Search and Surveillance Bill

Government Bill

45—2

As reported from the Justice and Electoral Committee

Commentary

Recommendation

The Justice and Electoral Committee has examined the Search and Surveillance Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill is intended to implement a comprehensive reform of search and surveillance legislation, both as regards the core substantive law enforcement powers, and the way search powers are exercised across the statute book. Many of the proposed changes are based on the Law Commission’s Search and Surveillance Powers report (NZLC R97). Currently, the search and inspection powers to be amended by the bill are spread across 69 different Acts, with many inconsistencies in the procedures applying to the exercise of powers. Some of these statutes are up to 50 years old, and do not cover technological advancements adequately. The bill codifies existing case law in some areas, while in other areas it clarifies aspects of the law that are unclear. Some of its provisions are entirely new and reflect technological developments or reforms carried out in other jurisdictions.

State agencies play an important role in upholding the law and creating a safe society for citizens to live and work in. To carry out this role, law enforcement agencies require coercive powers that would not be appropriate for ordinary citizens, exercising some of which will affect the rights and freedoms of individuals. We faced the difficult task of providing law enforcement agencies with adequate tools to operate in the modern environment, while at the same time ensuring their powers did not unreasonably impact on fundamental civil rights and liberties. The overwhelming majority of us believe the bill now provides for appropriate powers to allow law enforcement agencies to investigate criminal activity, by means including searches of electronic information and the use of surveillance devices.

We note that the bill as introduced has a number of new safeguards regarding these powers, including the introduction of a more rigorous appointment process for officers who issue search warrants, prescription of the content of warrant applications and warrants, and the imposition of reporting requirements in relation to a number of powers.

However, we took the view that further amendments were necessary to further restrict these powers. Accordingly, we recommend amending the bill in a number of ways to strengthen the safeguards intended to protect civil liberties and human rights, to limit the circumstances in which some of the more intrusive powers may be used, and to describe clearly to citizens and law enforcement agencies where the boundaries are between what can and cannot happen so that the 69 different Acts would be clear and updated for new technology.

When the bill was referred to us, we noted there was considerable disquiet from the public about the powers it would confer on enforcement officers, particularly those working for non-police agencies. We received submissions from a wide range of individuals and organisations, including the Privacy Commissioner, ANZ National Bank, law firms Bell Gully, Russell McVeagh and Chapman Tripp, the New Zealand Law Society, Amnesty International, Greenpeace, the New Zealand Council of Trade Unions, and the Human Rights Foundation. The overwhelming message we received was that the bill as introduced did not strike the correct balance between the competing values of law enforcement and human rights and that greater protection of civil liberties was needed.

Therefore we have significantly redrafted this bill. We were conscious of the need to ensure any areas of contention received thorough analysis, and provided an interim report to the House detailing the proposed changes to the bill. The release of our redrafted bill allowed a second period of public consultation, which we felt was extremely important in canvassing the opinions of not only those who originally submitted on the bill but also the wider public. We took the unusual step of hearing further submissions on the proposed amendments to the bill from some submitters, and many of those who had expressed concern about the bill as introduced expressed satisfaction that their concerns had been listened to and addressed by our amendments.

Throughout this process we have taken the concerns of the public extremely seriously, and we believe that the changes recommended in this report address many of them.

This commentary covers the significant amendments that we recommend to the bill; it does not cover minor or technical amendments.

Surveillance device regime

The surveillance device regime was an aspect of the bill that was particularly controversial. Accordingly, we focused a great deal of attention on this part of the bill and recommend a number of changes to address concerns.

Concern was expressed that the additional powers law enforcement officers would receive were disproportionate to the offending likely to be investigated and would extend their powers unnecessarily. We believe these are valid concerns.

Currently there is no single approach to the use of surveillance devices. The use of audio surveillance devices is covered by the Crimes Act 1961, and only the police may intercept private communications for the purposes of investigating crime. The interception regime is also limited to the investigation of more serious offending. The New Zealand Police and New Zealand Customs Service may use tracking devices under the authority of the Summary Proceedings Act 1957 (either by warrant, or without warrant in emergency situations). However, there is no regulation of the use of tracking devices by other agencies where it does not involve trespass to property. Similarly, there is no legislative regime regulating visual surveillance devices, which may be used without restriction by any enforcement officer where no trespass is involved. The provisions in this bill would ensure proper oversight and set appropriate thresholds on the use of both visual and tracking surveillance devices, while still ensuring these technologies were available to enforcement agencies in appropriate situations.

As introduced, the bill applies the surveillance device regime to all enforcement agencies covered by the bill in circumstances where a search warrant could be obtained. It treats all forms of surveillance devices in the same way. The effect of this would have been to extend significantly some forms of surveillance (such as that using audio surveillance devices) in terms of the types of offending and the agencies that could use them. On the other hand, the bill represents a significant tightening regarding the use of visual surveillance devices and the use of tracking devices by agencies other than the New Zealand Police and New Zealand Customs Service, where no specific legislative regime exists.

