New Zealand Legislation: Bills
Bills are proposed Acts
Government Bill
45—1
The Search and Surveillance 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 R97).
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 The law has thus become outdated and has been supplemented by case law to fill gaps in the legislation.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 and regulatory 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 or regulatory 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 and regulatory agencies to extract electronic information and use surveillance devices in order to investigate and combat criminal activity. It also enables electronic applications for, and the issue of, warrants.
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, both in terms of the core substantive law enforcement powers and the way in which search powers are exercised across the statute book.
It is proposed that the Bill be brought into force by Order in Council (with any provisions not already in force by 1 April 2011 to come into force on that date). The reason for having the commencement date for the Bill set by Order in Council is that considerable administrative change, including the training of all affected law enforcement and regulatory officers, will be required before the Bill can be brought into force. It will also be necessary to promulgate regulations dealing with a range of matters. It is not possible to determine precisely how long this will take.
Clause 1 is the Title clause.
Clause 2 is the commencement clause and provides that the Bill comes into force on a date or dates appointed by the Governor-General by Order in Council, and that any provisions of the Bill not already brought into force by 1 April 2011 come into force on that date.
Clause 3 is the interpretation clause.
Clause 4 states that the Act binds the Crown.
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 constable, in relation to a place, vehicle, or other thing.
Clause 7 authorises a constable 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 constable, 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.
Clause 9 sets out the circumstances in which a constable may stop a vehicle to arrest a person.
Clause 10 specifies the powers and duties of a constable when exercising the stopping power under clause 9.
Clause 11 sets out the rules for searching people who are to be 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.
Clause 14 allows a constable to enter a place or vehicle without a warrant in some situations of urgency and to take preventative action.
Clause 15 authorises a constable 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 constable 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.
Clause 18 provides for warrantless searches associated with arms (as defined in clause 3).
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 constable to search a person found in or on a place or vehicle that is being searched under clause 19.
Clause 21 allows a constable 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 22.
Clause 24 provides the meanings of disabling substance and offensive weapon for the purposes of subpart 8.
Clause 25 authorises a constable 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 constable 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.
Clause 27 authorises searching a vehicle for stolen property.
Clause 28 sets out how and in what circumstances a senior constable (as defined in clause 28) may authorise a road block in order to arrest a person.
Clause 29 specifies the duration of an authorisation under clause 28, and requires written records of the road block to be kept.
Clause 30 sets out what any constable may do when a road block is authorised under clause 28.
Clause 31 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 32 sets out the conditions for making an examination order in a business context against a person.
Clause 33 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 34 sets out the conditions of making an examination order in a non-business context.
Clause 35 sets out other provisions relating to search warrant applications that apply, with modifications, to applications for examination orders.
Clause 36 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 37 specifies the form and content of an examination order.
Clause 38 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 39 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 40 sets out other provisions relating to search warrants that apply, with modifications, to examination orders.
Clause 41 preserves the common law defence of necessity as it applies to people other than constables.
Clause 42 sets out situations in which an enforcement officer must obtain a surveillance device warrant.
Clause 43 sets out some activities for which an enforcement officer (as defined in clause 3) does not require a warrant.
Clause 44 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 45 states the particulars that an application for a surveillance device warrant must contain.
Clause 46 specifies the conditions for issuing a surveillance device warrant.
Clause 47 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.
Clause 48 stipulates who may issue a surveillance device warrant, and in what conditions he or she may issue it.
Clause 49 restricts the issue of surveillance device warrants that would impinge on certain lawyer-client communications to which legal professional privilege normally applies.
Clause 50 specifies the form and contents of a surveillance device warrant.
Clause 51 specifies who may carry out the activities authorised by a surveillance device warrant. Clause 51 also provides that evidential material obtained when using surveillance devices lawfully or as authorised by a surveillance device warrant but that relates to offences different from those for which the warrant was issued or the surveillance device was used is not inadmissible in criminal proceedings only because of that difference.
Clause 52 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.
Clause 53 sets out reporting requirements in relation to surveillance device warrants by those who carry out activities authorised by the warrants.
Clause 54 sets out reporting requirements in relation to the use of surveillance devices under clause 44 in situations of urgency or emergency.
Clause 55 details the possible actions a Judge may take on receipt of a report under clause 53.
Clause 56 details the possible actions a Judge may take on receipt of a report under clause 54.
Clause 57 sets out the circumstances in which a law enforcement agency must obtain a residual warrant.
Clause 58 states the particulars that an application for a residual warrant must contain.
Clause 59 specifies the conditions for issuing a residual warrant.
Clause 60 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.
Clause 61 stipulates who may issue a residual warrant, and in what conditions he or she may issue it.
Clause 62 restricts the issue of residual warrants that would impinge on certain lawyer-client communications to which legal professional privilege normally applies.
Clause 63 specifies the form and content of a residual warrant.
Clause 64 specifies who may carry out the activities authorised by a residual warrant.
Clause 65 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.
Clause 66 sets out reporting requirements in relation to residual warrants by those who carry out activities authorised by the warrants.
Clause 67 details the possible actions a Judge may take on receipt of a report under clause 66.
Clause 68 is the interpretation provision for subpart 2 of Part 3.
Clause 69 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 70 sets out the conditions for making a production order.
Clause 71 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 72 sets out the conditions under which an issuing officer may make a production order.
Clause 73 specifies the form and content of a production order.
Clause 74 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 75 lists some provisions that apply to search warrants that also apply, with some modification, to production orders.
Clause 76 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.
Clause 77 requires an enforcement officer who has retained an original document produced in compliance with a production order to take a copy of the document and give the copy to the person who produced the original document in compliance with the production order.
Clause 78 relates the meanings of terms used in the subpart to their meanings in the Customs and Excise Act 1996.
Clause 79 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 constable or Customs officer may search a person, detain him or her, enter and search places, craft, and vehicles, and seize things.
Clause 80 applies subpart 4 to any person who has a statutory power of arrest or detention.
Clause 81 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 82 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 83 to 85 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 under a statutory power of detention, and specify the parameters of a rub-down search.
Clause 86 authorises the search of a person by a person to whom subpart 4 applies, in specified circumstances.
Clause 87 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 87 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 88 sets out rules of application concerning clauses 89 to 92 (which relate to consent searches).
Clause 89 sets out the purposes for which a consent search may be undertaken.
Clause 90 requires an enforcement officer to determine that a consent search is for a purpose authorised by clause 89 before undertaking a consent search. Clause 90 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 91 provides that non-compliance with the requirements of clauses 89 and 90 makes the search unlawful.
Clause 92 provides that, with 1 exception, a person under 14 years of age is unable to consent to the search of a place, vehicle, or other thing.
Clause 93 provides that clauses 89 to 92 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.
Clause 94 is an application clause which explains when and how clauses 95 to 99 apply.
Clause 95 defines the term applicant for the purposes of this subpart.
Clause 96 describes the particulars that must be included in an application for a search warrant. Clause 96(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 96 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 97 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 98 sets out rules governing the mode of application for a search warrant. An applicant may be excused from making a written application, appearing personally, or communicating orally with the issuing officer in circumstances set out in the clause. If the issuing officer dispenses with the need for a written application, the issuing officer must record the grounds for the application as soon as practicable.
Clause 99 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.
Clause 100 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 101 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 102 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 103 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 104 defines when execution of a warrant is taken to have occurred.
Clause 105 specifies when a search warrant is invalid.
Clause 106 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.
Clause 107 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 relevant enactment (as defined in clause 3) and every power conferred by the Bill (once enacted) or any relevant enactment to enter and search (without warrant) any place, vehicle, or other thing.
Clause 108 specifies the things that may be done by a person exercising a search power.
Clause 109 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 110 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.
Clause 111 provides that the powers conferred by clauses 108 to 110 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 112 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.
Clause 113 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.
Clause 114 sets out powers of detention that may be exercised when a person exercises a power to search a place or vehicle.
Clause 115 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 116 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.
Clause 117 sets out how and in what circumstances an enforcement officer may exercise a power to stop a vehicle to search it.
Clause 118 confers powers on law enforcement officers to move a vehicle to another place for the purposes of search, safekeeping, or road safety.
Clause 119 enables, in certain circumstances, the seizure of items in plain view.
Clause 120 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 121 requires law enforcement agencies that employ persons with the power of search to issue guidelines to those persons about the use of strip searching.
Clause 122 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.
Clause 123 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 124 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 Police uniform, produce evidence of his or her identity on request.
Clause 125 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.
Clause 126 sets out identification and notice requirements for a person exercising a search power.
Clause 127 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 128 enables compliance with certain requirements in clauses 126 and 127 to be deferred on the order of a District Court Judge.
Clause 129 enables the further postponement of, or dispensation from, the obligation to comply with those provisions.
Clause 130 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 131 enables the search of lawyers trust account records.
Clauses 132 and 133 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.
Clause 134 sets out specific rules dealing with the effect of a privilege recognised by this subpart on surveillance conducted under this Bill (once enacted).
Clauses 135 to 140 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 139 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 140 imposes certain obligations on a person who wishes to claim privilege for things sought to be seized.
Clause 141 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.
Clause 142 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 relevant enactment (as defined in clause 3) to be dealt with in accordance with this subpart.
Clause 143 requires things seized or produced, if they are not required for investigative or evidential purposes, and if they are not liable to forfeiture to the Crown or any other person, 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 144 provides for the custody of things seized or produced, that are required for investigative or evidential purposes, or that are liable to forfeiture to the Crown or any other person, and sets out rules governing the length of time for which they may be held.
Clause 145 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 146 enables the District Court to grant an extension of time for holding a thing seized or produced.
Clause 147 enables the District Court to make orders about the ownership or holding of any thing seized or produced.
Clause 148 provides that if the ownership or person entitled to possession of a thing served or produced is not established within 60 days after the date on which the thing was seized or produced, the property is forfeited to the Crown.
Clause 149 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 150 provides that a failure to comply with any bond, surety, or condition imposed under clause 149 may result in the thing again being seized or access to it denied.
Clauses 151 and 152 provide 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 153 sets out a procedure for the disposal of things, the possession of which is unlawful under New Zealand law.
Clause 154 sets out requirements relating to the disposal of forensic copies of evidential material.
Clause 155 enables other copies of things made and generated material to be retained.
Clause 156 sets out a procedure for a person who seizes a thing, or a person to whom a thing is produced, or an enforcement officer to whom a thing is transferred, to apply, in specified circumstances, to a District Court for an order to dispose of the thing.
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.
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 relevant enactment (as defined in clause 3).
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.
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 113(1), or leave any place or vehicle at which he or she is detained in breach of clause 114(1).
Clause 169 makes it an offence, in circumstances specified in clause 169, to fail to—
stop a vehicle when required to do so by an enforcement officer who is exercising a power to stop or search a vehicle:
comply with a requirement made by an enforcement officer under clause 123.
Clause 170 makes it an offence for a person to fail to carry out his or her obligations under clause 125 (which imposes a duty on certain persons to assist with computer searches).
Clause 171 makes it an offence to disclose information acquired through search or surveillance (otherwise than in the performance of a person's duties).
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.
Clause 174 states that subparts 6 and 8 of Part 4 (which relate to immunities and offences) apply to the exercise of any power to which any subpart or provision of Part 4 is applied by an enactment other than the Bill (once enacted).
Clauses 175 to 284 amend some search and seizure powers that are used for law enforcement purposes, or for law enforcement and regulatory 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 1999:
Animal Welfare Act 1999:
Antarctic Marine Living Resources Act 1981:
Antarctica (Environmental Protection) Act 1994:
Aviation Crimes Act 1972:
Biosecurity Act 1993:
Boxing and Wrestling Act 1981:
Children, Young Persons, and Their Families Act 1989:
Civil Aviation Act 1990:
Commodity Levies Act 1990:
Conservation Act 1987:
Customs and Excise Act 1996:
Dairy Industry Restructuring Act 2001:
Dog Control Act 1996:
Driftnet Prohibition Act 1991:
Employment Relations Act 2000:
Extradition Act 1999:
Films, Videos, and Publications Classification Act 1993:
Financial Transactions Reporting Act 1996:
Fisheries Act 1996:
Food Act 1981:
Gambling Act 2003:
Hazardous Substances and New Organisms Act 1996:
Health and Safety in Employment Act 1992:
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 2000:
International War Crimes Tribunals Act 1995:
Land Transport Act 1998:
Local Government Act 2002:
Major Events Management Act 2007:
Marine Mammals Protection Act 1978:
Marine Reserves Act 1971:
Maritime Security Act 2004:
Maritime Transport Act 1994:
Meat Board Act 2004:
Motor Vehicle Sales Act 2003:
National Parks Act 1980:
Overseas Investment Act 2005:
Ozone Layer Protection Act 1996:
Petroleum Demand Restraint Act 1981:
Pork Industry Board Act 1997:
Prostitution Reform Act 2003:
Radiation Protection Act 1965:
Radiocommunications Act 1989:
Reserve Bank of New Zealand Act 1989:
Reserves Act 1977:
Resource Management Act 1991:
Sale of Liquor Act 1989:
Social Security Act 1964:
Tax Administration Act 1994:
Trade in Endangered Species Act 1989:
Unsolicited Electronic Messages Act 2007:
Wild Animal Control Act 1977:
Wildlife Act 1953:
Wine Act 2003.
Clauses 285 to 294 amend search and seizure powers that are used for regulatory purposes in the following Acts, so that the provisions of Part 4 apply to those powers:
Anti-Personnel Mines Prohibition Act 1998:
Chemical Weapons (Prohibition) Act 1996:
Commerce Act 1986:
Credit Contracts and Consumer Finance Act 2003:
Electricity Act 1992:
Fair Trading Act 1986:
Forests Act 1949:
Gas Act 1992:
International Energy Agreement Act 1976:
Weights and Measures Act 1987.
Clauses 295 to 312 amend Acts by repealing enactments that are now to be found, with some modifications, in the Bill, and by making other consequential amendments to some enactments. Clause 305 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, and clause 309 adds the offences created by clauses 165 and 166 to Schedule 1 of the Summary Proceedings Act 1957, so that those indictable offences may also by tried summarily.
Clause 313 is the regulation-making power for the Bill.
Clause 314 is a transitional provision for reporting requirements in relation to the first annual report that will be required under clause 163.
Clause 315 is a transitional provision in relation to sections 198 to 200 of the Summary Proceedings Act 1957. Those sections are repealed by clause 310.
Clause 316 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 2015.
Legislation is required to implement the Law Commission’s proposals in its report on Search and Surveillance Powers (NZLC R97). A Search and Surveillance Powers Bill was drafted in accordance with decisions made by Cabinet in March 2008 (CAB Min (08) 10/1, CAB Min (08) 10/1A, and CAB Min (08) 10/1B). The Search and Surveillance Powers Bill was introduced to the House on 17 September 2008 with the required regulatory impact statement (RIS) attached. Following this, the Ministry of Justice and the Law Commission consulted widely with regulatory agencies regarding the application of the Search and Surveillance Powers Bill to their search and related powers. The recommendations made in this Cabinet paper, if agreed to, will allow a new Bill to be drafted to incorporate changes arising from this consultation process. The RIS attached to the previous Bill has been amended to reflect these changes. Given the wide ranging nature of the proposed reforms to the law of search and surveillance, there is no viable alternative to the promulgation of legislation to give effect to those recommendations and to address deficiencies in the existing law in a comprehensive manner.
The Ministry of Justice has reviewed this RIS and has determined that it is adequate according to the criteria agreed by Cabinet. Treasury’s Regulatory Impact Analysis Team has indicated that it does not need to review this RIS because the proposals in the Cabinet paper will not significantly impact on economic growth.
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, the Cabinet decisions in March 2008, and this Cabinet paper propose reform of the law to provide a coherent, consistent, and certain approach in balancing the complementary values of law enforcement and human rights.
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.
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. 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.
The proposed search and surveillance statute to implement the recommendations contained in the original suite of papers as well as the subsequent Cabinet paper will have 5 main components dealing with—
all Police search powers—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 for law enforcement purposes, and search and surveillance powers for regulatory purposes where appropriate and practicable. 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 Police will incur costs in implementing the changes to their search and surveillance powers. The Police will need to develop a programme to educate its employees on these changes, and to create training materials to complement this programme. Hard copy and electronic forms used by the Police will require updating. The Police expect costs associated with an increase in warrant applications (particularly due to the requirement for surveillance device warrants) and complying with the additional reporting requirements.
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.
There will also be costs associated with the extension of the generic procedural provisions of the Bill to regulatory agencies. The regulatory agencies will need to undertake training of enforcement officers regarding the new procedures for the application for, issuing of, and execution of search warrants and surveillance device warrants. The regulatory agencies will also have to update any existing forms and manuals relating to search warrants and create new forms and manuals for surveillance device warrants. Training in post-execution procedures will also need to be undertaken.
