Summary Proceedings Amendment Act 2003

Summary Proceedings Amendment Act 2003

Public Act2003 No 110
Date of assent30 October 2003

The Parliament of New Zealand enacts as follows:

1 Title
  • (1) This Act is the Summary Proceedings Amendment Act 2003.

    (2) In this Act, the Summary Proceedings Act 1957 is called the principal Act.

2 Commencement
  • This Act comes into force on the day after the date on which it receives the Royal assent.

3 New section 198B inserted
  • The principal Act is amended by inserting, after section 198A, the following section:

    198B Person with knowledge of computer or computer network to assist access
    • (1) A constable executing a search warrant may require a specified person to provide information or assistance that is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that is on premises named in the warrant.

      (2) A specified person is a person who—

      • (a) is the owner or lessee of the computer, or is in possession or control of the computer, or is an employee of any of the above; and

      • (b) has relevant knowledge of—

        • (i) the computer or a computer network of which the computer forms a part; or

        • (ii) measures applied to protect data held in, or accessible from, the computer.

      (3) A person may not be required under subsection (1) to give any information tending to incriminate the person.

      (4) Subsection (3) does not prevent a constable from requiring a person to provide information that—

      • (a) is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that—

        • (i) is on premises named in the warrant concerned; and

        • (ii) contains or may contain information tending to incriminate the person; but

      • (b) does not itself tend to incriminate the person.

      (5) Subsection (3) does not prevent a constable from requiring a person to provide assistance that is reasonable and necessary to allow the constable to access data held in, or accessible from, a computer that—

      • (a) is on premises named in the warrant concerned; and

      • (b) contains or may contain information tending to incriminate the person.

      (6) Every person commits an offence and is liable on summary conviction to a term of imprisonment not exceeding 3 months or a fine not exceeding $2,000 who fails to assist a constable when requested to do so under subsection (1).

4 New heading and sections 200A to 200P inserted
  • The principal Act is amended by inserting, after section 200, the following heading and sections:

    Tracking devices

    200A Interpretation
    • For the purposes of this section and sections 200B to 200P,—

      authorised officer means a person who is—

      • (a) a member of the police; or

      • (b) a Customs officer within the meaning of the Customs and Excise Act 1996

      parent agency,—

      • (a) in relation to an authorised officer who is a member of the police, means the New Zealand Police; and

      • (b) in relation to an authorised officer who is a Customs officer within the meaning of the Customs and Excise Act 1996, means the New Zealand Customs Service

      tracking device means a device that, when installed in or on a thing, may be used to help ascertain, by electronic or other means, either or both of the following

      • (a) the location of a thing or person:

      • (b) whether a thing has been opened, tampered with, or in some other way dealt with

      tracking device warrant means a warrant under section 200C(1).

    200B Application for tracking device warrant
    • (1) An authorised officer may apply to a High Court Judge or a District Court Judge for a tracking device warrant.

      (2) The application may not be made unless the officer believes—

      • (a) that there are reasonable grounds to suspect that an offence has been, is being, or will be committed; and

      • (b) that information that is relevant to the commission of the offence (whether or not including the whereabouts of any person) can be obtained through the use of a tracking device; and

      • (c) that it is in the public interest to issue a warrant, taking into account the seriousness of the offence, the degree to which privacy or property rights are likely to be intruded upon, the usefulness of the information likely to be obtained, and whether it is reasonably practicable for the information to be obtained in another way.

      (3) The application must be made in writing and on oath and must set out the following particulars:

      • (a) the facts relied on to show that the requirements in subsection (2) are met; and

      • (b) any information that is necessary so that the Judge may assess the degree to which privacy or property rights are likely to be intruded on; and

      • (c) the period for which a warrant is requested; and

      • (d) the name of the parent agency.

    200C Issue of tracking device warrant
    • (1) On an application under section 200B, a High Court Judge or a District Court Judge may issue a warrant under this section if he or she is satisfied that the matters specified in section 200B(2)(a) to (c) are met and may impose any terms and conditions that the Judge sees fit.

      (2) The warrant must be directed to an authorised officer by name or generally to every authorised officer of the parent agency concerned, and must—

      • (a) state the offence or offences in respect of which it is issued; and

      • (b) state a period (not exceeding 60 days) for which it is valid; and

      • (c) state the terms and conditions (if any) subject to which it is issued; and

      • (d) describe or specify the thing in or on which a tracking device may be installed.

      (3) Further tracking device warrants may be issued in respect of the same thing, or in respect of information relevant to the commission of the same offence.

    200D Effect of tracking device warrant
    • (1) A tracking device warrant authorises the authorised officer or officers to whom it is directed—

      • (a) to install, maintain, or remove a tracking device in or on the thing specified; and

      • (b) to monitor the device or have it monitored.

