Search and Surveillance Powers Bill

  • discharged on 02 July 2009

Explanatory note

General policy statement

The Search and Surveillance Powers Bill implements the Government’s decisions on the legislative reform of search and surveillance powers. These decisions were largely based on the Law Commission’s report, Search and Surveillance Powers (NZLC 97).

Core police search powers are contained in statutes that are up to 50 years old. The law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non-police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. In particular—

  • there are inconsistencies in the way search powers are framed and how they may be exercised; and

  • legislation does not always meet law enforcement needs or adequately provide protections to those who may be subject to search; and

  • there is uncertainty as to the nature or extent of some existing search powers and procedures.

The Bill will reform the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights.

The law has also failed to keep pace with technology. Criminals have increasingly been able to use computers and other electronic devices to commit or facilitate illegal activity. The Bill provides for the appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity.

In addition the Law Commission’s report noted that judicial dissatisfaction has been expressed with aspects of the status quo, particularly the quality of applications for search warrants. The Bill addresses that concern by, amongst other things, providing for the training of issuing officers who issue search warrants, prescribing forms for warrant applications, and imposing reporting requirements.

Overall, the Bill will provide a much needed reform of the law on search and surveillance in New Zealand.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause and provides that the Bill comes into force on 1 July 2010.

Part 1
General provisions

Clause 3 is the interpretation clause.

Clause 4 states that the Act binds the Crown.

Part 2
Police powers

Subpart 1Rules about internal searches and search warrant powers in relation to places, vehicles, and other things

Clause 5 states a general prohibition on internal searches of people's bodies, with exceptions related to searching the mouth of a person who consents to that search, and to some Misuse of Drugs Act 1975 offences. Clause 5 corresponds to the current section 18A(1) and (5) of the Misuse of Drugs Act 1975.

Clause 6 sets out the grounds on which an issuing officer may issue a search warrant, on application by a member of the police, in relation to a place, vehicle, or other thing.

Subpart 2Warrantless powers to enter, search, and seize when effecting arrest

Clause 7 authorises a member of the police to enter a place or vehicle without a warrant in some circumstances in which a person is unlawfully at large (as defined in clause 3).

Clause 8 authorises a member of the police, in certain circumstances set out in clause 8, to enter a place or vehicle without a warrant and to arrest a person suspected of having committed an offence punishable by imprisonment.

Stopping vehicle without warrant to effect arrest

Clause 9 sets out the circumstances in which a member of the police may stop a vehicle to arrest a person.

Clause 10 specifies the powers and duties of a member of the police when exercising the stopping power under clause 10.

Subpart 3Warrantless searches of people locked up in police custody

Clause 11 sets out the rules for searching people locked up in police custody.

Clause 12 provides for searchers to be employed to conduct searches under clause 11.

Clause 13 provides for the return of property taken by a search under clause 11.

Subpart 4Warrantless powers of entry in urgent circumstances

Clause 14 allows a member of the police to enter a place or vehicle without a warrant in some situations of urgency and to take preventative action.

Subpart 5Warrantless powers in relation to evidence of serious offending

Clause 15 authorises a member of the police to enter a place or vehicle in circumstances, set out in clause 15, that require the securing of evidential material relating to serious offences.

Clause 16 authorises a member of the police to search a person in a public place in relation to evidence of serious offences.

Clause 17 provides a power similar to that of clause 16 in relation to searching vehicles in public places.

Subpart 6Warrantless powers in relation to arms offences

Clause 18 provides for warrantless searches associated with arms (as defined in clause 3).

Subpart 7Police powers in relation to Misuse of Drugs Act 1975 offences

Clauses 19 to 23 relate to searches in the context of offences against the Misuse of Drugs Act 1975.

Clause 19 permits warrantless searches of places and vehicles in specified circumstances relating to controlled drugs, precursor substances, and Misuse of Drugs Act 1975 offences.

Clause 20 allows a member of the police to search a person found in or on a place or vehicle that is being searched under clause 19.

Clause 21 allows a member of the police to search a person and seize controlled drugs and precursor substances found during the search, in specified circumstances relating to controlled drugs, precursor substances, and Misuse of Drugs Act 1975 offences.