Greater certainty in the law, however, has the potential to reduce the resources required for hearing and resolving challenges to the validity of search warrants and the admissibility of evidence. The regulatory agencies will also benefit from the following non-quantitative advantages: access to a larger pool of issuing officers who can issue warrants, the ability to submit warrant applications electronically, and the disposal of the need to appear personally in a warrant application in certain situations. The costs associated with the training of enforcement officers in the new regime could also be minimised, where appropriate, by enforcement agencies co-operating and sharing the costs of the training.
The benefits attaching to greater certainty and simplicity in the law will outweigh any costs associated with the implementation of the Bill.
These proposals will be implemented by way of a new Search and Surveillance Bill, to be introduced to the House in early 2009. 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.
The Law Commission, Department of Labour, Department of Internal Affairs, Crown Law Office, Ministry of Fisheries, Ministry of Agriculture and Forestry, Ministry of Foreign Affairs and Trade, Ministry for the Environment, Ministry of Economic Development, New Zealand Police, New Zealand Customs Service, Commerce Commission, New Zealand Food Safety Authority, Ministry of Health, Ministry of Social Development, Inland Revenue Department, and the Department of Conservation have been consulted on this statement.
Hon Simon Power
Government Bill
45—1
Subpart 1—Rules about internal searches and search warrant powers in relation to places, vehicles, and other things
Stopping vehicle without warrant to effect arrest
16 Searching people in public place without warrant for evidential material relating to certain offences
21 Warrantless power to search and detain a person, and seize controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975
22 Internal search of person under arrest for offence against section 6 or 7 or 11 of Misuse of Drugs Act 1975
25 Searching people in public places without search warrant if offence against section 202A of Crimes Act 1961 suspected
26 Stopping and searching vehicles without warrant if offence against section 202A of Crimes Act 1961 suspected
Warrantless powers relating to road blocks and road closures
Examination orders in business contexts
Examination orders in contexts other than those of business
Other provisions that apply to examination order applications
Making examination orders and contents of examination orders
Other provisions relating to examination orders
44 Surveillance device warrant need not be obtained for use of surveillance device in some situations of emergency or urgency
Application for surveillance device warrant
Issuing of surveillance device warrant
Carrying out authorised surveillance activities and evidential material relevant to other offences
51 Carrying out authorised surveillance activities and evidential material relevant to other offences
Other provisions applying to surveillance device warrants
Surveillance device warrant reports
Application for residual warrant
Carrying out activities authorised by residual warrants
Other provisions that apply to residual warrants
Subpart 3—Police and Customs officer powers to search in relation to delivery under section 12 of Misuse of Drugs Amendment Act 1978
79 Searches of persons, places, and vehicles relating to deliveries under section 12 of Misuse of Drugs Amendment Act 1978
87 Application of rules in relation to enforcement officers and transfer of things between law enforcement agencies, etc
Application for search warrant
Detention of person at search scene
Powers of search incidental to powers of arrest
Stopping vehicles with or without warrant for purposes of search
Moving vehicle for safekeeping and other purposes
Seizure of items in plain view
Search warrants to enter and search vehicles
Provision of particulars and other information
125 Duty of persons with knowledge of computer or computer network or other data storage devices to assist access
Examination orders and production orders
Search warrants and other search powers
Admission of evidence generally
Rights of owners and others in relation to things seized or produced
167 False application for examination order, production order, search warrant, surveillance device warrant, or residual warrant
Subpart 1—Amendments to search and seizure powers in other enactments (and to related provisions) used for law enforcement purposes or for law enforcement and regulatory purposes
Amendments to Agricultural Compounds and Veterinary Medicines Act 1997
Amendments to Animal Products Act 1999
Amendments to Animal Welfare Act 1999
Amendment to Antarctic Marine Living Resources Act 1981
Amendments to Antarctica (Environmental Protection) Act 1994
Amendments to Aviation Crimes Act 1972
Amendments to Biosecurity Act 1993
Amendment to Boxing and Wrestling Act 1981
Amendments to Children, Young Persons, and Their Families Act 1989
Amendments to Civil Aviation Act 1990
Amendments to Commodity Levies Act 1990
Amendments to Conservation Act 1987
Amendments to Customs and Excise Act 1996
208 Amendments to section 172 and repeal of sections 168 to 171 and 173 of Customs and Excise Act 1996
209 Seizure and detention of goods suspected to be certain risk goods or evidence of commission of certain offences
Amendments to Dairy Industry Restructuring Act 2001
Amendments to Dog Control Act 1996
Amendments to Driftnet Prohibition Act 1991
Amendments to Employment Relations Act 2000
Amendments to Extradition Act 1999
Amendments to Films, Videos, and Publications Classification Act 1993
Amendments to Financial Transactions Reporting Act 1996
Amendments to Fisheries Act 1996
Amendments to Gambling Act 2003
Amendments to Hazardous Substances and New Organisms Act 1996
Amendments to Health and Safety in Employment Act 1992
Amendments to Health Practitioners Competence Assurance Act 2003
Amendments to Human Assisted Reproductive Technology Act 2004
Amendments to Human Tissue Act 2008
Amendments to Immigration Advisers Licensing Act 2007
Amendments to International Crimes and International Criminal Court Act 2000
Amendments to International War Crimes Tribunals Act 1995
Amendments to Land Transport Act 1998
Amendments to Local Government Act 2002
Amendments to Major Events Management Act 2007
Amendments to Marine Mammals Protection Act 1978
Amendments to Marine Reserves Act 1971
Amendments to Maritime Security Act 2004
Amendments to Maritime Transport Act 1994
Amendments to Meat Board Act 2004
Amendments to Motor Vehicle Sales Act 2003
Amendments to National Parks Act 1980
Amendments to Overseas Investment Act 2005
Amendments to Ozone Layer Protection Act 1996
Amendment to Petroleum Demand Restraint Act 1981
Amendments to Pork Industry Board Act 1997
Amendments to Prostitution Reform Act 2003
Amendments to Radiation Protection Act 1965
Amendments to Radiocommunications Act 1989
Amendments to Reserve Bank of New Zealand Act 1989
Amendments to Reserves Act 1977
Amendments to Resource Management Act 1991
Amendments to Sale of Liquor Act 1989
Amendment to Social Security Act 1964
Amendments to Tax Administration Act 1994
Amendments to Trade in Endangered Species Act 1989
Amendments to Unsolicited Electronic Messages Act 2007
Amendments to Wild Animal Control Act 1977
Amendments to Wildlife Act 1953
Subpart 2—Amendments to search and seizure powers in other enactments (and to related provisions) used for regulatory purposes
Amendments to Anti-Personnel Mines Prohibition Act 1998
Amendments to Chemical Weapons (Prohibition) Act 1996
Amendments to Commerce Act 1986
Amendment to Credit Contracts and Consumer Finance Act 2003
Amendments to Electricity Act 1992
Amendments to Fair Trading Act 1986
Amendments to Forests Act 1949
Amendment to International Energy Agreement Act 1976
Amendments to Weights and Measures Act 1987
Amendments to Corrections Act 2004
Amendment to District Courts Act 1947
Amendment to Electricity Industry Reform Act 1998
Amendments to Misuse of Drugs Act 1975
Amendments to Misuse of Drugs Amendment Act 1978
Amendment to Mutual Assistance in Criminal Matters Act 1992
Amendments to Policing Act 2008
Amendment to Proceeds of Crime Act 1991
Amendments to Summary Proceedings Act 1957
Amendment to Telecommunications Act 2001
Amendment to Telecommunications (Interception Capability) Act 2004
The Parliament of New Zealand enacts as follows:
This Act is the Search and Surveillance Act 2009.
(1) This Act comes into force on a date appointed by the Governor-General by Order in Council, and 1 or more Orders in Council may be made bringing different provisions into force on different dates.
(2) To the extent that it is not previously brought into force under subsection (1), the rest of this Act comes into force on 1 April 2011.
In this Act, unless the context otherwise requires,—
arms means any firearm, airgun, pistol, restricted weapon, imitation firearm, or explosive (as those terms are defined in section 2 of the Arms Act 1983), or any ammunition
business context, in relation to the acquisition of any information by a person, means the acquisition of the information in the person's capacity as—
(a) a provider of professional services or professional advice in relation to a person who is being investigated, or 1 or more of whose transactions are being investigated, in respect of an offence; or
(b) a director, manager, officer, trustee, or employee of an entity that is being investigated, or 1 or more of whose transactions are being investigated, in respect of an offence
chief executive—
(a) means the chief executive (however described) of any department of State, Crown entity, local authority, or other body that employs or engages enforcement officers as part of its functions; and
(b) includes the Commissioner
Commissioner means the Commissioner of Police
constable has the same meaning as in section 4 of the Policing Act 2008
controlled drug has the same meaning as in section 2 of the Misuse of Drugs Act 1975
Crown entity has the same meaning as in section 7(1) of the Crown Entities Act 2004
Customs officer has the meaning given to it in section 2(1) of the Customs and Excise Act 1996
District Court Judge means a Judge appointed under the District Courts Act 1947
enforcement officer—
(a) means any of the following persons:
(i) a constable:
(ii) any person authorised by this Act or any relevant enactment to exercise a power of entry, search, or seizure; but
(b) does not include any person referred to in paragraph (a)(ii)in relation to the exercise by that person of any power of entry, search, or seizure under any enactment that is not—
(i) part of this Act; or
(ii) a relevant enactment
equipment includes fingerprint powder and any chemical or other substance used for law enforcement purposes
evidential material, in relation to a particular offence, means evidence or any other item, tangible or intangible, of relevance to the investigation of the offence
examination order means an examination order made under section 36
informant has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008
intercept, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the communication either—
(a) while it is taking place; or
(b) while it is in transit
interception device—
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but
(b) does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
issuing officer means—
(a) a Judge:
(b) a person, such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar, who is for the time being authorised to act as an issuing officer under section 106
Judge means a District Court Judge or a Judge of the High Court
law enforcement agency means any department of State, Crown entity, local authority, or other body that employs or engages enforcement officers as part of its functions
local authority means a local authority within the meaning of section 5(1) of the Local Government Act 2002
medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine
non-business context means a context other than a business context
non-private premises means premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport, or shop
nurse means a health practitioner who is, or is deemed to be, registered with the Nursing Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of nursing whose scope of practice permits the performance of general nursing functions
Police article has the same meaning as in section 4 of the Policing Act 2008
Police bail has the same meaning as in Part 2 of the Bail Act 2000
Police employee has the same meaning as in section 4 of the Policing Act 2008
Police uniform has the same meaning as in section 4 of the Policing Act 2008
precursor substance has the same meaning as in section 2(1) of the Misuse of Drugs Act 1975
private activity means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to expect is observed, intercepted, or recorded by no one except the participants
private communication—
(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so
private premises means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises
production order means a production order made under section 72
relevant enactment,—
(a) in relation to a provision in Part 4 of this Act,—
(i) means—
(A) an enactment that is not part of this Act but in respect of which all of Part 4 is expressly applied; or
(B) an enactment that is not part of this Act but in respect of which that particular provision in Part 4 or the subpart that the provision forms part of is expressly applied; but
(ii) does not include any section or subsection in an Act, or regulation or subclause in regulations, as the case requires, unless all of Part 4 or the subpart that the provision forms part of or the particular provision in Part 4 is expressly applied in respect of that section or subsection or regulation or subclause, as the case requires; and
(b) in relation to any other provision in this Act,—
(i) means an enactment that is not part of this Act but in respect of which Part 4 of this Act or any subpart or provision in Part 4 is expressly applied; but
(ii) does not include any section or subsection in an Act or regulation or subclause in regulations, as the case requires, unless Part 4 or any subpart or any provision of Part 4 is expressly applied in respect of that section or subsection or regulation or subclause, as the case requires
road block means any form of barrier or obstruction preventing or limiting the passage of vehicles
rub-down search means a search described in sections 83(2), 84, and 85
strip search means a search where the person conducting the search may require the person being searched to remove, raise, lower, or open all or any of the clothing of the person being searched
surveillance device means a device that is any 1 or more of the following kinds of devices:
(a) an interception device:
(b) a tracking device:
(c) a visual surveillance device
thing seized does not include anything made or generated by a person exercising a search or surveillance power (for example, photographs, drawings, or audio or video recordings made by or on behalf of that person, or a forensic copy of a computer hard drive)
tracking device means a device that, when installed in or on a thing, may be used to help ascertain, by electronic or other means, either or both of the following:
(a) the location of that thing or a person in possession of that thing:
(b) whether a thing has been opened, tampered with, or in some other way dealt with
unique identifier, in relation to an enforcement officer, means an identifier, used to identify the officer, that is not his or her name and that—
(a) is assigned to him or her by the law enforcement agency that employs or engages him or her for the purposes of its operations; and
(b) uniquely identifies him or her in relation to the law enforcement agency
unlawfully at large, in relation to a person, means that he or she is any 1 or more of the following:
(a) a person for whose arrest a warrant is in force:
(b) unlawfully at large within the meaning of the Corrections Act 2004 or the Parole Act 2002:
(c) a prison breaker within the meaning of section 119 of the Crimes Act 1961:
(d) an escapee from lawful custody within the meaning of section 120 of the Crimes Act 1961:
(e) a special patient or restricted patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 who has escaped or failed to return on the expiry or cancellation of a period of leave:
(f) a care recipient or special care recipient within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 who has escaped or failed to return on the expiry or cancellation of a period of leave:
(g) a young person within the meaning of the Children, Young Persons, and Their Families Act 1989 who is subject to an order made under section 311(1) of that Act and who is absconding from the custody of the chief executive (as defined in that Act)
vehicle means any conveyance that is capable of being moved under a person's control, whether or not the conveyance is used for the carriage of persons or goods, and includes a motor vehicle, aircraft, train, ship, or bicycle
visual surveillance device—
(a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but
(b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
This Act binds the Crown.
(1) A constable must not conduct an internal search of any part of the body of any person, except for, with the person's consent, searching the person's mouth.
(2) A constable must not require any other person to conduct an internal search of any part of the body of any person, except as provided in section 22 (which relates to internal searches in some circumstances of people under arrest for offences against the Misuse of Drugs Act 1975).
(3) This section does not limit or affect sections 13A to 13M of the Misuse of Drugs Amendment Act 1978.
An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds—
(a) to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and
(b) to believe that the search will find evidential material in respect of the offence in the place, vehicle, or other thing specified in the application.
A constable may enter a place or vehicle without warrant to search for and arrest a person if the constable has reasonable grounds—
(a) to suspect that a person is unlawfully at large; and
(b) to believe that the person is there.
(1) In the circumstances set out in subsection (2), a constable may—
(a) enter a place or vehicle without a warrant; and
(b) arrest a person that the constable suspects has committed the offence.
(2) The circumstances are that the constable has reasonable grounds—
(a) to suspect that the person has committed an offence that is punishable by imprisonment and for which he or she may be arrested without warrant; and
(b) to believe that the person is there; and
(c) to suspect that, if entry is not effected immediately, either or both of the following may occur:
(i) the person will leave there to avoid arrest:
(ii) evidential material relating to the offence for which the person is to be arrested will be destroyed, concealed, or damaged.
A constable may stop a vehicle without a warrant to arrest a person if the constable has reasonable grounds—
(a) to suspect that a person—
(i) is unlawfully at large; or
(ii) has committed an offence punishable by imprisonment; and
(b) to believe that the person is in or on the vehicle.
(1) A constable exercising the stopping power under section 9 may do any 1 or more of the following:
(a) search the vehicle to locate the person referred to in section 9, if the constable has reasonable grounds to believe that the person is in or on the vehicle:
(b) search the vehicle to locate property that is evidential material in relation to any offence in respect of which the vehicle was stopped under section 9, if the person referred to in section 9—
(i) has been arrested; or
(ii) is seen fleeing from the vehicle before he or she can be arrested.
(2) Before conducting a search under a power conferred by subsection (1)(b), a constable must tell the driver the object of the proposed search, if the driver is not the person referred to in section 9.
(1) This section applies to any person who—
(a) has been taken into lawful custody; and
(b) is—
(i) at a Police station; or
(ii) in other premises, or in a vehicle, being used for Police purposes; and
(c) is to be locked up (whether pending a decision as to bail under section 21 of the Bail Act 2000, or in any other circumstances).
(2) A constable, or a searcher used in accordance with section 12, may conduct a search of a person to whom this section applies.
(3) A constable or searcher may take from the person any money or other property found during the search.
Compare: 2008 No 72 s 37
(1) A Police employee in charge of a person to whom section 11 applies may use a searcher to conduct a search of the person under section 11 if the use of that searcher is necessary to enable the search of the person in custody to be carried out—
(a) by someone of the same sex as the person to be searched; or
(b) within a reasonable time of the person being taken into custody.
(2) The Police employee in charge of a person who is taken into lawful custody and is to be locked up must be satisfied that a searcher used under this section has received appropriate training before that searcher conducts a search under section 11.
(3) The searcher must carry out the search as if he or she were a Police employee.
