Budapest Convention and Related Matters Legislation Amendment Bill
Budapest Convention and Related Matters Legislation Amendment Bill
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Budapest Convention and Related Matters Legislation Amendment Bill
Budapest Convention and Related Matters Legislation Amendment Bill
Government Bill
81—3
As reported from the committee of the whole House
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Hon Paul Goldsmith
Budapest Convention and Related Matters Legislation Amendment Bill
Government Bill
81—3
Contents
The Parliament of New Zealand enacts as follows:
1 Title
This Act is the Budapest Convention and Related Matters Legislation Amendment Act 2024.
2 Commencement
(1)
This Act comes into force on a date or dates set by Order in Council.
(2)
Any part of this Act that has not come into force by 1 October 2025 comes into force then.
(3)
However, the following provisions come into force on the day after Royal assent:
(a)
section 5:
(b)
sections 10 and 20:
(c)
section 23:
(d)
section 24, but only for the purpose of giving effect to all of the Schedule 1 of the Search and Surveillance Act 2012 (except for clauses 2 and 3A to 7 of that schedule) that is set out in Part 1 of Schedule 1 of this Act:
(e)
sections 25 25(1) and (2) and 26:
(f)
Part 2.
(4)
An Order in Council made under this section is secondary legislation (see Part 3 of the Legislation Act 2019 for publication requirements).
Part 1 Amendments relating to investigatory tools
Subpart 1—Amendments to Search and Surveillance Act 2012
3 Principal Act
This subpart amends the Search and Surveillance Act 2012.
4 Section 3 amended (Interpretation)
(1AAA)
In section 3(1), replace the definition of chief executive with:
chief executive, in relation to a law enforcement agency, means—
(a)
the chief executive (however described) of the law enforcement agency; and
(b)
in the case of the New Zealand Police, the Commissioner of Police
(1)
In section 3(1), insert in their appropriate alphabetical order:
intelligence and security agency means—
(a)
the New Zealand Security Intelligence Service; or
(b)
the Government Communications Security Bureau
lawyer means a lawyer within the meaning of section 6 of the Lawyers and Conveyancers Act 2006
network operator has the same meaning as in section 3(1) of the Telecommunications (Interception Capability and Security) Act 2013
surveillance power means—
(a)
a surveillance device warrant issued under subpart 1 of Part 3 and the power to carry out the activities authorised by the warrant; or
(a)
the power to carry out the activities authorised by a surveillance device warrant issued under subpart 1 of Part 3; or
(b)
a warrantless surveillance power
traffic data has the same meaning as in section 3AB of the Telecommunications (Interception Capability and Security) Act 2013
warrantless surveillance power means a power conferred by section 48
5 New section 3A inserted (Transitional, savings, and related provisions)
After section 3, insert:
3A Transitional, savings, and related provisions
(1)
The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.
(2)
See sections 343 to 356 for transitional provisions relating to this Act as enacted.
6 Section 42 replaced (Other provisions that apply to examination orders)
Replace section 42 with:
42 Other provisions that apply to examination orders
(1)
Section 105 (transmission of search warrants) applies to examination orders—
(a)
as if a reference in that section to a warrant or search warrant were a reference to an examination order; and
(b)
as if a reference in that section to an issuing officer were a reference to the Judge issuing an examination order.
(2)
Section 107 (when a search warrant is invalid) applies to examination orders—
(a)
as if a reference in that section to a search warrant were a reference to an examination order; and
(b)
as if a reference in that section to the grounds or conditions for lawful issue of a warrant search warrant were a reference to the conditions specified in section 34 or 36, as the case may be.
7 Section 49 amended (Application for surveillance device warrant)
In section 49(1)(b), after “offence”
, insert “(see section 51(a)(i))”
.
8 Section 55 amended (Form and content of surveillance device warrant)
(1)
In section 55(3)(b), after “offence”
, insert “(see section 51(a)(i))”
.
(2)
Replace section 55(3)(g) with:
(g)
that an enforcement officer who, while carrying out the activities authorised by the warrant, obtains the content of a telecommunication may direct the relevant network operator to provide traffic data that is related to that telecommunication and stored in the ordinary course of business:
9 Section 58 replaced (Other provisions that apply to surveillance device warrants)
Replace section 58 with:
58 Other provisions that apply to surveillance device warrants
(1)
Section 105 (transmission of search warrants) applies to surveillance device warrants—
(a)
as if a reference in that section to a warrant or search warrant were a reference to a surveillance device warrant; and
(b)
as if a reference in that section to an issuing officer were a reference to the Judge issuing a surveillance device warrant.
(2)
Section 107 (when a search warrant is invalid) applies to surveillance device warrants—
(a)
as if a reference in that section to a search warrant were a reference to a surveillance device warrant; and
(b)
as if a reference in that section to the grounds or conditions for lawful issue of a warrant search warrant were a reference to the conditions specified in section 51.
10 New section 64A inserted (Record of information obtained, made, or generated by assistant)
After section 64, insert:
64A Record of information obtained, made, or generated by assistant
(1)
This section applies if, as a consequence of assisting an enforcement officer to whom a surveillance device warrant is directed, a person obtains, makes, or generates any record of information.
(2)
The person must ensure that, as soon as is reasonably practicable after the warrant expires, that record—
(a)
is destroyed; or
(b)
is given to the law enforcement agency that employed or engaged the enforcement officer (if the record has not been given to that agency already).
Guidance note
See also section 179, which makes it an offence for a person who acquires information as a consequence of the exercise of a search or surveillance power to knowingly disclose that information, except in the performance of the person’s duties, functions, or powers.
11 Section 70 replaced (Interpretation)
Replace section 70 with:
70 Meaning of document
In this subpart, document includes—
(a)
computer data; and
(b)
a computer program; and
(c)
a record of—
(i)
traffic data; or
(ii)
the content of a telecommunication.
12 Section 71 amended (Enforcement officer may apply for production order)
(1)
Repeal section 71(2)(f).
(2)
After section 71(2)(g), insert:
(h)
if the documents are sought to be produced on 1 occasion only, the facts relied on to show reasonable grounds to believe that those documents are in the possession or under the control of the person against whom the order is sought:
(i)
if the documents are sought to be produced on an ongoing basis, the facts relied on to show reasonable grounds to believe that those documents—
(i)
are in the possession or under the control of the person against whom the order is sought; or
(ii)
will come into that person’s possession or under their control while the order is in force (if made and in force for the period sought).
12A Section 73 amended (Other provisions that apply to production order applications)
In section 73(1), delete “warrant or”
.
13 Section 75 amended (Form and content of production order)
(1)
Replace section 75(1)(a) with:
(a)
to give the enforcement officer who applied for the order, or a person identified in the order,—
(i)
any documents described in the order that are in the possession or under the control of person A; and
(ii)
if section 71(2)(i)(ii) applies to the order, any documents described in the order that come into the possession or under the control of person A while the order is in force; and
(2)
In section 75(1)(b), replace “any of those documents”
with “any documents described in the order”
.
14 New section 75A inserted (Production orders against network operators relating to traffic data, etc)
After section 75, insert:
75A Production orders against network operators relating to traffic data, etc
A production order may require a network operator to produce a record of traffic data or of the content of telecommunications only to the extent that the network operator stores that record in the ordinary course of its business.
15 Section 77 replaced (Other provisions applying to production orders)
Replace section 77 with:
77 Other provisions that apply to production orders
(1)
Section 105 (transmission of search warrants) applies to production orders as if a reference in that section to a warrant or search warrant were a reference to a production order.
(2)
Section 107 (when a search warrant is invalid) applies to production orders—
(a)
as if a reference in that section to a search warrant were a reference to a production order; and
(b)
as if a reference in that section to the grounds or conditions for lawful issue of a warrant search warrant were a reference to the conditions specified in section 72.
16 Section 78 amended (Documents produced under production order)
(1)
In section 78, replace “the enforcement officer who applied for the order”
with “an appropriate enforcement officer”
.
(1A)
In section 78(c), replace “the chief executive or a delegate of the chief executive”
with “the chief executive of the law enforcement agency concerned or by a delegate of that chief executive”
.
(2)
In section 78, insert as subsection (2):
(2)
In this section, appropriate enforcement officer, in relation to a production order, means—
(a)
the enforcement officer who applied for the order; or
(b)
another enforcement officer employed or engaged by the same law enforcement agency as the enforcement officer who applied for the order.
17 Section 79 amended (Copy of retained document to be given)
In section 79, replace “78(a)”
with “78(1)(a)”
.
18 New subpart 2A of Part 3 inserted
After section 79, insert:
Subpart 2A—Preservation directions
Interpretation
79A Interpretation
In this subpart, unless the context otherwise requires,—
appropriate enforcement officer, in relation to a preservation direction, means—
(a)
the enforcement officer who applied for the direction; or
(b)
another enforcement officer employed or engaged by the same law enforcement agency as the enforcement officer who applied for the direction
document has the same meaning as in subpart 2
pathway information means traffic data that identifies the path of a telecommunication
preservation direction means a preservation direction made under this subpart
preserve, in relation to a document, means protect the document from change or deterioration
telecommunication and telecommunications service have the same meanings as in section 3(1) of the Telecommunications (Interception Capability and Security) Act 2013
telecommunications service provider means a person that is either of the following (as defined in section 3(1) of the Telecommunications (Interception Capability and Security) Act 2013):
(a)
a network operator:
(b)
a service provider.
Applications for preservation directions
79B Enforcement officer may apply for preservation direction
An enforcement officer who may apply for a search warrant to obtain documents may apply to the Commissioner for a preservation direction against a person in respect of those documents if the enforcement officer is satisfied that the conditions specified in section 79E for making the direction against the person are met.
79C Form and content of application
(1)
An application for a preservation direction—
(a)
must be in writing; and
(b)
may be transmitted to the Commissioner electronically.
(2)
The application must—
(a)
state the name of the applicant:
(b)
specify the provision that authorises an application for a search warrant to be made in respect of the suspected offence:
(c)
describe the offence that the applicant suspects has been, is being, or will be committed:
(d)
set out the facts relied on to show reasonable grounds to hold that suspicion:
(e)
describe the documents that the applicant seeks to be preserved:
(f)
describe any record of pathway information that the applicant seeks to be produced:
(g)
set out the facts relied on to show reasonable grounds to believe that the documents (including any record of pathway information that the applicant seeks to be produced) are in the possession or under the control of the person against whom the order is sought.
(3)
The application must contain or be accompanied by a statement by the applicant confirming the truth and accuracy of the contents of the application.
(4)
The Commissioner may require the applicant to supply further information concerning the grounds on which the applicant seeks the preservation direction.
79D Applications made orally
(1)
Despite section 79C, the Commissioner may allow the application to be made orally (for example, by telephone or in person) and excuse the applicant from putting all or part of the application (including any required material) in writing.
(2)
The Commissioner may allow the application to be made orally and excuse the applicant only if—
(a)
the Commissioner is satisfied—
(i)
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 preservation direction (if made); and
(ii)
that the question of whether the direction should be issued can properly be determined on the basis of an oral application (together with the information referred to in paragraph (b)); and
(b)
any further information that the Commissioner requires under section 79C(4) is supplied (whether orally, or partly orally and partly in writing) to the Commissioner.
(3)
If the Commissioner allows the application to be made orally, the Commissioner must—
(a)
ensure that the applicant orally affirms the truth and accuracy of the application when it is made; and
(b)
record the following particulars and information as soon as practicable:
(i)
particulars of the facts that the Commissioner relied on to be satisfied of the matters set out in subsection (2)(a):
(ii)
the particulars that the application is required to set out under section 79C(2) that were supplied orally to the Commissioner:
(iii)
any further information that the Commissioner required under section 79C(4) that was supplied orally to the Commissioner.
Preservation directions: making, duration, and other matters
79E Conditions for making preservation direction
The conditions for making a preservation direction are that—
(a)
the applicant (or another enforcement officer who may apply for a search warrant to obtain the documents that the applicant seeks to be preserved or produced under the proposed direction)—
(i)
is about to apply for a production order in respect of the documents that the applicant seeks to be preserved; or
(ii)
has applied for a production order in respect of those documents and an issuing officer has not yet granted or refused the application for the order; and
(b)
there are reasonable grounds to suspect that an offence has been, is being, or will be committed; and
(c)
that offence is an offence in respect of which this Act or any enactment specified in column 2 of Schedule 2 authorises an enforcement officer to apply for a search warrant; and
(d)
there are reasonable grounds to believe that the documents (including any record of pathway information that the applicant seeks to be produced) under the proposed direction—
(i)
are evidential material in respect of the offence; and
(ii)
are particularly vulnerable to loss or modification; and
(iii)
are in the possession or under the control of the person against whom the direction is sought; and
(e)
if the applicant seeks to have any record of pathway information produced under the proposed direction,—
(i)
the applicant’s purpose in seeking to have the record produced is to facilitate tracing of all telecommunications service providers involved in transmitting the related telecommunication; and
(ii)
the applicant seeks to have only as much of the record produced as is necessary for that purpose.
Examples
For the purposes of paragraph (d)(ii), examples of circumstances in which there may be reasonable grounds to believe that the documents are particularly vulnerable to loss or modification include the following:
Example 1
There are reasonable grounds to believe that, before an application for a production order in respect of the documents is able to be determined, the documents will be—
deleted, erased, or otherwise disposed of; or
modified.
Example 2
There are reasonable grounds to believe that the documents are being stored insecurely.
Example 3
In the case of computer data, there are reasonable grounds to believe that the data would ordinarily be deleted or erased when the medium used to store the data is used to store other data.
79F Commissioner may make preservation direction
On an application made under this subpart, the Commissioner may make a preservation direction against a person if satisfied that the conditions specified in section 79E for making the direction are met.
79G Form and content of preservation direction
(1)
A preservation direction must be in the prescribed form, if any, and must require the person against whom it is made (the directly affected person)—
(a)
to preserve, while the direction is in force, any documents described in the direction that are in the possession or under the control of the directly affected person; and
(b)
to produce to the enforcement officer who applied for the direction, or a person identified in the direction, any record of pathway information described in the direction that is in the possession or under the control of the directly affected person; and
(c)
if any of the documents (including any record of pathway information) described in the direction are not, or are no longer, in the possession or under the control of the directly affected person, to disclose (by the time, if any, specified in the direction and to the best of that person’s knowledge or belief) the location of those documents to—
(i)
the enforcement officer who applied for the direction; or
(ii)
a person identified in the direction.