Clause 22 sets out the requirements for internal searches of a person's body by a medical practitioner in specific situations relating to Misuse of Drugs Act 1975 offences.

Clause 23 describes the possible effects on bail applications by a person who refuses to undergo a search under clause 25.

Subpart 8Warrantless powers in relation to offences against section 202A of Crimes Act 1961

Clause 24 provides the meanings of disabling substance and offensive weapon for the purposes of subpart 8.

Clause 25 authorises a member of the police to stop and search a person in specified circumstances relating to knives, offensive weapons, and disabling substances, and to seize the knives, weapons, and substances.

Clause 26 authorises a member of the police to stop, search, and detain a vehicle in specified circumstances relating to knives, offensive weapons, and disabling substances, and to seize the knives, weapons, and substances.

Subpart 9Warrantless search of vehicle for stolen property

Clause 27 authorises searching a vehicle for stolen property.

Subpart 10Other powers related to search of vehicles

Stopping vehicles with or without warrant for purposes of search

Clause 28 sets out the meaning of a statutory search power for the purposes of clause 28. Clause 28 also sets out how and in what circumstances a member of the police may exercise a statutory search power to stop a vehicle to search it.

Warrantless powers relating to road blocks and road closures

Clause 29 sets out how and in what circumstances a senior member of the police (as defined in clause 3) may authorise a road block in order to arrest a person.

Clause 30 specifies the duration of an authorisation under clause 29, and requires written records of the road block to be kept.

Clause 31 sets out what any member of the police may do when a road block is authorised under clause 29.

Clause 32 authorises a senior member of the police (as defined in clause 3) to close a road temporarily in certain circumstances.

Subpart 11Examination orders

Examination orders in business contexts

Clause 33 provides that the Commissioner may apply to a Judge for an examination order in a business context, and sets out the application's requirements.

Clause 34 sets out the conditions for making an examination order in a business context against a person.

Examination orders in contexts other than those of business

Clause 35 provides that the Commissioner or his or her delegate may apply to a Judge for an examination order in a non-business context, and sets out the application's requirements.

Clause 36 sets out the conditions of making an examination order in a non-business context.

Other provisions that apply to examination order applications

Clause 37 sets out other provisions relating to search warrant applications that apply, with modifications, to applications for examination orders.

Making examination orders and contents of examination orders

Clause 38 permits a Judge to make an examination order against a person in a business or non-business context, and specifies the matters on which the Judge must be satisfied before making the order.

Clause 39 specifies the form and content of an examination order.

Other provisions relating to examination orders

Clause 40 requires that a person against whom an examination order is made must be given a reasonable opportunity to be accompanied by a lawyer when appearing before the Commissioner or his or her delegate.

Clause 41 provides that an examination order remains in force for a period specified in the order, but of no more than 30 days after the date on which the order is made.

Clause 42 sets out other provisions relating to search warrants that apply, with modifications, to examination orders.

Subpart 12Other matters

Clause 43 preserves the common law defence of necessity as it applies to people other than members of the police.

Part 3
Enforcement officers' powers and orders

Subpart 1Surveillance device warrants and residual warrants

Clause 44 sets out various circumstances in which an enforcement officer (as defined in clause 3) does not require a warrant to undertake certain activities.

Clause 45 sets out further situations of urgency or emergency, when the duration of the surveillance is to be no longer than 72 hours, in which a surveillance device warrant is not needed.

Clause 46 sets out situations in which an enforcement officer must obtain a surveillance device warrant.

Application for surveillance device warrant

Clause 47 states the particulars that an application for a surveillance device warrant must contain.

Clause 48 specifies the conditions for issuing a surveillance device warrant.

Clause 49 lists provisions (relating to verification and mode of application, and to retention of documents) that apply to search warrants that also apply, with some modifications, to applications for surveillance device warrants.

Issuing of surveillance device warrant

Clause 50 stipulates who may issue a surveillance device warrant, and in what conditions he or she may issue it.

Clause 51 restricts the issue of surveillance device warrants that would impinge on certain lawyer-client communications to which legal professional privilege normally applies.

Clause 52 specifies the form and contents of a surveillance device warrant.