Compare: 2008 No 72 s 38
(1) All money and every item of property taken from a person under section 11 must be returned to him or her when he or she is released from custody, except for the following:
(a) any money or property that, in the opinion of a constable, may need to be given in evidence in proceedings arising out of a charge brought against the person:
(b) any money or property whose possession may, in the opinion of a constable, constitute an offence.
(2) Despite subsection (1), when a person described in section 11(1) is released from Police custody and is placed in the custody of another person, all money and every item of property taken from him or her under section 11 (other than money or property of a kind described in subsection (1)(a) or (b)) must, if practicable, be delivered—
(a) to the person into whose custody he or she is released; or
(b) to the person in charge of the facility, if he or she is being released from Police custody in order to be held in custody in the facility.
(3) Subsection (1) is subject to an order made under—
(a) section 40 of the Policing Act 2008; or
(b) section 404 of the Crimes Act 1961.
Compare: 2008 No 72 s 39
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a place or vehicle may—
(a) enter the place or vehicle without a warrant; and
(b) take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2) The circumstances are as follows:
(a) an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or loss of, any property:
(b) there is risk to the life or safety of any person that requires an emergency response.
A constable may enter and search a place without a warrant if he or she has reasonable grounds—
(a) to believe that evidential material is in that place; and
(b) to suspect—
(i) that the evidential material relates to an offence, punishable by imprisonment for a term of 14 years or more, that has been committed, or is being committed, or is about to be committed; and
(ii) that, if entry is delayed in order to obtain a search warrant, the evidential material will be destroyed, concealed, or damaged.
A constable may search a person without a warrant in a public place if the constable has reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more.
A constable may, without a warrant, enter and search a vehicle that is in a public place if he or she has reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of 14 years or more is in the vehicle.
(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:
(a) search the person:
(b) search any thing in the person's possession or under his or her control (including a vehicle):
(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):
(d) seize and detain any arms found.
(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and—
(a) he or she is in breach of the Arms Act 1983; or
(b) he or she, by reason of his or her physical or mental condition (however caused),—
(i) is incapable of having proper control of the arms; or
(ii) may kill or cause bodily injury to any person; or
(c) that, under the Domestic Violence Act 1995,—
(i) a protection order is in force against the person; or
(ii) there are grounds to make an application against him or her for a protection order.
(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms found there, and detain the arms if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—
(a) in respect of which an indictable offence or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or
(b) that may be evidential material in relation to an indictable offence or an offence against the Arms Act 1983.
A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a) to believe that in or on the place or vehicle there is—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, or damaged.
A constable conducting a search of a place or vehicle under section 19 may, without a warrant, search any person found in or on the place or vehicle.
(1) A constable may, in the circumstances set out in subsection (2), do any or all of the following without a warrant:
(a) search a person:
(b) take possession of any controlled drug or precursor substance found during the search.
(2) The circumstances are that the constable has reasonable grounds—
(a) to believe that the person is in possession of—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.
(3) This section does not—
(a) limit section 19 or 20; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.
(1) In the circumstances set out in subsection (2), a constable may require a person to permit a medical practitioner, nominated for the purpose by the constable, to conduct an internal examination of any part of the person's body by means of—
(a) an X-ray machine or other similar device; or
(b) a manual or visual examination (whether or not facilitated by any instrument or device) through any body orifice.
(2) The circumstances are that—
(a) the person is under arrest for an offence against section 6 or 7 or 11 of the Misuse of Drugs Act 1975; and
(b) the constable has reasonable grounds to believe that the person has secreted within his or her body any property—
(i) that may be evidence of the offence with which the person is charged; or
(ii) the possession of which by the person constitutes any other offence against section 6 or 7 or 11 of the Misuse of Drugs Act 1975.
(3) A medical practitioner must not conduct an internal examination if he or she—
(a) considers that to do so may be prejudicial to the person's health; or
(b) is satisfied that the person is not prepared to permit an internal examination to be conducted.
(4) This section does not limit or affect sections 13A to 13M of the Misuse of Drugs Amendment Act 1978.
(1) In the circumstances set out in subsection (2), a court may decline to consider a bail application by a person, and may order that the person continue to be detained in Police custody, until the earlier of the following occurs:
(a) the expiry of 2 days after the day on which the person was required under section 22(1) to permit an internal examination by a medical practitioner:
(b) the person permits the examination to be conducted.
(2) The circumstances are that—
(a) the person fails to permit an internal examination to be conducted under section 22; and
(b) the court is satisfied that the requirement under section 22(1) was properly made on reasonable grounds.
(3) Nothing in subsection (1) limits a court's discretion to refuse bail.
(4) This section overrides any contrary provisions about bail in any of the following:
(a) the Bail Act 2000:
(b) the Misuse of Drugs Act 1975:
(c) the Summary Proceedings Act 1957.
In this subpart,—
disabling substance means any anaesthetising or other substance produced to use for disabling a person, or intended for such use by the person who has it with him or her
offensive weapon means any article made or altered to use for causing bodily injury, or intended for such use by the person who has it with him or her.
A constable who has reasonable grounds to suspect that a person is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances) may, without a warrant,—
(a) stop the person and—
(i) search him or her; and
(ii) search any thing that he or she has with him or her that the constable has reasonable grounds to believe contains a knife, offensive weapon, or disabling substance; and
(b) take possession of any knife, offensive weapon, or disabling substance found.
(1) A constable who has reasonable grounds to suspect that the circumstances in subsection (2) exist in relation to a vehicle may—
(a) stop and search the vehicle; and
(b) detain it for as long as is reasonably necessary to conduct the search; and
(c) take possession of any knife, offensive weapon, or disabling substance found.
(2) The circumstances are that—
(a) a person travelling in the vehicle or who has alighted from it is committing an offence against section 202A(4)(a) of the Crimes Act 1961 (which relates to possession of knives, offensive weapons, and disabling substances); and
(b) the vehicle contains a knife, offensive weapon, or disabling substance.
A constable who has reasonable grounds to believe that any stolen property is in or on any vehicle may search it without a warrant.
(1) This section applies to a senior constable in the circumstances set out in subsection (2) who is satisfied that, as far as is reasonably practicable, the safety of all road users will be ensured in the area in which it is proposed that a road block be established.
(2) The circumstances are that the senior constable has reasonable grounds—
(a) to believe that in or on a vehicle there is a person who the constable has reasonable grounds to suspect—
(i) has committed an offence punishable by a term of imprisonment; or
(ii) is unlawfully at large; and
(b) to suspect that the vehicle will travel past the place where it is proposed that the road block be established.
(3) A senior constable to whom this section applies may authorise the establishment of a road block for the purpose of arresting the person.
(4) An authorisation may be granted under this section orally or in writing.
(5) For the purposes of this section, a person is not unlawfully at large if the only warrant for his or her arrest that is in force is a warrant issued under Part 3 of the Summary Proceedings Act 1957.
(6) In this section, senior constable means a constable who holds a level of position of sergeant or higher, and includes any constable who is acting in any such rank.
(1) An authorisation under section 28—
(a) is valid for an initial period not exceeding 24 hours specified by the person giving the authorisation; and
(b) may be renewed from time to time by a District Court Judge for a single further period not exceeding 24 hours specified in writing by the Judge.
(2) The person giving the authorisation must keep or cause to be kept a written record of the following matters:
(a) the location of the road block that was authorised:
(b) the period or periods for which the authorisation was granted or renewed:
(c) the grounds on which the authorisation was granted or renewed.
Any constable may do any or all of the following when a road block is authorised under section 28:
(a) establish a road block at the place specified in the authorisation:
(b) stop vehicles at or in the vicinity of the road block:
(c) require any person in or on any vehicle stopped by the road block to state any or all of his or her name, address, and date of birth:
(d) search the vehicle for the purpose of locating a person referred to in section 28(2)(a)(i) or (ii), if the constable or any other constable has reasonable grounds to believe that the person is in or on the vehicle:
(e) require that the vehicle remain stopped for as long as is reasonably necessary to enable a constable to exercise any powers conferred by this section, regardless of whether the powers are exercised in respect of—
(i) the vehicle; or
(ii) the occupants of the vehicle.
(1) The Commissioner may apply to a Judge for an examination order against a person in a business context if the Commissioner is satisfied that the conditions specified in section 32 are met in respect of the person.
(2) An application made under this section must be made in writing, and must set out the following particulars:
(a) the name of the applicant:
(b) a description of the offence that it is suspected has been committed, is being committed, or will be committed:
(c) the facts relied on to show reasonable grounds to suspect that an offence has been committed, or is being committed, or will be committed:
(d) a description of the information sought to be obtained by the examination order:
(e) the facts relied on to show reasonable grounds to believe that the person against whom the order is sought has the information:
(f) the facts that indicate that the person against whom the order is sought acquired the information in respect of which the order is sought in a business context:
(g) the facts that indicate that the person against whom the order is sought has been given a reasonable opportunity by a constable to provide the information but has not done so.
The conditions for making an examination order in a business context against a person are that—
(a) there are reasonable grounds to suspect that an offence punishable by imprisonment has been committed, or is being committed, or will be committed; and
(b) there are reasonable grounds to believe that the person sought to be examined has information that constitutes evidential material in respect of the offence; and
(c) there are reasonable grounds to believe that the person sought to be examined acquired the information in respect of which the order is sought in a business context; and
(d) the person has been given a reasonable opportunity by a constable to provide that information and has not done so.
(1) The Commissioner may apply to a Judge for an examination order against a person in a non-business context if the Commissioner is satisfied that the conditions specified in section 34 are met in respect of the person.
(2) An application made under this section must be made in writing, and must set out the following particulars:
(a) the name of the applicant:
(b) a description of the offence that it is suspected has been committed, is being committed, or will be committed:
(c) the facts relied on to show reasonable grounds to suspect that an offence has been committed, or is being committed, or will be committed:
(d) a description of the information sought to be obtained by the examination order:
(e) the facts relied on to show reasonable grounds to believe that the person against whom the order is sought has the information:
(f) the facts that indicate that the person against whom the order is sought acquired the information in respect of which the order is sought in a non-business context:
(g) the facts that indicate that the person against whom the order is sought has been given a reasonable opportunity by a constable to provide the information but has not done so.
The conditions for making an examination order in a non-business context against a person are that—
(a) there are reasonable grounds to suspect that an offence punishable by imprisonment has been committed, or is being committed, or will be committed, and the offence—
(i) is serious or complex fraud; or
(ii) has been committed, or is being committed, or will be committed wholly or partly because of participation in a continuing association of 3 or more persons having as its object, or as 1 of its objects, a continuing course of criminal conduct; and
(b) there are reasonable grounds to believe that the person sought to be examined has information that constitutes evidential material in respect of the offence; and
(c) there are reasonable grounds to believe that the person sought to be examined acquired the information in respect of which the order is sought in a non-business context; and
(d) the person has been given a reasonable opportunity by a constable to provide that information and has not done so.
(1) The provisions in subsection (2) apply to any application for an examination order as if—
(a) any reference in those provisions to a search warrant were a reference to an examination order; and
(b) any reference in those provisions to an issuing officer were a reference to a Judge; and
(c) any reference in those provisions to a District Court were a reference to a District Court or a High Court, as the case may be.
(2) The provisions are—
(a) section 96(2) (relating to requirements for further information); and
(b) section 97 (relating to verification of application); and
(c) section 98 (relating to mode of application); and
(d) section 99 (relating to retention of documents).
A Judge may, on an application made under section 31 or 33, make an examination order against a person if the Judge is satisfied that—
(a) the conditions specified in section 32 or 34, as the case may be, are met in respect of the person; and
(b) it is reasonable to subject the person to compulsory examination, having regard to the nature and seriousness of the suspected offending, the nature of the information sought, the relationship between the person to be examined and the suspect, and any alternative ways of obtaining the information.
(1) An examination order made under section 36 must be in the prescribed form and must require the person against whom it is made—
(a) to attend before the Commissioner or a delegate of the Commissioner; and
(b) to answer any questions that are relevant to the information in respect of which the order was made.
(2) The examination order must set out the following:
(a) the name of the person required to comply with the order:
(b) the grounds on which the order is made:
(c) the nature of the questions that the person is to be asked, being questions that are relevant to the information in respect of which the order was made:
(d) if the examination is to be conducted by a delegate of the Commissioner, the name of the delegate:
(e) where the examination is to take place:
(f) when the examination is to take place or how a time for the examination is to be fixed.
A person against whom an examination order is made must, before being required to appear before the Commissioner or the Commissioner’s delegate, be given a reasonable opportunity to arrange for a lawyer to accompany him or her.
An examination order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made).
Section 103 (relating to the transmission of search warrants) and section 105 (relating to when a search warrant is invalid) apply to examination orders as if—
(a) any reference in those provisions to a warrant or search warrant were a reference to an examination order; and
(b) any reference in those provisions to an issuing officer were a reference to the Judge issuing an examination order.
Nothing in this Part affects the common law defence of necessity as it applies to persons who are not constables.
Except as provided in sections 43 and 44, an enforcement officer who wishes to undertake any 1 or more of the following activities must obtain a surveillance device warrant:
(a) use of an interception device to intercept a private communication:
(b) use of a tracking device:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24-hour period; or
(ii) 8 hours in total.
(1) No warrant under this subpart is required by an enforcement officer in any 1 or more of the following circumstances:
(a) the enforcement officer lawfully—
(i) entering private premises; and
(ii) recording what he or she observes or hears there:
(b) covert audio recording of a voluntary oral communication between 2 or more persons made with the consent of at least 1 of them:
(c) activities that are carried out—
(i) in a place or vehicle that the enforcement officer enters lawfully; and
(ii) by means of the enforcement officer's unaided sense of smell:
(d) activities carried out by the enforcement officer's use of his or her unaided visual observation or unaided sense of hearing:
(e) activities carried out under the authority of an interception warrant issued under section 4A(1) or (2) of the New Zealand Security Intelligence Service Act 1969:
(f) activities carried out by the enforcement officer's use of a surveillance device, if that use is authorised under any enactment other than this Act.
(2) In this section,—
unaided sense of hearing means unaided except by a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing
unaided visual observation means unaided except for the use of spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.
(1) An enforcement officer who is in any 1 or more of the situations set out in subsection (2) may use a surveillance device for a period not exceeding 72 hours without obtaining a surveillance device warrant, if—
(a) he or she is entitled to apply for a surveillance device warrant in relation to those situations; but
(b) obtaining a surveillance device warrant within the time in which it is proposed to undertake the surveillance is impracticable in the circumstances.
(2) The situations are as follows:
(a) the enforcement officer has reasonable grounds—
(i) to suspect that an offence punishable by a term of imprisonment of 14 years or more has been, is being, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(b) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 14(2) exist; and
(ii) to believe that use of the surveillance device is necessary to prevent the offending from being committed or continuing, or to avert the emergency:
(c) the enforcement officer has reasonable grounds—
(i) to suspect that any 1 or more of the circumstances set out in section 18(2) exist; and
(ii) to believe that use of the surveillance device is necessary to facilitate the seizure of the arms:
(d) the enforcement officer has reasonable grounds—
(i) to suspect that an indictable offence in relation to arms or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(e) the enforcement officer has reasonable grounds—
(i) to suspect that an offence has been committed, or is being committed, or is about to be committed in relation to a controlled drug specified or described in Schedule 1, Part 1 of Schedule 2, or Part 1 of Schedule 3 of the Misuse of Drugs Act 1975, or to a precursor substance specified or described in Part 3 of Schedule 4 of that Act; and
(ii) to believe that use of the surveillance device would obtain evidential material in relation to the offence:
(f) the enforcement officer has reasonable grounds—
(i) to suspect that a person is in possession of any 1 or more of the things described in section 79(2)(a) to (d); and
(ii) to believe that use of the surveillance device is necessary to facilitate the thing's seizure.
(1) An application for a surveillance device warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:
(a) the name of the applicant:
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) the grounds on which the application is made:
(d) the suspected offence in relation to which the surveillance device warrant is sought:
(e) the type of surveillance device to be used:
(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(g) a description of the evidential material believed to be able to be obtained by use of the surveillance device:
(h) the period for which the warrant is sought.
(2) If the enforcement officer cannot provide all the information required under subsection (1)(f) and (g), the application must instead state the circumstances in which the surveillance is proposed to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the proposed use of the surveillance device.
(3) The applicant must disclose in the application—
(a) the details of any other applications for a search warrant, a surveillance device warrant, or a residual warrant that the applicant knows to have been made within the previous 3 months in respect of the person, place, vehicle, or other thing proposed as the object of the surveillance; and
(b) the result of that application or those applications.
(4) The applicant must, before making an application for a surveillance device warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).
The conditions for issuing a surveillance device warrant are that there are reasonable grounds—
(a) to suspect that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any relevant enactment authorises an enforcement officer to apply for a search warrant; and
(b) to believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence.
