Just before his death former Governor General Sir Paul Reeves spoke about the Rule of Law. He said that for an important concept, it was a fragile thing. The Government’s actions over the past week have vindicated Sir Paul. The Rule of Law is inherently fragile, and it is up to us to protect it.
On 2 September the Supreme Court announced their decision in Hamed v R. Appearing before the Court were members of the Tuhoe ‘terrorist’ cells that had been training in the Ureweras. They had been arrested and charged with firearms offences after earlier charges of terrorist activity under the Terrorism Suppression Act had been dropped.
At issue was whether secretly filmed evidence by the police was admissible. It is a fundamental rule of our criminal justice system that the evidence used to convict someone has to be properly obtained. The police cannot obtain evidence contrary to law. For the public to have any confidence in the performance of the police, evidence must be gathered properly.
In Hamed the appellants claimed that the video evidence used against them was obtained by the police illegally as their search warrants did not give them the power to covertly film the group’s actions. The Supreme Court’s decision is lengthy, and true to form every Judge had their own drum to beat. However the result was that at least in relation to the more minor offences, the police had acted unlawfully. As a consequence the evidence could not be admitted at trial.
Up to this point the Rule of Law was clearly being followed. The Police, as agents of the Crown, had acted outside of the legal authority that Parliament had given them, and the Courts had rightly slapped them down. This was the Rule of Law in action, performing as a check on the unfettered power of the State.
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However, it was what the Government did next that raised the hackles of many. The result of the case threw doubt on similar video evidence being used in other trials. Embarrassingly, even though the police knew what they were doing was illegal, they had done it anyway. Many cases (most probably serious drugs trials) relied on illegal evidence. The Crown needed a solution, and fast.
On 27 September the Government introduced the Video Camera Surveillance (Temporary Measures) Bill and announced that it would be passed under urgency. It’s often said that “haste is the enemy of good law making “, and this time it was certainly true. The bill was a constitutional travesty. There were many problems—as academics Dean Knight from Victoria and Andrew Geddis from Otago quickly pointed out—but the biggest outrage was the bill’s attempt to retrospectively validate the actions of the police.
It is a fundamental feature of the Rule of Law that the Government should never reach back in time and punish us for things that were not originally illegal. What the bill was attempting to do was a variant of this. By reaching back in time and approving of police conduct that was not originally lawful, the Government was acting contrary to the Rule of Law. They were also handing the police a free pass, trampling on the rights of defendants in the process.
However, the Government was not expecting what was to happen over the next three days. Every political party (except National) panned the bill, demanding that it go to Select Committee. Realising they didn’t have the numbers, National relented. In the space of 24 hours, the Select Committee received over 438 submissions on the bill. All of them, bar one, were opposed. Interestingly, many submissions came from law students, aghast at the Government’s attempt to change the law so arrogantly. As a consequence of these submissions and changes suggested by the Labour Party, the bill was significantly watered down and no longer breaches the Rule of Law as egregiously.
The controversy over the Video Camera Surveillance (Temporary Measures) Bill tells us something interesting. On the one hand it demonstrates the danger of government when it does not abide by our fundamental constitutional principles. But on the other it also demonstrates the strength of our political constitution. New Zealand’s constitution is unwritten; this means it is flexible but it is also more delicate. Checks on the power of government rely on the constant activism of impassioned individuals.
This is my last week at law school after nearly six years of study. In all honesty I leave with a heavy heart. But I go buoyed by the fact that as this Bill demonstrates, law school is a place that creates citizens who care deeply about their constitution, their government and their country. And in a society where the Rule of Law is so fragile, I can’t think of anything more valuable.