Carrying out activities authorised by surveillance device warrants

Clause 53 specifies who may carry out the activities authorised by a surveillance device warrant.

Other provisions applying to surveillance device warrants

Clause 54 lists provisions (relating to transmission of warrants and when they are invalid) that apply to search warrants that also apply, with some modifications, to surveillance device warrants.

Surveillance device warrant reports

Clause 55 sets out reporting requirements in relation to surveillance device warrants by those who carry out activities authorised by the warrants.

Clause 56 sets out reporting requirements in relation to the use of surveillance devices under clause 45 in situations of urgency or emergency.

Clause 57 details the possible actions a Judge may take on receipt of a report under clause 55.

Clause 58 details the possible actions a Judge may take on receipt of a report under clause 56.

Residual warrants

Clause 59 sets out the circumstances in which a law enforcement agency must obtain a residual warrant.

Application for residual warrant

Clause 60 states the particulars that an application for a residual warrant must contain.

Clause 61 specifies the conditions for issuing a residual warrant.

Clause 62 lists provisions (relating to verification and mode of application, and to retention of documents) that apply to search warrants that also apply, with some modifications, to applications for residual warrants.

Issuing of residual warrants

Clause 63 stipulates who may issue a residual warrant, and in what conditions he or she may issue it.

Clause 64 restricts the issue of residual warrants that would impinge on certain lawyer-client communications to which legal professional privilege normally applies.

Clause 65 specifies the form and content of a residual warrant.

Carrying out activities authorised by residual warrants

Clause 66 specifies who may carry out the activities authorised by a residual warrant.

Other provisions that apply to residual warrants

Clause 67 lists provisions (relating to transmission of warrants and when they are invalid) that apply to search warrants that also apply, with some modifications, to residual warrants.

Residual warrant reports

Clause 68 sets out reporting requirements in relation to residual warrants by those who carry out activities authorised by the warrants.

Clause 69 details the possible actions a Judge may take on receipt of a report under clause 68.

Subpart 2Production and monitoring orders

Clause 70 is the interpretation provision for subpart 2 of Part 3.

Clause 71 provides that an enforcement officer who may apply for a search warrant to obtain documents may apply to an issuing officer (as defined in clause 3) for a production order and sets out the application's requirements.

Clause 72 sets out the conditions for making a production order.

Clause 73 list provisions (relating to verification and mode of application, and to retention of documents) that apply to search warrants that also apply, with some modifications, to a production order.

Clause 74 sets out the conditions under which an issuing officer may make a production order.

Clause 75 specifies the form and content of a production order.

Clause 76 provides that a production order remain in force for a period specified in the order, but of no more than 30 days after the date on which the order is made.

Clause 77 lists some provisions that apply to search warrants that also apply, with some modification, to production orders.

Clause 78 enables the enforcement officer who applied for the production order to do various things in relation to a document produced in compliance with a production order.

Subpart 3Police and customs officer powers in relation to delivery under section 12 of Misuse of Drugs Amendment Act 1978

Clause 79 provides that Part 4 provisions apply to searches conducted under subpart 3 of Part 3.

Clause 80 relates the meanings of terms used in the subpart to their meanings in the Customs and Excise Act 1996.

Clause 81 sets out circumstances, relating to deliveries under section 12 of the Misuse of Drugs Amendment Act 1978, and to offences under the Misuse of Drugs Act 1975, when a member of the police or customs officer may search a person, detain him or her, enter and search places, craft, and vehicles, and seize things.

Subpart 4Warrantless powers of entry and search incidental to arrest or detention

Clause 82 applies subpart 4 to any person who has a statutory power of arrest or detention.

Clause 83 authorises a person to whom subpart 4 applies to enter a place and search it, in specified circumstances, on arrest by that person of another person.

Clause 84 enables a person to whom subpart 4 applies who has arrested a person to search a vehicle for evidential material in relation to the offence for which that person was arrested.

Clauses 85 to 87 authorise a person to whom subpart 4 applies to carry out, in certain circumstances, a rub-down search of a person who is arrested or detained pursuant to a statutory power of detention, and specify the parameters of a rub-down search.