      (2) If it is necessary to do so to install, maintain, remove, or monitor a tracking device, a tracking device warrant authorises one or more authorised officers to do any of the following things at any time, using any necessary force:

      • (a) enter on to any premises specified in the warrant:

      • (b) break open or interfere with any thing:

      • (c) temporarily remove anything from anyplace where it is found and to return the thing to that place.

    200E Expiry of warrant
    • (1) Unless renewed under section 200F, a tracking device warrant expires at the end of the period stated in it.

      (2) If a tracking device remains in place after the expiry of the warrant authorising its installation, the authorised officer concerned must apply to a District Court Judge or a High Court Judge for a warrant under section 200I to remove the device; and the Judge may issue a warrant to remove the device subject to any terms and conditions the Judge sees fit.

      (3) A tracking device that remains in place after the expiry of the warrant authorising its installation must not be monitored; but its remaining in place does not constitute a trespass.

    200F Renewal of warrant
    • (1) Any authorised officer may apply for the renewal of a tracking device warrant that has not expired.

      (2) The application must be made—

      • (a) to a District Court Judge, if the warrant was issued by a District Court Judge; and

      • (b) to a High Court Judge, if the warrant was issued by a High Court Judge.

      (3) The application must be made in writing and on oath.

      (4) A Judge may grant the application and renew the warrant if he or she is satisfied, at the time the application is made, of the matters specified in section 200B(2)(a) to (c).

      (5) The warrant may be renewed under this section for a period of not more than 60 days.

      (6) The period for which the warrant is renewed must be written on the warrant, and (unless renewed again) the warrant expires at the end of that period.

      (7) The warrant may be renewed more than once.

      (8) If (whether initially or on renewal or further renewal) the warrant was directed to an authorised officer by name, the Judge may amend it so that is directed, by name, to some other authorised officer of the parent agency.

    200G Use of tracking device without warrant
    • (1) An authorised officer may install, monitor, and maintain a tracking device in or on any thing if—

      • (a) it is not in all the circumstances reasonably practicable to obtain a tracking device warrant; and

      • (b) the officer believes on reasonable grounds that a Judge would issue a tracking device warrant if time permitted.

      (2) The officer may remove the tracking device within 72 hours of its installation.

      (3) If it is necessary to do so to install, monitor, maintain, or remove the device, the officer concerned may at any time do any of the following things, using any necessary force:

      • (a) enter any premises:

      • (b) break open or interfere with any thing:

      • (c) temporarily remove anything from anyplace where it is found and return the thing to that place.

      (4) A tracking device installed under subsection (1) that remains in place more than 72 hours after being installed must not be monitored; but its remaining in place does not constitute a trespass.

      (5) Subsection (4) does not prevent the monitoring (or the maintenance or removal) of a tracking device if a tracking device warrant for it is in force.

      (6) Unless the device has already been removed, the officer must within 72 hours of installing it—

      • (a) apply for a tracking device warrant for it; or

      • (b) apply to a Judge for a warrant under section 200I to remove it; or

      • (c) if the officer wants to leave it in place without monitoring it, apply to a Judge for directions.

      (7) Within 72 hours of being refused a tracking device warrant, the officer must either—

      • (a) apply to a Judge for a warrant under section 200I to remove the device; or

      • (b) if the officer wants to leave the device in place without monitoring it, apply to a Judge for directions.

      (8) An authorised officer who acts in the exercise or intended exercise of a power conferred by this section is not under any civil or criminal liability in respect of the officer's actions (whether on the ground of lack of jurisdiction or mistake of law or fact, or on any other ground) unless the officer acts in bad faith or without reasonable care.

    200H Reports
    • (1) There must be lodged with every application under paragraph (b) or paragraph (c) of section 200G(6) or under section 200G(7) a written report on the installation of the tracking device concerned, and the circumstances in which it came to be installed.

      (2) If a tracking device installed under section 200G is removed within 72 hours of being installed, an authorised officer of the parent agency concerned must lodge in a District Court or the High Court a written report on its installation, and the circumstances in which it came to be installed.

      (3) The Registrar of a court in which a report under subsection (1) or subsection (2) is lodged must promptly bring it to the notice of a Judge of the court.

      (4) If the Judge considers that the circumstances warrant it, the Judge may refer a copy of the report to the chief executive of the parent agency of the authorised officer who installed the device, with any recommendations the Judge thinks fit.

      (5) The Judge may also refer a copy of the report to the Minister for the time being responsible for the agency.

    200I Warrant for removal of tracking device
    • (1) A District Court Judge or High Court Judge may issue a warrant for the removal of a tracking device, subject to any terms and conditions the Judge sees fit.