Regulation of more intrusive forms of surveillance

While the bill as introduced effectively treats all types of surveillance in the same way, we formed the view that some forms of surveillance have more effect on privacy than others and should be treated accordingly. It is our view that audio surveillance and the use of visual surveillance devices in circumstances that require enforcement officers to enter private property are intrusions upon privacy which should be authorised only for the investigation of the most serious offending.

Therefore we recommend amending Part 3 of the bill by inserting new clause 42AA. This would restrict audio surveillance and visual surveillance involving trespass to the investigation of offences punishable by seven years’ imprisonment or more, and offences under sections 44, 45, 50, 51, 54, and 55 of the Arms Act 1983. We believe providing an exemption to the threshold for Arms Act offences is necessary to recognise the particular threat that firearms pose. This exemption would allow police to carry out surveillance, as part of investigations into the illegal sale, possession, and supply of firearms.

The effect of limiting the use of these more intrusive forms of surveillance devices in this way would be in effect to limit which agencies would be permitted to employ these forms of surveillance as currently only the New Zealand Police, New Zealand Customs Service, and the Department of Internal Affairs (in respect of offending under the Films, Videos, and Publications Classification Act 1993) investigate such offending.

However, we consider that as the use of visual surveillance devices in circumstances involving a trespass and of audio surveillance devices is not currently available to non-police agencies, it would be desirable to ensure that these non-police agencies responsible for the investigation of serious offending were required to demonstrate that they had the necessary technical capability and appropriate policies and procedures before being allowed to use such forms of surveillance.

Accordingly, we recommend inserting clauses 45(5) and 45A to ensure that the bill goes further; they provide that the use of visual surveillance devices in circumstances involving a trespass and audio surveillance devices is limited to the police and to a “specified law enforcement agency” that has been approved for the purpose by Order in Council. “Specified law enforcement agency” is defined to mean the New Zealand Customs Service and the Department of Internal Affairs. Accordingly, any extension of these more intrusive forms of surveillance to any other enforcement agencies in the future would require consideration by Parliament. We consider this an appropriate limitation.

We believe these changes address the concerns about the surveillance device powers contained in the bill, particularly those regarding agencies other than the New Zealand Police conducting surveillance operations.

We recommend inserting new clause 50(3)(fa) into the bill to allow enforcement officers to obtain data associated with intercepted telecommunications. Under the bill as introduced, an enforcement officer carrying out audio surveillance could obtain the content of telecommunications but not data associated with the communications, such as the time a call was made or the numbers called, without a production order. We believe that such data is intrinsically linked to the content of the telecommunication and that an enforcement officer should not have to obtain two separate orders to gather both sets of information.

Warrantless surveillance period

We recommend amending clause 44(1) to reduce the warrantless surveillance period from 72 to 48 hours. This power would allow enforcement officers to use surveillance devices to investigate serious crimes before obtaining a warrant in certain circumstances of urgency or emergency if obtaining a warrant was not immediately possible. However we believe there is no reason that enforcement agencies would need 72 hours to obtain a warrant, and that 48 hours is a more appropriate time limit. This would give enforcement officers flexibility when they could not contact an issuing officer, while ensuring that proper oversight of the use of surveillance devices was retained.

We also recommend further amending clause 44(1) to provide that an enforcement officer could only undertake warrantless surveillance for a period not exceeding 48 hours from the time a surveillance device is first used. This change would address concern that enforcement officers could, for example, carry out surveillance for 47 hours, stop for a period, and then continue for a further 48 hours.

Retention of data

Many surveillance operations involve the collection of large quantities of raw data, much of which will not be evidential material. Raw data includes actual audio and visual recordings and full or substantial sections of audio transcripts. We are acutely aware of the fact that in such investigations, information will probably be collected about people who are innocent of any offending and we are conscious of the need to protect their privacy. We believe it is critical that the further retention and use of information for purposes beyond the immediate investigation be regulated in order to provide protection to such innocent people.

Accordingly, we recommend inserting new clause 56A, which would restrict the retention of raw surveillance data and information collected by law enforcement agencies. Under this clause raw surveillance data could be retained only

•until the conclusion of criminal proceedings, including any appeal periods, in relation to an offence for which the raw surveillance data was collected
•for a maximum of three years if no criminal proceedings had commenced but the data was required for an ongoing investigation
•for a further period of not more than two years if a judge had made an order granting an extension on the basis that the data was required for an ongoing investigation or
•if an agency had obtained an order from a judge allowing excerpts from raw surveillance data to be retained, provided the judge is satisfied that the excerpts might be required for a future investigation.

We also recommend inserting new clause 56A(5), which would allow a judge to place any conditions on an order for the retention of raw surveillance data which he or she felt appropriate, including time limits on the retention period. We believe that this judicial oversight would significantly strengthen the protection of civil liberties and the right to privacy, while ensuring that important intelligence information remained available to enforcement agencies seeking to investigate serious offending.

