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Christopher Finlayson

27 September, 2011

Labour SOP demonstrates dangers of legislative field surgery

“Charles Chauvel's draft SOP for the Video Camera Surveillance (Temporary Measures) Bill demonstrates the danger of taking parts of draft legislation out of the context in which they were drafted,” Attorney-General Christopher Finlayson says.

“Mr Chauvel has, apparently inadvertently, drafted his SOP using large sections of the Search and Surveillance Bill as introduced to Parliament, rather than as reported back from Select Committee last year," Mr Finlayson said. "This has created some serious problems in what he proposes.”

A number of problems are evident in the SOP posted by Mr Chauvel on the Labour Party blogsite:

• Mr Chauvel's clause 7(1) refers to a period not exceeding 72 hours. But this was in the Search and Surveillance Bill as introduced, not as reported back. The Select Committee altered it to 48 hours, to reduce the period of time a surveillance device is first used without obtaining a surveillance device warrant. This increases surveillance powers, something Mr Chauvel previous expressed concern about.

• Mr Chauvel's clause 8(3)(a) uses the wording of the Search and Surveillance Bill as introduced, not as reported back. He would require a residual warrant be disclosed, even though the Select Committee ruled this out.

• Mr Chauvel's clause 11 is completely deficient. He uses clause 50 of the Bill as originally drafted, leaving out important additions made by the Select Committee, particularly section 42AA dealing with restrictions on some trespass surveillance and use of interception devices.

“The Government has been advised there is a high risk of substantive and drafting errors in taking a regime out of its context in the Search and Surveillance Bill and inserting it into the Video Camera Surveillance (Temporary Measures) Bill,” Mr Finlayson said. “Mr Chauvel's effort illustrates this point.”

"Mr Chauvel has promoted his SOP as something which incorporates the results of select committee scrutiny. It does not. Instead, Mr Chauvel ignores the extensive public consultation undertaken on the bill. Mr Chauvel's SOP illustrates the difficulty of transplanting discrete parts of a bill into another legislative form.”

  • Christopher Finlayson
  • Attorney-General