      (2) A warrant under this section must be directed to an authorised officer by name or generally to every authorised officer of the parent agency concerned.

      (3) A warrant under this section authorises the authorised officer or officers to whom it is directed to remove the tracking device concerned and, in so doing, to do any of the following at any time if necessary, using any necessary force:

      • (a) enter any premises specified in the warrant:

      • (b) break open or interfere with any thing:

      • (c) temporarily remove any thing from any place where it is found and to return the thing to that place.

      (4) A warrant under this section expires on the earlier of the following:

      • (a) the date 30 days after the day on which it is issued:

      • (b) a date specified when it is issued by the Judge who issues it.

    200J Agencies to give information to Parliament
    • The Commissioner of Police and the chief executive of the New Zealand Customs Service must include in every annual report relating to that agency that is required by statute to be prepared by that chief executive the following information in respect of the period under review:

      • (a) the number of warrants issued under section 200C; and

      • (b) the number of renewals of warrants granted under section 200C; and

      • (c) the average duration of warrants (including renewals); and

      • (d) the number of times a tracking device was used without a warrant under section 200G; and

      • (e) the number of warrants under section 200I issued; and

      • (f) the number of times a Judge gave authority for a tracking device to remain in place.

    200K Security of applications for tracking device warrants
    • (1) As soon as a Judge has determined an application for a tracking device warrant, the Registrar of the court concerned must—

      • (a) place all documents relating to the application (except any warrant issued) in a packet; and

      • (b) seal the packet; and

      • (c) keep the packet in safe custody.

      (2) Subsection (1)(c) is subject to sections 200L to 200P.

    200L Restriction on production of documents relating to application
    • (1) No party to any proceedings is entitled to demand the production of any documents held in safe custody under section 200K.

      (2) Subsection (1)—

      • (a) is subject to sections 200M to 200P; but

      • (b) otherwise overrides any enactment or rule of law or any rules of court entitling a party to any proceedings to demand the production of any documents.

    200M Application for production of documents
    • (1) A party to proceedings who requires the production of a document held in safe custody under section 200K(1) may apply in writing to the Registrar who holds the document for its production.

      (2) Promptly after receiving the application, the Registrar must give written notice of it to—

      • (a) the senior police officer in the district, if the document is or relates to an application for a tracking device warrant sought by a member of the police; or

      • (b) the senior Customs officer in the district, if the document is or relates to an application for a tracking device warrant sought by a Customs officer.

      (3) If within 3 days after the notice was given the officer gives the Registrar written notice that he or she opposes the production of the document, the Registrar must refer the application to a Judge of the court concerned.

      (4) The Registrar must produce the document to the applicant if—

      • (a) the officer does not within 3 days after the notice was given give the Registrar written notice that he or she opposes the production of the document; and

      • (b) but for section 200K(1), the applicant would be entitled to demand the production of the document.

    200N Request for production made in course of proceedings
    • (1) A District Court Judge or a Judge of the High Court must adjudicate on an opposed request, made in the course of proceedings presided over by the Judge, for the production of a document held in safe custody under section 200K(1) as if it were an application referred under section 200M(3); and section 200O applies accordingly with any necessary modifications.

      (2) If, in the course of any other proceedings, an opposed request for the production of a document held in safe custody under section 200K(1) is made, the presiding judicial officer must promptly refer the matter to a Judge for adjudication under section 200O.

      (3) The Judge to whom the matter must be referred is—

      • (a) a District Court Judge if the document relates to a tracking device warrant issued by a District Court Judge; or

      • (b) a Judge of the High Court if the document relates to a tracking device warrant issued by a Judge of the High Court.

    200O Application referred to Judge
    • (1) An application for the production of a document held in safe custody under section 200K that is referred to a Judge under section 200M(3) or section 200N(2) must be dealt with in accordance with this section.

      (2) The applicant and the officer opposing production must be given an opportunity to be heard.

      (3) The Judge may order that all or a specified part of the document must not be produced if (and only if) the Judge—

      • (a) is satisfied that information in the document identifies, or is likely to lead to the identification of,—

        • (i) a person who gave information to the police, or to the New Zealand Customs Service; or

        • (ii) a member of the police, or any Customs officer, whose identity was concealed for the purpose of any relevant investigation and has not later been revealed; and

      • (b) the Judge believes it in the public interest to do so.

      (4) Subject to any order under subsection (3), the Judge must order the production of the document to the applicant if, but for section 200K(1), the applicant would be entitled to demand the production of the document.

    200P Judges entitled to inspect relevant documents
    • A Judge presiding over proceedings in which the issue of a tracking device warrant is in issue may inspect any relevant document held under section 200K(1).


Legislative history

21 October 2003Divided from Counter-Terrorism Bill (Bill 27-2), third reading