New clause 56A would also allow information extracted from raw surveillance data, which did not alone constitute raw surveillance data, to be kept when there were reasonable grounds to suspect that the information might be relevant to ongoing or future investigations. For example, if the police discovered during an investigation that an individual or organisation was in regular contact with a criminal group, the police would be allowed to record the fact of these possible links to criminal groups.

We also recommend amending clause 43 to enable an enforcement officer to apply for a surveillance device warrant where a party to a communication had consented to its interception and no warrant was required. This change is intended to address situations where, even though one party to the communication consents to its recording, network operators are unwilling to cooperate with enforcement officers and intercept the communication without a warrant authorising them to do so.

We recommend further changes to clause 43 to ensure that the bill would not apply to interception warrants issued under section 17 of the Government Communications Security Bureau Act 2003. The bill as introduced excludes interception warrants issued under section 4A(1) or (2) of the New Zealand Security Intelligence Service Act 1969. We believe this provision for the avoidance of doubt should also apply to the Government Communications Security Bureau.

Reporting requirements for surveillance device warrants

We recommend amending clause 53 in order to strengthen the safeguards in the bill by imposing more stringent reporting requirements on the use of surveillance device warrants, and to require that a report be made to the judge who issued the warrant or, if that judge was unavailable, another judge from the same court within one month of the expiry of the warrant. We also recommend inserting clauses 53(2)(ab) and (ba), which would require the report to state

•whether any criminal proceedings had been brought or were being considered as a result of evidential material obtained through the surveillance device warrant, and
•whether the evidential material obtained by using the surveillance device was specified in the surveillance device warrant.

Examination orders

Examination orders were one of the most contentious aspects of the bill. They are court orders allowing the police to require a person to answer questions where they have previously refused to do so. Concern was raised that this would remove an individual’s right to silence and the privilege against self-incrimination. It was also argued that people might resort to lying or provide information that was of little use.

We acknowledge these concerns, but we believe there are strong policy reasons for the examination order regime to remain in the bill. An examination power is available to the Serious Fraud Office under its Act for the purposes of investigating serious financial crime. The rationale is that such power is necessary because of the complex transactions that may be involved in such offending. In our view, it would be anomalous if such a power were available to the Serious Fraud Office but not to the police in relation to such offending as money laundering and other forms of organised crime which are also likely to involve particularly complex transactions and arrangements.

We also believe that examination orders would assist in situations where a person was reluctant to assist police on the grounds of professional confidentiality. This might happen, for example, in an investigation of serious financial offending. A professional who might have evidential material useful in prosecuting the case might refuse to assist police for fear of breaching professional standards or regulations. In this case an examination order would allow the person to assist without any risk of doing so.

Clause 132 of the bill would ensure that the privilege against self-incrimination under section 60 of the Evidence Act 2006 was preserved for a person subject to an examination order. We do not recommend removing this fundamental right. We note also that the proposed use of examination orders under the bill would be subject to more rigorous scrutiny than they would under the Serious Fraud Office Act 1990, as the bill would require prior judicial authorisation.

While we consider that examination orders should be available to the police, we recommend that thresholds be raised to ensure that examination orders would only be used to investigate very serious offending. This should establish an appropriate balance between ensuring examination orders were not too freely available and providing law enforcement agencies with an effective tool to investigate crime.

We recommend amending clause 32 to limit examination orders in the business context to offences carrying a maximum penalty of five years’ imprisonment or more. Under the bill as introduced examination orders could be obtained for the investigation of any offence punishable by a term of imprisonment. We consider this threshold to be too low and believe this amendment would ensure examination orders were used only in the investigation of serious offending.

For examination orders in the non-business context, we recommend setting an even higher threshold. Such examination orders would rely on information being obtained through personal relationships. People who might know about suspected offending in such situations might have legitimate reasons for being reluctant to co-operate, and could face serious ongoing consequences as a result of assisting the police. We therefore consider it appropriate that non-business-context examination orders should apply only to serious offending. We recommend amending clause 34(a) to limit their use to the investigation of serious or complex fraud offences carrying a maximum penalty of seven years’ imprisonment or more, and to offences committed, wholly or partly, by an “organised criminal group” as defined in section 98A(2) of the Crimes Act.

Examination orders would give police significant powers over individuals and we believe a robust oversight process is necessary to ensure they are used appropriately. While the bill as introduced provides that an application for an examination order may be made only by the Commissioner of Police, section 17 of the Policing Act 2008 allows the commissioner to delegate any of his or her powers, functions, or duties.

In order to ensure examination order applications receive proper scrutiny we are recommending amending clauses 31(1) and 33(1) so that only police officers holding the rank of Inspector or higher could make an application for an examination order, and that applications would have to be approved by a Deputy Commissioner, Assistant Commissioner, or District Commander before being submitted to a judge. We believe these measures are necessary to encourage the development of rigorous internal policies and to ensure examination orders do not come to be used routinely by police.