(2)
A preservation direction must specify—
(a)
the name of the directly affected person; and
(b)
the grounds on which the direction is made.
(3)
If the preservation direction requires the directly affected person to produce any record of pathway information,—
(a)
the preservation direction must also specify the way in which, and a time by which, the record must be produced; and
(b)
that time must not be any earlier than a time on the tenth day after the date on which the direction is given to the directly affected person.
(4)
A preservation direction may describe any documents required to be preserved by reference to a class or category of document.
(5)
A preservation direction may describe any record of pathway information required to be produced by reference to a class or category of record.
(6)
If a preservation direction is made against a body corporate or an unincorporated body, the direction may specify an individual (whether by name or by reference to a position held in the body) who must comply with the direction as the body’s representative.
79H Preservation directions against network operators relating to traffic data, etc
A preservation direction may require a network operator to preserve a record of traffic data, preserve the content preserve a record of the content of telecommunications, or produce a record of pathway information only to the extent that the network operator stores the record concerned in the ordinary course of business.
79I Duration of preservation direction
(1)
A preservation direction against a person is in force until the end of the period specified in the direction (not exceeding 20 days after the date on which the direction is made).
(2)
However, if an application is made for a production order against the person in relation to all or any of the documents described in a preservation direction before the direction expires, the preservation direction—
(a)
continues in force until the application is determined; and
(b)
is revoked when the application is determined.
(3)
Subsection (2) applies only if the preservation direction and the application for the production order relate to the same investigation.
(4)
If subsection (2) applies, the Commissioner must give written notice to the person against whom the preservation direction was made, as soon as practicable after the application for a production order is made and before it is determined, of the effect of subsection (2)(a).
(5)
However, the Commissioner is not required to give the notice if the application for the production order is determined before it is practicable to give the notice.
(6)
If a preservation direction is revoked under subsection (2)(b), the Commissioner must give written notice to the person against whom the direction was made that it is revoked.
(7)
However, the Commissioner is not required to give the notice if the application for the production order is granted.
Reviews
79J Right of review
(1)
A person against whom a preservation direction is made may apply to the Commissioner, in the approved manner (if any), for a review of the Commissioner’s decision to make the direction.
(2)
An application must state—
(a)
the decision that the applicant wishes to be reviewed; and
(b)
why the applicant thinks the decision should be reviewed; and
(c)
the review outcome that the applicant seeks.
(3)
An application must be made—
(a)
no later than the default closing date, which is 5 working days after the date on which the preservation direction is given to the person; and
(b)
before the direction expires, or is revoked, under section 79I.
(4)
However, the Commissioner may accept an application after the default closing date if satisfied that extenuating circumstances affected the ability of the person to make the application by that date (but may only accept the application before the direction expires or is revoked).
(5)
In this section, approved manner means any manner that—
(a)
is approved by the Commissioner for the purposes of this section; and
(b)
is specified on an Internet site maintained by or on behalf of the New Zealand Police that is publicly accessible free of charge.
79K How review must be conducted
(1)
The Commissioner must delegate the responsibility for reviewing the Commissioner’s decision to 1 or more persons under section 17 of the Policing Act 2008.
(2)
If the original decision was made by a person as a delegate of the Commissioner, the responsibility for reviewing the decision must not be delegated to that person.
(3)
The reviewer must—
(a)
review the decision on the papers; and
(b)
complete that review no later than 5 working days after the date on which the application for review is lodged.
(4)
On completing a review of the decision, the reviewer may—
(a)
affirm the decision; or
(b)
amend the preservation direction; or
(c)
revoke the preservation direction.
(5)
Subsections (3) and (4) cease to apply if, before the review is completed, the preservation direction to which the decision relates is revoked under section 79I(2).
79L Notice, etc, to be given after review is completed
(1)
As soon as practicable after the review is completed, the Commissioner must give the applicant—
(a)
written notice of the reviewer’s decision; and
(b)
if the reviewer’s decision is to amend the preservation direction, an updated version of the direction.
(2)
The preservation direction to which the review relates continues in force until the applicant is notified of the reviewer’s decision.
(3)
However, subsection (2) does not—
(a)
reduce the period for which the direction otherwise remains in force under section 79I if the reviewer’s decision is—
(i)
to affirm the original decision to make the direction; or
(ii)
to amend the direction; or
(b)
extend the period for which the direction remains in force if it is sooner revoked under section 79I(2).
Invalidity
79M When preservation direction is invalid
(1)
A preservation direction is invalid—
(a)
if, having regard to the information contained in the application for the direction, the conditions specified in section 79E for making the direction were not satisfied at the time the direction was made or (if applicable) amended; or
(b)
if the direction contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the direction as to its purpose or scope.
(2)
If a preservation direction is invalid under this section, the following sections do not apply to the direction:
(a)
section 204 of the Summary Proceedings Act 1957 (proceedings not to be questioned for want of form):
(b)
section 379 of the Criminal Procedure Act 2011 (proceedings not to be questioned for want of form).
Retention, copying, etc, of produced record of pathway information
79N Record of pathway information produced under preservation direction
When a record of pathway information is produced in compliance with a preservation direction, an appropriate enforcement officer may do any of the following:
(a)
retain the original record produced if it is relevant to the investigation or proceedings:
(b)
take copies of the record:
(c)
if necessary, require the person producing the record—
(i)
to reproduce, in usable form, the pathway information that is in that record; or
(ii)
to assist any person nominated by the chief executive or a delegate of the chief executive the chief executive of the law enforcement agency concerned or by a delegate of that chief executive to reproduce, in usable form, the pathway information that is in that record:
(d)
require the person producing the record to provide any related information (for example, the names of any telecommunications service providers involved in transmitting the telecommunication) that is necessary to understand the pathway information.
Offences
79O Failing to comply with preservation direction
(1)
A person commits an offence if the person, without reasonable excuse, fails to comply with a preservation direction.
(2)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to imprisonment for a term not exceeding 1 year; or
(b)
if they are a body corporate, to a fine not exceeding $40,000.
79P False application for preservation direction
(1)
A person commits an offence if they apply for a preservation direction and the application contains any assertion or other statement that they know is false.
(2)
A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 1 year.
79Q Disclosing matters relating to preservation direction
Disclosing that direction has been made
(1)
A person who is affected by a preservation direction commits an offence if the person knowingly discloses to any other person that the direction has been made.
Disclosing information contained in relevant documents
(2)
A person who is affected by a preservation direction commits an offence if—
(a)
the affected person knowingly discloses to another person any information contained in a document to which the preservation direction relates; and
(b)
the document is in the possession or under the control of the person against whom the direction was made (whether or not they are the affected person making the disclosure); and
(c)
the affected person would not have been able to disclose the information, information had a preservation direction not been made in relation to that document (for example, because the document would not have been preserved).
Penalty
(3)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to a term of imprisonment not exceeding 6 months; or
(b)
if they are a body corporate, to a fine not exceeding $100,000.
Exceptions
(4)
A person who is affected by a preservation direction does not commit an offence against this section if the affected person makes the disclosure concerned—
(a)
to an appropriate enforcement officer, in relation to the direction, for the purpose of complying with the direction; or
(b)
to another affected person for the purpose of complying with the direction or obtaining legal advice or legal representation in relation to the direction; or
(c)
to a lawyer for the purpose of obtaining legal advice or making representations in relation to the direction; or
(d)
to a person acting on behalf of an intelligence and security agency and in accordance with—
(i)
an intelligence warrant issued under subpart 1 of Part 4 of the Intelligence and Security Act 2017; or
(ii)
an authorisation given under section 78 of that Act; or
(e)
in accordance with section 122 of the Intelligence and Security Act 2017 or a business records direction issued under section 150 of that Act; or
(f)
in connection with, or in the course of, proceedings before a court or a tribunal; or
(g)
after the chief executive of the law enforcement agency concerned gives the person against whom the direction is made written notice under section 79R in relation to the direction.
Definitions
(5)
A person is affected by a preservation direction only if the person is—
(a)
the person against whom the direction was made; or
(b)
an officer, employee, or agent of the person against whom the direction was made.
(6)
A person discloses information if the person discloses—
(a)
the substance, meaning, or purport of that information; or
(b)
any part of that information.
79R Chief executive to give written notice for section 79Q(4)(g)
(1)
As soon as practicable after any of the following occurs, the chief executive of the law enforcement agency that employed or engaged the enforcement officer who applied for the preservation direction must give written notice to the person against whom the direction was made:
(a)
the law enforcement agency decides to discontinue any investigation into the suspected offence that is the subject of the application for the direction:
(b)
any criminal proceedings that the law enforcement agency expects to be commenced in relation to the suspected offence have been commenced:
(c)
the chief executive decides for any other reason to give notice under this section in relation to the direction.
(2)
However, the chief executive is not required to give notice if satisfied on reasonable grounds that the disclosure that would be allowed under section 79Q(4)(g) because of the notice—
(a)
would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(b)
would endanger the safety of any person; or
(c)
would prejudice the supply of information to the law enforcement agency; or
(d)
would prejudice any international relationships of the law enforcement agency; or
(e)
would prejudice the security or defence of New Zealand.
(3)
The chief executive must—
(a)
keep under review the appropriateness of any decision of the chief executive under subsection (2); and
(b)
give written notice under this section if the Commissioner chief executive ceases to be satisfied on reasonable grounds of the matters referred to in subsection (2).
Immunities
79S Immunities relating to functions of Commissioner and reviewers
(1)
The Commissioner is immune from civil liability for anything done or omitted to be done by the Commissioner in good faith in determining an application for a preservation direction under this subpart.
(2)
A reviewer is immune from civil liability for anything done or omitted to be done by the reviewer in good faith in conducting a review of the Commissioner’s decision to make a preservation direction.
(3)
If the Commissioner or a reviewer is immune from civil liability under this section in respect of anything done or omitted to be done, the Crown is also immune from civil liability in respect of the Commissioner’s or reviewer’s conduct.
(4)
If there is any inconsistency between any of subsections (1) to (3) and the provisions of any other enactment conferring, regulating, or limiting a privilege or immunity, those subsections prevail.
(5)
In this section, reviewer means a person who is responsible (under a delegation under section 17 of the Policing Act 2008) for conducting a review under this subpart of the Commissioner’s decision to make a preservation direction.
79T Immunities relating to obtaining or executing preservation directions
(1)
Section 165 applies in relation to a preservation direction as if a reference in that section to a search warrant were a reference to a preservation direction.
(2)
Sections 167 and 168 apply as if a reference in those sections to section 165 included a reference to that section as applied by this section.
Effect of court proceedings
79U Effect of court proceedings
Section 180 applies to any proceeding that has been commenced in any court in respect of—
(a)
the exercise of a power, or discharge of a duty, conferred or imposed by this subpart; or
(b)
the use for investigative purposes of evidential material that is obtained under a preservation direction and that—
(i)
is a record of pathway information; or
(ii)
relates to the location of documents described in the preservation direction.
Service of documents
79V Service of preservation directions and notices
Section 181 applies to the following documents as if a reference in that section to an order included a reference to those documents:
(a)
a preservation direction (including its replacement after a review under this subpart):
(b)
any written notice required to be given under this subpart.
Retention of documents
79W New Zealand Police to retain applications and related documents
(1)
The New Zealand Police must retain a copy of every written application for a preservation direction, or (in the case of an oral application) the record made by the Commissioner of the application, until,—
(a)
in a case where a preservation direction is issued, the date of completion of any proceedings in respect of which the validity of the direction may be in issue; or
(b)
in any other case, the date that is 2 years after the date on which the application or record was first retained under the control of the New Zealand Police.
(2)
If the applicant is a constable and a preservation direction is issued, the New Zealand Police—
(a)
must also retain the following documents:
(i)
the preservation direction:
(ii)
copies of all documents provided by the applicant in support of the application; and
(b)
must retain those documents, and any documents comprising the copy or record referred to in subsection (1), until the later of the following dates:
(i)
the date of completion of any proceedings in respect of which the validity of the direction may be in issue:
(ii)
the date of destruction or transfer of the documents under the Public Records Act 2005 or any other enactment or rule of law.
(3)
Subsection (2)(b) applies despite subsection (1)(a).
(4)
The New Zealand Police must retain a copy of every application for a review under this subpart until,—
(a)
in a case in which the relevant preservation direction is affirmed or amended, the later of the following dates:
(i)
the date of completion of any proceedings in respect of which the validity of the direction may be in issue:
(ii)
the date that is 2 years after the date on which the application was made; or
(b)
in any other case, the date that is 2 years after the date on which the application was made.
(5)
Documents required to be retained under this section may be retained in electronic form.
79X Documents to be retained by other applicants to whom preservation direction is issued
(1)
An applicant to whom a preservation direction is issued must retain the preservation direction, a copy of the application (if made in writing), and copies of all documents provided in support of the application until the later of the following dates:
(a)
the date of completion of any proceedings in respect of which the validity of the direction may be in issue:
(b)
the date of destruction or transfer of the preservation direction or other documents under the Public Records Act 2005 or any other enactment or rule of law.
(2)
If the applicant is a constable, section 79W(2) to (4) (5) applies instead of this section.
(3)
Documents required to be retained under this section may be retained in electronic form.
Annual reporting
79Y Annual reporting by Commissioner
(1)
The Commissioner must include in every annual report that the Commissioner prepares for the purposes of section 43 of the Public Finance Act 1989—
Reviews
(a)
the following information about reviews under this subpart that were completed in the reporting period:
(i)
the number in which the reviewer affirmed the relevant direction:
(ii)
the number in which the reviewer amended the relevant direction:
(iii)
the number in which the reviewer revoked the relevant direction; and
(b)
the number of reviews under this subpart that were not completed because the relevant preservation directions were revoked under section 79I(2) in the reporting period; and
Expiry or revocation of preservation directions
(c)
the number of preservation directions that expired during the reporting period without a related application for a production order having been made to obtain any or all of the documents (the relevant documents) described in those directions; and
(d)
the number of preservation directions that were revoked during the reporting period when a related application for a production order to obtain any or all of the relevant documents was granted; and
(e)
the number of preservation directions that were revoked during the reporting period when a related application for a production order to obtain any or all of the relevant documents was refused.