Clause 88 authorises the search of a person by a person to whom subpart 4 applies, in specified circumstances.

Part 4
General provisions in relation to search and inspection powers

Subpart 1Application of rules and consent searches

Clause 89 enables a duty imposed on an enforcement officer by Part 4 to be carried out by another enforcement officer employed by or engaged by the law enforcement agency. This is to ensure flexibility in the conduct of searching that involves considerable material or extends over a lengthy period. Clause 89 also provides for the transfer of obligations under this Part where a thing that is seized or produced is transferred from one law enforcement agency to another, for the purposes of investigation or prosecution.

Clause 90 sets out rules of application concerning clauses 91 to 94 (which relates to consent searches).

Clause 91 sets out the purposes for which a consent search may be undertaken.

Clause 92 requires an enforcement officer to determine that a consent search is for a purpose authorised by clause 91 before undertaking a consent search. Clause 91 also requires an enforcement officer to advise a person from whom consent is sought of the reason for the proposed search, and that the person may either consent or refuse to consent to the search.

Clause 93 provides that non-compliance with the requirements of clauses 91 and 92 makes the search unlawful.

Clause 94 provides that, with one exception, a person under 14 years of age is unable to consent to the search of a place, vehicle, or other thing.

Clause 95 provides that clauses 91 to 94 do not—

  • apply to a search conducted as a condition of entry to any public or private place; or

  • apply to a search conducted in accordance with a power conferred by an enactment; or

  • affect the rule of law relating to the implied licence to enter property.

Subpart 2Search warrants

Clause 96 is an application clause which explains when clauses 97 to 101 apply.

Clause 97 defines the term applicant for the purposes of this subpart.

Clause 98 describes the particulars that must be included in an application for a search warrant. Clause 98(2) enables an issuing officer (a person entitled to issue a search warrant) to require an applicant to supply further information concerning the grounds on which the search warrant is sought, but limits the nature of information that may be sought about an informant. Clause 98 also requires applicants to disclose information about certain previous applications for a search warrant in relation to the place, vehicle, or other thing proposed to be searched, and to make reasonable inquiries for that purpose.

Clause 99 requires an application for a search warrant to contain or be accompanied by a statement by the applicant confirming the truth and accuracy of the contents of the application.

Clause 100 sets out rules governing the mode of application for a search warrant. In general an applicant must make a written application and appear in person before, or communicate orally with, an issuing officer. In certain circumstances an issuing officer may allow an application for a search warrant to be made without the need for an application in writing. An issuing officer may dispense with the need for either a personal appearance or an oral communication in some circumstances. If the issuing officer dispenses with the need for a written application, or the need for either a personal appearance by the applicant or any oral communication, the issuing officer must record the grounds for the application as soon as practicable.

Clause 101 requires documents relating to search warrant applications and related documents to be kept until the completion of any proceedings in respect of which the validity of the warrant may be in issue and in any other case for a period of 2 years.

Issuing of search warrant

Clause 102 substantially limits the ability to issue a warrant to seize any thing held by a lawyer and also corresponds to some of the criteria in section 67(1) of the Evidence Act 2008.

Clause 103 sets out rules about the form of search warrants, to whom they may be directed and executed, the conditions that may be imposed by an issuing officer, and the particulars that must be included in the warrant.

Clause 104 enables an issuing officer to require the provision of a search warrant report to the issuing officer within a specified period. A search warrant report must indicate whether the warrant was executed, whether the execution resulted in the seizure of evidential material, and if so, certain details about that material, together with information about the exercise of other powers in conjunction with the execution of the warrant and information about resulting criminal proceedings.

Clause 105 facilitates the use of facsimile or electronic copies of search warrants and enables the use of a copy made at the direction of the issuing officer.

Clause 106 defines when execution of a warrant is taken to have occurred.

Clause 107 specifies when a search warrant is invalid.

Clause 108 relates to the appointment of an issuing officer. A Judge is an issuing officer. Any Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar, or other person may also be appointed as an issuing officer, for a term not exceeding 3 years. Such a person may not be appointed as an issuing officer unless he or she has sufficient knowledge, skill, and experience to act as an issuing officer.

