Mai Chen: Urewera case five reasons to worry

Police evidence against the Urewera accused was obtained unlawfully and could not be used by the prosecution. Photo / Alan Gibson

The Supreme Court decision on the inadmissibility of covert surveillance evidence that was unlawfully obtained by police concerning 11 of the Urewera accused, and the Government's announcement that it would legislate in response, are examples of extraordinary constitutional and rule-of-law issues being made ordinary.

Ultimately, New Zealanders need confidence that the general constitutional principle that public authorities may do only what they are authorised to do by some rule of law or statute (as opposed to citizens, who may do whatever is not prohibited) will continue to apply. Citizens also want to have confidence that the law won't be changed retrospectively so that those who would previously have been acquitted are now convicted.

The Urewera case is controversial because it puts a finger on where the state's relationship with citizens is characterised most accurately as David versus Goliath - Parliament's supremacy in lawmaking, which can even override court judgments, and the right to be free from unreasonable search and seizure under section 21 of the Bill of Rights Act, or any of the rights in that act.

In the Government's defence, its actions are consistent with the constitutional convention of comity between the judicial and legislative branches of government. As Chief Justice Sian Elias said in the Urewera judgment: "It can readily be accepted that the police need legal powers to investigate apparently serious criminal offending and that such powers may include powers of surveillance. The courts cannot remedy the deficiency through approval of police action taken in the absence of lawful authority without destruction of important values in the legal system, to the detriment of the freedoms guaranteed to all."

Only Parliament can legislate and that is what the Government is proposing to do.

The Government is also permitting the Urewera accused - against whom charges have been dropped - to keep the fruits of their victory, consistent with the constitutional convention that Parliament should not usurp the role of the courts and decide the guilt or innocence of individual citizens.

There are, however, five key factors which make this a hard case.

First, the details given about the Government's proposed law change may result in the conviction of defendants who should be acquitted because the evidence against them was otherwise unlawfully obtained.

This breaches the doctrine of the rule of law because Parliament is effectively going back in time and freezing the law as it was before the Supreme Court judgment came out. This changes the rules after the fact, mitigated only by the promise of a one-year sunset clause on the legislation.

Second, the Government's proposed change to the law will retrospectively validate illegal conduct by the police. The court found the breach of section 21 in the collection of that evidence was so serious (the police were either reckless as to whether their actions were lawful or they carried out covert surveillance knowing it was unlawful) that the evidence could not be used to prosecute 11 of the accused. This is despite section 30 of the Evidence Act, allowing improperly obtained evidence to be relied on in criminal proceedings when a quite low threshold is met.

Third, the Government's intended response is now to be enacted during the last two sitting weeks of Parliament, under urgency, which is unlikely to allow any public input.

Fourth, the unlawful conduct breached fundamental rights and freedoms in the Bill of Rights, characterised by the Chief Justice as "security against unreasonable intrusion by state agencies into the personal space within which freedom to be private is recognised as an aspect of human dignity".

But New Zealand has no supreme law saying that Parliament cannot pass laws inconsistent with the Bill of Rights Act, which is only ordinary legislation. Thus, the only sanction for the current Government in this instance is political.

Finally, it is difficult to argue that this issue has crept up on the Government. Concerns about covert surveillance were raised in cases and by the Law Commission in 2007. The Search and Surveillance Bill includes provision for warrants but the bill has spent years on Parliament's Order Paper and still awaits a second reading.

No one wants to let criminal offenders get off scot free, but if the Government passed prospective, rather than retrospective, legislation concerning the Supreme Court decision, this would preserve the fundamental constitutional principle that we are all ruled by law (including the police) and we should know what the law and its consequences are before we act.