(1) The provisions in subsection (2) apply to any application for a surveillance device warrant as if—
(a) any reference in those provisions to a search warrant were a reference to a surveillance device warrant; and
(b) any reference in those provisions to an issuing officer were a reference to a Judge; and
(c) any reference in those provisions to a District Court were a reference to a District Court or a High Court, as the case may be.
(2) The provisions are—
(a) section 96(2) (relating to requirements for further information); and
(b) section 97 (relating to verification of application); and
(c) section 98 (relating to mode of application); and
(d) section 99 (relating to retention of documents).
A surveillance device warrant may be issued by a Judge, on application under section 45, if he or she is satisfied that the conditions set out in section 46 are met.
A Judge must not issue a surveillance device warrant that would permit surveillance or recording of activity between a lawyer and his or her client that is communication of a kind to which legal professional privilege normally applies unless the Judge is satisfied that the information provided by the applicant indicates that the communication is to be made or received—
(a) for a dishonest purpose; or
(b) for the purpose of planning or committing an offence.
(1) Every surveillance device warrant must—
(a) be in the prescribed form; and
(b) be directed to every enforcement officer who has authority to carry out the activities authorised by the surveillance device warrant; and
(c) specify a period, of no more than 60 days after the date on which the warrant is issued, for which it is in force; and
(d) contain a condition that, in accordance with section 53, a surveillance device warrant report must be provided to a Judge of the same court as the Judge who issues the warrant within 1 month after the expiry of the period for which it is in force; and
(e) contain a condition that the enforcement officer carrying out the activities authorised by the warrant must not use any communication obtained under the authority of the warrant unless the privilege is waived or its use is authorised by a Judge, if he or she has reasonable grounds to believe that the communication may be subject to a privilege specified in section 130.
(2) A surveillance device warrant may be subject to any other conditions specified in the warrant that the Judge issuing it considers reasonable, including a requirement for inclusion of specified information in the surveillance device warrant report provided under section 53.
(3) Every surveillance device warrant must also contain, in reasonable detail, the following particulars:
(a) the name of the Judge issuing the warrant and the date of issue:
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) the type of surveillance device the use of which the warrant authorises:
(d) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(e) the evidential material relating to the suspected offence that may be obtained by use of the surveillance device:
(f) that an enforcement officer carrying out the activities authorised by the warrant may use any assistance that is reasonable in the circumstances:
(g) that an enforcement officer carrying out the activities authorised by the warrant may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove the surveillance device, or to access and use electricity to power the surveillance device:
(i) enter any premises, area, or vehicle specified in the warrant:
(ii) break open or interfere with any vehicle or other thing:
(iii) temporarily remove any vehicle or other thing from any place where it is found and return it to that place.
(4) Despite subsection (3)(d) and (e), if the Judge has not been provided in the application, or otherwise, with the information specified in those provisions because the applicant is unable to provide it, the warrant must instead state the details (as provided under section 47(2) or otherwise) of the circumstances in which the surveillance is to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the use of the surveillance device.
(5) Despite subsection (1)(c), a Judge may issue a further surveillance device warrant in respect of the same suspected offence in regard to which the Judge, or another Judge, has previously issued a surveillance device warrant.
(1) A surveillance device warrant allows the following persons to carry out the activities authorised by it:
(a) any or all of the persons to whom it is directed:
(b) any assistant—
(i) who is called upon by a person specified in paragraph (a) to help him or her to carry out the activities; and
(ii) who, at all times that he or she is carrying out activities authorised by the warrant, remains under the supervision of a person specified in paragraph (a).
(2) Subsection (3) applies if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence—
(a) that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
(b) in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used.
(3) The evidential material referred to in subsection (2) is not inadmissible in criminal proceedings by reason only that the surveillance device warrant that authorised the activity that obtained the material was issued in respect of a different offence or, as the case requires, that the material was obtained from the use of a surveillance device that was put into use in respect of a different offence.
Section 103 (relating to the transmission of search warrants) and section 105 (relating to when a search warrant is invalid) apply to surveillance device warrants as if—
(a) any reference in those provisions to a warrant or search warrant were a reference to a surveillance device warrant; and
(b) any reference in those provisions to an issuing officer were a reference to the Judge issuing a surveillance device warrant.
(1) A person who carries out the activities authorised by a surveillance device warrant must provide a surveillance device warrant report within 1 month after the expiry of the period for which the warrant is in force, as specified in the warrant, to a Judge of the same court as the Judge who issued the warrant.
(2) The surveillance device warrant report must contain the following information:
(a) whether carrying out the activities authorised by the surveillance device warrant resulted in obtaining evidential material:
(b) the circumstances in which the surveillance device was used:
(c) any other information stated in the warrant as being required for inclusion in the surveillance device warrant report.
(1) An enforcement officer who uses a surveillance device under the authority of section 44 must provide a report to a Judge within 1 month after the date of the last day of any period of 72 hours or less over which the surveillance device was used.
(2) The report made under subsection (1) must contain the following information:
(a) whether the use of the surveillance device resulted in—
(i) obtaining evidential material of the relevant offence (in the case of use of a surveillance device in a situation set out in section 44(2)(a), (d), or (e)); or
(ii) preventing the offending from being committed or continuing, or averting the emergency (in the case of use of a surveillance device in a situation set out in section 44(2)(b)); or
(iii) facilitating the seizure of the arms (in the case of use of a surveillance device in a situation set out in section 44(2)(c)); and
(b) the circumstances in which the surveillance device was used.
(3) A Judge who receives a report under subsection (1) may require the enforcement officer who used the surveillance device to supply further information regarding the circumstances surrounding the use of the surveillance device.
(1) A Judge receiving a surveillance device warrant report under section 53 may do any 1 or more of the following:
(a) give directions as to the destruction or retention of the material obtained as a result of the surveillance:
(b) if he or she considers that the surveillance activities carried out were in breach of any of the conditions of the warrant's issue, or of any applicable statutory provision, report on the breach to the chief executive of the relevant agency:
(c) order that the subject of the surveillance be notified.
(2) The Judge must not make an order under subsection (1)(c) unless he or she is satisfied that—
(a) the circumstances set out in subsection (3) exist; and
(b) the warrant—
(i) should not have been issued; or
(ii) there has been a serious breach of any of the conditions of its issue, or of any applicable statutory provision.
(3) The circumstances are that the public interest in notification outweighs any potential prejudice to any 1 or more of the following:
(a) any investigation by the law enforcement agency:
(b) the safety of informants or undercover officers:
(c) the supply of information to the law enforcement agency:
(d) any international relationships of the law enforcement agency.
(1) A Judge receiving a surveillance device warrant report under section 54 may do any 1 or more of the following:
(a) give directions as to the destruction or retention of the material obtained as a result of the use of the surveillance device:
(b) if he or she considers that the use of the surveillance device was not authorised under section 44, report accordingly to the chief executive of the relevant agency:
(c) order that the subject of the surveillance be notified.
(2) The Judge must not make an order under subsection (1)(c) unless he or she is satisfied that—
(a) the circumstances set out in subsection (3) exist; and
(b) use of the surveillance device was a serious breach of the criteria set out in section 44.
(3) The circumstances are that the public interest in notification outweighs any potential prejudice to any 1 or more of the following:
(a) any investigation by the law enforcement agency:
(b) the safety of informants or undercover officers:
(c) the supply of information to the law enforcement agency:
(d) any international relationships of the law enforcement agency.
A law enforcement agency must obtain a residual warrant if, in order to obtain evidential material relating to an offence, the agency wishes to use a device (other than a surveillance device as defined in section 3), or a technique, procedure, or activity that may constitute an intrusion into the reasonable expectation of privacy of any person.
(1) An application for a residual warrant may be made only by an enforcement officer, and must contain, in reasonable detail, the following particulars:
(a) the name of the applicant:
(b) the provision authorising the making of an application for a search warrant in respect of the offence:
(c) the grounds on which the application is made:
(d) the suspected offence in relation to which the residual warrant is sought:
(e) a description of the device, technique, procedure, or activity to be used or undertaken, with enough detail to enable the Judge to understand what is proposed to be used or undertaken:
(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed use of the device, technique, procedure, or activity:
(g) a description of the evidential material believed to be able to be obtained by the proposed use:
(h) the period for which the warrant is sought.
(2) If the enforcement officer cannot provide all the information required under subsection (1)(f) and (g), the application must instead state the circumstances in which the use of the device, technique, procedure, or activity is proposed to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the proposed use.
(3) The applicant must disclose in the application—
(a) the details of any other applications for a search warrant, a surveillance device warrant, or a residual warrant, that the applicant knows to have been made within the previous 3 months in respect of the person, place, vehicle, or other thing proposed as the object of the proposed use of the device, technique, procedure, or activity; and
(b) the result of that application or those applications.
(4) The applicant must, before making an application for a residual warrant, make reasonable inquiries within the agency in which the applicant is employed or engaged for the purpose of complying with subsection (3).
The conditions for issuing a residual warrant are that there are reasonable grounds—
(a) to suspect that an offence has been committed, or is being committed, or will be committed in respect of which this Act or any relevant enactment authorises an enforcement officer to apply for a search warrant; and
(b) to believe that the proposed use of the device (other than a surveillance device as defined in section 3), technique, procedure, or activity in respect of which the residual warrant is sought would obtain information that is evidential material in respect of the offence.
(1) The provisions in subsection (2) apply to any application for a residual warrant as if—
(a) any reference in those provisions to a search warrant were a reference to a residual warrant; and
(b) any reference in those provisions to an issuing officer were a reference to a Judge; and
(c) any reference in those provisions to a District Court were a reference to a District Court or a High Court, as the case may be.
(2) The provisions are—
(a) section 96(2) (relating to requirements for further information); and
(b) section 97 (relating to verification of application); and
(c) section 98 (relating to mode of application); and
(d) section 99 (relating to retention of documents).
A residual warrant may be issued by a Judge, on application under section 58, if he or she is satisfied that—
(a) the conditions set out in section 59 are met; and
(b) there is no enactment other than this subpart of this Act that expressly authorises the obtaining of the evidential material in respect of which the residual warrant is sought.
A Judge must not issue a residual warrant that would permit surveillance or recording of activity between a lawyer and his or her client that is communication of a kind to which legal professional privilege normally applies unless the Judge is satisfied that the information provided by the applicant indicates that the communication is to be made, received, completed, or prepared—
(a) for a dishonest purpose; or
(b) for the purpose of planning or committing an offence.
(1) Every residual warrant must—
(a) be in the prescribed form; and
(b) be directed to every enforcement officer who has authority to carry out the activities authorised by the warrant; and
(c) specify a period, of no more than 60 days after the date on which the warrant is issued, for which it is in force; and
(d) contain a condition that, in accordance with section 66, a residual warrant report must be provided to a Judge of the same court as the Judge who issues the warrant within 1 month after the expiry of the period for which it is in force; and
(e) contain a condition that the enforcement officer carrying out the activities authorised by the warrant must not use any communication obtained under the authority of the warrant unless the privilege is waived or its use is authorised by a Judge, if he or she has reasonable grounds to believe that the communication may be subject to a privilege specified in section 130.
(2) A residual warrant may be subject to any other conditions specified in the warrant that the Judge issuing it considers reasonable, including a requirement for inclusion of specified information in the residual warrant report provided under section 66.
(3) Every residual warrant must also contain, in reasonable detail, the following particulars:
(a) the name of the Judge issuing the warrant and the date of issue:
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) a description of the device, technique, procedure, or activity to be used or undertaken that the warrant authorises, with enough detail to enable the enforcement officer using the device, technique, or procedure, or carrying out the activity authorised by the warrant, to understand what is authorised to be used or undertaken:
(d) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed use of the device, technique, procedure, or activity:
(e) the evidential material relating to the suspected offence that may be obtained by the proposed use:
(f) that an enforcement officer carrying out the activities authorised by the warrant may use any assistance that is reasonable in the circumstances:
(g) that an enforcement officer carrying out the activities authorised by the warrant may do any or all of the following, using any force that is reasonable in the circumstances to do so, in order to install, maintain, or remove a device the use of which is authorised by the warrant, or to access and use electricity to power the device:
(i) enter onto any premises, area, or vehicle specified in the warrant:
(ii) break open or interfere with any vehicle or other thing:
(iii) temporarily remove any vehicle or other thing from any place where it is found and return it to that place.
(4) Despite subsection (3)(d) and (e), if the Judge has not been provided in the application, or otherwise, with the information specified in those provisions because the applicant is unable to provide it, the warrant must instead state the details (as provided under section 58(2) or otherwise) of the circumstances in which the use of the device, technique, procedure, or activity is to be undertaken in enough detail to identify the parameters of, and objectives to be achieved by, the use of the device, technique, procedure, or activity.
(5) Despite subsection (1)(c), a Judge may issue a further residual warrant in respect of the same suspected offence in regard to which the Judge, or another Judge, has previously issued a residual warrant.
A residual warrant allows the following persons to carry out the activities authorised by it:
(a) any or all of the persons to whom it is directed:
(b) any assistant—
(i) who is called upon by a person specified in paragraph (a) to help him or her to carry out the activities; and
(ii) who, at all times that he or she is carrying out activities authorised by the warrant, remains under the supervision of a person specified in paragraph (a).
Section 103 (relating to the transmission of search warrants) and section 105 (relating to when a search warrant is invalid) apply to residual warrants as if—
(a) any reference in those provisions to a warrant or search warrant were a reference to a residual warrant; and
(b) any reference in those provisions to an issuing officer were a reference to the Judge issuing a residual warrant.
(1) A person who carries out the activities authorised by a residual warrant must provide a residual warrant report within 1 month after the expiry of the period for which the warrant is in force, as specified in the warrant, to a Judge of the same court as the Judge who issued the warrant.
(2) The residual warrant report must contain the following information:
(a) whether carrying out the activities authorised by the residual warrant resulted in obtaining evidential material:
(b) the circumstances in which the device, technique, procedure, or activity that the warrant authorised was used:
(c) any other information stated in the warrant as being required for inclusion in the residual warrant report.
(1) A Judge receiving a residual warrant report under section 66 may do any 1 or more of the following:
(a) give directions as to the destruction or retention of the material obtained as a result of the use of the device, technique, procedure, or activity:
(b) if he or she considers that the activities carried out were in breach of any of the conditions of the warrant's issue, or of any applicable statutory provision, report on the breach to the chief executive of the relevant agency:
(c) order that the subject of the device, technique, procedure, or activity be notified.
(2) The Judge must not make an order under subsection (1)(c) unless he or she is satisfied that the circumstances set out in subsection (3) exist and—
(a) the warrant should not have been issued; or
(b) there has been a serious breach of any of the conditions of its issue, or of any applicable statutory provision.
(3) The circumstances are that the public interest in notification outweighs any potential prejudice to any 1 or more of the following:
(a) any investigation by the law enforcement agency:
(b) the safety of informants or undercover officers:
(c) the supply of information to the law enforcement agency:
(d) any international relationships of the law enforcement agency.
In this subpart,—
call-related information, in relation to a telecommunication, means any of the following in respect of which a network operator has an interception capability at the time an application is made under section 69 for a production order against that network operator:
(a) information that is generated as a result of the making of the telecommunication (whether or not the telecommunication is sent or received successfully), and that identifies the origin, direction, destination, or termination of the telecommunication, and includes—
(i) the number from which the telecommunication originates; and
(ii) the number to which the telecommunication is sent; and
(iii) if the telecommunication is diverted from one number to another number, those numbers; and
(iv) the time at which the telecommunication is sent; and
(v) the duration of the telecommunication; and
(vi) if the telecommunication is generated from a mobile telephone, the point at which the telecommunication first enters a network:
(b) the content of the telecommunication
document includes call-related information
interception capability, network operator, and number have the same meanings as in section 3(1) of the Telecommunications (Interception Capability) Act 2004.
(1) An enforcement officer who may apply for a search warrant to obtain documents may apply to an issuing officer for a production order against a person in respect of those documents if the enforcement officer is satisfied that the conditions, specified in section 70, for making the order against the person are met.
(2) An application under this section must be in writing and must set out the following particulars:
(a) the name of the applicant:
(b) a description of the offence that it is suspected has been committed, is being committed, or will be committed:
(c) the facts relied on to show reasonable grounds to suspect that an offence has been committed, or is being committed, or will be committed:
(d) a description of the documents for which production is sought:
(e) the facts relied on to show reasonable grounds to believe the documents sought are in the possession or under the control of the person against whom the order is sought:
(f) whether the person against whom the order is made should be required to produce,—
(i) on 1 occasion only, those documents for which production is sought that are in his or her possession or under his or her control when the order is made; or
(ii) on an ongoing basis, those documents for which production is sought that are in his or her possession or under his or her control at the time the order is made, and those documents for which production is sought and that come into his or her possession or come under his or her control at any time while the order is in force.