Definitions
(2)
In this section, reporting period, for an annual report, means the period covered by the report.
(3)
In this section, an application for a production order is related to a preservation direction (and is a related application) if the application and preservation direction relate to the same investigation.
19 New Part 3A inserted
After section 88, insert:
Part 3A Preservation directions relating to foreign investigations or proceedings
Subpart 1—Interpretation
88A Interpretation
(1)
In this Part,—
Central Authority has the same meaning as in section 2 of the Mutual Assistance in Criminal Matters Act 1992
document has the same meaning as in subpart 2 of Part 3
foreign country has the same meaning as in section 2 of the Mutual Assistance in Criminal Matters Act 1992
foreign enforcement authority means a person or an agency that is empowered to perform functions in a foreign country that correspond, wholly or partly, to any of the functions of the New Zealand Police set out in section 9 of the Policing Act 2008
law of a foreign country includes the law of a part of, or the law in force in part of, the foreign country
preservation direction means a preservation direction made under this Part
related mutual assistance request, in relation to an application for a preservation direction or for renewal of a preservation direction against a person, means a request under section 43 of the Mutual Assistance in Criminal Matters Act 1992 for assistance in obtaining documents to which the application relates under a production order against the person
serious offence means an offence that is punishable by a term of imprisonment of 2 years or more.
(2)
In this Part, a reference to the foreign country in which a foreign enforcement authority is located is a reference to the foreign country in which that authority is empowered to perform functions that correspond, wholly or partly, to any of the functions of the New Zealand Police set out in section 9 of the Policing Act 2008.
(3)
In this Part, a related mutual assistance request, in relation to an application for a preservation direction or for renewal of a preservation direction against a person, is in progress only if,—
(a)
in the case of an application for a preservation direction, one of the following applies:
(i)
the foreign enforcement authority requesting the preservation direction intends to request or recommend that the Central Authority for the foreign country in which the foreign enforcement authority is located make the related mutual assistance request; or
(ii)
the foreign enforcement authority has requested or recommended that the Central Authority make the related mutual assistance request and the foreign enforcement authority’s request or recommendation has not been rejected; or
(iii)
the Central Authority intends to make or has made the related mutual assistance request; and
(b)
in the case of an application for renewal of a preservation direction,—
(i)
the foreign enforcement authority requesting the renewal has requested or recommended that the Central Authority for the foreign country in which the foreign enforcement authority is located make the related mutual assistance request and the foreign enforcement authority’s request or recommendation has not been rejected; or
(ii)
the Central Authority intends to make or has made the related mutual assistance request; and
(c)
one of the following applies:
(i)
the Attorney-General has not yet granted or refused the request:
(ii)
the Attorney-General has granted the request, but a Judge has not yet granted or refused an application made under section 45 of the Mutual Assistance in Criminal Matters Act 1992 for a production order against the person in respect of those documents.
(4)
In this Part, a reference to an offence of a political character does not include—
(a)
an offence—
(i)
that is constituted by conduct of a kind referred to in a multilateral treaty to which New Zealand is a party; and
(ii)
for which parties have an obligation to provide to one another assistance in criminal matters (within the meaning of section 2(1) of the Mutual Assistance in Criminal Matters Act 1992); or
(b)
any offence in relation to which New Zealand has agreed in writing with another country that the offence will not be treated as a political offence for the purposes of the provision of assistance in criminal matters between New Zealand and that country.
(5)
A term or an expression used in this Part that is not defined in this Part but is defined in subpart 2A of Part 3 has the same meaning as in that subpart.
Subpart 2—Applications for preservation directions
88B Constable to apply for preservation direction requested by foreign enforcement authority
(1)
A constable must apply to the Commissioner for a preservation direction against a person if a foreign enforcement authority requests the New Zealand Police for a preservation direction against the person and—
(a)
one of the following applies:
(i)
an investigation has commenced in relation to a serious offence against the law of the foreign country in which the foreign enforcement authority is located that it is suspected has been, is being, or will be committed:
(i)
an investigation has commenced in relation to a serious offence that it is suspected has been, is being, or will be committed against the law of the foreign country in which the foreign enforcement authority is located:
(ii)
criminal proceedings have commenced in relation to an alleged serious offence against that law; and
(b)
the documents that the foreign enforcement authority seeks to be preserved are relevant to the investigation or proceedings; and
(c)
a related mutual assistance request is in progress.
(2)
The constable—
(a)
may require the foreign enforcement authority to supply any information about the matters referred to in subsection (1); and
(b)
may rely on any information supplied by the foreign enforcement authority about those matters unless the constable knows that the information is false.
(3)
Subsection (1) is subject to subpart 4.
88C Form and content of application
(1)
An application for a preservation direction—
(a)
must be in writing; and
(b)
may be transmitted to the Commissioner electronically.
(2)
The application must—
(a)
state the name of the foreign enforcement authority; and
(b)
state the name of the person against whom the preservation direction is sought; and
(c)
specify the serious offence; and
(d)
set out a summary of the related facts; and
(e)
describe the documents that the foreign enforcement authority seeks to be preserved; and
(f)
describe how the documents are relevant to the investigation or proceedings; and
(g)
set out particulars of any location at which the documents are known or believed to be held (including the location of any computer system in which the documents are recorded or stored); and
(h)
set out the reasons why the foreign enforcement authority seeks to have the documents preserved by way of a preservation direction, including particulars of any concerns about the documents being lost or modified.
(3)
The constable—
(a)
may require the foreign enforcement authority to supply any information about the matters referred to in subsection (2); and
(b)
may rely on any information supplied by the foreign enforcement authority about those matters unless the constable knows that the information is false.
Subpart 3—Preservation directions: making, initial duration, and other matters
88D Commissioner to make preservation direction
(1)
On an application for a preservation direction against a person, the Commissioner must make a preservation direction against the person.
(2)
However, the Commissioner may refuse to grant the application if satisfied that—
(a)
a related mutual assistance request is not in progress; or
(b)
the foreign enforcement authority’s request for a preservation direction relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
(c)
there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character; or
(d)
granting the application would prejudice the sovereignty, security, or national interests of New Zealand.
(3)
This section is subject to subpart 4.
88E Form and content
(1)
A preservation direction must be in the prescribed form, if any, and must require the person against whom it is made (the directly affected person)—
(a)
to preserve, while the direction is in force, any documents described in the direction that are in the possession or under the control of the directly affected person; and
(b)
to the extent that those documents are records of traffic data, to produce to a constable identified in the direction any record of that traffic data that is pathway information and is in the possession or under the control of the directly affected person; and
(c)
if any of the documents described in the direction are not, or are no longer, in the possession or under the control of the directly affected person, to disclose (by the time, if any, specified in the direction and to the best of that person’s knowledge or belief) the location of those documents to a constable identified in the direction.
(2)
A preservation direction must state—
(a)
the name of the directly affected person; and
(b)
the name of the requesting foreign enforcement authority.
(3)
If the preservation direction requires the directly affected person to produce any record of pathway information,—
(a)
the preservation direction must also specify the way in which, and a time by which, the directly affected person must produce the record; and
(b)
that time must not be any earlier than a time on the tenth day after the date on which the direction is given to the directly affected person.
(4)
A preservation direction may describe any documents required to be preserved by reference to a class or category of document.
(5)
If a preservation direction is made against a body corporate or an unincorporated body, the direction may specify an individual (whether by name or by reference to a position held in the body) who must comply with the direction as the body’s representative.
88F Preservation directions against network operators relating to traffic data, etc
A preservation direction may require a network operator to preserve a record of traffic data, preserve the content preserve a record of the content of telecommunications, or produce a record of pathway information only to the extent that the network operator stores the record concerned in the ordinary course of business.
88G Initial duration of preservation direction
(1)
A preservation direction is in force for an initial period, specified in the direction, of up to 150 days.
(2)
This section is subject to subpart 6.
Subpart 4—Consequences if responsible constable believes that requested preservation direction would prejudice investigation, etc
88H Foreign enforcement authority to be informed and other consequences of belief
(1)
This section applies if a responsible constable forms the belief, before a requested preservation direction has been served, that serving it—
(a)
would prejudice any investigation by the foreign enforcement authority concerned in relation to the serious offence that is the subject of the request (for example, by threatening the confidentiality of the investigation or because it would risk the loss or modification of the documents); or
(b)
would be unlikely to result in the preservation of the documents that the foreign enforcement authority seeks to be preserved.
(2)
If the responsible constable forms the belief before the application is made,—
(a)
the constable must inform the foreign enforcement authority of that belief as soon as practicable; and
(b)
the application may be made only if the foreign enforcement authority confirms its request.
(3)
If the responsible constable forms the belief after the application is made and before the Commissioner determines it,—
(a)
the constable must inform the foreign enforcement authority and the Commissioner of that belief as soon as practicable; and
(b)
the Commissioner may grant the application only if the foreign enforcement authority confirms its request.
(4)
If the responsible constable forms the belief after the Commissioner grants the application but before the direction is served,—
(a)
the constable must inform the foreign enforcement authority and the Commissioner of that belief as soon as practicable; and
(b)
the direction may be served only if the foreign enforcement authority confirms its request; and
(c)
the direction is to be treated as not having been made if the foreign enforcement authority withdraws the request.
(5)
A responsible constable for a requested preservation direction does not have any duty to determine whether they believe the matters referred to in subsection (1).
(6)
In this section, responsible constable, in relation to a preservation direction requested by a foreign enforcement authority, means the constable who is responsible for informing the foreign enforcement authority of matters relating to the request.
Subpart 5—Renewal of preservation directions
88I Application for renewal
(1)
A constable must apply to the Commissioner for a preservation direction against a person to be renewed if—
(a)
a foreign enforcement authority—
(i)
requests the New Zealand Police to renew the direction; and
(ii)
makes the request before the direction expires; and
(b)
a related mutual assistance request is in progress; and
(c)
the direction has not been renewed before, or has been renewed fewer than 4 times.
(2)
The following apply in relation to an application for renewal:
(a)
the application must be in writing and may be transmitted electronically:
(b)
the application may relate to all of the documents to which the preservation direction currently applies or to fewer, or a narrower class, of those documents:
(c)
the application must identify any material changes to the matters referred to in sections 88B(1) and 88C(2) since the preservation direction was made or last renewed:
(d)
the constable—
(i)
may require the foreign enforcement authority to supply information about the material changes; and
(ii)
may rely on any information supplied by the foreign enforcement authority about those changes unless the constable knows that the information is false.
88J Granting of application
(1)
On an application for renewal of a preservation direction, the Commissioner must grant the application.
(2)
However, the Commissioner—
(a)
must refuse to grant the application if the preservation direction has already been renewed 4 times; and
(b)
may refuse to grant the application if satisfied that—
(i)
a related mutual assistance request is not or is no longer in progress; or
(ii)
the request relates to the prosecution or punishment of a person for an offence that is, or is by reason of the circumstances in which it is alleged to have been committed or was committed, an offence of a political character; or
(iii)
there are substantial grounds for believing that the request has been made with a view to prosecuting or punishing a person for an offence of a political character; or
(iv)
granting the application would prejudice the sovereignty, security, or national interests of New Zealand.
88K Period for which preservation direction continues in force
(1)
The preservation direction continues in force until the Commissioner determines the application for renewal.
(2)
If the Commissioner grants the application, the preservation direction continues in force until the end of the period that the Commissioner determines, subject to subpart 6.
(3)
That period must not exceed 180 days after the day on which the direction would have expired but for subsection (1).
88L Updated version of preservation direction must be issued
If the Commissioner grants the application for renewal, the Commissioner must issue an updated version of the preservation direction that—
(a)
states that it is renewed; and
(b)
specifies the period for which the direction remains in force.
Subpart 6—Continuation and revocation: effect of requests and applications under Mutual Assistance in Criminal Matters Act 1992
88M Preservation direction to continue: request for assistance by production order
(1)
This subpart applies if—
(a)
a request is made to the Attorney-General under section 43 of the Mutual Assistance in Criminal Matters Act 1992 for assistance in obtaining, under a production order against a person, all or any of the documents described in a preservation direction against the person; and
(b)
the request is made before the preservation direction would otherwise expire under section 88G or 88K; and
(c)
the preservation direction and the request for the production order relate to the same investigation or proceedings.
(2)
The direction continues in force in relation to all of the documents until it is revoked or partially revoked under section 88N.
88N Whole or partial revocation of preservation direction
(1)
The preservation direction is revoked in relation to all of the documents described in the direction when either of the following occurs:
(a)
the Attorney-General refuses a request under section 43 of the Mutual Assistance in Criminal Matters Act 1992 by the foreign country concerned for assistance in obtaining those documents under a production order against the person:
(b)
a Judge determines an application under section 45 of that Act for a production order against the person relating to all or any of those documents.
(2)
The preservation direction is revoked in relation to particular documents or classes of documents (rather than all of the documents) described in the direction if the Attorney-General refuses a request as referred to in subsection (1)(a), but that refusal is limited to those particular documents or classes of documents.
(3)
The Commissioner must give written notice to the person against whom the preservation direction is made that the direction is revoked or partially revoked, as the case may be.
Guidance note
Generally, written notice would also be required under section 88W as soon as practicable after a preservation direction is partially revoked under this section.
(4)
However, the Commissioner is not required to give the notice in a case in which subsection (1)(b) applies if the Judge grants the application for the production order.
Subpart 7—Reviews
88O Right of review
(1)
A person against whom a preservation direction is made may apply to the Commissioner, in the approved manner, for a review of either of the following decisions of the Commissioner:
(a)
a decision to make the direction:
(b)
a decision to renew the direction.
(2)
An application must state—
(a)
the decision that the applicant wishes to be reviewed; and
(b)
why the applicant thinks the decision should be reviewed; and
(c)
the review outcome that the applicant seeks.
(3)
An application must be made—
(a)
no later than the default closing date, which is 30 working days after the date on which—
(i)
the direction is given to the person (if the application is for a review of the decision to make the direction); or
(ii)
the updated direction was is given to the person (if the application is for a review of a decision to renew the direction); and
(b)
before the direction expires or is revoked.