Subpart 3Carrying out inspection and search powers

Clause 109 defines the term search power for the purposes of subpart 3. In general terms those provisions will apply in respect of every search warrant issued under the Bill (once enacted) or any provision listed in the Schedule and every power conferred by the Bill (once enacted) or any provision listed in the Schedule to enter and search (without warrant) any place, vehicle, or other thing.

Clause 110 specifies the things that may be done by a person exercising a search power.

Clause 111 enables a person exercising a search power to seize an item of uncertain status and remove it to another location to determine whether it may lawfully be seized.

Clause 112 sets out the powers of persons called on to assist a person exercising a search power and sets out duties of persons in relation to control of any person being used as an assistant.

Giving directions

Clause 113 provides that the powers conferred by clauses 110 to 112 are subject to—

  • conditions imposed by an issuing officer who issues a search warrant; and

  • subpart 4 of this Part (which relates to privilege and confidentiality).

Clause 114 enables a person carrying out a search to secure the place, vehicle, or other thing being searched, and in certain circumstances, exclude other persons from the scene of the search or give them reasonable directions.

Establishing search scene

Clause 115 enables the exercise of special powers (in particular the entry and securing of a place, vehicle, or other thing and any related items) while an application for a search warrant is pending.

Detention of person at search scene

Clause 116 sets out powers of detention that may be exercised when a person exercises a power to search a place or vehicle.

Powers of search incidental to power of arrest

Clause 117 describes powers to search the person that may be exercised while a person with a power to arrest is searching a place or vehicle.

Clause 118 describes powers to search a suspect when that suspect is pursued by a person with a power of arrest who was, or was intending to, conduct a search of a person or vehicle.

Moving vehicle for safekeeping and other purposes

Clause 119 confers powers on law enforcement officers to move a vehicle to another place for the purposes of search, safekeeping, or road safety.

Seizure of items in plain view

Clause 120 enables the seizure of evidential material in plain view.

Search of persons

Clause 121 sets out special rules governing the search of a person, including identification, the advice to be given, the period of any detention, and the use of force and equipment in conducting the search.

Clause 122 requires law enforcment agencies that employ persons with the power of search to issue guidelines to those persons about the use of strip searching.

Search warrants to enter and search vehicles

Clause 123 enables a person executing a search warrant authorising the entry and search of a vehicle to enter any place where the person has reasonable grounds to believe the vehicle is.

Provision of particulars and other information

Clause 124 confers power on a person exercising a power to stop or search a vehicle, to require the person in the vehicle to supply particulars, and to require the vehicle to remain stopped for as long as is reasonably necessary to undertake the search.

Clause 125 requires a person who stops a vehicle to identify himself or herself to the driver, inform the driver of his or her authority to stop the vehicle, and if not in uniform produce evidence of his or her identity on request.

Computer searches

Clause 126 sets out the circumstances in which persons with knowledge of a computer, computer network, or other data storage devices may be required to assist persons exercising a search power.

Identification and notice

Clause 127 sets out identification and notice requirements for a person exercising a search power.

Clause 128 requires the provision of an inventory of items seized, and a copy of the authority for the search and seizure, to the occupier of the place, or the person in charge of the vehicle or other place, from where the seizure took place.

Clause 129 enables compliance with certain requirements in clauses 127 and 128 to be deferred on the order of a District Court Judge.

Clause 130 enables the further postponement of, or dispensation from, the obligation to comply with those provisions

Subpart 4Privilege and confidentiality

General

Clause 131 recognises, for the purposes of this subpart, privileges described or acknowledged under sections 53(5), 54, 56, 57, 58, 59, 60, 64, and 68 of the Evidence Act 2006. There is an exception for communications made or information received or compiled or prepared for a dishonest purpose or to enable the planning of offences corresponding to some criteria in section 67(1) of that Act.

Clause 132 enables the search of lawyers trust account records.

Examination orders and production orders

Clauses 133 and 134 set out specific rules relating to the privilege against self-incrimination, and other privileges recognised by this subpart respectively, when an examination order or production order is issued.

Surveillance

Clause 135 sets out specific rules dealing with the effect of a privilege recognised by this subpart on surveillance conducted under this Bill (once enacted).