We also believe that it is important that the examination order regime be subject to stringent judicial and parliamentary oversight, and recommend inserting a number of new reporting requirements into the bill. They would make police accountable for their use of examination orders once they were issued, and ensure the system was transparent.

We recommend inserting new clause 40A to impose a reporting regime for examination orders. New clause 40A would require a police officer who carried out questioning pursuant to an examination order to report to the judge who made the order or, if that judge were unavailable, another judge from the same court within one month of completing the examination under the order. The report would have to include the following information:

•whether the questioning resulted in evidential material being obtained
•if any criminal proceedings had been brought or were being considered as a result of evidential material obtained through the examination order
•any other information which the judge had asked to be included at the time of granting the examination order.

We also recommend amending clause 37 so that all examination orders would be subject to the reporting requirements set out in clause 40A.

Furthermore we recommend that the Commissioner of Police be required by new clause 162A to include in the New Zealand Police’s annual report the number of examination order applications granted and refused in the relevant period, and the number of people charged during the relevant period where evidential material obtained through an examination order made a significant contribution towards the laying of the charges.

Production orders

Production orders were another area of contention in the bill as introduced. Production orders would require a person to produce information or documents believed to be related to specific offending, and could apply on a single or on an ongoing basis for a maximum period of 30 days. Production order applications would be limited to enforcement officers who were permitted to apply for a search warrant for the offence under investigation.

We think it important to note that there has been some misunderstanding about the nature of the production order regime. It was intended that production orders would provide a less intrusive alternative to a search warrant in circumstances where the party subject to the order was willing to cooperate with enforcement officers. For example, if police needed to obtain bank records during the investigation of a crime then it would be less disruptive to the bank if it could retrieve the documents itself, rather than having the police come in and search through its records.

The regime also codifies existing case law, with the courts having previously ruled that a search warrant can be executed by the police sending the warrant to the party concerned and that party identifying and producing the relevant documents without the police physically conducting the search. It was suggested that the issuing of production orders should be restricted to judges; however we believe that as search warrants can be issued by other kinds of issuing officers, such as Justices of the Peace, there is no logical reason that a higher bar should be imposed for a less intrusive alternative to a search warrant.

It was also argued that people should be notified if law enforcement officers had obtained their personal information, such as their bank records, through the use of a production order. Once again we see no reason why this should apply when there is no comparable obligation regarding information gathered under a search warrant.

We also heard it argued that production orders should be more readily available. The Serious Fraud Office would be able to obtain production orders during the course of investigations into serious or complex fraud. If the director of the office believed documents might be relevant to the investigation, a production order could be issued by way of notice. It was argued that the police also investigate serious and complex crime, and that the difference in thresholds and judicial oversight was counter-intuitive. However we believe it is important for search powers to retain a level of judicial oversight. We note one of the underlying policy principles of the bill is that search powers should be exercised only after judicial consideration. In cases where there is a strong public interest in the information being obtained immediately, police already have warrantless search powers available to them.

Concern was raised about the way production orders would apply to telecommunications network operators. Clause 68 of the bill as introduced refers to a network operator’s “interception capability”. We were advised that this could mean telecommunications companies could be required to establish and maintain an interception capability for every agency that could conceivably obtain a production order. The effect of this would be twofold: firstly network operators would have to set up an expensive and complex system in order to intercept information, and secondly agencies could use production orders as a means of intercepting data so as to bypass the protections in the surveillance device regime.

We agree, and recommend that clause 68 be amended to reflect the intent of the production order regime more accurately. To make it clear that production orders cover only information and documents that have been stored in the normal course of business, we recommend amending clause 68 by removing the reference to “interception capability”, and making it clear that the term “document’’ does not cover information that a network operator would not store in the normal course of business, or anything the network operator does not have the capability to store. This would ensure that people and organisations were not expected to provide under a production order information that they would not normally keep. The removal of the reference to interception capability would ensure the clause remained consistent with the intention of the regime, as production orders are intended to cover only information already stored, and not to authorise interception.

We also recommend deleting the words “and monitoring orders” from the title of subpart 2 of Part 3, to prevent confusion as the subpart refers only to production orders.

Purpose clause

We recommend inserting new clause 4A into the bill. This would clarify the bill’s intent to balance law enforcement values against human rights and recognise the importance of human rights values in the context of search and surveillance powers.

Interpretation

We recommend inserting a new schedule into the bill to set out how Part 4 of the bill applies to the relevant Acts detailed in Part 5. We believe this would make the legislation more accessible and clearer to the public and to practitioners.

Recommended changes to police powers in the bill

We believe that the power to arrest and to set up road blocks without warrant to apprehend persons unlawfully at large should not be without limitation, and specifically that the power should not be available in relation to persons who are “unlawfully at large” simply by virtue of unpaid fines.