Guidance note
See sections 88G and 88K and subpart 6.
(4)
However, the Commissioner may accept an application after the default closing date if satisfied that extenuating circumstances affected the ability of the person to make the application by that date (but may only accept the application before the direction expires or is revoked).
(5)
In this section, approved manner means any manner that—
(a)
is approved by the Commissioner for the purposes of this section; and
(b)
is specified on an Internet site maintained by or on behalf of the New Zealand Police that is publicly accessible free of charge.
88P How review must be conducted
(1)
The Commissioner must delegate the responsibility for reviewing the Commissioner’s decision to 1 or more persons under section 17 of the Policing Act 2008.
(2)
If the original decision was made by a person as a delegate of the Commissioner, the responsibility for reviewing the decision must not be delegated to that person.
(3)
The reviewer must—
(a)
review the decision on the papers; and
(b)
complete that review no later than 30 working days after the date on which the application for review was lodged.
(4)
On completing a review of the decision, the reviewer may,—
(a)
in the case of a decision to make a preservation direction,—
(i)
affirm the decision; or
(ii)
amend the preservation direction; or
(iii)
revoke the preservation direction; or
(b)
in the case of a decision to renew a preservation direction,—
(i)
affirm the decision; or
(ii)
amend the renewed direction by changing the period for which it remains in force; or
(iii)
revoke the renewed direction.
(5)
Subsections (3) and (4) cease to apply if, before the review is completed, the preservation direction to which the decision relates is revoked under subpart 6.
88Q Notice, etc, to be given after review is completed
(1)
As soon as practicable after the review is completed, the Commissioner must give the applicant—
(a)
written notice of the reviewer’s decision; and
(b)
if the reviewer’s decision is to amend the preservation direction or renewed direction, an updated version of the direction.
Guidance note
After a reviewer makes certain decisions, written notice would generally also be required under section 88W.
(2)
The preservation direction to which the review relates continues in force until the applicant is notified of the reviewer’s decision.
(3)
However, subsection (2) does not—
(a)
reduce the period for which the direction otherwise remains in force under this Part if the reviewer’s decision is—
(i)
to affirm the original decision to make or renew the direction; or
(ii)
to amend the direction or renewed direction; or
Guidance note
See sections 88G, 88K(2), and 88M.
(b)
extend the period for which the direction remains in force if it is sooner revoked under section 88N.
Subpart 8—Invalidity, offences, and immunities, etc
Invalidity
88R When preservation direction is invalid
(1)
A preservation direction is invalid if the direction contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the preservation direction as to its purpose or scope.
(2)
A preservation direction is invalid on its purported renewal if the direction, as purportedly renewed, contains a defect, irregularity, omission, or want of form that is likely to mislead anyone executing or affected by the preservation direction as to its purpose or scope.
(3)
If a preservation direction is invalid under this section, the following sections do not apply to the direction:
(a)
section 204 of the Summary Proceedings Act 1957 (proceedings not to be questioned for want of form):
(b)
section 379 of the Criminal Procedure Act 2011 (proceedings not be questioned for want of form).
Copying, etc, of produced record of pathway information
88S Pathway information produced under preservation direction
When a record of pathway information is produced in compliance with a preservation direction, a constable may do any of the following:
(a)
take copies of the record:
(b)
if necessary, require the person producing the record—
(i)
to reproduce, in usable form, the pathway information that is in that record; or
(ii)
to assist any person nominated by the Commissioner or a delegate of the Commissioner to reproduce, in usable form, the pathway information that is in that record:
(c)
require the person producing the record to provide any related information (for example, the names of any telecommunications service providers involved in transmitting the telecommunication) that is necessary to understand the pathway information:
(d)
send to the foreign enforcement authority that requested the preservation direction—
(i)
the record; or
(ii)
copies of the record; or
(iii)
the pathway information in a reproduced and usable form; or
(iv)
the related information (if any) that is necessary to understand the pathway information.
Offences relating to disclosure
88T Definitions for sections 88U to 88W
In sections 88U to 88W,—
(a)
a person is affected by a preservation direction only if the person is—
(i)
the person against whom the direction was made; or
(ii)
an officer, employee, or agent of the person against whom the direction was made; and
(b)
a person discloses information if the person discloses—
(i)
the substance, meaning, or purport of that information; or
(ii)
any part of that information.
88U Offences
Disclosing that direction has been made
(1)
A person who is affected by a preservation direction commits an offence if the person knowingly discloses to any other person that the direction has been made.
Disclosing information contained in relevant documents
(2)
A person who is affected by a preservation direction commits an offence if—
(a)
the affected person knowingly discloses to another person any information contained in a document to which the preservation direction relates; and
(b)
the document is in the possession or under the control of the person against whom the direction was made (whether or not they are the affected person making the disclosure); and
(c)
the affected person would not have been able to disclose the information, information had a preservation direction not been made in relation to that document (for example, because the document would not have been preserved).
Penalty
(3)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to a term of imprisonment not exceeding 6 months; or
(b)
if they are a body corporate, to a fine not exceeding $100,000.
Exceptions
(4)
A person who is affected by a preservation direction does not commit an offence against this section if the affected person makes the disclosure concerned—
(a)
to a constable for the purpose of complying with the direction; or
(b)
to another affected person for the purpose of complying with the direction or obtaining legal advice or legal representation in relation to the direction; or
(c)
to a lawyer for the purpose of obtaining legal advice or making representations in relation to the direction; or
(d)
to a person acting on behalf of an intelligence and security agency and in accordance with—
(i)
an intelligence warrant issued under subpart 1 of Part 4 of the Intelligence and Security Act 2017; or
(ii)
an authorisation given under section 78 of that Act; or
(e)
in accordance with section 122 of the Intelligence and Security Act 2017 or a business records direction issued under section 150 of that Act; or
(f)
in connection with, or in the course of, proceedings before a court or a tribunal; or
(g)
if this section has ceased to apply to the affected person under section 88V.
(5)
A person who is affected by a preservation direction does not commit an offence against subsection (2), in relation to any information contained in a document, if—
(a)
the affected person makes the disclosure concerned after the Commissioner gives written notice under section 88W in relation to the direction; and
(b)
the Commissioner has given the notice because the direction has ceased to apply to the document or a class of documents to which the document belongs.
88V When section 88U ceases to apply to affected person
(1)
Section 88U ceases to apply to a person who is affected by a preservation direction when the direction expires or is revoked.
Guidance note
See sections 88G and 88K, subpart 6, and section 88Q.
(2)
However, that section continues to apply to the affected person if the Commissioner gives written notice, before the date on which the direction expires or is revoked, to the person against whom the direction is made.
(3)
If the Commissioner gives notice under subsection (2), section 88U continues to apply to the affected person until the notice is revoked.
(4)
The Commissioner may give notice under subsection (2) to a person against whom a preservation direction is made only if the Commissioner is satisfied on reasonable grounds that the disclosure that would be allowed if section 88U were to cease to apply—
(a)
would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(b)
would endanger the safety of any person; or
(c)
would prejudice the supply of information to the law enforcement agency New Zealand Police; or
(d)
would prejudice any international relationships of the law enforcement agency New Zealand Police; or
(e)
would prejudice the security or defence of New Zealand.
(5)
The Commissioner must—
(a)
keep under review the appropriateness of a notice given under subsection (2); and
(b)
revoke the notice, and give written notice of that revocation to the person against whom the direction is made, if the Commissioner ceases to be satisfied on reasonable grounds of the matters referred to in subsection (4).
88W Notice for section 88U(5): when section 88U(2) partially lifted
(1)
This section applies if a preservation direction ceases to apply in relation to particular documents or classes of documents (rather than all of the documents) described in the direction because the direction—
(a)
is partially revoked under section 88N; or
(b)
is amended under section 88P(4)(a)(ii) on completion of a review under section 88P.
(2)
As soon as practicable after the preservation direction ceases to apply in relation to particular documents or classes of documents, the Commissioner must give written notice for the purposes of section 88U(5) to the person against whom the direction is made.
(3)
However, the Commissioner is not required to give any notice under this section if satisfied on reasonable grounds that the disclosure that would be allowed because of the notice—
(a)
would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(b)
would endanger the safety of any person; or
(c)
would prejudice the supply of information to the law enforcement agency New Zealand Police; or
(d)
would prejudice any international relationships of the law enforcement agency New Zealand Police; or
(e)
would prejudice the security or defence of New Zealand.
(4)
The Commissioner must—
(a)
keep under review the appropriateness of any decision of the Commissioner under subsection (3); and
(b)
give written notice for the purposes of section 88U(5) to the person against whom the preservation direction is made if the Commissioner ceases to be satisfied on reasonable grounds of the matters referred to in subsection (3).
Other offences
88X Failing to comply with preservation direction
(1)
A person commits an offence if the person, without reasonable excuse, fails to comply with a preservation direction.
(2)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to imprisonment for a term not exceeding 1 year; or
(b)
if they are a body corporate, to a fine not exceeding $40,000.
88Y False application for preservation direction or renewal
(1)
A person commits an offence if—
(a)
they apply for a preservation direction or for renewal of a preservation direction; and
(b)
the application contains any assertion or other statement that they know is false.
(2)
A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 1 year.
Immunities
88Z Immunities relating to functions of Commissioner and reviewers
(1)
The Commissioner is immune from civil liability for anything done or omitted to be done by the Commissioner in good faith in determining an application for a preservation direction, or the renewal of a preservation direction, under this Part.
(2)
A reviewer is immune from civil liability for anything done or omitted to be done by the reviewer in good faith in conducting a review of the Commissioner’s decision to make or renew a preservation direction.
(3)
If the Commissioner or a reviewer is immune from civil liability under this section in respect of anything done or omitted to be done, the Crown is also immune from civil liability in respect of the Commissioner’s or reviewer’s conduct.
(4)
If there is any inconsistency between any of subsections (1) to (3) and the provisions of any other enactment conferring, regulating, or limiting a privilege or immunity, those subsections prevail.
(5)
In this section, reviewer means a person who is responsible (under a delegation under section 17 of the Policing Act 2008) for conducting a review under subpart 7 of the Commissioner’s decision to make a preservation direction.
88ZA Immunities relating to obtaining, renewing, or executing preservation direction
(1)
Section 165 applies in relation to a preservation direction as if—
(a)
a reference in that section to obtaining a search warrant were a reference to obtaining—
(i)
a preservation direction; or
(ii)
the renewal of a preservation direction; and
(b)
a reference in that section to executing a search warrant were a reference to executing the preservation direction.
(2)
Sections 167 and 168 apply as if a reference in those sections to section 165 included a reference to that section as applied by this section.
Effect of court proceedings
88ZB Effect of court proceedings
Section 180 applies to any proceeding that has been commenced in any court in respect of—
(a)
the exercise of a power, or discharge of a duty, imposed by this Part; or
(b)
the use for investigative purposes of evidential material that is obtained under a preservation direction and that—
(i)
is a record of pathway information; or
(ii)
relates to the location of documents described in the preservation direction.
Service of documents
88ZC Service of preservation directions, notices, etc
Section 181 applies in relation to the following documents as if a reference in that section to an order included a reference to those documents:
(a)
a preservation direction:
(b)
a written notice that is required to be given under this Part:
(c)
an updated version of a preservation direction that is required to be given under this Part.
Retention of documents
88ZD New Zealand Police to retain applications and related documents
(1)
The New Zealand Police must retain a copy of every application under this Part, and copies of the documents related to the application, until,—
(a)
in a case where an application is granted, the later of the following dates:
(i)
the date of completion of any proceedings in respect of which the validity of the preservation direction or its renewal may be in issue:
(ii)
the date of destruction or transfer of the preservation direction or other documents under the Public Records Act 2005 or any other enactment or rule of law; or
(b)
in any other case, the date that is 2 years after the date on which the application and other documents were first retained under the control of the New Zealand Police.
(2)
The New Zealand Police must retain a copy of every application for a review under this Part until,—
(a)
in a case in which the relevant preservation direction is affirmed or amended, the later of the following dates:
(i)
the date of completion of any proceedings in respect of which the validity of the direction may be in issue:
(ii)
the date that is 2 years after the application is made; or
(b)
in any other case, the date that is 2 years after the application is made.
(3)
Documents required to be retained under this section may be retained in electronic form.
(4)
In this section,—
application under this Part means—
(a)
an application for a preservation direction; or
(b)
an application to renew a preservation direction
documents related to an application means—
(a)
any documents provided by the foreign enforcement authority concerned in connection with the related request; and
(b)
any documents provided by the applicant in support of an application for a preservation direction; and
(c)
in the case of an application for a preservation direction that is granted, the direction; and
(d)
in the case of an application for the renewal of a preservation direction that is granted, the updated version of the direction.
Annual reporting
88ZE Annual reporting by Commissioner
(1)
The Commissioner must include in every annual report that the Commissioner prepares for the purposes of section 43 of the Public Finance Act 1989—
Review of decision to make preservation direction
(a)
the following information about reviews of a decision to make a preservation direction that were completed in the reporting period:
(i)
the number in which the reviewer affirmed the relevant direction:
(ii)
the number in which the reviewer amended the relevant direction:
(iii)
the number in which the reviewer revoked the relevant direction; and
(b)
the number of reviews of a decision to make a preservation direction that were not completed because the relevant direction was revoked under section 88N(1) in the reporting period; and
Renewal of preservation directions
(c)
the following information about preservation directions that were renewed in the reporting period:
(i)
the number of directions that were renewed for the first time:
(ii)
the number of directions that were renewed for the second time:
(iii)
the number of directions that were renewed for the third time:
(iv)
the number of directions that were renewed for the fourth time; and
Review of decisions to renew preservation directions
(d)
the following information about reviews of a decision to renew a preservation direction that were completed in the reporting period:
(i)
the number in which the reviewer affirmed the decision:
(ii)
the number in which the reviewer amended the renewed direction by changing the period for which it remained in force:
(iii)
the number in which the reviewer revoked the renewed direction; and
(e)
the number of reviews of a decision to renew a preservation direction that were not completed in the reporting period because the direction was revoked under section 88N(1); and
Expiry or revocation of preservation directions
(f)
the number of preservation directions that expired during the reporting period without a related application for a production order having been made to obtain any or all of the documents (the relevant documents) described in those directions; and
(g)
the number of preservation directions that were revoked during the reporting period when a related application for a production order to obtain any or all of the relevant documents was granted; and
(h)
the number of preservation directions that were revoked during the reporting period when a related application for a production order to obtain any or all of the relevant documents was refused.