Search warrants and other search powers

Clauses 136 to 141 set out specific rules relating to privileges recognised by this subpart, when a search warrant is to be executed or other search power is to be exercised. Clause 140 sets out interim steps that may be taken by a person executing a search warrant or exercising a search power pending the resolution of a privilege claim. Clause 141 imposes certain obligations on a person who wishes to claim privilege for things sought to be seized.

Admission of evidence generally

Clause 142 provides that if a claim of privilege is upheld in respect of any communication or information, it is not admissible in any proceedings arising from, or related to, the exercise of the relevant power.

Subpart 5Procedures applying to seized or produced materials

Clause 143 provides for things produced under a production order or seized under a search warrant or a search power conferred by this Bill (once enacted) or a provision listed in the Schedule to be dealt with in accordance with this subpart.

Clause 144 requires things seized or produced, if not required for investigative or evidential purposes, to be returned to their owner or to the person entitled to possession, or to be the subject of a determination as to ownership by the District Court, or to be disposed of (because their possession is unlawful), or to be destroyed (if they have become rotten or have otherwise deteriorated).

Clause 145 provides for the custody of things seized or produced, that are required for investigative or evidential purposes, and sets out rules governing the length of time for which they may be held.

Clause 146 provides that if a photograph or copy of a seized or produced thing will be adequate for investigative or evidential purposes, the thing may be returned to the owner or to a person entitled to possession.

Clause 147 enables the District Court to grant an extension of time for holding a thing seized or produced.

Clause 148 enables the District Court to make orders about the ownership or holding of any thing seized or produced.

Clause 149 provides that if the ownership or person entitled to possession of a thing served or produced is not established within 2 years after the date on which the thing was seized or produced, the property is forfeited to the Crown.

Rights of owners or others in relation to things seized or produced

Clause 150 sets out a procedure for persons with an interest in a thing seized or produced to apply to have the thing released to them or to be given access to it.

Clause 151 provides that a failure to comply with any bond, surety, or condition imposed under clause 150 may result in the thing again being seized or access to it denied.

Clauses 152 and 153 provides for persons to apply to the District Court for access to a thing seized or produced, or release of the thing seized or produced.

Clause 154 sets out a procedure for the disposal of things, the possession of which is unlawful under New Zealand law.

Clause 155 sets out requirements relating to the disposal of forensic copies of evidential material.

Clause 156 enables other copies of things made and generated material to be retained.

Subpart 6Immunities

Clause 157 provides that an issuing officer who is not a Judge has the same immunities as a District Court Judge.

Clause 158 sets out the immunities that apply in relation to obtaining or executing orders or warrants under the Bill (once enacted).

Clause 159 sets out other immunities in relation to the exercise of entry, search, or surveillance powers.

Clause 160 provides that if any person is immune from civil liability under any of clauses 157 to 159 the Crown is also immune from civil liability in respect of that conduct.

Clause 161 deals with the interrelationship between clauses 157 to 160 and other enactments that confer, regulate, or limit a privilege or immunity

Subpart 7Reporting

Clause 162 sets out internal reporting requirements relating to the exercise of warrantless entry powers, search powers, or surveillance powers conferred by the Bill (once enacted) or by any other enactment listed in the Schedule.

Clause 163 sets out annual reporting requirements to Parliament by chief executives of law enforcement agencies on the exercise of warrantless entry powers, search powers, or surveillance powers during the period covered by the report. Clauses 163 and 164 also require certain information to be provided about surveillance device warrants and residual warrants.

Subpart 8Offences

Clause 165 creates an offence of failing without reasonable excuse to comply with an examination order.

Clause 166 creates an offence of failing without reasonable excuse to comply with a production order.

Clause 167 creates an offence of making a false application for an examination order, a production order, a search warrant, a surveillance device warrant, or a residual warrant.

Clause 168 makes it an offence for a person to fail to comply with a direction under clause 115(1), or leave any place or vehicle at which he or she is detained in breach of clause 116(1).

Clause 169 makes it an offence to fail to—

  • stop a vehicle when required to do so by a person who is exercising a power to stop a vehicle:

  • comply with a requirement made by that person under clause 124 or any other applicable search power.