We recommend changing the definition of the term “unlawfully at large” in clause 3, so that a person would not be considered to be unlawfully at large if the warrant for their arrest had been issued under Part 3 of the Summary Proceedings Act or was a warrant for unpaid fines issued under the Crimes Act. We recommend inserting new clause 18A to allow a police constable to search any person found in or on a place or vehicle while executing a search warrant issued under the Misuse of Drugs Act 1975. This amendment reflects section 18(1) of that Act. We understand this provision was inadvertently left out of the bill as introduced and we recommend this oversight be corrected. We also recommend that clause 19 of subpart 7 be amended so that a police constable could carry out a warrantless search of a vehicle or place in relation to suspected offences under the Misuse of Drugs Act only when the constable believed, on reasonable grounds, that it was not practicable to obtain a warrant. This would represent a codification of existing case law.

We recommend inserting new clause 10(1)(aa) into the bill to allow police to obtain the details of a person in a vehicle only if the officer has reasonable grounds to suspect the person has committed an offence punishable by a term of imprisonment. We believe this would balance the powers and safeguards in the bill by ensuring people were not required to give their particulars without good cause, while still allowing police to ascertain the identities of individuals where necessary to investigate serious offending. We also recommend amending clause 30(c) to align police powers to require the details of people in a vehicle stopped at a road block with new clause 10(1)(aa).

We recommend that clause 14(2)(a) be amended by inserting “serious” before “loss”. This clause would then stipulate that a warrantless right of entry could be exercised only to prevent a crime causing serious loss of property, such as arson, and could not be applied to less serious offences such as shoplifting.

Residual warrant regime

We recommend deleting existing clauses 57 to 67 and replacing them with new clauses 57 to 61. This would recast the residual warrant regime as a “declaratory order” regime, and make it clear that activities, techniques, or devices which are not lawful or reasonable would not be authorised. The residual warrant regime was intended to give enforcement officers a degree of comfort that obtaining evidential material by using a new technique, procedure, or device would not contravene the New Zealand Bill of Rights Act 1990. The use of the term “warrant” in the bill suggests that enforcement officers would be authorised to do something they otherwise would not be permitted to do. Recasting it as a “declaratory order” would make it clear that the regime would simply provide judicial clarification that the intended activity, technique, or device was lawful and reasonable.

New clause 57(2) would make it clear that the granting of a declaratory order would not confer any special status on evidence collected using the device or technique authorised under the order. The evidence, and the way it was collected, would still have to comply with the New Zealand Bill of Rights Act and be subject to normal evidential tests at trial. We believe these amendments would facilitate the establishment of a regime under which enforcement agencies could undertake the investigation of crime in the modern era and keep pace with technological advancement, whilst ensuring novel technologies were employed in a way that was reasonable and appropriately respected those civil liberties and human rights codified in the New Zealand Bill of Rights Act.

Search powers

Concerns were raised about the warrantless powers of search and entry incidental to an arrest or detention that are contained in clauses 81 and 82 . Clause 81 would allow the house or home of an arrested person to be searched if there were reasonable grounds to believe evidential material relating to the offence for which the person was arrested was located there and evidential material would be destroyed, concealed, or damaged before a warrant could be obtained. We believe this strikes a better balance between enforcement powers and civil liberties than the current law, which allows searches of only the place or vehicle where the person is arrested but does not require any belief that evidential material will be located there. Similarly clause 82 would allow an enforcement officer to search a vehicle if there were reasonable grounds to believe evidential material relating to the offence for which the person was arrested was in a particular vehicle. We believe that a search of a person’s home or vehicle for evidential material can be justified even if they are not arrested there; but it is fundamentally important that there must always be a reasonable belief that evidential material will be found before a search is undertaken.

We also recommend amending clause 228, which would insert new section 199A into the Fisheries Act 1996. We recommend that the section be amended to make clearer the intent of the bill by stating that entry and search powers in the section may be exercised only where there are reasonable grounds to believe an offence against the Fisheries Act has been or is being committed.

We recommend amending clause 123 to remove the power to require particulars, and relocating it as a police-only power in clause 10. The requirement for a vehicle stopped by an enforcement officer exercising a power to stop or search to remain stopped for as long as it is reasonable for the purposes of the search or stopping would continue to apply to all enforcement agencies covered by the bill that exercise powers to search vehicles.

Computer searches

We recommend inserting new clause 87AD to create new definitions for computer searches. New clause 87AD(1) sets out a more comprehensive definition of what constitutes a computer system, and would allow enforcement officers access to computers with the capability to access the network concerned. In order to strengthen the protections in the bill these amendments would also make it clear that remote-access searching of computers would be permitted in only two situations: where a computer had the capability to lawfully access a computer system (and therefore was considered part of that system); and where there was no physical location to search (for example, in the case of web-based email that the user accesses from various locations such as internet cafes).

We also recommend moving the definition of “access information” from clause 125(2) of the bill to new clause 87AD(1), nearer to related definitions. New clause 87AD(2) would ensure that computers not accessing the network at the time of the search were nevertheless considered to be linked to the system if they had the capability to be lawfully connected to the network. We note that technological developments now allow people to access computer networks remotely. Computers may not be automatically connected to a network but users may still be able to link them into it. We were concerned that the bill as introduced does not address this issue, and that computers which have the capability to lawfully access a computer network might potentially not be searchable in an authorised search of that network.