The conditions for making a production order are that there are reasonable grounds—
(a) to suspect that an offence has been committed, or is being committed, or will be committed (being an offence in respect of which this Act or any relevant enactment authorises an enforcement officer to apply for a search warrant); and
(b) to believe that the documents sought by the proposed order—
(i) constitute evidential material in respect of the offence; and
(ii) are in the possession or under the control of the person against whom the order is sought, or will come into his or her possession or under his or her control while the order is in force.
(1) The provisions in subsection (2) apply to any application for a production order as if any reference in those provisions to a warrant or search warrant were a reference to a production order.
(2) The provisions are—
(a) section 96(2) (relating to requirements for further information); and
(b) section 97 (relating to verification of application); and
(c) section 98 (relating to mode of application); and
(d) section 99 (relating to retention of documents).
An issuing officer may make a production order against a person if satisfied, on an application made under section 69, that the conditions, specified in section 70, for making the order are met.
(1) A production order must be in the prescribed form and must require the person against whom it is made (person A)—
(a) to give the enforcement officer who applied for the order, or a person identified in the order, any documents described in the order that are in the possession or under the control of person A, and, if section 69(2)(f)(ii) applies to the order, documents described in the order that come into the possession or under the control of person A while the order is in force; and
(b) if any of those documents are not, or are no longer, in the possession or under the control of person A, to disclose, to the best of person A's knowledge or belief, the location of those documents to the enforcement officer who applied for the order or to the person identified in the order.
(2) The production order must set out the following:
(a) the name of person A:
(b) the grounds on which the order is made:
(c) the documents required to be given:
(d) whether the documents must be produced on 1 occasion only, or whether they are required to be produced on an ongoing basis for the duration of the entire order:
(e) the time by which, and the way in which, the documents must be produced.
(3) The production order may describe the documents required to be given by reference to a class or category of document.
(4) If the production order is made against a body corporate or an unincorporated body, the order may specify an individual (whether by name or by reference to a position held in the body) who is to comply with the order as the body’s representative.
A production order is in force for the period specified in the order (not exceeding 30 days after the date on which the order is made).
Section 103 (relating to the transmission of search warrants) and section 105 (relating to when a search warrant is invalid) apply to production orders as if any reference in those provisions to a warrant or search warrant were a reference to a production order.
When any document is produced in compliance with a production order, the enforcement officer who applied for the order may do any 1 or more of the following things:
(a) retain the original document produced if it is relevant to the investigation:
(b) take copies of the document, or of extracts from the document:
(c) if necessary, require the person producing the document to reproduce, or to assist any person nominated by the chief executive or a delegate of the chief executive to reproduce, in usable form, any information recorded or stored in the document.
An enforcement officer who, in accordance with section 76(a), retains an original document that is produced in compliance with a production order must, as soon as practicable after the document is produced, take a copy of the document and give the copy to the person who produced the original document in compliance with the production order.
In this subpart, unless the context otherwise requires, craft, package, and vehicle have the same meanings as in section 2(1) of the Customs and Excise Act 1996.
(1) In the circumstances set out in subsection (2), a constable or a Customs officer may, during the course of a delivery in relation to which a Customs officer has exercised his or her powers under section 12 of the Misuse of Drugs Amendment Act 1978, do any or all of the following without a warrant:
(a) search a person involved in a delivery under section 12 of the Misuse of Drugs Amendment Act 1978:
(b) enter and search any place, craft, or vehicle:
(c) seize anything that he or she has reasonable grounds to believe is a thing described in any of paragraphs (a) to (d) of subsection (2).
(2) The circumstances are that the constable or the Customs officer has reasonable grounds to believe that the person is in possession of, or the place, craft, or vehicle contains, any 1 or more of the following:
(a) a controlled drug:
(b) a precursor substance:
(c) a package in relation to which the Customs officer has replaced all or a portion of any controlled drug or precursor substance:
(d) evidential material in relation to the commission of an offence under section 6(1)(a) or 12AB of the Misuse of Drugs Act 1975.
This subpart applies to any person who has exercised a power of arrest or detention, or both, by or under this Act or any other enactment, other than—
(a) the Armed Forces Discipline Act 1971; or
(b) the Defence Act 1990; or
(c) any regulations made under either of those Acts.
(1) A person to whom this subpart applies who has arrested a person and has reasonable grounds to believe that the circumstances in subsection (2) exist in a place may enter it without a warrant to search for and seize any evidential material relating to the offence for which the person was arrested.
(2) The circumstances are—
(a) that evidential material relating to the offence for which the person was arrested is in that place; and
(b) that, if entry is delayed in order to obtain a search warrant, evidential material relating to the offence for which the person was arrested will be destroyed, concealed, or damaged.
A person to whom this subpart applies who has arrested a person and who has reasonable grounds to believe that evidential material relating to the offence for which the person was arrested is in a vehicle may enter and search it without a warrant.
(1) A person to whom this subpart applies may carry out a rub-down search of a person, in accordance with this section, when the person is arrested, or detained under a statutory power of detention, in order to ensure that the person is not carrying anything that may be used—
(a) to harm any person; or
(b) to facilitate the person’s escape.
(2) For the purposes of this section and sections 84 and 85, a rub-down search means a search of a clothed person in which the person conducting the search may do any or all of the following:
(a) run or pat his or her hand over the body of the person being searched, whether outside or inside the clothing (other than the underclothing) of that person:
(b) insert his or her hand inside any pocket or pouch in the clothing (other than the underclothing) of the person being searched:
(c) for the purpose of permitting a visual inspection, require the person being searched to do any or all of the following:
(i) open his or her mouth:
(ii) display the palms of his or her hands:
(iii) display the soles of his or her feet:
(iv) lift or rub his or her hair.
(1) For the purpose of facilitating any of the actions referred to in any of paragraphs (a) to (c) of section 83(2), the person conducting a rub-down search may require the person being searched—
(a) to remove, raise, lower, or open any outer clothing (including (without limitation) any coat, jacket, jumper, or cardigan) being worn by the person being searched, except where that person has no other clothing, or only underclothing, under that outer clothing; and
(b) to remove any head covering, gloves, or footwear (including socks or stockings) being worn by that person.
(2) A rub-down search of a person may include searching—
(a) any item carried by, or in the possession of, the person; and
(b) any outer clothing removed, raised, lowered, or opened for the purposes of the search; and
(c) any head covering, gloves, or footwear (including socks or stockings) removed for the purposes of the search.
A rub-down search may include a visual examination (whether or not facilitated by any instrument or device designed to illuminate or magnify) of the mouth, nose, and ears, but must not include the insertion of any instrument, device, or thing into any of those orifices.
(1) A person to whom this subpart applies may, in the circumstances set out in subsection (2), carry out a search of a person.
(2) The circumstances are that the person to whom this subpart applies has reasonable grounds to believe that there is anything on or carried by a person who is arrested or detained under a statutory power of detention that—
(a) may be used to harm any person; or
(b) may be used to facilitate the person’s escape; or
(c) is evidential material relating to the offence in respect of which the arrest is made or the person is detained.
(1) Any duty imposed on an enforcement officer under this Part may be carried out instead by an enforcement officer employed or engaged by the same law enforcement agency as the other enforcement officer.
(2) Subsection (3) applies if any thing is seized by or produced to a person employed or engaged by any law enforcement agency and the thing is then transferred to another law enforcement agency for the purposes of investigation, prosecution, or forfeiture.
(3) If this subsection applies, the obligations imposed by this Part on any law enforcement agency or any enforcement officer engaged by that agency must, after the transfer of the thing referred to in subsection (2), be carried out by the law enforcement agency to which the thing is transferred or an enforcement officer employed by that agency.
(4) Subsection (3) is subject to any contrary provisions in any other enactment.
Sections 89 to 92 apply in respect of consent searches undertaken by an enforcement officer in circumstances where a power of search by an enforcement officer to which this Part applies or any provisions of this Part apply (whether a warrantless power or a power able to be conferred by a search warrant) could be exercised if the officer held a particular belief or suspicion.
An enforcement officer may ask a person to consent to undergo a search or to consent to a search being made of a place, vehicle, or other thing apparently in the control of the person, if the enforcement officer wishes to conduct the search for 1 or more of the following purposes:
(a) to prevent the commission of an offence:
(b) to protect life or property, or to prevent injury or harm:
(c) to investigate whether an offence has been committed:
(d) any purpose in respect of which the enforcement officer could exercise a power of search conferred by an enactment, if he or she held a particular belief or suspicion specified in the enactment.
Before conducting a search by consent, the enforcement officer who proposes to conduct it must—
(a) determine that the search is for a purpose authorised by section 89; and
(b) advise the person from whom consent is sought of the reason for the proposed search; and
(c) advise the person that he or she may either consent to the search or refuse to consent to the search.
A search by consent is unlawful if—
(a) it is not for a purpose set out in section 89; or
(b) the enforcement officer fails to comply with section 90(a), (b), or (c); or
(c) the search is undertaken in reliance on a consent given by a person who does not have authority to give that consent.
(1) A person under 14 years of age is unable to consent to the search of a place, vehicle, or other thing.
(2) Subsection (1) does not apply to a person under 14 years of age who is found driving a vehicle with no passenger of or over the age of 14 years with authority to consent to the search of the vehicle.
Sections 89 to 92 do not—
(a) apply to a search conducted as a condition of entry to any public or private place; or
(b) apply to a search conducted in accordance with a power conferred by an enactment; or
(c) affect the rule of law relating to the implied licence to enter property.
(1) The provisions of sections 95 to 99 apply in respect of every warrant applied for, or issued, under this Act or any relevant enactment that would enable entry, or entry and search, or entry and inspection, or entry and examination, of any land, premises, place, vehicle, or other thing (a search warrant).
(2) If sections 95 to 99 apply in respect of any warrant that would enable entry and inspection, or entry and examination, every reference in those sections to a search must be read instead, as the case requires, as a reference to an inspection, or an examination, or a power of inspection, or a power of examination.
In this subpart, unless the context otherwise requires,—
applicant means any of the following persons:
(a) a constable:
(b) any other person authorised by this Act or any relevant enactment to apply for a search warrant
thing includes an intangible thing (for example, an email address or access information to an Internet data storage facility).
(1) An application for a search warrant must contain, in reasonable detail, the following particulars:
(a) the name of the applicant:
(b) the provision authorising the making of the application:
(c) the grounds on which the application is made (including the reasons why the legal requirements for issuing the warrant are believed by the applicant to be satisfied):
(d) the address or other description of the place, vehicle, or other thing proposed to be entered, or entered and searched, inspected, or examined:
(e) a description of the item or items or other evidential material believed to be in or on or part of the place, vehicle, or other thing that are sought by the applicant:
(f) the period for which the warrant is sought:
(g) if the applicant wants to be able to execute the warrant on more than 1 occasion, the grounds on which execution on more than 1 occasion is believed to be necessary.
(2) The issuing officer—
(a) may require the applicant to supply further information concerning the grounds on which the search warrant is sought; but
(b) must not, in any circumstances, require the applicant to disclose the name, address, or any other identifying detail of an informant unless, and only to the extent that, such information is necessary for the issuing officer to assess either or both of the following:
(i) the credibility of the informant:
(ii) whether there is a proper basis for issuing the warrant.
(3) The applicant must disclose in the application—
(a) details of any other application for a search warrant that the applicant knows to have been made within the previous 3 months in respect of the place, vehicle, or other thing proposed to be searched; and
(b) the result of that application or those applications.
(4) The applicant must, before making an application for a search warrant, make reasonable inquiries within the law enforcement agency in which the applicant is employed or engaged, for the purpose of complying with subsection (3).
(5) The issuing officer may authorise the search warrant to be executed on more than 1 occasion during the period in which the warrant is in force if he or she is satisfied that this is required for the purposes for which the warrant is being issued.
An application for a search warrant must contain or be accompanied by a statement by the applicant confirming the truth and accuracy of the contents of the application.
(1) An application for a search warrant—
(a) must be in writing, unless subsection (3) applies; and
(b) may be transmitted to the issuing officer electronically.
(2) The applicant must appear in person before, or communicate orally with, the issuing officer, unless subsection (4) applies.
(3) An issuing officer may allow an application for a search warrant to be made orally (for example, by telephone call) or by personal appearance and excuse the applicant from putting all or any part of the application (including any required material) in writing if—
(a) the issuing officer is satisfied that the delay that would be caused by requiring an applicant to put all or any part of the application (including any required material) in writing would compromise the effectiveness of the search; and
(b) the issuing officer is satisfied that the question of whether the warrant should be issued can properly be determined on the basis of an oral communication or a personal appearance (together with the material described in paragraph (c)); and
(c) the information required by section 96(1) to (3) is supplied (whether orally, or partly orally and partly in writing) to the issuing officer.
(4) An issuing officer may allow an application for a search warrant to be made without either an appearance in person or an oral communication with the issuing officer if—
(a) the issuing officer is satisfied that the question of whether the search warrant should be issued can properly be determined on the basis of any written communication by the applicant (including the material described in paragraph (b)); and
(b) the information required by section 96(1) to (3) has been supplied to the issuing officer; and
(c) the issuing officer is satisfied that there is no need to ask any questions of, or seek any further information from, the applicant.
(5) An issuing officer who allows an application for a search warrant to be made under subsection (3) must record the grounds for the application as soon as practicable.
(1) A copy (whether in electronic form or otherwise) of every written application for a search warrant, or (in the case of an oral application) the record of the application made by the issuing officer, must be retained under the control of the Registrar of the District Court at which, or under the control of the Registrar of the District Court that is closest to the place at which, the application was made, until,—
(a) in a case where a search warrant is issued, the completion of any proceedings in respect of which the validity of the warrant may be in issue; or
(b) in any other case, the expiry of 2 years after the records were first retained under the control of the Registrar of a District Court.
(2) An applicant to whom a search warrant is issued must retain (whether in electronic form or otherwise) the warrant, a copy of the application (if made in written form), all documents tendered by the applicant in support of the application, and a copy of any search warrant report referred to in section 102 required to be prepared, until,—
(a) in the case of a warrant that is executed, the completion of any proceedings in respect of which the validity of the warrant may be in issue; or
(b) in any other case, the destruction or transfer of the warrant and other documents is required by the Public Records Act 2005 or any other enactment or rule of law.
An issuing officer must not issue a warrant to seize any thing held by a lawyer that is a communication of a kind to which legal professional privilege normally applies unless the issuing officer is satisfied that the information provided by the applicant indicates that the thing was made, received, completed, or prepared—
(a) for a dishonest purpose; or
(b) for the purpose of planning or committing an offence.
(1) Every search warrant issued must be in the prescribed form.
(2) Every search warrant issued must be directed to every enforcement officer who has authority to execute the warrant.
(3) A search warrant may be—
(a) executed by—
(i) any or all of the persons to whom it is directed; or
(ii) any constable (whether or not the warrant is directed to that constable or to every constable):
(b) subject to any conditions specified in the warrant that the issuing officer considers reasonable, including (without limitation)—
(i) any restriction on the time of execution that is reasonable:
(ii) a condition that the occupier or person in charge of a place must provide reasonable assistance to a person executing the warrant if, in the absence of such assistance, it would not be practical to execute the warrant without undue delay:
(c) executed only once, unless execution on more than 1 occasion has been authorised.
(4) Every search warrant must contain, in reasonable detail, the following particulars:
(a) the name of the issuing officer and the date of issue:
(b) the provisions authorising the issue of the warrant (including, where relevant, the suspected offence or offences):
(c) that the person executing the warrant may use any assistance that is reasonable in the circumstances:
(d) that any person authorised to do so may execute the warrant:
(e) that the person executing the warrant may use any force, if authorised by this Act or any other enactment, that is reasonable in the circumstances to enter or break open or access any area within the place, vehicle, or other thing being searched, or the thing found:
(f) the address or description of the place, vehicle, or other thing that may be entered, or entered and searched, inspected, or examined:
(g) a description of what may be seized:
(h) the period during which the warrant may be executed, being—
(i) a period specified by the issuing officer not exceeding 14 days from the date of issue; or
(ii) if the issuing officer is satisfied that a period of longer than 14 days is necessary for execution, a period specified by the issuing officer not exceeding 30 days from the date of issue:
(i) any conditions specified by the issuing officer under subsection (3)(b):
(j) if the warrant may be executed on more than 1 occasion, the number of times that the warrant may be executed:
(k) if the warrant is intended to authorise the remote access and search of things such as Internet data storage facilities that are not situated at a physical location that can be searched, the access information that identifies the thing to be searched remotely:
(l) an explanation of the availability of relevant privileges and an outline of how any of those privileges may be claimed:
(m) a statement that,—
(i) in the case of a search under a search warrant issued in relation to offences under the Misuse of Drugs Act 1975, any person found in the place or vehicle to be searched may also be searched; or
(ii) in the case of any other search authorised by this Act or any relevant enactment, any person found in the place or vehicle to be searched may be searched if there are reasonable grounds to believe that the item being searched for is on that person.