Definitions
(2)
In this section,—
reporting period, for an annual report, means the period covered by the report
review means a review under this Part.
(3)
In this section, an application for a production order is related to a preservation direction (and is a related application) if the application and preservation direction relate to the same investigation or proceedings.
(3)
In this section, an application for a production order is related to a preservation direction (and is a related application) if—
(a)
the application is made under section 45 of the Mutual Assistance in Criminal Matters Act 1992; and
(b)
the application and preservation direction relate to the same investigation or proceedings.
20 Section 162 amended (Other copies and generated material may be retained)
In section 162(2), after “63”
, insert “, 64A,”
.
21 New sections 179A and 179B inserted
After section 179, insert:
179A Disclosing that surveillance device warrant has been issued
(1)
A person who has been called on to assist an enforcement officer to carry out any of the activities authorised by a surveillance device warrant commits an offence if the person knowingly discloses to another person that the warrant has been issued.
(2)
The person does not commit an offence if they make the disclosure—
(a)
in connection with, or in the course of, providing the assistance concerned; or
(b)
to the enforcement officer or any other enforcement officer who is employed or engaged by the same law enforcement agency as that enforcement officer; or
(c)
to a lawyer for the purpose of obtaining legal advice in relation to the warrant; or
(d)
in connection with, or in the course of, proceedings before a court or a tribunal; or
(e)
after the chief executive of the law enforcement agency concerned grants an application made by the person under section 179B in relation to the surveillance device warrant.
(3)
A person who commits an offence against this section is liable on conviction,—
(a)
if they are an individual, to a term of imprisonment not exceeding 6 months; or
(b)
if they are a body corporate, to a fine not exceeding $100,000.
Guidance note
Section 179 also applies to the assistant.
179B Application for prohibition on disclosure to be lifted
(1)
A person who has been called on to assist an enforcement officer to carry out any of the activities authorised by a surveillance device warrant may apply, to the chief executive that employed or engaged the enforcement officer, for the chief executive to lift any prohibition in section 179A on disclosing that the warrant has been issued.
(2)
The chief executive must grant the application and give written notice to the person that the application is granted if—
(a)
the law enforcement agency has decided to discontinue any investigation into the suspected offence that is the subject of the application for the warrant; or
(b)
any criminal proceedings that the law enforcement agency expected to be commenced in relation to the suspected offence have been commenced; or
(c)
the law enforcement agency has become aware that the subject of the surveillance is aware that they are the subject of the surveillance (for, example, because the subject is notified in accordance with an order made under section 61(1)(c)); or
(d)
the chief executive decides for any other reason to give notice under this section in relation to the direction.
(3)
However, the chief executive is not required to grant an application under this section if satisfied on reasonable grounds that disclosure that the warrant has been issued (other than as allowed by section 179A(2)(a), (b), (c), or (d))—
(a)
would prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or
(b)
would endanger the safety of any person; or
(c)
would prejudice the supply of information to the law enforcement agency; or
(d)
would prejudice any international relationships of the law enforcement agency; or
(e)
would prejudice the security or defence of New Zealand.
22 Section 342 amended (Regulations)
(1)
In section 342(1)(a), after “production order,”
, insert “preservation direction,”
.
(1A)
In section 342(1)(c), replace “a chief executive”
with “the chief executive of a law enforcement agency”
.
(2)
In section 342(2), replace “or order”
with “, direction, or order”
in each place.
(2A)
In section 342(2)(c) and (d), replace “a chief executive”
with “the chief executive of a law enforcement agency”
.
(3)
After section 342(2A), insert:
(2B)
In this section, preservation direction means a preservation direction made under subpart 2A of Part 3 or Part 3A.
23 Cross-heading above section 343 replaced
Replace the cross-heading above section 343 with:
Transitional provisions relating to this Act as enacted
24 New Schedule 1 inserted
Insert the Schedule 1 set out in Part 1 of Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.
25 Schedule amended
(1)
In the Schedule heading, replace “Schedule”
with “Schedule 2”
.
(2)
In the Schedule, item relating to section 104(1) of the Criminal Proceeds (Recovery) Act 2009, column 3, replace “this Act or to any proceedings under this Act”
with “the Criminal Proceeds (Recovery) Act 2009 or to any proceedings under that Act”
.
(3)
In the Schedule, replace the item relating to the Mutual Assistance in Criminal Matters Act 1992 with:
| Mutual Assistance in Criminal Matters Act 1992 | 44 | Constable may obtain and execute warrant to search for and seize any evidential material in respect of offence against foreign law that has been, may have been, or may be committed | All (except subpart 6) |
26 Consequential amendments related to renumbering of Schedule
(1)
Amend the principal Act as set out in Part 1 of Schedule 2 subpart 1 of Part 1 of Schedule 2.
(2)
Amend the legislation specified in subpart 2 of Part 1 of Schedule 2 as set out in that subpart.
Subpart 2—Amendments to Mutual Assistance in Criminal Matters Act 1992
27 Principal Act
This subpart amends the Mutual Assistance in Criminal Matters Act 1992.
28 Section 2 amended (Interpretation)
(1)
In section 2(1), insert in their appropriate alphabetical order:
constable has the same meaning as in section 4 of the Policing Act 2008
evidential material has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
highly restricted surveillance means—
(a)
surveillance by means of an interception device; or
(b)
trespass surveillance other than by means of a tracking device
interception device has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
surveillance device has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
tracking device has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
trespass surveillance has the same meaning as in section 3(1) of the Search and Surveillance Act 2012
visual surveillance device has the same meaning as in section 3(1) of the Search and Surveillance Act 2012.
(2)
In section 2(1), repeal the definitions of examination order and production order.
28A New section 2C inserted (Transitional, savings, and related provisions)
After section 2B, insert:
2C Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
29 Section 20 and cross-heading replaced
Replace section 20 and the cross-heading above section 20 with:
Assistance in obtaining things
20 Assistance in obtaining thing
(1)
The Attorney-General may request a foreign country to assist in obtaining or accessing a thing, by search and seizure if necessary, if satisfied that there are reasonable grounds to believe that the thing—
(a)
is in the foreign country or, if it is an intangible thing (for example, computer data or a computer program), is under the control of a person who is present in the foreign country; and
(b)
is relevant to a criminal matter in respect of an offence against the law of New Zealand.
(2)
The Attorney-General may request assistance in obtaining the thing by search and seizure only if the offence is punishable by imprisonment for a term of 2 years or more.
Assistance relating to surveillance devices
20A Assistance in obtaining information by means of surveillance device
(1)
The Attorney-General may request a foreign country to assist in obtaining information by means of a surveillance device if satisfied that there are reasonable grounds to believe that—
(a)
at least 1 of the following applies:
(i)
a place, vehicle, or other thing that would be the object of the surveillance is or will be in the foreign country:
(ii)
a person who would be the object of the surveillance is or will be present in the foreign country; and
(b)
the information is or will be relevant to a criminal matter in respect of an offence against the law of New Zealand that is punishable by imprisonment for a term of 2 years or more.
(2)
If satisfied that there are reasonable grounds to believe that the foreign country would be likely to collect any of the information by means of highly restricted surveillance (if it were to grant the request), the Attorney-General may make the request only if the offence is an eligible offence for that surveillance.
(3)
In this section, eligible offence, for highly restricted surveillance, means—
(a)
an offence that is punishable by imprisonment for a term of 7 years or more; or
(b)
an offence against any of the following provisions of the Arms Act 1983:
(i)
for trespass surveillance other than by means of a tracking device, section 16(4), 16A, 42A, 42B, 43, 43AA, 44, 44AA, 44A, 45, 50, 50AA, 50A, 50B, 50C, 50CA, 50D, 51, 53A(2), 54, 55, or 55A:
(ii)
for surveillance by means of an interception device, section 16(4), 16A, 42A, 42B, 44, 44A, 45, 50, 50A, 50B, 50C, 50D, 51, 53A(2), 54, 55, or 55A; or
(c)
an offence against section 25, 26, or 70 of the Psychoactive Substances Act 2013; or
(d)
an offence against section 308A of the Crimes Act 1961.
30 Cross-heading above section 22 replaced
Replace the cross-heading above section 22 with:
Requests to issue warrants and orders similar to those under Criminal Proceeds (Recovery) Act 2009
31 Cross-heading above section 24 replaced
Replace the cross-heading above section 24 with:
Subpart 1—Preliminary provisions
32 Cross-heading above section 30 replaced
Replace the cross-heading above section 30 with:
Subpart 2—Assistance in locating or identifying persons
33 Cross-heading above section 31 replaced
Replace the cross-heading above section 31 with:
Subpart 3—Assistance in obtaining evidence in New Zealand
34 Cross-heading above section 37 replaced
Replace the cross-heading above section 37 with:
Subpart 4—Assistance in arranging attendance of person in foreign country
35 Cross-heading above section 43 replaced
Replace the cross-heading above section 43 with:
Subpart 5—Requests for search warrants and production orders
Interpretation
42A Interpretation
(1)
In this subpart,—
document has the same meaning as in section 70 of the Search and Surveillance Act 2012
notifiable person has the same meaning as in section 49A.
(2)
In this subpart, a reference to a thing that is produced under a production order is a reference to a document that is produced under a production order.
36 Sections 43 and 44 replaced
Replace sections 43 and 44 with:
Requests
43 Assistance in obtaining thing
(1)
A foreign country may request the Attorney-General to assist in obtaining—
(a)
a thing under a search warrant; or
(b)
a document under a production order.
(2)
The Attorney-General may authorise the New Zealand Police to apply to a Judge for a search warrant or a production order under this subpart if the Attorney-General is satisfied—
(a)
that the request relates to a criminal matter in respect of an offence against the law of that foreign country that is punishable by imprisonment for a term of 2 years or more; and
(b)
that there are reasonable grounds to believe that the thing or document is relevant to the criminal matter; and
(c)
that there are reasonable grounds to believe that,—
(i)
for a request for assistance in obtaining a thing under a search warrant, the thing is in New Zealand; or
(ii)
for a request for assistance in obtaining a document under a production order, the document is in the possession or under the control of a person who could be served and comply with the order in New Zealand if it were made (for example, because they are an individual living in New Zealand or a company that is registered in New Zealand).
Search warrants
44 Applications, issue, etc
(1)
If the Attorney-General authorises the New Zealand Police to apply for a search warrant, a constable may apply for a search warrant in the manner provided in subpart 3 of Part 4 of the Search and Surveillance Act 2012.
(2)
On an application by a constable to a Judge, the Judge may issue a search warrant in relation to a place, vehicle, or other thing if satisfied that there are reasonable grounds—
(a)
to suspect that an offence against the law of a foreign country punishable by imprisonment for a term of 2 years or more has been or will be committed; and
(b)
to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing.
(3)
Part 4 of the Search and Surveillance Act 2012, except for subpart 6 of that Part, applies in relation to an application made, and a search warrant issued, under this section.
(4)
For that purpose, a reference in section 101 of that Act (retention of documents) to the District Court is to be read as if it were a reference to the High Court.
Production orders
45 General provisions: applications and making
(1)
If the Attorney-General authorises the New Zealand Police to apply for a production order, a constable may apply to a Judge for a production order.
(2)
On an application by a constable, a Judge may make a production order against a person if satisfied that there are reasonable grounds—
(a)
to suspect that an offence against the law of a foreign country punishable by imprisonment for a term of 2 years or more has been or will be committed; and
(b)
to believe that the document sought by the proposed order—
(i)
is evidential material in respect of the offence; and
(ii)
is in the possession or under the control of the person, or will come into the possession or under the control of the person while the order is in force.
46 Applicable provisions of Search and Surveillance Act 2012
Provisions about applications for production orders
(1)
Section 71(2) of the Search and Surveillance Act 2012 applies to an application made under section 45.
(2)
The following provisions of the Search and Surveillance Act 2012 apply in relation to an application made under section 45:
(a)
section 98(2) (requirements for further information):
(b)
section 99 (verification of an application):
(c)
section 100 (mode of an application):
(d)
section 101 (retention of documents about applications).
(3)
Those provisions apply as if—
(a)
a reference in those provisions to an application for a search warrant, or to a search warrant, included (respectively) a reference to an application, or to a production order, made under section 45; and
(b)
a reference in those provisions to the District Court were a reference to the High Court.
Provisions about production orders
(4)
The following provisions of the Search and Surveillance Act 2012 apply in relation to a production order made under section 45:
(a)
section 75 (form and content of a production order):
(b)
section 76 (duration of a production order):
(c)
section 78 (documents produced under a production order):
(d)
section 79 (requiring a copy of a retained document to be given).
(4A)
The following provisions of the Search and Surveillance Act 2012 apply in relation to a production order made under section 45 as if a reference in those provisions to an investigation were a reference to the criminal matter concerned:
(a)
section 78 (documents produced under a production order):
(b)
section 79 (requiring a copy of a retained document to be given).
(5)
Section 105 of the Search and Surveillance Act 2012 (transmission of a search warrant) applies in relation to a production order made under section 45 as if a reference in section 105 of that Act to a search warrant included a reference to that production order.
(6)
Section 107 of the Search and Surveillance Act 2012 (when a search warrant is invalid) applies to a production order made under section 45—
(a)
as if a reference in section 107 of that Act to a search warrant were a reference to that production order; and
(b)
as if a reference in section 107 of that Act to the grounds or conditions for lawful issue of a warrant were a reference to the matter matters that the Judge must be satisfied of under section 45(2).
(7)
The following provisions of Part 4 of the Search and Surveillance Act 2012 apply in relation to a production order made under section 45:
(a)
subpart 5 (privilege and confidentiality):
(b)
subpart 7 (immunities):
(c)
subpart 9 (offences):
(d)
subpart 10 (miscellaneous provisions dealing with the effect of court proceedings and with service of orders and notices).