We also recommend inserting new clause 126A. This would significantly strengthen the notice requirements set out in clause 126 by applying them to remote-access searches of internet data facilities. As it would not be practical for a warrant to be presented, notification would be in the form of an email sent to the email address of the facility being searched.

Strip searches

In order to ensure that the cultural and religious beliefs of persons being searched are adequately respected and protected, we recommend inserting new clause 120(1A) to require that all personal searches, rub-down searches, and strip searches be carried out in a sensitive and decent way, which affords the person being searched a degree of privacy and dignity consistent with achieving the purpose of the search.

We also recommend amending clause 121 to require law enforcement agencies that carry out strip searches to ensure that a copy of their strip search guidelines is publicly available on their websites.

Search warrants

In order to strengthen the protections in the bill we recommend amending clause 101(4)(a) to require a search warrant to state the name or other individual designation of the issuing officer. In the bill as introduced the names of the issuing officers must appear on the warrant. Concern was raised that this could pose a risk to issuing officers’ safety, and we recommend that the bill be amended to allow issuing officers to provide a form of identification other than their name on warrants.

Concern was also raised about the ability for warrants to be issued following oral communication between an enforcement officer and an issuing officer under clause 98(3). We are satisfied that clause 98(3) contains sufficient safeguards to ensure that this provision would be used only in very specific circumstances. We believe this clause would allow enforcement officers in remote areas to obtain warrants more easily in appropriate circumstances.

We recommend inserting new clause 106A to prevent issuing officers from considering search warrant applications from agencies where they are employed, in order to eliminate any potential conflict of interest and strengthen the safeguards in the bill. We were concerned that issuing officers might feel unable to decline an application made by a superior within the same organisation, and believe new clause 106A would protect against such a situation occurring. We also recommend amending clause 106 to give the Attorney-General the power to remove issuing officers for a justifiable reason. We recommend inserting clauses 106(1A) and 106(5) to prevent enforcement officers from acting as issuing officers and to require the Attorney-General to remove an issuing officer from that office should they become an enforcement officer. We believe these amendments would strengthen the processes and procedures for the issuing of search warrants.

We recommend a number of changes to clause 108, including amending the permissible search times in clause 108(a) from “any time which is reasonable in the circumstances” to “any time which is reasonable”.

The bill as introduced sets out those circumstances in which a search power may be exercised. For the avoidance of confusion and the protection of those involved in the search, whether it is the enforcement officer or the owner of the property being searched, we recommend amending clause 108(c) to make it clear that the ability to use force applies in relation to property only and not people. We also recommend inserting clause 111(3), which explicitly states that any powers contained in clauses 108(c) and 110(2)(b) do not authorise the use of force against any person.

We further recommend amending clause 108(c) to bring the provisions for the seizure of property into line with the language used in clause 110(2)(e).

We recommend making clauses 108(d), 110(2)(d), and 114 subject to new clause 111(2). This would restrict the power to detain a person while conducting a search to enforcement officers who were investigating offences for which they had a related power of arrest. This amendment would ensure this power was used only by enforcement officers who were appropriately trained to detain people. In the bill as introduced, clause 113 would allow enforcement officers to temporarily secure a search scene once a warrant application had been made. We recommend tightening up this clause by limiting it to situations where there are reasonable grounds to suspect evidential material will be destroyed, removed, hidden, or tampered with.

Plain view searches

Concern was also raised that clause 119 would allow enforcement officers to search premises for evidential material outside the scope of the search warrant. We carried out extensive consultation on this issue. Clause 119 would allow enforcement officers to seize items in “plain view” which might not be linked to the initial reason for the search. Enforcement officers would not be allowed to search more extensively than would be permissible given the reasons for the warrant being issued, for example by searching in a wardrobe when executing a search warrant in relation to a stolen car. Clause 119 would merely allow officers to seize evidence of other offending discovered by an enforcement officer in the course of carrying out other lawful duties (such as a search in relation to other suspected offending). We believe there are sufficient safeguards to prevent agencies undertaking fishing expeditions.

Privilege and confidentiality

We recommend amending clause 135 in order to clarify the way the claim of privilege works. We are aware of concern about whether the bill’s provisions for assessing privilege were adequate, and the risk that potentially privileged information could be viewed by an enforcement officer pending a determination from the courts. Our recommended amendments to clause 135 would strengthen the bill and make it clear that no search could occur pending the determination of a claim of privilege, and that the person claiming privilege must have access to or be given a copy of any information seized by an enforcement officer exercising a search power while the claim was pending.

Furthermore clause 130(1)(i) aligns the bill with section 68 of the Evidence Act 2006, which provides for journalists to protect certain sources.