Clause 170 makes it an offence for a person to fail to carry out his or her obligations under clause 126 (which imposes a duty on certain persons to assist with computer searches).

Clause 171 makes it an offence to disclose information acquired through surveillance (otherwise than on the performance of a person's duties).

Subpart 9Miscellaneous

Clause 172 relates to the effect of proceedings on the exercise of powers and discharge of duties under the Bill (once enacted).

Clause 173 sets out rules about the service of orders and notices.

Part 5
Amendments, repeals, and miscellaneous provisions

Subpart 1Amendments to search and seizure powers in other enactments (and to related provisions) used for law enforcement purposes

Clauses 174 to 228 amend search and seizure powers that are used for law enforcement purposes in other Acts, so that some or all of the provisions of Part 4 apply to those powers. The following Acts are amended:

  • Agricultural Compounds and Veterinary Medicines Act 1997:

  • Animal Products Act 1991:

  • Antarctic Marine Living Resources Act 1981:

  • Antarctica (Environmental Protection) Act 1994:

  • Aviation Crimes Act 1972:

  • Boxing and Wrestling Act 1981:

  • Civil Aviation Act 1990:

  • Conservation Act 1987:

  • Customs and Excise Act 1996:

  • Dog Control Act 1996:

  • Electoral Act 1993:

  • Electoral Finance Act 2007:

  • Extradition Act 1999:

  • Films, Videos, and Publications Classification Act 1993:

  • Financial Transactions Reporting Act 1996:

  • Food Act 1981:

  • Gambling Act 2003:

  • Hazardous Substances and New Organisms Act 1996:

  • Health Practitioners Competence Assurance Act 2003:

  • Human Assisted Reproductive Technology Act 2004:

  • Human Tissue Act 2008:

  • Immigration Advisers Licensing Act 2007:

  • International Crimes and International Criminal Court Act 2002:

  • International War Crimes Tribunals Act 1995:

  • Land Transport Act 1998:

  • Local Government Act 2002:

  • Marine Mammals Protection Act 1978:

  • Marine Reserves Act 1971:

  • Maritime Security Act 2004:

  • Maritime Transport Act 1994:

  • Motor Vehicle Sales Act 2003:

  • National Parks Act 1980:

  • Overseas Investment Act 2005:

  • Ozone Layer Protection Act 1996:

  • Petroleum Demand Restraint Act 1981:

  • Prostitution Reform Act 2003:

  • Radiation Protection Act 1965:

  • Radiocommunications Act 1989:

  • Reserves Act 1977:

  • Resource Management Act 1991:

  • Sale of Liquor Act 1989:

  • Trade in Endangered Species Act 1989:

  • Unsolicited Electronic Messages Act 2007:

  • Wild Animal Control Act 1977:

  • Wildlife Act 1953:

  • Wine Act 2003.

Subpart 2Amendments to search and seizure powers in other enactments (and to related provisions) used for regulatory purposes

Clauses 229 and 230 amend search and seizure powers that are used for regulatory purposes in the Commerce Act 1986 and the Fair Trading Act 1986, so that the provisions of Part 4 apply to those powers.

Subpart 3Other repeals and amendments

Clauses 231 to 238 amend Acts by repealing provisions that are now to be found, with some modifications, in the Bill. Clause 235 also inserts a new paragraph into section 12(1) of the Misuse of Drugs Amendment Act 1978, enabling a controlled delivery to be carried out by a person who has agreed to co-operate with Customs. It should be noted that further amendments will be required to both the Bill and other enactments once the Policing Bill (following its enactment) comes into force.

Subpart 4Regulation-making powers, transitional provisions, and review provision

Clause 239 is the regulation-making power for the Bill.

Transitional provisions

Clause 240 is a transitional provision for reporting requirements in relation to the first annual report that will be required under clause 163.

Clause 241 is a transitional provision in relation to sections 198 to 199 of the Summary Proceedings Act 1957. Those sections are repealed by clause 237.

Review provision

Clause 242 provides for a review of the operation of the Act, following a referral by the Minister of Justice to be made no later than 30 June 2014.