(5) A person is not required, as a consequence of a condition imposed under subsection (3)(b)(ii), to give any information tending to incriminate the person.
(1) An issuing officer may impose a condition under section 101(3)(b) requiring the employer of any person to whom a search warrant is issued to provide that issuing officer with a search warrant report within a specified period.
(2) A search warrant report must contain the following information:
(a) whether the search warrant was executed:
(b) whether the execution of the search warrant resulted in the seizure of evidential material, and, if so, whether that material was material—
(i) specified in the search warrant; or
(ii) seized under section 119; or
(iii) some of which was specified in the warrant and some of which was seized under section 119:
(c) whether any other powers exercised in conjunction with the execution of the warrant resulted in the seizure of evidential material:
(d) whether any criminal proceedings have been brought, or are under consideration, that relate to the evidential material seized.
If it is not possible or practicable for the person charged with executing the warrant to have it in his or her possession at the time of execution, one of the following documents (which is deemed for all legal purposes to constitute the warrant) may be executed:
(a) a facsimile, or a print-out of an electronically generated copy, of a warrant issued by the issuing officer:
(b) a copy made by the person to whom the warrant is directed, at the direction of the issuing officer and endorsed to that effect.
A search warrant is executed when the person executing the warrant and any person assisting in the execution of the warrant—
(a) has seized all the items specified in the warrant; or
(b) leaves the place, vehicle, or other thing being searched and does not return within 4 hours.
(1) A search warrant is invalid—
(a) if, having regard to the information contained in the application, the grounds or conditions for lawful issue of a warrant set out in section 6 or the relevant enactment were not satisfied at the time the search warrant was issued:
(b) if the warrant contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the warrant as to its purpose or scope.
(2) If a warrant is invalid under this section, section 204 of the Summary Proceedings Act 1957 does not apply to that warrant.
(1) The Attorney-General may authorise any Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar, or other person to act as an issuing officer for a term, not exceeding 3 years, specified in the notice of authorisation.
(2) The Attorney-General may not authorise any Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar, or other person to act as an issuing officer unless the Attorney-General is satisfied that the person has sufficient knowledge, skill, and experience to act as an issuing officer.
(3) The Attorney-General may from time to time renew an authorisation granted under subsection (1) for a further term not exceeding 3 years specified in the notice of renewal.
(1) For the purposes of this subpart, search power means—
(a) every search warrant issued under this Act or any relevant enactment; and
(b) every power conferred under this Act or any relevant enactment to enter and search, or enter and inspect or examine (without warrant), any place, vehicle, or other thing.
(2) If this subpart applies in respect of a power conferred by this Act or a relevant enactment to enter and inspect a place, vehicle, or thing, or to enter and examine a place, vehicle, or thing, every reference in this subpart to a search must be read instead, as the case requires, as a reference to an inspection, or a power of inspection, or an examination, or a power of examination.
Every search power authorises the person exercising it—
(a) to enter and search the place, vehicle, or other thing that the person is authorised to enter and search, and any item or items found in that place or vehicle, at any time that is reasonable in the circumstances:
(b) to request any person to assist with the entry and search (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi):
(c) to use any force that is reasonable for the purposes of the entry and search and the seizure of any item authorised by the search power to be seized:
(d) to detain any person who is at the place or in the vehicle or other thing being searched, or who arrives there while the search is being undertaken, for a reasonable period (using reasonable force if necessary), to enable the person exercising the power to determine whether the person is connected with the object of the search:
(e) to seize any thing authorised to be seized:
(f) to bring and use in or on the place, vehicle, or other thing searched any equipment, to use any equipment found on the place, vehicle, or other thing, and to extract any electricity from the place, vehicle, or other thing to operate the equipment that it is reasonable to use in the circumstances, for the purposes of carrying out the entry and search:
(g) to bring and use in or on the place, vehicle, or other thing searched a dog (being a dog that is trained to undertake searching):
(h) to copy any document, or part of a document, that may lawfully be seized:
(i) to access and copy intangible material from computers and other data storage devices located at or accessible from the place, vehicle, or other thing searched (including copying by means of previewing, cloning, or other forensic methods either before or after removal for examination):
(j) to use any reasonable measures to—
(i) gain access to any computer or other data storage device that is at the place or in the vehicle or other thing to be searched, or that can be accessed from a computer or other data storage device that is at that place or in that vehicle or other thing; and
(ii) create a forensic copy of any material in such a computer or other data storage device:
(k) to take photographs, sound and video recordings, and drawings of the place, vehicle, or other thing searched, and of any thing found in that place, vehicle, or other thing, if the person exercising the power has reasonable grounds to believe that the photographs or sound or video recordings or drawings may be relevant to the purposes of the entry and search.
If a person exercising a search power is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place, the person exercising the search power may remove the item for the purpose of examination or analysis to determine whether it may be lawfully seized.
(1) Every person called on to assist a person exercising a search power is subject to the control of the person with overall responsibility for exercising that power.
(2) Every person called on to assist a person exercising a search power may—
(a) enter the place, vehicle, or other thing to be searched:
(b) while under the direction of the person exercising the power, use reasonable force in respect of any property for the purposes of carrying out the entry and search and any lawful seizure:
(c) search areas within the place, vehicle, or other thing that the person exercising the power has determined may lawfully be searched:
(d) detain any person who is at the place or in the vehicle or other thing being searched, or who arrives there while the search is being undertaken (using reasonable force if necessary), to enable the person exercising the power to determine whether the person is connected with the object of the search:
(e) seize any thing that may lawfully be seized:
(f) take photographs, sound and video recordings, and drawings of the place, vehicle, or other thing, and things found in the place, vehicle, or other thing, if the person exercising the power has determined that those things may be lawfully taken:
(g) bring into or onto the place, vehicle, or other thing and use any equipment, make use of any equipment found on the place or in the vehicle or other thing, or extract electricity from the place, vehicle, or other thing for the purposes of operating the equipment that the person exercising the power has determined may be lawfully used:
(h) access and copy intangible material from computers and other data storage devices located at or accessible from the place, vehicle, or other thing searched (including copying by means of previewing, cloning, or other forensic methods either before or after removal for examination):
(i) copy any document, or part of a document, that the person exercising the power has determined may be lawfully copied:
(j) use any reasonable measures to—
(i) gain access to any computer or other data storage device that is at the place or in the vehicle or other thing to be searched, or that can be accessed from a computer or other data storage device that is at that place or in that vehicle or other thing; and
(ii) create a forensic copy of any material in such a computer or other storage device.
(3) If a constable is assisting another person exercising the search power, that constable may, without any direction or supervision by the person he or she is assisting, exercise any power ordinarily exercisable by that constable.
(4) The person exercising the search power must—
(a) accompany any assistant on the first occasion when the assistant enters the place, vehicle, or other thing to be searched; and
(b) provide such other supervision of any assistant as is reasonable in the circumstances.
(5) Subsection (4) does not apply if the assistant is a constable.
The powers conferred by sections 108 to 110 are subject to—
(a) any conditions imposed under section 101(3)(b) by an issuing officer who issues a search warrant:
(b) subpart 4 of this Part (which relates to privilege and confidentiality).
(1) The person carrying out a search may, in a manner and for a duration that is reasonable for the purposes of carrying out the search,—
(a) secure the place, vehicle, or other thing searched, any area within that place, vehicle, or other thing, or any thing found within that place, vehicle, or other thing:
(b) exclude any person from the place, vehicle, or other thing searched, or from any area within the place, vehicle, or other thing, or give any other reasonable direction to such a person, if the person carrying out the search has reasonable grounds to believe that the person will obstruct or hinder the exercise of any power under this subsection.
(2) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself; and
(b) advise the person affected of the reason and authority for the exercise of the power.
(1) If an application for a search warrant is about to be made or has been made and has not yet been granted or refused by an issuing officer, an enforcement officer present at the place or vehicle that is or is to be the subject of the application may—
(a) enter and secure the place, vehicle, or other thing in respect of which authorisation to enter and search is being sought, and secure any item or items found at that place or in that vehicle or other thing, at any time that is reasonable in the circumstances:
(b) request any person to assist with the entry and securing of the place or vehicle or other thing or the securing of items in it (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi).
(2) The powers conferred by subsection (1) may be exercised until the first of the following occurs:
(a) the expiry of 6 hours from when the power is first exercised:
(b) the warrant is available for execution at that place or vehicle or in respect of that other thing:
(c) the application for a search warrant is refused.
(3) A person who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,—
(a) identify himself or herself; and
(b) advise the person affected of the reason and authority for the exercise of the power.
(1) If any constable or other person exercises a search power in relation to a place or vehicle, that constable or other person may, for the purposes of determining whether there is any connection between a person at the place or in the vehicle and the object of the search, detain any person—
(a) who is at the place or in the vehicle at the commencement of the search; or
(b) who arrives at the place or stops at, or enters, or tries to enter, the vehicle while the search is being carried out.
(2) A person may be detained under subsection (1) for any period that is reasonable, but not for longer than the duration of the search.
(3) A detention of any person commences under subsection (1) when the constable or other person exercising the search power directs that person to remain at the place or in the vehicle and ends when that person is told by the constable or other person exercising the search power that he or she is free to leave the place or vehicle.
(4) Reasonable force may be used for the purpose of effecting and continuing any detention under subsection (1).
(5) This section does not limit the powers conferred by section 108(d) or 110(2)(d).
(1) If any person who may exercise a power of arrest is searching a place or vehicle, he or she may search any person found at the place or in the vehicle, or who arrives at the place or stops at, or enters, or tries to enter the vehicle, if the person conducting the search has reasonable grounds to believe that evidential material that is the object of the search is on that person.
(2) If any person who may exercise a power of arrest is searching a place or vehicle, he or she may search any person found at the place or in the vehicle, or who arrives at the place or stops at, or enters, or tries to enter the vehicle, if the person conducting the search—
(a) has reasonable grounds to suspect that the person is in possession of a dangerous item that poses a threat to safety; and
(b) believes that immediate action is needed to address that threat.
(3) If any item referred to in subsection (2)(a) is seized, it must, unless possession of the item constitutes an offence, be returned to the person from whom it was taken either—
(a) once the search has been completed; or
(b) when the person who conducted the search is satisfied that there is no longer any threat to safety.
(1) If any person who may exercise a power of arrest intends to conduct a search of a person or vehicle, but that person or vehicle leaves before the search is undertaken or completed, the person who intended to conduct the search may,—
(a) on apprehending the person or vehicle, search the person or vehicle; and
(b) enter private property for the purpose of apprehending the person or vehicle.
(2) A person may not exercise the powers conferred by subsection (1)(a) or (b) unless—
(a) the person was freshly pursuing the person to be searched from the location of the intended search, when the person was apprehended; and
(b) the person intending to conduct the search has reasonable grounds to believe that relevant evidential material is still on the person who is to be searched, or in the vehicle.
(1) An enforcement officer may stop a vehicle to conduct a search under a power to search without a warrant conferred on that officer by this Act or any relevant enactment if he or she is satisfied that he or she has grounds to search the vehicle.
(2) An enforcement officer may stop a vehicle to conduct a search under a power to search with a warrant issued under this Act or any relevant enactment if he or she is satisfied that the warrant has been issued and is in force.
An enforcement officer may move a vehicle to another place if he or she finds or stops the vehicle and he or she—
(a) has lawful authority to search the vehicle, but it is impracticable to do so at that place; or
(b) has reasonable grounds to believe that it is necessary to move the vehicle for safekeeping or for road safety purposes.
(1) An enforcement officer who exercises a search power or who is lawfully in any place as part of his or her duties may seize any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at that place, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—
(a) any search warrant that could have been obtained by him or her under this Act or any other enactment; or
(b) any other search power exercisable by him or her under this Act or any other enactment.
(2) If an enforcement officer seizes any item or items under subclause (1), in circumstances where he or she is not already exercising a search power, the enforcement officer may exercise any applicable power conferred by section 108 in relation to the seizure of the item or items.
(1) If a person exercises a power to search a person, the person exercising the power—
(a) must identify himself or herself either by name or unique identifier; and
(b) must advise the person to be searched of the authority and reason for the search, unless it is impracticable to do so in the circumstances; and
(c) may detain the person to enable the search to be carried out (whether at the place of initial detention or while the person is travelling to or is at any other place where the search is carried out), but only for as long as is necessary to achieve that purpose; and
(d) may use any force that is reasonable for the purposes of the search; and
(e) may in conducting the search use any equipment or aid to facilitate the search, if it is used in a way that—
(i) involves no or minimal contact; and
(ii) is reasonable in the circumstances; and
(f) may, if he or she considers that either or both of the following are in the interests of the person to be searched, request:
(i) the assistance of a medical practitioner or nurse:
(ii) the assistance of a parent, guardian, or other person for the time being responsible for the day-to-day care of the person to be searched; and
(g) if the search is to be a strip search, may request the assistance of another enforcement officer who is—
(i) authorised under any other enactment to conduct strip searches; and
(ii) of the same sex as the person to be searched; and
(h) may search any item that—
(i) the person is wearing or carrying; or
(ii) is in the person's physical possession or immediate control.
(2) If a person exercises a power to search a person, or searches a person with his or her consent, the person exercising the power must ensure that an inventory of any items seized as a result of the search is prepared promptly and a copy is given to the person searched.
(3) Subsection (2) does not apply in respect of a search conducted under section 20.
(4) Nothing in subsection (1)(e) permits a person carrying out a rub-down search under sections 83 to 85 (rub-down search of arrested or detained person) to carry out a more intrusive search than is described in those sections.
(1) The chief executive of a law enforcement agency that employs persons who may exercise a power, under an enactment, to search the person must issue guidelines to those employees concerning the circumstances (if any) under which a strip search may be conducted by any of those employees.
(2) A search of the person is not unlawful by reason only of failure by the person conducting the search to comply with a guideline issued under subsection (1).
(3) A strip search may be carried out only by a person of the same sex as the person to be searched, and no strip search may be carried out in view of any person who is not of the same sex as the person to be searched.
If a search warrant is issued authorising the entry and search of a vehicle, the person executing the warrant may enter any place where the person has reasonable grounds to believe that the vehicle is, for the purpose of locating it and searching it.
If a person exercises a power to stop or search a vehicle, the person exercising the power may require—
(a) any or all persons in the vehicle to supply their name, address, date of birth, and other contact details:
(b) the vehicle to remain stopped for as long as is reasonably necessary to undertake the search.
If a person exercises a power to stop a vehicle, that person must, immediately after stopping the vehicle,—
(a) identify himself or herself to the driver of the vehicle, either by name or unique identifier; and
(b) inform the driver of the person's authority to stop the vehicle; and
(c) if not in Police uniform, produce evidence of his or her identity, if the driver requests proof of identity.
(1) A person exercising a search power at any place or vehicle or in respect of any other thing may require a specified person to provide access information and other information or assistance that is reasonable and necessary to allow the person exercising the search power to access data held in, or accessible from,—
(a) a computer that is at the place or in the vehicle or other thing being searched:
(b) any other data storage device that is at the place or in the vehicle or other thing being searched.
(2) In this section,—
access information includes access codes, passwords, and encryption keys, and any related information that enables access to a computer or other data storage device
specified person is a person who—
(a) is the owner or lessee of the computer or other data storage device, or is in possession or control of the computer or other data storage device, an employee of any of the above, or any service provider who provides service to the above and holds access information; and
(b) has relevant knowledge of—
(i) the computer or a computer network of which the computer or other data storage device forms a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or other data storage device.
(3) A specified person may not be required under subsection (1) to give any information tending to incriminate the person.
(4) Subsection (3) does not prevent a person exercising a search power from requiring a specified person to provide information that—
(a) is reasonable and necessary to allow the person exercising the search power to access data held in, or accessible from, a computer or other data storage device that—
(i) is at the premises or in the place, vehicle, or other thing to be searched; and
(ii) contains or may contain information tending to incriminate the specified person; but
(b) does not itself tend to incriminate the specified person.
(5) Subsection (3) does not prevent a person exercising a search power from requiring a specified person to provide assistance that is reasonable and necessary to allow the person exercising the search power to access data held in, or accessible from, a computer or other data storage device that—
(a) is at the premises or in the place, vehicle, or other thing concerned; and
(b) contains or may contain information tending to incriminate the specified person.
(6) Subsections (1), (4), and (5) are subject to subpart 4 of Part 4 (which relates to privilege and confidentiality).
(1) A person exercising a search power must,—
(a) before initial entry into or onto the place or vehicle or other thing to be searched,—
(i) announce his or her intention to enter and search the place, vehicle, or other thing under a statutory power; and
(ii) identify himself or herself; and
(b) before or on initial entry into or onto the place or vehicle, or other thing to be searched,—
(i) give the occupier of the place or the person in charge of the vehicle or other thing a copy of the search warrant or advice about the enactment (the authority) that authorises him or her to conduct the entry and search; and
(ii) produce to the occupier of the place or any person in charge of the vehicle or other thing evidence of his or her identity (which may include details of a unique identifier instead of a name).