We recommend amending clause 100 to prevent a warrant being issued to seize anything protected by legal privilege unless there is a prima facie case that the thing in question was prepared or compiled for a dishonest purpose or made in order to commit or to plan to commit an offence. This would ensure consistency with the equivalent provision in the Evidence Act. We also recommend consequential amendments to clause 130(2), which relates to recognition of privilege, and clause 49, which covers surveillance device warrants.

Reporting requirements

We recommend a number of amendments to the reporting requirements in clauses 162 to 164. These requirements are intended to strengthen the protections in the bill by helping both Parliament and the relevant agencies to assess whether search and surveillance powers are being used appropriately and are providing useful information for the purposes of law enforcement. Concern has been expressed about the feasibility of some of these requirements. We recommend amending the following clauses:

•clause 164(f), to require less specific reporting of the nature of a device, technique, procedure, or an activity authorised by a declaratory order
•clauses 163(1)(e) and 164(h), to remove the requirement to report the number of occasions that criminal proceedings are not brought within 90 days of the use of a surveillance device or the exercising of a declaratory order
•clause 163(1)(c), to simplify reporting of the use of warrantless surveillance devices, so that the report need only specify the numbers of times each type of surveillance device was used for fewer than 24 hours, or between 24 and 48 hours
•clauses 162(1AA) and 162A(1), to confine the warrantless powers on which police are required to report to those set out in Part 2 and Part 3 of the bill
•clauses 163(1)(d) and 164(g), to make it clear what must be reported is the number of persons charged with criminal proceedings where the collection of evidential material relevant to those proceedings was significantly assisted by the search, surveillance, or activity carried out under a declaratory order.

We also recommend amending clause 171 to make it an offence for anyone to disclose information obtained through the use of a search power, an examination order, activities carried out under a declaratory order, a surveillance power, or a production order. Currently clause 171 covers only people involved in the investigation. This amendment would prevent such information being disclosed regardless of how it came into the possession of the person unlawfully disclosing it.

Inspection powers

Part 4 of the bill would give a number of ancillary powers, including the power to use force, to regulatory agencies conducting an inspection. We are aware of concern that this would give regulatory agencies greater powers than necessary. Particular concern was expressed that Part 4 would give regulatory agencies the power to use force. We believe it is important to emphasise that if the police were required to accompany regulatory officers they would have no greater powers to use force against property by virtue of being police officers than the regulatory officers. The powers are derived from the relevant legislation, not necessarily from an enforcement officer’s position. We do not believe that these powers are unreasonable, and consider that they in fact achieve a balance between the protection of civil liberties and the provision of the powers required by enforcement agencies to do their job.

Clause 108(c) states that the use of force must be reasonable for the purposes of the entry and search. This clause merely reflects the existing position under a number of statutes. If regulatory agencies did not have the use of reasonable force people could frustrate searches by refusing to cooperate, for example by refusing to unlock a filing cabinet containing relevant documents or by not allowing animal welfare officers into locked farm buildings.

Green Party minority view

The Green Party is thankful that the committee has given this bill thorough consideration, and has allowed a second round of public submissions. We also support most of the amendments the committee has made to the bill. They generally restrict search and surveillance powers more than the original bill, and improve accountability provisions.

However, the Green Party still considers the bill as a whole to be a major erosion of our civil liberties.

Two striking examples of this are the provisions for Examination and Production Orders. These violate people’s traditional right to silence, other than when giving evidence in court. This right is now to be violated, not only for those suspected of an offence, but all those spouses, friends, and colleagues of the suspect, in fact anyone who might have some information on the alleged offence. They will be required to answer questions or produce documents or face the possibility of a term in prison.

We are concerned that Production Orders can be enforced by a range of State agencies other than the police. While Examination Orders will be more restricted, mainly applying to offences carrying a seven-year prison term, these offences can include such things as intentional damage–charges that have been laid against non-violent dissenters. If a dissenting group is deemed by police to be an “organised criminal group”, as has happened recently, then a warrant for an Examination Order can be granted. We are also conscious that once this new principle of using Examination Orders in a non-business context is established, the range of qualifying offences can be subsequently expanded.

The Green Party is worried about moves in the direction of a surveillance State contained in this bill, with all its provisions for visual and audio surveillance, tracking people, and intercepting their communications. Judges will also be given the power to give warrants for other, as yet untried, surveillance techniques, under what are to be known as “declaratory orders”. Surveillance using heat or smell detectors have been mentioned as possibly being covered under declaratory orders. We believe that if the State wishes to use such new forms of surveillance, then a proposal should go before Parliament, rather than the new means simply being authorised by a judge.

The advance of digital technology means that all the mentioned forms of surveillance are now cheaper and easier for the agencies to use, and the targets of surveillance are less likely to find out. Tracking devices being miniaturised means it is simple to put one under a person’s car, and all of a person’s electronic communications (phone calls, texts, and emails) can be intercepted and checked in their thousands once systems are in place at service providers. Facial recognition technology can quickly scan photos and videotapes to find out where a target was at a particular point of time.

The Green Party is against allowing warrants for such types of surveillance to be granted to dozens of State agencies. Most of these State agencies have no independent complaints systems comparable with the Independent Police Conduct Authority.