37 Sections 49 and 50 replaced
Replace sections 49 and 50 with:
Custody and disposal of things seized or produced
49 General provisions
(1)
Any thing seized or produced under a search warrant issued or a production order made under this subpart must—
(a)
be delivered into the custody of the Commissioner; and
(b)
be kept in the custody of the Commissioner until otherwise dealt with in accordance with this section.
(2)
The thing must be dealt with in accordance with any written direction that the Attorney-General gives to the Commissioner (subject to section 49A).
(3)
The Commissioner must arrange for the thing to be returned to the appropriate person, as soon as practicable after the prescribed period for the thing ends, if the Attorney-General has not given a direction under this section, or a copy of a section 49A notice, relating to the thing to the Commissioner before the end of that prescribed period.
(4)
In this section,—
appropriate person, for the return of a thing, means the person who—
(a)
possessed the thing immediately before it was seized under the search warrant; or
(b)
produced it under the production order
prescribed period, in relation to a thing, means the period of 1 month starting on the day on which the thing is seized or produced
section 49A notice means a written notice given by the Attorney-General under section 49A.
49A Sending thing out of New Zealand
(1)
The Attorney-General may direct the Commissioner under section 49 to arrange for the thing—
(a)
to be transferred to the custody of the Attorney-General, or of any other person specified in the direction, for sending to an appropriate authority of a foreign country; or
(b)
to be sent to an appropriate authority of a foreign country.
(2)
However, the thing may be sent out of New Zealand only if—
(a)
one of the following applies:
(i)
the Attorney-General has given written notice to each notifiable person of the Attorney-General’s intention to give a direction that would result in the thing being sent out of New Zealand and has provided a copy of that notice to the Commissioner:
(ii)
the Attorney-General is satisfied that the notifiable person is deceased, or that all reasonable steps have been taken to identify or contact the person but the person cannot be identified or contacted:
(iii)
a Judge has dispensed with the obligation to give written notice to the notifiable person under section 49B; and
(b)
any proceeding in New Zealand that is commenced by a notifiable person and relates to the search warrant, production order, or the proposed direction has been finally disposed of; and
(c)
the foreign country has given undertakings about any matter that the Attorney-General considers appropriate.
(3)
Subsection (2)(b) does not prevent the thing from being sent out of New Zealand with the agreement of the notifiable person referred to in that provision.
(4)
A notice that is required to be given under this section to a notifiable person must be given at least 10 working days before a direction of a kind referred to in subsection (1) is given.
(5)
The notice must inform the notifiable person of each of the following:
(a)
the terms of the proposed direction (but only to the extent that it relates to the thing):
(b)
the date on which the Attorney-General proposes to give the direction:
(c)
that the notice is given for the purposes of subsection (2)(a):
(d)
the effect of subsections (2) and (3):
(e)
any specific or general arrangements that may apply to the return, disposal, destruction, or forfeiture of the thing:
(f)
a physical or an electronic address that the notifiable person may use for inquiries or other communications about the notice and proposed direction.
(6)
Section 181 of the Search and Surveillance Act 2012 applies to the giving of a notice for the purposes of this section in the same way as it applies to the giving of a notice for the purposes of that Act.
(7)
In this section, notifiable person, in relation to a thing, means—
(a)
any person who has been identified in connection with the request under section 43 as someone who it is suspected has committed or will commit the offence concerned; or
(b)
in the case of a thing that was seized under a search warrant,—
(i)
the person who appears to the Attorney-General to be the owner of the thing; or
(ii)
the person who possessed the thing immediately before it was seized under a search warrant; or
(iii)
the occupier of the place, or the person in charge of the vehicle or other thing, from which the seizure took place; or
(c)
in the case of a thing that was produced under a production order and contains information about an identifiable individual, that individual (but only if the central purpose of the production order was to obtain information about that individual); or
(d)
any other person who the Attorney-General is satisfied there are reasonable grounds to suspect has committed or will commit the offence concerned.
49B Dispensing with obligation to give notice
Application
(1)
The Attorney-General may authorise the New Zealand Police to apply for a dispensation from the Attorney-General’s obligation to give notice under section 49A of the Attorney-General’s intention to direct that a thing seized under a search warrant or produced under a production order be sent out of New Zealand.
(2)
If the Attorney-General authorises the New Zealand Police to apply for a dispensation from the Attorney-General’s obligation to give notice under that section relating to a thing, a constable may apply to a Judge for a dispensation from that obligation to give notice relating to the thing.
(3)
A constable may make the application after the application for the search warrant or production order is made but before the Attorney-General makes a direction of a kind referred to in section 49A(1).
(4)
A constable may also make the application at the same time as applying for—
(a)
a search warrant that would authorise the seizure of the thing; or
(b)
a production order that would require a person to produce the thing.
Test for dispensation
(5)
The Judge may dispense with the Attorney-General’s obligation to give any notice under section 49A relating to the thing if the Judge is satisfied—
(a)
that compliance with that obligation would endanger the safety of any person; or
(b)
that—
(i)
compliance with that obligation would prejudice ongoing investigations (whether relating to an offence against the law of a foreign country or New Zealand) or proceedings for an offence against the law of a foreign country; and
(ii)
the public interest in avoiding that prejudice outweighs the public interest in the Attorney-General giving the notice.
(6)
The public interest in avoiding prejudice to ongoing investigations or proceedings includes the public interest in avoiding that prejudice so as to maintain co-operation between New Zealand and the foreign country concerned in respect of criminal investigations or criminal proceedings.
(6A)
The public interest in avoiding prejudice to ongoing proceedings includes the public interest in avoiding undue delay of those proceedings.
(7)
The public interest in the Attorney-General giving the notice includes the public interest in ensuring that the seized or produced thing is not sent out of New Zealand before—
(a)
the notifiable person concerned has an opportunity—
(i)
to commence proceedings in New Zealand challenging the legality of the proposed direction or the issue, making, or execution of the search warrant or production order; and
(ii)
to obtain an order that the thing not be sent out of New Zealand; and
(b)
if the notifiable person commences proceedings of that kind, those proceedings are finally disposed of or the notifiable person agrees to the thing being sent out of New Zealand.
Conditions on dispensation
(8)
The Judge may impose any conditions on a dispensation under this section that relate to sending the thing out of New Zealand.
(9)
Those conditions may include a condition requiring steps to be taken to avoid the risk of things seized or produced under the warrant or production order being sent out of New Zealand that are not evidential material in respect of the offence concerned.
(10)
If a constable applies for the dispensation at the same time as applying for a search warrant, the conditions of the dispensation may be included as conditions of the warrant.
Certificate
50 Attorney-General to provide certificate as to search and seizure, or production
(1)
If a search warrant or a production order is issued or made under this subpart, the Attorney-General must, at the request of the Central Authority of the foreign country concerned, provide a certificate to the Central Authority about the relevant matters.
(2)
The relevant matters, for a search warrant, are—
(a)
the result of any search conducted under the warrant; and
(b)
if any thing was seized under the warrant,—
(i)
the place at which the thing was seized; and
(ii)
the circumstances in which the thing was seized; and
(iii)
the custody of the thing.
(3)
The relevant matters, for a production order, are—
(a)
the result of the production order; and
(b)
the custody of documents produced under the order.
38 New subpart 6 of Part 3 inserted
After section 50, insert:
Subpart 6—Requests for surveillance device warrants
Interpretation
50A Interpretation
In this subpart,—
District Court Judge means a Judge appointed under the District Court Act 2016
eligible offence, for highly restricted surveillance, means—
(a)
an offence that would be punishable by imprisonment for a term of 7 years or more if the offence were committed in New Zealand; or
(b)
an offence that relates to the same or substantially similar conduct as an offence against any of the following provisions of the Arms Act 1983:
(i)
for trespass surveillance other than by means of a tracking device, section 16(4), 16A, 42A, 42B, 43, 43AA, 44, 44AA, 44A, 45, 50, 50AA, 50A, 50B, 50C, 50CA, 50D, 51, 53A(2), 54, 55, or 55A:
(ii)
for surveillance by means of an interception device, section 16(4), 16A, 42A, 42B, 44, 44A, 45, 50, 50A, 50B, 50C, 50D, 51, 53A(2), 54, 55, or 55A; or
(c)
an offence that relates to the same or substantially similar conduct as an offence against section 25, 26, or 70 of the Psychoactive Substances Act 2013; or
(d)
an offence against section 308A of the Crimes Act 1961
material includes intangible material (for example, computer data or a computer program)
raw surveillance data—
(a)
means actual video recordings or actual audio recordings; and
(b)
includes full transcripts, or substantial parts of transcripts, of audio recordings.
Requests
50B Assistance in obtaining evidential material under surveillance device warrant
(1)
A foreign country may request the Attorney-General to assist in obtaining information under a surveillance device warrant.
(2)
The Attorney-General may authorise the New Zealand Police to apply to a Judge for a surveillance device warrant under this subpart if satisfied that—
(a)
the request relates to a criminal matter in respect of an offence against the law of the foreign country that would be punishable by imprisonment for a term of 2 years or more if the offence were committed in New Zealand; and
(b)
there are reasonable grounds to believe that the information that would be obtained under the proposed surveillance device warrant if it were issued is relevant to the criminal matter; and
(c)
there are reasonable grounds to believe that—
(i)
a place, vehicle, or other thing that would be the object of the surveillance device warrant if that warrant were issued is or will be in New Zealand; or
(ii)
a person who would be the object of the surveillance device warrant if that warrant were issued is or will be present in New Zealand; and
(d)
the foreign country has given appropriate undertakings about—
(i)
retaining or destroying raw surveillance data, excerpts from raw surveillance data, and any information obtained from raw surveillance data; and
(ii)
any other matter that the Attorney-General considers appropriate.
General provisions: applications, issue, and authorised activities
50C Applications, issue, and authorised activities
(1)
If the Attorney-General authorises the New Zealand Police to apply for a surveillance device warrant, a constable may apply to a Judge for a surveillance device warrant.
(2)
On an application by a constable to a Judge, the Judge may issue a surveillance device warrant if satisfied that there are reasonable grounds—
(a)
to suspect that an offence against the law of a foreign country has been or will be committed that would be punishable by imprisonment for a term of 2 years or more if the offence were committed in New Zealand; and
(b)
to believe that the proposed use of the surveillance warrant will obtain information that is evidential material in respect of the offence.
(3)
The surveillance device warrant may authorise 1 or more of the activities specified in section 46(1) of the Search and Surveillance Act 2012.
(4)
However, the Judge may issue a surveillance device warrant that allows highly restricted surveillance only if also satisfied that there are reasonable grounds to suspect that the offence is an eligible offence.
Other applicable provisions of Search and Surveillance Act 2012
50D Applications and retention of documents
(1)
Section 49 of the Search and Surveillance Act 2012 applies in relation to an application made under this subpart.
(2)
The following provisions of the Search and Surveillance Act 2012 apply in relation to an application made under this subpart:
(a)
section 98(2) (requirements for further information):
(b)
section 99 (verification of an application):
(c)
section 100 (mode of an application):
(d)
section 101 (retention of documents).
(3)
Those provisions apply as if—
(a)
a reference in those provisions to an application for a search warrant or to a search warrant included (respectively) a reference to an application made or a surveillance device warrant issued under this subpart; and
(b)
a reference in those provisions to the District Court were a reference to the High Court.
50E Restriction on issue of warrant facilitating surveillance of communications between lawyer and client
Section 54 of the Search and Surveillance Act 2012 applies in relation to the issue of a surveillance device warrant under this subpart.
50F Form and content of warrant
(1)
Section 55 of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart.
(2)
For that purpose, a reference in that section to a provision of the Search and Surveillance Act 2012 that is applied by this subpart is to be read as a reference to that provision as so applied.
(3)
Section 55(3)(h) of that Act, as applied by this section, does not authorise highly restricted surveillance.
50G Persons authorised by warrant
Section 56 of the Search and Surveillance Act 2012 applies to a surveillance device warrant issued under this subpart.
50H Surveillance device warrant reports
Timing and content of report
(1)
Section 59 of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart, with the following modifications:
(a)
a reference in that section to a provision of the Search and Surveillance Act 2012 that is applied by this subpart is to be read as a reference to that provision as so applied:
(b)
a reference in that section to criminal proceedings is a reference only to criminal proceedings brought in New Zealand.
Judge’s actions on receipt of report
(2)
Section 61(1) of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart, as modified by this section.
(3)
A reference in section 61(1) of that Act to a surveillance device warrant report received under section 59 of that Act is to be read as a reference to a report received under subsection (1).
(4)
A Judge may make an order under subsection (2) that a person who is the subject of surveillance be notified only if the Judge is satisfied—
(a)
that the public interest in notifying the person outweighs potential prejudice to any 1 or more of the following:
(i)
any investigation of the New Zealand Police:
(ii)
the safety of informants or undercover officers:
(iii)
the supply of information to the New Zealand Police:
(iv)
any international relationships of New Zealand, including of the New Zealand Police:
(v)
New Zealand’s interest in maintaining co-operation with the foreign country concerned in respect of criminal investigations; and
(b)
that one or both of the following apply:
(i)
the warrant should not have been issued:
(ii)
there has been a serious breach of any of the conditions of the warrant or of any applicable legislation.
50I Raw surveillance data and other information acquired by assistant
Section 64A of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart.
50J Transmission of warrant
Section 105 of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart as if a reference in that section to a warrant or search warrant were a reference to that surveillance device warrant.
50K When warrant is invalid
Section 107 of the Search and Surveillance Act 2012 applies to a surveillance device warrant issued under this subpart—
(a)
as if a reference in that section to a search warrant were a reference to that surveillance device warrant; and
(b)
as if a reference in that section to the grounds or conditions for lawful issue of a warrant search warrant were a reference to the matters that the Judge must be satisfied of under section 50C(2) and (if applicable) section 50C(4).
50L Privilege and confidentiality
Subpart 5 of Part 4 of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart.
50M Immunities and offences
Subparts 7 and 9 of Part 4 of the Search and Surveillance Act 2012 apply in relation to a surveillance device warrant issued under this subpart.
50N Effect of court proceedings
Section 180 of the Search and Surveillance Act 2012 applies in relation to a surveillance device warrant issued under this subpart.
