Too much watching American TV I think.

    Comment by Ron Wilson — September 20, 2011 @ 2:27 pm

  34. Andrew – The Government – or Parliament if you prefer – intervenes to overturn Court decisions from time to time. Think foreshore & seabed, for example. That isn’t a consitutional outrage. It is parliamentary sovereignty in action. If you disapprove, the remedy is democratic, rather than legal.

    But I agree the Police have played fast and loose here, and there ought to be some sort of inquiry if they have engaged in conduct that they knew or ought to have known was illegal.

    Comment by Nick R — September 20, 2011 @ 2:45 pm

  35. NeilM – no, the issue isn’t one of warrants. From what I understand, there is no current legal power, with or without a warrant, to install video surveillance equipment on private property. This was identified (I think by the Law Commission, Graeme will correct me if I’m wrong) at least 3 years ago. Obviously, there are at least some situations where it might be desirable for police to be able to do this, so the Search and Surveillance Bill is designed to permit a warrant to be given for this sort of surveillance.

    Nick R – Not to get too far into arcane Rule of Law / Constitutional discussions (or someone will throw a copy of A Theory of Justice at my head), but you’re taking a very narrow (and these days uniquely New Zealand) view of exactly what traditional Westminster constitutional arrangements require. The courts are there for a reason, and to have them effectively neutered in this way every time they do something the executive disagrees with kind of defeats the purpose of an independent judiciary. Even if we go back to Dicey, the arch- Parliamentary sovereigntist, he suggested that when Parliament intended to depart from normal common law constitutional principles, it at the very least owed the citizenry (and the courts) an detailed explanation as to why it was necessary. I don’t think “Greg O’connor says so” is a good reason. It’s also relatively uncontroversial that laws as specifically tailored as the proposed validation law is supposed to be, or those which are retrospective, are constitutionally questionable. That’s not to say that Parliament doesn’t have the power to make such laws, but rather that they shouldn’t without a damn sight better reason than that with which we’ve currently been supplied.

    Comment by Eddie C — September 20, 2011 @ 3:08 pm

  36. “No person will be charged till after such legislation is passed.”

    I fail to see how you got to this understanding. The government has said that this law change is necessary to protect 40 odd cases that are already underway, which would imply that it will affect the court proceedings of some people who have already been charged.

    Comment by wtl — September 20, 2011 @ 3:13 pm

  37. @Nick R

    Foreshore and seabed was a constitutional outrage. So is this.

    Comment by toad — September 20, 2011 @ 3:24 pm

  38. BeShakey: Of course Peter Dunne will support. He’s never seen a piece of crappy legislation he didn’t love.

    Comment by Chris Bull — September 20, 2011 @ 3:33 pm

  39. JC: “The problem here is that Parliament hasn’t had the opportunity to discuss whether the SC line is reasonable.. for instance the police might be able to argue successfully that stopping a minor crime in its tracks now stops a worse crime later on.”

    No. Parliament has had lots of time to put a legal framework in place to permit video surveillance … it just hasn’t done so despite being told that there is no law permitting this (go look at the 2007 Law Commission report on Search & Surveillance). Equally, it is Parliament that has set out the balancing required when deciding whether illegally obtained evidence can be used in court (see the Evidence Act 2006, s.30). So all the Supreme Court has done is apply the law as it stands (given Parliament’s failure to act) and then exercise the judicial discretion authorised by Parliament to say the evidence can’t go in.

    Look – everyone agrees that the cops have been let down by lawmakers here (albeit that the cops have tried to sneak by even though the lawmakers haven’t acted). The question is, how do we respond to that fact? Do we say “catching and punishing crims is the most important issue – and if this means rubber stamping illegal actions by the Police then so be it”, or do we say “the Police must work within the confines of the law, and if that law is shown to be inadequate in some way then letting some guilty people walk free is the price we pay for a system of controlled state power.”

    Oh – and what Eddie C and Toad said, too.

    Comment by Andrew Geddis — September 20, 2011 @ 3:50 pm

  40. “the Police must work within the confines of the law, and if that law is shown to be inadequate in some way then letting some guilty people walk free is the price we pay for a system of controlled state power.”

    I’d go with that one. And it’s also important that Government is seen to respect correct legal process too.

    Some guilty people will always walk free. The police and government should never have a good excuse for ignoring the law.

    Comment by Pete George — September 20, 2011 @ 4:02 pm

  41. “I’d go with that one. And it’s also important that Government is seen to respect correct legal process too.”

    So I take it that UF will NOT be supporting the proposed law change then?

    Comment by wtl — September 20, 2011 @ 4:17 pm

  42. That’s not my call wtl, but I’m allowed to express my current opinion. If I become an MP I’d potentially be able to influence things like this – I’d base my stance on a bit more than a Dim-Post but listening to a range of people “out there” can be very useful.

    Comment by Pete George — September 20, 2011 @ 4:47 pm

  43. Andrew: “the Police must work within the confines of the law”

    Pete: “I’d go with that one.”

    I’d go with that one, too, and also suggest that Police should be properly held accountable for breaking the law, at least in the future if it’s for some reason been murky until now. When the law’s not up-to-scratch in ways that allow criminals to go free, it should be the Parliament that has to take responsibility, not the Police, and we should fix the law as appropriate and within the clear bounds of things like the Bill of Rights Act so everything’s above board, and accept that sometimes laws can’t be designed to catch everyone. As with everyone else in New Zealand, Police should never have to feel pressured to break the law to do their job.

    But maybe that’s just me and isn’t very realistic.

    Comment by MikeM — September 20, 2011 @ 4:58 pm

  44. “Why is Greg O’Connor standing up and saying this and not the Commissioner of Police? If it were that vital shouldn’t the Commissioner be the one arguing for it as he is responsible for the actual operation of the police force? It’s irritating how O’Connor is used by the media and the hierarchy as a proxy for management views on policy.”

    A bit like those unionists who stand up and argue against National Standards, I mean, wtf is that about? If it were that vital, wouldn’t the children’s commissioner be the one, etc? It’s irritating how the NZEI is used by the media, etc?

    So workers want a selection of easy-to-use tools to hand, and hate it when their fav ones are taken away?

    Comment by Clunking Fist — September 21, 2011 @ 2:26 pm


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