Perhaps the most offensive surveillance warrant is the one allowing State agents to trespass a home and install a covert video camera in a family’s private space. Serious criminality is not so rampant in this country as to justify such an extreme intrusion on people’s privacy. We don’t think the assurance that this measure will only apply to higher-level offences is sufficient justification. It should be noted that this bill explicitly allows this extreme surveillance to apply to thousands of New Zealanders who each year are guilty of minor violations of our gun laws. This specific power will be able to be provided not only to police, but also to Customs and the Department of Internal Affairs.

Other State agencies which don’t have this most intrusive power will, however, be given the power to covertly tape conversations between their agents and anyone they believe has information relevant to an offence.

While this bill does not give extra agencies the general power to search, it does give many of the agencies a more specified set of powers, including powers that most of these agencies have never used before.

Many agencies are now specifically granted the power to seize computers and make a “forensic” copy of the information on them. We believe that searching through people’s computer files is hugely intrusive and such a power should not be so widely granted. So many personal and private activities are now recorded on people’s computers. While searches are supposed to focus on evidence relating to the charges specified in the warrant, computer searches lay themselves open to abuse. It is not hard for the “key word” searching of the “forensic copy” of a hard drive to be manipulated to disclose a wide range of information. It would be hard to stop computer searches being used for “fishing expeditions” particularly when the bill allows the collection and use of evidence on unrelated charges if it comes into “plain view” during a search.

This “plain view” provision doesn’t just apply in computer searches. It is available to be used by all agencies searching premises and gives them more powers than they have previously had, with a potential for them to be abused.

The Green Party also shares the concern of the Media Freedom Committee, in its submission to the committee, that police searches of media offices might uncover confidential sources before the media organisation had its chance to challenge the seizure of the information under section 68 of the Evidence Act, which gives journalists a right to protect certain sources.

In summary, the Green Party does not believe the supporters of this Bill have explained why, at this point in our nation’s history, we need to give such extra powers to police and other State agencies, and in the process erode hard-won civil liberties.

New Zealand Labour minority view

The Labour Party concurs with the report, with the exception of the proposed regime to allow the police to obtain examination orders and production orders.

Examination and production orders are exceptions to, and override, the right to silence. They can be used to require a party to answer questions or produce documents. Police can currently ask questions and obtain and execute search warrants, but witnesses or suspects or those who hold evidence, do not have to answer questions or offer up documents.

The Serious Fraud Office (SFO) is currently the only State agency with the power to issue examination orders and production orders. The SFO has taken to using those powers too frequently, rather than relying upon conventional investigation techniques and warranted searches in all but exceptional cases where the use of these orders is justified. This is an example of how when extra powers are given to an arm of the State that agency can utilise them more frequently than Parliament intended. In recent weeks the SFO has also used those powers to order the production of documents in the possession of the National Business Review as part of the SFO inquiry into the collapse of South Canterbury Finance. This concerns us greatly.

The freedom of the press to investigate and report on issues of public interest is an important part of New Zealand’s constitutional settings. Putting the confidentiality of their sources at risk means that sources will be less willing to confide in them in the future. This undermines the role of the fourth estate and is to the detriment of the general public. It shows how careful we need to be before conferring power of this kind to State agencies.

We were unable to include additional controls on SFO powers and processes concerning production or examination orders through this bill because we were advised they were beyond the scope of the current bill.

The Labour Party enquired of the Government via select committee members and officials whether the Government was willing to tighten the use of production and examination orders by the SFO at the same time as similar powers were being conferred upon the police under this bill. Officials advised that the Government was not willing to do so.

The recommendations of the committee do tighten the rules applying to the use of examination and production orders by the police compared with the form of the bill that came to select committee.

Despite this, the range of offences includes offences with a maximum sentence of 5 years or more in a business context and 7 years or more in a non-business context. While these are not minor offences, not all are the most serious and the range of offences is broad. Additionally there are no specific provisions to protect freedom of the press and the confidentiality of their sources.

Unless further restrictions on the use of such power for both the SFO and the police are agreed by the Government, we will oppose this extension of powers to the police.

Appendix

Committee process

The Search and Surveillance Bill was referred to us on 4 August 2009. The closing date for submissions was 18 September 2009. We received and considered 48 submissions from interested groups and individuals. We heard 24 submissions.

On 6 August 2010 we made an interim report to the House and released for further comment from interested groups and individuals a revision-tracked version of the bill, the departmental report, and other advice we had received. We received and considered 379 further submissions following the release of the interim report. We heard five further submissions.

We received advice from the Ministry of Justice and the Law Commission.

Committee membership

Chester Borrows (Chairperson)

Jacinda Ardern

Kanwaljit Singh Bakshi

Simon Bridges

Dr Kennedy Graham

Hekia Parata

Hon David Parker

Lynne Pillay

Paul Quinn

Keith Locke replaced Dr Kennedy Graham for this item of business.

Key to symbols used

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