Dealing with material collected under warrant
50O Collected material to be delivered into custody of Commissioner
Any material collected under a surveillance device warrant must—
(a)
be delivered into the custody of the Commissioner; and
(b)
kept be kept in the custody of the Commissioner until otherwise dealt with in accordance with—
(i)
an order of a District Court Judge under section 140 of the Search and Surveillance Act 2012, as applied by section 50L; or
(ii)
a direction that a Judge gives under section 61(1)(a) of that Act, as applied by section 50H, after receiving a surveillance device warrant report relating to the warrant; or
(iii)
any of sections 50P to 50T; or
(iv)
the Public Records Act 2005 or any other legislation or rule of law.
50P Sections 50Q to 50T subject to Judge’s order or direction about destruction or retention of material
Sections 50Q to 50T are subject to—
(a)
any order that a District Court Judge gives under section 140 of the Search and Surveillance Act 2012, as applied by section 50L, requiring a record of a communication or information made in consequence of surveillance to be destroyed; and
(b)
any direction that a Judge gives under section 61(1)(a) of the Search and Surveillance Act 2012, as applied by section 50H, after receiving a surveillance device warrant report relating to a warrant.
50Q Attorney-General’s direction relating to collected material generally
The material must be dealt with in accordance with any written direction that the Attorney-General gives to the Commissioner.
50R Direction relating to sending material to foreign country
(1)
Without limiting section 50Q, the Attorney-General may direct the Commissioner to arrange for the material (or any part of that material)—
(a)
to be transferred to the custody of the Attorney-General, or of any other person specified in the direction, for sending to an appropriate authority of a foreign country; or
(b)
to be sent to an appropriate authority of a foreign country.
(2)
However, the material (or any part of that material) may be sent out of New Zealand only if the Attorney General Attorney-General is satisfied that—
(a)
a Judge has been provided with a surveillance device warrant report, as required by section 50H(1), relating to the warrant; and
(b)
the Judge has completed the Judge’s review of the report; and
(c)
the foreign country has given the appropriate undertakings about retaining or destroying raw surveillance data, excerpts from raw surveillance data, and any information obtained from raw surveillance data; and
(d)
the foreign country has given any other undertakings that the Attorney-General considers appropriate.
(3)
For the purposes of subsection (2)(c), the appropriate undertakings are undertakings to the effect of the following:
(a)
except as provided by paragraph (b), the foreign country will retain material collected under the surveillance device warrant that is raw surveillance data and sent to it under this section for no longer than—
(i)
is required for the purposes of criminal proceedings for the offence in relation to which the data was collected under the warrant; or
(ii)
5 years if criminal proceedings for that offence have not commenced (but only for as long as the data is required for an ongoing investigation by an appropriate authority of the foreign country):
(b)
the foreign country will retain any excerpts from the raw surveillance data longer than is provided for in paragraph (a)(i) or (ii) only if the appropriate authority of the foreign country is satisfied on reasonable grounds that the excerpts may be required for a future investigation by that authority:
(c)
the foreign country will retain information that is obtained from the raw surveillance data but that is not itself raw surveillance data only if the appropriate authority of the foreign country suspects on reasonable grounds that the information may be relevant to an ongoing or a future investigation by that authority:
(d)
the foreign country will ensure that the raw surveillance data, excerpts, and information are destroyed as soon as practicable after they cease to be retained in accordance with paragraphs (a), (b), and (c) (subject to any law of the foreign country requiring the record to be retained as part of a court record).
50S Retention and destruction of raw surveillance data, etc, that is specified evidential material relating to New Zealand offence
(1)
Sections 63 and 64 of the Search and Surveillance Act 2012 apply to—
(a)
specified evidential material relating to a New Zealand offence to the extent that the material—
(i)
is raw surveillance data; and
(ii)
is not the subject of a direction referred to in section 50R(1) (relating to sending material to a foreign country); and
(b)
excerpts from that data; and
(c)
information obtained from that data that is not itself raw surveillance data.
(2)
For that purpose, section 63 of that Act is to be applied as if a reference in that section to a direction given under section 61(1)(a) of that Act were a reference to that provision as applied by section 50H.
(3)
In this section, specified evidential material, in relation to a New Zealand offence, means evidential material that a person obtains in relation to an offence against the law of New Zealand in the course of carrying out activities authorised by a surveillance device warrant issued under this subpart.
50T Destruction or retention of other raw surveillance data, etc, that remains in New Zealand
(1)
This section applies to the extent that any of the material collected under the surveillance device warrant is raw surveillance data that—
(a)
is not specified evidential material relating to a New Zealand offence; and
(b)
is not the subject of a direction referred to in section 50R(1) (relating to sending material to a foreign country).
(2)
The Commissioner must ensure that the raw surveillance data, excerpts from that data, and information obtained from that data are deleted or erased as soon as practicable after the prescribed period for the data ends.
(3)
Subsection (2) does not apply to the data, excerpts, or information to the extent that a direction given by the Attorney-General under section 50Q before the prescribed period ends requires the Commissioner—
(a)
to delete or erase the data, excerpts, or information before the prescribed period ends; or
(b)
to keep the data, excerpts, or information after the prescribed period ends.
(4)
In this section,—
prescribed period, in relation to raw surveillance data that is collected under a surveillance device warrant, means the period of 5 years that starts on the day on which the raw surveillance data is collected under the warrant
specified evidential material, in relation to a New Zealand offence, has the meaning given to it in section 50S.
Other
50U Admissibility of evidential material relating to New Zealand offence
(1)
This section applies to evidential material obtained in relation to an offence against the law of New Zealand in the course of carrying out activities authorised by a surveillance device warrant issued under this subpart if a surveillance device warrant could have been issued under the Search and Surveillance Act 2012 in relation to that offence.
(2)
The evidential material is not inadmissible in criminal proceedings in New Zealand merely because the surveillance device warrant was issued in relation to an offence against the law of a foreign country.
Compare: 2012 No 24 s 57
50V Annual reporting by Commissioner of Police
(1)
The Commissioner must include the following information in every annual report that the Commissioner prepares for the purposes of section 43 of the Public Finance Act 1989:
(a)
the number of applications under this subpart that were granted or refused in the period covered by the report:
(b)
the number of surveillance device warrants issued under this subpart 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 surveillance device warrants issued under this subpart during the period covered by the report that authorised entry into private premises:
(d)
for each kind of surveillance device authorised by a surveillance device warrant issued under this subpart 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:
(e)
the number of persons charged in criminal proceedings instituted in a foreign country where the collection of evidential material relevant to those proceedings was, so far as the Commissioner is aware, significantly assisted by carrying out activities under the authority of a surveillance device warrant issued under this subpart in the period covered by the report:
(f)
if a Judge has reported to the Commissioner under section 61(1) of the Search and Surveillance Act 2012 (as applied by section 50H) about a breach of any of the conditions of a surveillance device warrant issued under this subpart,—
(i)
the number of those reports; and
(ii)
details of the breaches or the lack of authorisation reported.
(2)
This section does not require the Commissioner to include in any annual report information about any prescribed surveillance, or surveillance of a prescribed kind, in any prescribed area or an area of a prescribed kind.
(3)
In this section, kind of surveillance device means any of the following:
(a)
an interception device:
(b)
a surveillance visual surveillance device:
(c)
a tracking device.
Compare: 2012 No 24 ss 170(1)(f), (2)(e), (3), 172
39 Cross-heading above section 51 replaced
Replace the cross-heading above section 51 with:
Subpart 7—Assistance in arranging service of process
40 Cross-heading above section 54 replaced
Replace the cross-heading above section 54 with:
Subpart 8—Requests to enforce foreign restraining orders and foreign forfeiture orders
41 Cross-heading above section 59 replaced
Replace the cross-heading above section 59 with:
Subpart 9—Requests for warrants and orders under Criminal Proceeds (Recovery) Act 2009
42 Section 61 amended (Request for production order in New Zealand)
In section 61(2), after “Criminal Proceeds (Recovery) Act 2009”
, insert “for a production order under section 105 of that Act”
.
43 Section 62 amended (Request for examination order in New Zealand)
In section 62(2), after “Criminal Proceeds (Recovery) Act 2009”
, insert “for an examination order under section 107 of that Act”
.
43A New Schedule 1AA inserted
Insert the Schedule 1AA set out in Part 2 of Schedule 1 of this Act as the first schedule to appear after the last section of the principal Act.
44 Consequential amendments amendment related to this subpart
Amend the legislation specified in Part 2 of Schedule 2 as set out in that schedule Part.
Subpart 3—Amendments to Telecommunications (Interception Capability and Security) Act 2013
45 Principal Act
This subpart amends the Telecommunications (Interception Capability and Security) Act 2013.
46 Section 3 amended (Interpretation)
(1)
In section 3(1), repeal the definitions of call associated data and number.
(2)
In section 3(1), insert in its appropriate alphabetical order:
traffic data has the meaning given in section 3AB
(3)
In section 3(1), definition of interception warrant, replace paragraph (a) with:
(a)
a surveillance device warrant issued under section 53 of the Search and Surveillance Act 2012 or subpart 6 of Part 3 of the Mutual Assistance in Criminal Matters Act 1992; or
47 New section 3AB inserted (Meaning of traffic data)
After section 3A, insert:
3AB Meaning of traffic data
(1)
In this Act, traffic data, in relation to a telecommunication,—
(a)
means 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 all or any of the following, as applicable to the telecommunication:
(i)
the nature of the telecommunication (including, for example, email and instant messaging):
(ii)
the path of the telecommunication, including (for example) the origin, direction, and destination of the telecommunication and, if the telecommunication is diverted from one number to another number, those numbers:
(iii)
the time at which, and date on which, the telecommunication is sent:
(iv)
the duration of the telecommunication:
(v)
the termination of the telecommunication:
(vi)
the size of any data or files transmitted by way of the telecommunication; but
(b)
excludes the content of the telecommunication.
(2)
In subsection (1),—
(a)
a reference to information identifying the origin of a telecommunication is a reference to information identifying—
(i)
the number from which the telecommunication originates; and
(ii)
if the telecommunication is generated from a mobile telephone, the point at which the telecommunication first enters a network; and
(b)
a reference to information identifying the destination of a telecommunication is a reference to information identifying the number to which the telecommunication is sent.
(3)
In subsection (2), number, in relation to a telecommunication, means the number, identifier, or address used by a network operator or a service provider for the purposes of—
(a)
identifying the origin of the telecommunication; and
(b)
directing the telecommunication to its intended destination.
Examples
Examples of a number, as defined, include the following:
a telephone number:
a mobile telephone number:
a unique identifier for a telecommunication device (for example, an electronic serial number or a Media Access Control address):
a user account identifier:
an Internet Protocol address:
an email address.
48 Section 10 amended (When duty to have full interception capability is complied with)
(1)
In section 10(1)(b) and (c) and (2), replace “call associated data”
with “traffic data”
.
(2)
After section 10(2), insert:
(2A)
Nothing in subsection (1)(b) or (c) requires a network operator to be able to obtain specified traffic data relating to a telecommunication carried over a public data network that they own, control, or operate to the extent that the telecommunication is transmitted using a service that—
(a)
is dependent on internet Internet access; and
(b)
is provided by someone other than the network operator.
Guidance note
This subsection relates to telecommunications that pass “over the top” of a public data network using internet-dependent Internet-dependent services provided by a person other than the network operator that owns, controls, or operates the public data network.
For example, an effect of this subsection is that the network operator is not required to be able to obtain information that identifies the nature of a telecommunication as an email or instant message if the network operator does not provide a related email or instant messaging service.
(3)
Replace section 10(5) with:
(5)
In this section,—
specified traffic data, in relation to a telecommunication, means traffic data that identifies the nature of the telecommunication (see section 3AB(1)(a)(i))
useable format means—
(a)
a format that is determined by a notice issued under section 42; or
(b)
a format that is acceptable to the network operator and the surveillance agency executing the interception warrant or other lawful interception authority.
49 Section 11 amended (Interception ready)
In section 11(1)(c), replace “call associated data”
with “traffic data”
.
50 Section 24 amended (Duty to assist)
In section 24(3)(b)(ii) and (iii), replace “call associated data”
with “traffic data”
.
51 Section 42 amended (Notice relating to formatting)
In section 42(1), replace “call associated data”
with “traffic data”
.
52 Section 44 amended (Formatting before commencement of this Act)
In section 44, insert as subsection (2):
(2)
In this section, call associated data has the meaning given in section 3(1), as in force immediately before the commencement of section 46(1) of the Budapest Convention and Related Matters Legislation Amendment Act 2024.
52A Schedule 1AA amended
In Schedule 1AA,—
(a)
insert the Part 2 set out in Part 3 of Schedule 1 of this Act as the last Part; and
(b)
make all necessary consequential amendments.
53 Consequential amendments related to this subpart
Amend the legislation specified in Part 3 of Schedule 2 as set out in that schedule Part.
Part 2 Amendments to Crimes Act 1961
54 Principal Act
This Part amends the Crimes Act 1961.
55 Section 216B amended (Prohibition on use of interception devices)
Repeal section 216B(7).
56 Section 228A renumbered as section 239A and repositioned (Designing, manufacturing, or adapting goods with intent to facilitate commission of crimes involving dishonesty)
Renumber section 228A as section 239A and reposition it after section 239.
57 New cross-heading above section 239A (as renumbered and repositioned by section 56 of this Act) inserted
Before section 239A (as renumbered and repositioned by section 56 of this Act), insert:
Goods that facilitate commission of crimes involving dishonesty
58 Section 228B amended, renumbered as section 239B, and repositioned (Possessing, selling, or disposing of goods designed, manufactured, or adapted with intent to facilitate commission of crimes involving dishonesty)
(1)
In the heading to section 228B, replace “or disposing of”
with “disposing of, or procuring”
.
(2)
In section 228B, replace “or disposes of”
with “disposes of, or procures”
.
(3)
Renumber section 228B as section 239B and reposition it after section 239A (as renumbered and repositioned by section 56 of this Act).
59 Section 228C renumbered as section 239C and repositioned (Possessing goods capable of being used to facilitate crimes involving dishonesty with intent to facilitate commission of those offences)
Renumber section 228C as section 239C and reposition it after section 239B (as renumbered and repositioned by section 58 of this Act).