Schedule
Search powers in other enactments to which Part 4 of Search and Surveillance Act 2008 applies

The Schedule lists search powers in enactments other than those specified in Part 5 to which some or all of the provisions of Part 4 apply.

Regulatory impact statement

Executive summary

Legislation is required to implement proposals made by the Law Commission in its report on Search and Surveillance Powers (NZLC 97). The recommendations made in the suite of Cabinet papers, if agreed to, will allow a Bill to be drafted to give effect to the Commission’s proposals and, in a small number of instances, changes in approach to that recommended by the Commission (sought by agencies since the Commission’s report was tabled and supported by the Commission). Given the wide ranging nature of reforms to the law of search and surveillance proposed by the Commission and discussed in the suite of Cabinet papers, there is no alternative to the promulgation of legislation to give effect to those recommendations and to address deficiencies in the existing law in a comprehensive manner.

Adequacy statement

The Ministry of Justice has reviewed this Regulatory Impact Statement (RIS) and has determined that it is adequate according to the criteria agreed by Cabinet. The MED Regulatory Impact Analysis Unit decided not to review this RIS because it considered that the proposals contained in the suite of Cabinet papers would not significantly impact on economic growth.

Status quo and problem

Core police search powers are contained in statutes that are up to 50 years old; the law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non-police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. Further, the law has not kept pace with technology. The ability of criminals to use computers and other electronic devices to commit or facilitate illegal activity needs to be matched by appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in the investigation of criminal activity. At the same time, reasonable checks and balances must be provided against inappropriate use of those powers.

The Commission report Search and Surveillance Powers and the recommendations in the suite of Cabinet papers propose reform of the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights.

Objectives

The principal objective of the proposals contained in the suite of Cabinet papers is to provide coherent and effective powers of search and surveillance which will increase certainty in law enforcement and allow use of available technologies to tackle crime in the 21st century, while at the same time recognising human rights values.

Alternative options

Given the complexity of the current law and the need to consolidate and update existing statutory provisions, implement new laws and codify aspects of the common law, there is no sensible alternative to the legislation proposed in the attached suite of Cabinet papers. Ad hoc amendments to current statutes as an alternative would add to the incoherence and inaccessibility of the law. So too would the option of leaving the issues to be addressed through case law. That latter option would have the disadvantage of uncertainty and continuing costs arising from challenges to the admissibility of evidence.

Preferred option

The proposed search and surveillance powers statute to implement the recommendations contained in the suite of papers will have five main components dealing with—

  • all police search power—this will comprise the core of the legislation and will simplify and consolidate the law in one place. It will include provisions to replace section 198 of the Summary Proceedings Act 1957 (the general search warrant power), statutory search powers currently scattered throughout the statute book, and warrantless powers:

  • amendments to substantive search powers for non-police enforcement agencies:

  • surveillance powers for enforcement officers:

  • production powers for enforcement officers:

  • generic procedural provisions governing the exercise of search and surveillance powers by all enforcement officers. This will cover matters such as applying for and issue of search and surveillance device warrants and production orders, the way in which search powers are exercised, post-execution procedures and reporting requirements, and protections and immunities.

The benefits attaching to greater certainty and simplicity in the law will outweigh any costs associated with the implementation of the Bill.

There will be costs associated with businesses complying with production orders (to produce documents as evidential material of a specified offence to an enforcement agency following an order issued by an independent officer acting judicially), but the choice as to whether a standard search warrant or production order will be sought for use in any given case will vest with the relevant enforcement agency. On that basis it is impossible to quantify the volume of production orders that will be sought and issued. However, whatever compliance costs are incurred by businesses issued with a production notice must be off-set against the disruption that would otherwise occur by physical entry and search of business premises under a search warrant. Very often production powers will be less intrusive and involve less cost, than the use of search warrants as an alternative.

Implementation and review

The legislation will include a provision, similar to that contained in the Evidence Act 2006, that it is to be reviewed jointly by the Ministry of Justice and the Law Commission within 5 years of the date on which the legislation comes into force, and a report provided to Parliament.

Consultation

The New Zealand Police, Customs, Department of Prime Minister and Cabinet, Ministry of Economic Development, and Treasury have been consulted on this statement.