(2) The person exercising the search is not required to comply with subsection (1) if he or she has reasonable grounds to believe that—
(a) no person is lawfully present in or on the place, vehicle, or other thing to be searched; or
(b) compliance with subsection (1)(a) would—
(i) endanger the safety of any person; or
(ii) prejudice the successful exercise of the entry and search power; or
(iii) prejudice ongoing investigations.
(3) The person exercising the search power may use reasonable force in order to effect entry into or onto the place, vehicle, or other thing if—
(a) subsection (2) applies; or
(b) following a request, the person present refuses entry or does not allow entry within a reasonable time.
(4) If the occupier of a place is not present at any time during the search, or no person is in charge of the vehicle or other thing during the search, the person carrying out the search must,—
(a) on completion of the search, leave a copy of the authority referred to in subsection (1)(b)(i) and the notice referred to in subsection (5) in a prominent position at the place, or in or on the vehicle, or other thing; or
(b) if this is not reasonably practicable, provide the copy of the authority referred to in subsection (1)(b)(i) and the notice referred to in subsection (5) to the occupier of the place or the owner of the vehicle or other thing no later than 7 days after the exercise of the power.
(5) The notice required by subsection (4) is a written notice containing the following particulars:
(a) the date and time of the commencement and completion of the search:
(b) the name or unique identifier of the person who had overall responsibility for that search:
(c) the address of the office to which inquiries should be made:
(d) if nothing is seized, the fact that nothing was seized:
(e) if anything was seized, the fact that seizure occurred and (if an inventory is not provided at the same time under sections 127 to 129) that an inventory of the things seized will be provided to the occupier of the place or person in charge of the vehicle or other thing no later than 7 days after the seizure.
(6) For the purposes of this section and sections 127 to 129,—
(a) the following persons may not be treated as the occupier of the place or the person in charge of a vehicle or other thing:
(i) any person who is under 14 years of age (unless section 92(2) applies to that person):
(ii) any person who the person executing the warrant has reasonable grounds to believe is not the occupier of the place or person in charge of the vehicle or other thing:
(b) every reference to a copy of the authority referred to in subsection (1)(b)(i) means, in a case where a search is undertaken without a search warrant, written advice about the enactment that authorises the search.
(7) Subsections (4) and (5) are subject to sections 128 and 129.
(1) The person who carries out a search must, at the time he or she seizes any thing, or as soon as practicable after the seizure of any thing, and in any case not later than 7 days after that seizure, provide to the occupier of the place, or the person in charge of the vehicle or other thing, from where the seizure took place, and to every other person who the person who carried out the search has reason to believe is the owner of the thing that was seized,—
(a) written notice specifying what was seized; and
(b) a copy of the authority referred to in section 126(1)(b)(i).
(2) A written notice referred to in subsection (1)(a)—
(a) must contain information about the extent to which a person from whom a thing was seized or the owner of the thing has a right to apply—
(i) to have access to the thing; or
(ii) to have access to any document relating to the application for a search warrant or the exercise of any other search power that led to the seizure; and
(b) must contain information about the right to bring a claim that any privileged or confidential information has been seized; but
(c) need not be provided to the occupier of the place or person in charge of the vehicle or other thing from which the seizure took place, if the person who carries out the search is satisfied that none of the items seized are owned by that person.
(3) If the occupier or person in charge of the vehicle or other thing is not present at the time of seizure, a written notice referred to in subsection (1)(a) and a copy of the authority referred to in section 126(1)(b)(i) may be provided to that person by leaving the notice in a prominent position at the place, or in or on the vehicle, or other thing.
(4) Subsection (1) is subject to subsections (2) and (3).
(5) This section is subject to sections 128 and 129.
(1) A person exercising a search power may apply to a District Court Judge for a postponement of the obligation to comply with section 126(4) or (5) or 127 on the grounds that compliance would—
(a) endanger the safety of any person; or
(b) prejudice ongoing investigations.
(2) An application may be made under subsection (1),—
(a) in the case of an entry and search power that is a search warrant, at the time of the initial application or until the expiry of 7 days after the warrant is finally executed; or
(b) in the case of any other entry and search power, until the expiry of 7 days after the search power is exercised.
(3) On an application under subsection (1), the District Court Judge may postpone for a specified period not exceeding 12 months the obligation to comply with section 126(4) or (5) or 127, if the Judge is satisfied there are reasonable grounds for believing that compliance would—
(a) endanger the safety of any person; or
(b) prejudice ongoing investigations.
(1) A person who has obtained an order under section 128(3) may, before the expiry of that order, apply to a District Court Judge for a further postponement of, or dispensation from, the obligation to comply with section 126(4) or (5) or 127 on the grounds that compliance would—
(a) endanger the safety of any person; or
(b) prejudice ongoing investigations.
(2) An application for a further postponement may only be made on 1 occasion.
(3) On an application under subsection (1), the District Court Judge may postpone for a further specified period not exceeding 12 months, or order a permanent dispensation from, the obligation to comply with section 126(4) or (5) or 127 if the Judge is satisfied that compliance would—
(a) endanger the safety of any person; or
(b) prejudice ongoing investigations.
(4) A District Court Judge may not grant, under subsection (3), any postponement of, or dispensation from, an obligation in respect of any thing that has been seized, unless the thing seized is—
(a) a copy or clone of any information taken or made; or
(b) a thing the possession of which by the person from whom it was seized is unlawful under New Zealand law (for example, a controlled drug that is found in the possession of a member of the public in circumstances in which possession by the person of the controlled drug is an offence against the Misuse of Drugs Act 1975).
(1) The following privileges are recognised for the purposes of this subpart:
(a) legal professional privilege, to the extent that (under section 53(5) of the Evidence Act 2006) it forms part of the general law:
(b) privilege for communication with legal advisers (as described in section 54 of the Evidence Act 2006):
(c) privilege for preparatory material to proceedings (as described in section 56 of the Evidence Act 2006):
(d) privilege for settlement negotiations or mediation (as described in section 57 of the Evidence Act 2006):
(e) privilege for communication with ministers of religion (as described in section 58 of the Evidence Act 2006):
(f) privilege in criminal proceedings for information obtained by medical practitioners and clinical psychologists (as described in section 59 of the Evidence Act 2006):
(g) to the extent provided in section 132, and only to that extent, any privilege against self-incrimination (as described in section 60 of the Evidence Act 2006):
(h) privilege for informers (as described in section 64 of the Evidence Act 2006):
(i) the rights conferred on a journalist under section 68 of the Evidence Act 2006 to protect certain sources.
(2) For the purposes of this subpart, no privilege applies in respect of any communication or information if made or received, or compiled or prepared,—
(a) for a dishonest purpose; or
(b) to enable or aid any person to commit or plan to commit what the person claiming the privilege knew, or ought reasonably to have known, to be an offence.
(1) Subsection (2) applies to documents that are books of account or accounting records kept—
(a) by a solicitor in relation to any trust account money that is subject to section 112 of the Lawyers and Conveyancers Act 2006; or
(b) by a nominee company that—
(i) is subject to practice rules made by the Council of the New Zealand Law Society under section 96 of the Lawyers and Conveyancers Act 2006; and
(ii) is operated by a barrister and solicitor or an incorporated law firm as a nominee in respect of securities and documents of title held for clients.
(2) The application by section 130 of this Act of section 54 of the Evidence Act 2006 (which relates to the privilege for communications with legal advisers) does not prevent, limit, or affect—
(a) the making of a production order, issuing of a search warrant, or exercise of any other search power in respect of a document to which this subsection applies; or
(b) the obligation to comply with that production order, search warrant, or other search power in respect of a document to which this subsection applies; or
(c) the admissibility, in a criminal proceeding for an offence described in the production order or search warrant or for an offence in respect of which any other search power was exercised, of any evidence that relates to the contents of a document obtained under the production order or search warrant, or as the result of the exercise of any other search power.
(1) An examination order or a production order does not affect the privilege against self-incrimination that an individual may have under section 60 of the Evidence Act 2006.
(2) Any assertion of a privilege against self-incrimination must be based on section 60 of the Evidence Act 2006.
(3) If any individual refuses to produce any information or document or to answer any question on the ground that it is a privileged communication under section 60 of the Evidence Act 2006, the Commissioner or other enforcement officer concerned may apply to a District Court Judge for an order determining whether or not the claim of privilege is valid.
(4) For the purposes of determining any application referred to in subsection (3), the individual must offer sufficient evidence to enable the District Court Judge to assess whether self-incrimination is reasonably likely if the individual produced the information or the document or answered the question.
(5) Section 63 of the Evidence Act 2006 does not apply to an examination order or to a production order.
(1) If a person against whom an examination order or production order is made could, in a criminal proceeding, assert a privilege recognised for the purposes of this subpart, the person is taken to have the same privilege in respect of either order.
(2) If any person refuses to disclose any information on the ground that it is privileged under this section, the Commissioner or other enforcement officer concerned may apply to a District Court Judge for an order determining whether or not the claim of privilege is valid.
(3) For the purpose of determining any application, the District Court Judge may require the information or document to be produced to him or her.
(4) A District Court Judge may, on the application of the Commissioner or other enforcement officer, disallow a privilege claim under this section if the Judge is satisfied that the claim to privilege would, under section 67(1) of the Evidence Act 2006, be disallowed in a proceeding.
(1) A person who has a privilege recognised by this subpart has the right—
(a) to prevent, to the extent that it is reasonably practicable to do so, the surveillance under this Act of any communication or information to which the privilege would apply if it were sought to be disclosed in a proceeding:
(b) to require the destruction of any record of any such communication or information, to the extent that this can be achieved without destruction of any record of any other communication or information.
(2) A person who is undertaking surveillance authorised by this Act (whether under a surveillance device warrant or otherwise) must—
(a) take all reasonable steps to prevent the interception of any communication or information to which a privilege recognised by this subpart would apply if the communication or information were sought to be disclosed in a proceeding:
(b) destroy any record of a communication or information made as a consequence of the surveillance to which a privilege recognised by this subpart would apply if the communication or information were sought to be disclosed in a proceeding, unless that is impossible or impracticable without destroying a record of information to which such a privilege does not apply.
(3) A person undertaking surveillance under this Act who is uncertain about whether this section applies to any information or communication or record of a communication or information may apply to a District Court Judge for an order determining whether—
(a) the communication or information can be the subject of surveillance; and
(b) any record of such communication or information is required to be destroyed under this section.
(4) For the purposes of determining any application the District Court Judge may require the record of the information or communication to be produced to him or her.
(5) If evidence of any communication or information recorded as a consequence of surveillance under this Act is evidence to which a privilege recognised under this subpart applies, that evidence is not admissible in any proceedings except—
(a) with the consent of the person entitled to waive that privilege; and
(b) if the court agrees to admit it.
A person who has a privilege recognised by this subpart has the right, in accordance with sections 136 to 141,—
(a) to prevent the search under this Act of any communication or information to which the privilege would apply if it were sought to be disclosed in a proceeding:
(b) to require the return of any such communication or information to the person if it is seized or secured by a person exercising a search power pending determination of the claim to privilege.
(1) This section applies to the execution of a search warrant that authorises the search of materials held by a lawyer relating to a client.
(2) If this section applies, the search warrant may not be executed unless—
(a) the lawyer is present; or
(b) a representative of the lawyer is present.
(3) If the person who is to execute the search warrant is unable to contact the lawyer or his or her representative, that person must instead contact the New Zealand Law Society and request that a person be appointed by the Society to represent the interests of the clients of the lawyer in relation to the search.
(4) Before executing the search warrant, the person who is to execute it must give the lawyer or his or her representative, or any person appointed by the New Zealand Law Society under subsection (3),—
(a) the opportunity to claim privilege on behalf of the lawyer's client; or
(b) the opportunity to make an interim claim of privilege if instructions have not been obtained from the client.
(1) This section applies to the execution of a search warrant that authorises the search of professional material held by a minister of religion, medical practitioner, or clinical psychologist.
(2) If this section applies, the search warrant may not be executed unless—
(a) the minister of religion, medical practitioner, or clinical psychologist is present; or
(b) a representative of that person is present.
(3) If the person who is to execute the search warrant is unable to contact the minister of religion, medical practitioner, or clinical psychologist, or his or her representative, that person must instead contact the church or professional body to whom the minister, medical practitioner, or clinical psychologist belongs and request the church or body to appoint a person to represent the interests of the parishioners, patients, or clients of the minister, medical practitioner or clinical psychologist, in relation to the search.
(4) Before executing the search warrant, the person executing it must give the minister of religion, medical practitioner, or clinical psychologist, or his or her personal representative, or the person appointed by the church or professional body under subsection (3),—
(a) the opportunity to claim privilege on behalf of parishioners, patients, or clients of the minister of religion, medical practitioner, or clinical psychologist; or
(b) the opportunity to make an interim claim of privilege if the minister, medical practitioner, or clinical psychologist, or his or her representative or person appointed under subsection (3) is unable to immediately contact the parishioner, patient, or client.
(1) This section applies if—
(a) a person executes a search warrant; or
(b) a person exercising a search power has reasonable grounds to believe that any thing discovered in the search may be the subject of a privilege recognised by this subpart.
(2) If this section applies, the person responsible for executing the search warrant or other person exercising the search power—
(a) must provide any person who he or she believes may be able to claim a privilege recognised by this subpart a reasonable opportunity to claim it; and
(b) may, if the person executing the search warrant or exercising the other search power is unable to identify or contact a person who may be able to claim a privilege, or that person's lawyer, within a reasonable period,—
(i) apply to the District Court for a determination as to the status of the thing; and
(ii) do any thing necessary to enable that court to make that determination.
If a person executing a search warrant or exercising a search power is prohibited under section 135, 136, 137, or 138 from searching any thing, the person—
(a) may—
(i) secure the thing; and
(ii) if the thing is intangible (for example, computer data), secure the thing by making a forensic copy; and
(iii) deliver the thing, or a copy of it, to the District Court, to enable the determination of a claim to privilege; and
(b) must supply the lawyer or other person who may or does claim privilege with a copy of, or access to, the secured thing; and
(c) must not search the thing secured, unless no claim of privilege is made, or a claim of privilege is withdrawn, or the search is in accordance with the directions of the court determining the claim of privilege.
Any person who wishes to claim privilege in respect of any thing seized or sought to be seized by a person executing a search warrant or exercising a search power—
(a) must provide the person responsible for executing the search warrant or exercising the other search power with a particularised list of the things in respect of which the privilege is claimed, as soon as practicable after being provided with the opportunity to claim privilege or being advised that a search is to be, or is being, or has been conducted, as the case requires; and
(b) if the thing or things in respect of which the privilege is claimed cannot be adequately particularised in accordance with paragraph (a), may apply to a District Court for directions or relief (with a copy of the thing provided under section 139(b)).
(1) If a District Court upholds a claim to privilege under section 132, 133, 134, 138, 139, or 140 in respect of any communication or information, the communication or information to which the privilege applies is not admissible in any proceedings arising from, or related to, the execution of the search warrant or exercise of the other search power or surveillance power or the carrying out of the examination order or production order, as the case requires.
(2) Subject to subsection (1), this subpart does not limit or affect the admissibility of any evidence, or the discretion of any court to admit or refuse to admit any evidence, in any proceedings.
(1) If any thing is produced under a production order or is seized under a search warrant or under a search power conferred by this Act or a relevant enactment, it must be dealt with in accordance with this subpart.
(2) However, this subpart is subject to—
(a) section 13 (which deals with property taken from people locked up in Police custody); and
(b) subpart 4 of Part 4 (which relates to privilege and confidentiality); and
(c) any other enactment.
(1) A thing seized or produced must, if it is not required for investigative or evidential purposes, or unless it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be—
(a) returned to its owner or to the person entitled to possession; or
(b) made the subject of an application under section 147; or
(c) disposed of under section 153 or 154(1); or
(d) destroyed if—
(i) it is perishable and has become rotten or has otherwise deteriorated; or
(ii) it is perishable and is likely to become rotten or perish before it can be dealt with under any of paragraphs (a) to (c) or section 156; or
(iii) it is likely to pose a risk to public health.
(2) Subsection (1)—
(a) does not affect the rights of retention conferred by section 154(2) or 155(1); and
(b) is subject to section 156.
(1) The seized or produced thing may, if it is required for investigative or evidential purposes, or it is liable to forfeiture to the Crown or any other person (whether by operation of law or by order of a court or otherwise), be held in the custody of the person who exercised the search power or that person's employer or another person acting on behalf of that person or any other person to whom the thing is transferred in accordance with section 87(2) (except while it is being used in evidence or is in the custody of any court) until the first of the following occurs:
(a) a decision is made not to bring proceedings for an offence in respect of which the thing was seized or produced:
(b) the thing is forfeited to the Crown or any other person under any enactment (whether by operation of law or by order of a court or otherwise):
(c) the thing is released under section 151 or 152:
(d) if proceedings for an offence have not been commenced before the date that is 6 months after the thing was seized or produced and a request has been made for the return of the thing, that date or the expiration of a later time ordered by a court under section 146:
(e) in any case where proceedings are brought,—
(i) the withdrawal or dismissal of the proceedings; or
(ii) subject to sections 149 and 152, the completion of the proceedings:
(f) the seized or produced thing is disposed of under section 153.