60 Section 248 amended (Interpretation)
In section 248, replace “sections 249 to 252”
with “sections 249 to 254.”
61 Section 251 repealed (Making, selling, or distributing or possessing software for committing crime)
Repeal section 251.
62 New sections 253 and 254 inserted
After section 252, insert:
253 Designing, writing, or adapting software for committing certain crimes
(1)
A person who designs, writes, or adapts software commits an offence if—
(a)
the resulting software would enable a person to commit an offence against section 249, 250, or 252; and
(b)
the person intends to use the resulting software (or intends any other person to use it) to commit an offence against section 249, 250, or 252.
(2)
A person who commits an offence against this section is liable to imprisonment for a term not exceeding 2 years.
254 Dealing in or possessing software or other information for committing crime
Offence: dealing in software or other information
(1)
A person who deals in software or other information commits an offence if the software or other information would enable another person to access a computer system without authorisation and at least 1 of the following applies:
(a)
the person—
(i)
promotes the software or other information as being useful for committing an offence (whether or not they also promote it as being useful for any other purpose); and
(ii)
knows or is reckless as to whether it will be used to commit an offence:
(b)
the person intends the software or other information to be used by any other person to commit an offence:
(c)
the person knows that the sole or main use of the software or other information is to commit an offence.
(2)
A person deals in software or other information if the person—
(a)
invites any other person to acquire it from the person; or
(b)
offers or exposes it for sale or supply to any other person; or
(c)
agrees to sell or supply it to any other person; or
(d)
sells or supplies it to any other person; or
(e)
possesses it for the purpose of sale or supply to any other person; or
(f)
procures it for use by any other person.
Offence: possessing software or other information
(3)
A person commits an offence if the person—
(a)
possesses any software or other information that would enable the person to access a computer system without authorisation; and
(b)
intends to use that software or other information to commit an offence.
Penalty
(4)
A person who commits an offence against this section is liable on conviction to imprisonment for a term not exceeding 2 years.
63 Consequential amendment related to this Part
Amend the legislation specified in Schedule 3 as set out in that schedule.
Schedule 1 Transitional, savings, and related provisions related to Part 1
ss 24, 43A, 52A
Part 1 New Schedule 1 inserted into Search and Surveillance Act 2012
Schedule 1 Transitional, savings, and related provisions
s 3A
Part 1 Provisions relating to Budapest Convention and Related Matters Legislation Amendment Act 2024
1 Interpretation
(1)
In this Part, amendment Act means the Budapest Convention and Related Matters Legislation Amendment Act 2024.
(2)
In this Part,—
(a)
a reference to a new provision is a reference to the provision as inserted by the amendment Act; and
(b)
a reference to an old provision is a reference to the provision as in force immediately before it is replaced by the amendment Act.
(2)
In this Part, a reference to a new provision is a reference to the provision as inserted or replaced by the amendment Act.
2 Particulars in surveillance device warrants relating to traffic data
New section 55(3)(g) extends to any surveillance device warrant that is issued after that provision commences on an application that is made under section 49 before that commencement.
3 Record of information obtained, made, or generated by person when assisting in executing surveillance device warrant
(1)
New section 64A extends to a person who, before that section commences, obtains, makes, or generates any record of information as a consequence of assisting an enforcement officer to whom a surveillance device warrant is directed.
(2)
However, that section extends to the person only if the warrant expires on or after the date on which that section commences.
3A Content of production order and related matters
(1)
Section 75, as amended by the amendment Act, extends to a production order that is made after the amendments to that section commence but on an application that—
(a)
is made under section 71 before that commencement; and
(b)
is not finally determined before that commencement.
(2)
For that purpose,—
(a)
in section 75, as amended by the amendment Act, a reference to a document is a reference to a document within the meaning of new section 70; and
(b)
new section 75A applies in relation to a production order made under subclause (1) referred to in subclause (1).
4 Retention and copying of documents produced under production order
Sections 78 and 79, as amended by the amendment Act, extend to a document that is produced in compliance with a production order that is made before the amendments to those sections commence.
5 Condition for making preservation direction under subpart 2A of Part 3
A reference in new section 79E to an offence that it is suspected has been committed includes a reference to an offence that it is suspected has been committed before that section commences.
6 Preservation direction requested by foreign enforcement agency
(1)
A reference in new section 88B to a serious offence that it is suspected has been committed includes a reference to a serious offence that it is suspected has been committed before that section commences.
(2)
A reference in new section 88B to an alleged serious offence includes a reference to a serious offence that it is alleged has been committed before that section commences.
(3)
In this clause, serious offence has the same meaning as it has in new section 88A.
7 Offence of disclosing that surveillance device warrant has been issued
(1)
New sections 179A and 179B apply in relation to a person who has been called on to assist an enforcement officer to carry out any activities authorised by a surveillance device warrant that is issued before those sections commence.
(2)
However, new sections 179A and 179B apply in relation to the person only if the person is first called on to provide that assistance after those sections commence.
Part 2 New Schedule 1AA inserted into Mutual Assistance in Criminal Matters Act 1992
Schedule 1AA Transitional, savings, and related provisions
s 2C
Part 1 Provisions relating to Budapest Convention and Related Matters Legislation Amendment Act 2024
Interpretation
1 Interpretation
(1)
In this Part, amendment Act means the Budapest Convention and Related Matters Legislation Amendment Act 2024.
(2)
In this Part,—
(a)
a reference to a new provision is a reference to the provision as inserted or replaced by the amendment Act; and
(b)
a reference to an old provision is a reference to the provision as in force immediately before it is replaced by the amendment Act.
Requests by New Zealand for assistance
2 Request by New Zealand for assistance in obtaining thing
A reference in new section 20 to an offence includes a reference to an offence committed or suspected to have been committed before that section commences.
3 Request by New Zealand for assistance in obtaining information by means of surveillance device
References in new section 20A to an offence include references to an offence committed or suspected to have been committed before that section commences.
Requests to New Zealand for search warrants and production orders
4 Requests relating to suspected offences committed before commencement of new provisions
References in new sections 43(2), 44(2), and 45(2) to an offence against the law of a foreign country include references to an offence against the law of the foreign country committed or suspected to have been committed before those provisions commence.
5 Search warrants: existing requests, authorisations, and applications
(1)
New section 43(2) applies in relation to a request that a foreign country has made under old section 43 but only if, immediately before new section 43(2) commences, the Attorney-General has not decided whether to authorise a constable to apply for a search warrant.
(2)
Old section 44 continues to apply in relation to an application for a search warrant that a constable makes after new section 44 commences if, before that commencement, the constable was authorised under old section 43(2) to make the application.
(3)
Old section 44 continues to apply in relation to an application for a search warrant—
(a)
that a constable makes before new section 44 commences; but
(b)
that is not finally determined before that commencement.
6 Search warrants: custody and disposal of things seized
Old section 49 continues to apply in relation to anything seized pursuant to a search warrant that is issued—
(a)
under old section 44 before new sections 44 and 49 commence; or
(b)
under old section 44, as applied by clause 5(2) or (3).
7 Search warrants: Attorney-General to provide certificate as to search and seizure
Old section 50 continues to apply in relation to a request by the Central Authority of a foreign country for a certificate concerning a search conducted, and any seizure of any thing and the custody of any thing seized, pursuant to a search warrant that is issued—
(a)
under old section 44 before new sections 44 and 50 commence; or
(b)
under old section 44, as applied by clause 5(2) or (3).
Requests to New Zealand for surveillance device warrants
8 Requests relating to suspected offences committed before commencement of new provisions
References in new sections 50B(2) and 50C(2) and (4) to an offence against the law of a foreign country include references to an offence against the law of the foreign country that is committed or suspected to have been committed before those provisions commence.
Part 3 New Part 2 inserted into Schedule 1AA of Telecommunications (Interception Capability and Security) Act 2013
Part 2 Provision relating to Budapest Convention and Related Matters Legislation Amendment Act 2024
4 Duty to assist
(1)
Section 24, as amended by the amendment Act, applies in relation to the execution of a surveillance device warrant issued under the Search and Surveillance Act 2012 only if the warrant is issued after section 55(3)(g) of that Act (as inserted by the amendment Act) commences.
(2)
In this clause, amendment Act means the Budapest Convention and Related Matters Legislation Amendment Act 2024.
Schedule 2 Consequential amendments related to Part 1
ss 26, 44, 53
Part 1Amendments to Search and Surveillance Act 2012 related to renumbering of Schedule
In section 3(1), definition of enforcement officer, paragraph (b), replace “the Schedule” with “Schedule 2”.
In section 3(1), definition of search power, paragraph (a), replace “the Schedule” with “Schedule 2”.
In section 3(1), definition of search power, paragraph (b), replace “the Schedule” with “Schedule 2”.
In section 51(a)(i), replace “the Schedule” with “Schedule 2”.
In section 72(a), replace “the Schedule” with “Schedule 2”.
Replace section 89(2)(a) with:
(a)
the enactments listed in column 2 of Schedule 2, to the extent identified in column 4 of Schedule 2:
In section 89(3), replace “the Schedule” with “Schedule 2”.
In section 89(4), replace “the Schedule” with “Schedule 2”.
In section 97, definition of applicant, paragraph (b), replace “the Schedule” with “Schedule 2”.
In section 103(4)(m)(ii), replace “the Schedule” with “Schedule 2”.
In section 107(1)(a), replace “the Schedule” with “Schedule 2”.
In section 121(1), replace “the Schedule” with “Schedule 2”.
In section 121(2), replace “the Schedule” with “Schedule 2”.
In section 149(1), replace “the Schedule” with “Schedule 2”.
In section 169(2), replace “the Schedule” with “Schedule 2”.
In section 171(1), replace “the Schedule” with “Schedule 2”.
In section 180(1)(a), replace “the Schedule” with “Schedule 2”.
In section 180(1)(b), replace “the Schedule” with “Schedule 2”.
In section 180(1)(c), replace “the Schedule” with “Schedule 2”.
In section 352(2), replace “the Schedule” with “Schedule 2”.
Part 1Amendments related to renumbering of Schedule of Search and Surveillance Act 2012
Subpart 1—Amendments to Search and Surveillance Act 2012
In section 3(1), definition of enforcement officer, paragraph (b), replace “the Schedule”
with “Schedule 2”
.
In section 3(1), definition of search power, paragraph (a), replace “the Schedule”
with “Schedule 2”
.
In section 3(1), definition of search power, paragraph (b), replace “the Schedule”
with “Schedule 2”
.
In section 51(a)(i), replace “the Schedule”
with “Schedule 2”
.
In section 72(a), replace “the Schedule”
with “Schedule 2”
.
Replace section 89(2)(a) with:
(a)
the enactments listed in column 2 of Schedule 2, to the extent identified in column 4 of Schedule 2:
In section 89(3), replace “the Schedule”
with “Schedule 2”
.
In section 89(4), replace “the Schedule”
with “Schedule 2”
.
In section 97, definition of applicant, paragraph (b), replace “the Schedule”
with “Schedule 2”
.
In section 103(4)(m)(ii), replace “the Schedule”
with “Schedule 2”
.
In section 107(1)(a), replace “the Schedule”
with “Schedule 2”
.
In section 121(1), replace “the Schedule”
with “Schedule 2”
.
In section 121(2), replace “the Schedule”
with “Schedule 2”
.
In section 149(1), replace “the Schedule”
with “Schedule 2”
.
In section 169(2), replace “the Schedule”
with “Schedule 2”
.
In section 171(1), replace “the Schedule”
with “Schedule 2”
.
In section 180(1)(a), replace “the Schedule”
with “Schedule 2”
.
In section 180(1)(b), replace “the Schedule”
with “Schedule 2”
.
In section 180(1)(c), replace “the Schedule”
with “Schedule 2”
.
Subpart 2—Amendments to other legislation
Deposit Takers Act 2023 (2023 No 35)
In Schedule 3, item relating to the Search and Surveillance Act 2012, replace “the Schedule”
with “Schedule 2”
in each place.
Fisheries (International Fishing and Other Matters) Amendment Act 2025 (2025 No 18)
Replace the heading to section 63 with “Schedule 2 amended”
.
In section 63, replace “the Schedule”
with “Schedule 2”
.
Forests (Legal Harvest Assurance) Amendment Act 2023 (2023 No 20)
In Schedule 2, item relating to the Search and Surveillance Act 2012, replace “the Schedule”
with “Schedule 2”
.
Part 2Consequential amendment related to subpart 2 of Part 1
Mutual Assistance in Criminal Matters Regulations 1993 (SR 1993/92)
In the Schedule, revoke form 4.
Part 3Consequential amendments related to subpart 3 of Part 1
Intelligence and Security Act 2017 (2017 No 10)
In section 144, definition of business records, paragraph (a)(i)(G), replace “call associated data” with “traffic data”.
Intelligence and Security Act 2017 (2017 No 10)
In section 144, definition of business records, paragraph (a)(i)(G), replace “call associated data (within the meaning of section 3”
with “traffic data (within the meaning of section 3AB”
.
Telecommunications Act 2001 (2001 No 103)
In section 107(1)(a), replace “call associated data”
with “traffic data”
.
Replace section 107(2) with:
(2)
In this section,—
telephone analyser means any device—
(a)
that can be connected to any part of a network, or to any line, apparatus, or equipment connected to any part of a network; and
(b)
that is designed to record or enable the recording of traffic data, but cannot record or monitor, or enable the recording or monitoring of, the content of any telecommunication
traffic data has the same meaning as in section 3AB of the Telecommunications (Interception Capability and Security) Act 2013.
Schedule 3 Consequential amendment related to Part 2
s 63
Comprehensive and Progressive Agreement for Trans-Pacific Partnership Amendment Act 2018 (2016 No 90)
In section 41, new section 226M of the Copyright Act 1994, replace “252”
with “250, 252, and 254”
.
Legislative history
23 September 2024 |
Introduction (Bill 81–1) |
|
15 October 2024 |
First reading and referral to Justice Committee |
|
9 April 2025 |
Reported from Justice Committee (Bill 81–2) |
|
22 July 2025 |
Second reading |
|
23 July 2025 |
Committee of the whole House (Bill 81–3) |
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Budapest Convention and Related Matters Legislation Amendment Bill
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