(2) Once the relevant event stated in subsection (1)(a) to (e) occurs, the person in whose custody the property is must immediately release the thing in his or her custody,—
(a) in the case of a subsection (1)(a), (d), or (e) event, to the owner or to a person entitled to possession; or
(b) in the case of any other event, in the manner required by this Act.
(3) However, if the thing is seized or produced in relation to more than 1 alleged offence, the person in whose custody the property is need not release the property until the first of the events described in subsection (1) has occurred in relation to each and every alleged offence.
(4) This section is subject to sections 146 and 156.
If a photograph or a copy of a seized or produced thing will be adequate for investigative or evidential purposes, the person who exercised the search power, or that person's employer or another person acting on behalf of that person, may, at his or her discretion, return the thing to the owner or to a person entitled to possession.
(1) If any person who seizes any thing, or to whom any thing is produced, or any other enforcement officer to whom the thing is transferred, wishes to hold it for a period exceeding 6 months in circumstances where no proceedings for an offence in respect of which the thing is relevant have yet been brought and a request has been made for the return of the thing, the person may apply to the District Court for an extension of the time during which the thing may be held.
(2) On an application under subsection (1) the District Court may—
(a) order an extension of time be granted to a specified date, to enable a determination to be made whether proceedings should be brought; or
(b) decline to order an extension of time.
(1) If a thing seized or produced is not to be produced in evidence but there is a dispute about its ownership, or it is perishable, or for any reason the person in whose custody it is is uncertain as to to whom the thing should be returned (for example, because it is unclaimed), the person in whose custody the thing is may apply to the District Court for directions as to the ownership or holding of the property.
(2) On an application under subsection (1), the District Court may—
(a) order that the thing be destroyed or, if any other enactment so authorises, forfeited to the Crown:
(b) order that the thing be delivered to the person appearing to the court to be its owner entitled to possession of it:
(c) if the owner or person entitled to possession cannot be found, make any order with respect to its possession or sale the court thinks fit.
(3) If, after the making of an order under subsection (2) in relation to any property, an action is commenced against a Police employee or other enforcement officer or the Crown or any law enforcement agency for the recovery of the thing or its value, the order and the delivery of the thing in accordance with the order may be given and must be received in evidence in bar of the action.
(4) However, no such order or delivery affects the right of any persons entitled by law to possession of the thing to recover the thing from any person or body (other than a person or body referred to in subsection (3)).
(1) A thing that is seized or produced is forfeited to the Crown if—
(a) the owner or person entitled to possession of the thing is not established within 60 days after the date on which the thing was seized or produced; and
(b) the thing—
(i) is not, at the expiry of that period, still required for investigative or evidential purposes; and
(ii) has not been disposed of or sold by order of the court within that period.
(2) For the purpose of trying to establish ownership of any thing to which this section applies, the person who has custody of the thing must (unless it is impossible or impracticable to make contact) advise the following people of the effect of this section:
(a) any person who produced the thing or from whom the thing was seized:
(b) the occupier or owner of the place or vehicle where the thing was before it was produced or seized:
(c) any other person who, in the opinion of the person in whose custody the thing is, may be affected by the forfeiture of the thing.
(1) The persons described in subsection (2) may apply, by written notice, to the person in whose custody the seized or produced thing is for the release of or access to it at any time before proceedings are brought for an alleged offence in respect of which the thing was seized or produced.
(2) The persons are as follows:
(a) the person who produced the thing or from whom the thing was seized:
(b) the owner or person entitled to possession of the seized or produced thing:
(c) any person with a legal or equitable interest in the seized or produced thing.
(3) The person in whose custody the seized or produced thing is may release the thing to the applicant or provide reasonable access to it.
(4) A person who receives an application for release of a thing, or access to it, may refuse that application on the ground that release of the thing or, as the case requires, access to it, is likely to prejudice the maintenance of the law.
(5) A release or provision of access to a thing may be—
(a) unconditional; or
(b) under bond for a sum (with or without sureties), and on conditions, acceptable to the person in whose custody the thing was.
(6) If any person refuses an application under subsection (1), he or she must inform the applicant of the decision in writing.
(1) If a person to whom a seized or produced thing is released or who is given access to it under section 149 fails to comply with any bond, surety, or condition imposed under subsection (5)(b) of that section,—
(a) the thing may be seized again, or required to be produced, or the ability to access the thing ended at the direction of the person who released it or provided access to it; and
(b) the person who released it or provided access to it may apply to the District Court for an order for estreat of the bond.
(2) If any person applies for an order for estreat of the bond, the Registrar of the District Court must—
(a) fix a time and place for the hearing of the application; and
(b) not less than 7 days before the time fixed, cause to be served on every person bound by the bond a notice of the time and place for the hearing.
(3) If the District Court is satisfied that a condition of the bond has not been complied with, the court may make an order to estreat the bond—
(a) in the amount that it thinks fit; and
(b) to any person bound by the bond on whom notice is proved to have been served under subsection (2).
(4) An amount payable under subsection (3) is recoverable as if it were a fine.
(1) A person described in section 149(2) may apply to the District Court for access to any thing seized by a person exercising a search power or produced to any person under a production order if the person has made an application under section 149 and it—
(a) has been refused; or
(b) has been granted, but subject to conditions that the applicant does not accept.
(2) The District Court may either—
(a) grant the application; or
(b) refuse it on the ground that allowing the person to have access to the thing or varying or cancelling the conditions concerned is likely to prejudice the maintenance of the law.
(3) The District Court may require sureties and impose conditions if it grants an application under subsection (2), and sections 149 and 150 apply with any necessary modifications.
(1) A person described in section 149(2) may apply to the District Court for the release of any thing seized by a person exercising a search power or produced to a person under a production order.
(2) The court may release the thing to the applicant if it is satisfied that it would be contrary to the interests of justice for the item to be retained in custody, having regard to—
(a) the gravity of the alleged offence:
(b) any loss or damage to the applicant that is caused or likely to be caused by not returning the thing:
(c) the likely evidential value of the thing, having regard to any other evidence held by the law enforcement agency that employed or engaged the person who seized the thing or to whom the thing was produced:
(d) whether the evidential value of the thing can be adequately preserved by means other than by keeping it.
(3) A court may require sureties and impose conditions on a release under subsection (2), and sections 149 and 150 apply with any necessary modifications.
(4) This section is subject to any enactment that requires an amount of any kind to be paid before any seized thing may be returned.
(1) Subsection (2) applies if a thing is seized or produced, the possession of which by the person from whom it was seized is unlawful under New Zealand law (for example, a controlled drug that is found in the possession of a member of the public in circumstances in which possession by the person of the controlled drug is an offence against the Misuse of Drugs Act 1975), and—
(a) there is no mechanism provided for disposing of the thing or it has not been disposed of under any other enactment; and
(b) no order has been made by a court as to its disposal.
(2) If this subsection applies, the person who seized the thing or to whom the thing was produced may destroy it if—
(a) notice is given to the person from whom the thing was seized or who was required to produce the thing, and that person either—
(i) consents to its destruction; or
(ii) does not within 30 working days object to its destruction; or
(b) the person to whom notice would otherwise be given under paragraph (a)cannot be located after reasonable inquiries have been made; or
(c) in a case where a person objects to the destruction of the thing within 30 working days of receiving a notice under paragraph (a) and any person applies to a court to determine the status of the thing, the court is satisfied that the possession of the thing by the person from whom it was seized or who was required to produce it is unlawful under New Zealand law.
(1) A person who makes a forensic copy of any data held in a computer or other data storage device must, if he or she determines that the data does not contain any evidential material, ensure that the forensic copy and any copies made from that copy are deleted, erased, or otherwise destroyed in a way that prevents retrieval of the copy or copies by any method.
(2) However, if an examination of the data contains a mixture of data that is evidential material and data that is not evidential material,—
(a) the forensic copy of the data and any copies made of that copy may be retained in their entirety; and
(b) that forensic copy and any copies made of that copy may continue to be searched, if such a search was authorised by the search power under which the data was seized and copied.
(1) Any thing made or generated by a person exercising a search or surveillance power (for example, photographs or audio or video recordings or copies of things) may be retained as part of the permanent records of the employer of the person who exercises the search or surveillance power.
(2) Subsection (1) is subject to section 130 and any other enactment or rule of law.
(1) Any person who seizes any thing, or to whom any thing is produced, or any other enforcement officer to whom the thing is transferred, may apply to a District Court for an order that the thing be disposed of (by sale or otherwise) in the manner, and at a time, that the court may direct if,—
(a) in the applicant's opinion,—
(i) the thing concerned is perishable or likely to deteriorate; or
(ii) the cost of holding the thing is unreasonable having regard to its market value; and
(b) he or she has made reasonable efforts to advise the people described in section 149(2) of the intended application.
(2) The court may grant the order if it is satisfied that—
(a) the thing is perishable or likely to deteriorate; or
(b) the cost to the applicant or his or her employer, or to any other person to whom the thing might be transferred, of holding it is unreasonable having regard to its market value.
(3) The applicant or his or her employer must hold in custody any proceeds received from carrying out the order (less any deductions permitted under subsection (4)) as if the proceeds were the seized property, and section 144(1) applies accordingly, with any necessary modifications.
(4) The deductions referred to in subsection (3) are, in a case in which the court orders that the thing be disposed of by sale, the costs of sale and any sums required to be paid to a security holder or other person as a condition of the order for sale.
(5) If the court refuses the order, the applicant or his or her employer or another person to whom the thing is transferred must continue to hold the thing until it is released in accordance with section 144(2).
An issuing officer who is not a Judge has the same immunities as a District Court Judge.
Every person is immune from civil or criminal liability—
(a) for any act done in good faith in order to obtain an examination order, a production order, a search warrant, a surveillance device warrant, a residual warrant, or other order referred to in this Act:
(b) for any act done in good faith in relation to the execution of an examination order, a production order, a search warrant, a surveillance device warrant, a residual warrant, or other order referred to in this Act, if the execution is carried out in a reasonable manner.
(1) Every person is immune from civil and criminal liability for any act done in good faith in order to exercise an entry power, a search power, or a surveillance power if—
(a) the power is exercised by that person in a reasonable manner; and
(b) the person believes on reasonable grounds that the preconditions for the exercise of that power have been satisfied.
(2) Every person is immune from civil and criminal liability for any act done in good faith and in a reasonable manner in order to assist a person to exercise an entry power, a search power, or a surveillance power, or in order to examine or analyse any thing that is seized.
(3) In any civil proceeding in which a person asserts that he or she has an immunity under this section, the onus is on that person to prove those facts necessary to establish the basis of the claim.
If any person is immune from civil liability under any of sections 157 to 159 in respect of anything done or omitted to be done, the Crown is also immune from civil liability in tort in respect of that person's conduct.
If there is any inconsistency between any of sections 157 to 160 and the provisions of any other enactment conferring, regulating, or limiting a privilege or immunity, sections 157 to 160 prevail.
(1) Any person who exercises a warrantless entry power, search power, or surveillance power conferred by this Act or by a relevant enactment must provide a written report on the exercise of that power to an employee designated to receive reports of that kind by the chief executive of the law enforcement agency concerned as soon as is practicable after the exercise of the power.
(2) A report referred to in subsection (1) must—
(a) contain a short summary of the circumstances surrounding the exercise of the power, and the reason or reasons why the power needed to be exercised:
(b) state whether any evidential material was seized or obtained as a result of the exercise of the power:
(c) state whether any criminal proceedings have been brought or are being considered as a consequence of the seizure of that evidential material.
(3) This section does not require the provision of any report in respect of—
(a) a rub-down search of a person that is undertaken in conjunction with their arrest or detention under any enactment:
(b) any search of a person in lawful custody carried out under section 11 or under the Corrections Act 2004:
(c) the exercise of any power of entry that does not also confer a power of search:
(d) a search undertaken by consent.
(1) The chief executive of a law enforcement agency that employs or engages persons who may exercise an entry power, a search power, or a surveillance power conferred by this Act or by a relevant enactment must include in every annual report prepared by the chief executive for the purposes of section 39 of the Public Finance Act 1989 or any other applicable enactment requiring an annual report to Parliament—
(a) the number of occasions on which entry or search powers were exercised without a warrant in the period covered by the report:
(b) the number of occasions on which warrantless surveillance powers were exercised in the period covered by the report that involved the use of a surveillance device:
(c) in respect of each kind of surveillance device used without a warrant in the period covered by the report, the numbers of that kind of device used—
(i) for a period of 6 hours or less:
(ii) for a period of more than 6 hours but no more than 12 hours:
(iii) for a period of more than 12 hours but no more than 24 hours:
(iv) for a period of more than 24 hours but no more than 48 hours:
(v) for a period of more than 48 hours but no more that 72 hours:
(vi) for a period of more than 72 hours:
(d) the number of criminal proceedings commenced in respect of which evidential material relevant to those proceedings was obtained directly or indirectly from the exercise of a warrantless search or surveillance power in the period covered by the report, and the number of such proceedings resulting in a conviction:
(e) the number of occasions on which warrantless search or surveillance powers were exercised in the period covered by the report that did not lead to the bringing of criminal proceedings within 90 days of the exercise of the power:
(f) the matters set out in section 164 in relation to surveillance device warrants and residual warrants.
(2) This section does not require a chief executive to include in any annual report information about—
(a) a rub-down search of a person that is undertaken in conjunction with their arrest or detention under any enactment:
(b) any search of a person in lawful custody undertaken under section 11 or under the Corrections Act 2004:
(c) the exercise of any power of entry that does not also confer a power of search:
(d) a search undertaken by consent:
(e) any prescribed search or surveillance, or search or surveillance of a prescribed kind, in any prescribed area or an area of a prescribed kind.
(3) In this section and section 164, kind of surveillance device means—
(a) an interception device:
(b) a visual surveillance device:
(c) a tracking device.
The information required to be included in an annual report by section 163(1)(f) is the following:
(a) the number of applications for surveillance device warrants and residual warrants granted or refused in the period covered by the report:
(b) the number of surveillance device warrants granted in the period covered by the report that authorised the use of a surveillance device, and the number in respect of each kind of surveillance device:
(c) the number of residual warrants granted in the period covered by the report that authorised the use of a device, technique, procedure, or activity, and the number in respect of each device, technique, procedure, or activity:
(d) the number of surveillance device warrants and residual warrants granted during the period covered by the report that authorised entry into private premises:
(e) in respect of each kind of surveillance device authorised by a surveillance device warrant issued during the period covered by the report, the numbers of that kind of device used—
(i) for a period of no more than 24 hours:
(ii) for a period of more than 24 hours but no more than 3 days:
(iii) for a period of more than 3 days but no more than 7 days:
(iv) for a period of more than 7 days but no more than 21 days:
(v) for a period of more than 21 days but no more than 60 days:
(f) in respect of each residual warrant issued during the period covered by the report, the type of device, technique, procedure, or activity authorised:
(g) the number of criminal proceedings commenced in respect of which evidential material relevant to those proceedings was obtained directly or indirectly from carrying out activities under the authority of a surveillance device warrant or a residual warrant issued in the period covered by the report, and the number of such proceedings resulting in a conviction:
(h) the number of occasions on which activities that were carried out under the authority of a surveillance device warrant or a residual warrant in the period covered by the report did not lead to the bringing of criminal proceedings within 90 days of those activities:
(i) if a Judge has reported to the chief executive under section 55, 56, or 67 about a breach of any of the conditions of the issue of a surveillance device warrant or residual warrant, or use of a surveillance device not authorised under section 44, the number of those reports and the details of the breaches or the lack of authorisation reported.
(1) Every person commits an offence if he or she, without reasonable excuse, fails to comply with an examination order.
(2) Every person who commits an offence against subsection (1) is liable on indictment,—
(a) in the case of an individual, to imprisonment for a term not exceeding 1 year:
(b) in the case of a body corporate, to a fine not exceeding $40,000.
(1) Every person commits an offence if he or she, without reasonable excuse, fails to comply with a production order.
(2) Every person who commits an offence against subsection (1) is liable on indictment,—
(a) in the case of an individual, to imprisonment for a term not exceeding 1 year:
(b) in the case of a body corporate, to a fine not exceeding $40,000.
Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 1 year who makes an application for an examination order, production order, search warrant, surveillance device warrant, or residual warrant that contains any assertion or other statement known by the person to be false.
Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months who, without reasonable excuse,—
(a) fails to comply with a direction under section 113(1) (special powers where application for search warrant pending); or
(b) leaves any place or vehicle at which he or she is detained under section 114(1).
(1