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Digest No. 1696

Search and Surveillance Bill 2009

Date of Introduction: 02 July 2009
Portfolio: Justice
Select Committee: As at 22 July, 1st reading not held.
Published: 22 July 2009Prepared by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626)F: (04) 471-1250 Caution: This Digest was prepared to assist consideration of the Bill by members of Parliament. It has no official status.Although every effort has been made to ensure accuracy, it should not be taken as a complete or authoritative guide to the Bill. Other sources should be consulted to determine the subsequent official status of the Bill.

Purpose

The aim of this Bill is to implement " ... the Government's decisions on the legislative reform of search and surveillance powers", based on the Law Commission's report, "Search and Surveillance Powers" (NZLC R97) [1]   .

Background

A Bill entitled "Search and Surveillance Powers Bill" (the former Bill) was introduced in the previous Parliament on 17 September 2008 and was described in Bills Digest No 1679. In respect of that Bill, the Order of the day for first reading was discharged on 02 July 2009.

The Search and Surveillance Bill (this Bill), which is the subject of this Bills Digest, was introduced on 02 July 2009 and awaits its First Reading.

The former Bill is the basis of this Bill and this Bills Digest (which should be read with Bills Digest No 1679 ) describes the major differences between them.

Main Provisions

Warrantless road block

The Bill provides that the power to establish a road block for the purpose of arresting suspected offenders and those unlawfully at large may be utilised in relation to any person suspected of having committed a crime punishable by a term of imprisonment, and the power may be utilised in relation to persons subject to an arrest warrant, except where that warrant has been issued under Part 3 of the Summary Proceedings Act 1957 (Part 2, Subparts 9 and 10, Clauses 27-30).

"Windfall evidence" relevant to other offences may be admissible

The Bill provides that windfall evidence is lawfully obtained where an enforcement officer is obtains that evidence while lawfully undertaking surveillance using a surveillance device and where that enforcement officer could otherwise have obtained a surveillance device warrant in relation to such windfall evidence.

In particular the Bill provides that " ... if, in the course of carrying out activities authorised by a surveillance device warrant or while lawfully using a surveillance device in relation to an offence, a person obtains any evidential material in relation to an offence:

  • " ... that is not the offence in respect of which the warrant was issued or in respect of which the surveillance device was lawfully put into use, as the case requires; but
  • " ... in respect of which a surveillance device warrant could have been issued or a surveillance device could have been lawfully used"
  • That evidence " ... is not inadmissible in criminal proceedings by reason only that the surveillance device warrant that authorised the activity that obtained the material was issued in respect of a different offence or, as the case requires, that the material was obtained from the use of a surveillance device that was put into use in respect of a different offence" (Part 3, Clause 51).

Stopping vehicles for the purpose of search

The former Bill authorised police officers to stop a vehicle where a power to search the vehicle existed.

This Bill provides a similar power for enforcement officers to stop a vehicle for the purposes of search, together with an offence relating to failing to stop when required to do so by an enforcement officer in circumstances where the defendant knew or ought reasonably to have known that the person exercising the requirement to stop was an enforcement officer (Part 4, Clauses 117 and 169).

New Zealand Defence Force

The Bill provides that its provisions do not apply to New Zealand Defence Force personnel, except where they are exercising functions and powers pursuant to Acts to which the Bill applies (Part 3, Clause 80).

Personal appearance of a search warrant applicant before the issuing officer

The Bill changes the criteria for exempting personal appearances before, or oral communication with, the issuing officer to require that:

  • the issuing officer is satisfied that the question of whether the search warrant should be issued can properly be determined on the basis of any written communication by the applicant (including all the matters listed in Clause 96(1)-(3)); and
  • the information required by Clause 96(1)-(3) has been supplied to the issuing officer; and
  • the issuing officer is satisfied that there is no need to ask any questions of, or seek any further information from, the applicant (Part 4, Clause 98(4); Clause 96(1)-(3)).

Assistance in searches of a person

  • The Bill changes the special rules about searching persons to provide that an enforcement officer may, if he or she considers that either or both of the following are in the interests of the person to be searched, request:
  • the assistance of a medical practitioner or nurse;
  • the assistance of a parent, guardian, or other person for the time being responsible for the day-to-day care of the person to be searched (Part 4, Clause 120(1)(f)).
  • The Bill also provides that if the search is to be a strip search, the enforcement officer may request the assistance of another enforcement officer who is;
  • authorised under any other enactment to conduct strip searches; and
  • of the same sex as the person to be searched (Part 4, Clause 120(1)(g)).

Penalty levels

This Bill changes the penalty levels from the former Bill in the following ways.

Failing to comply with an examination order

In the case of an individual the former Bill provided penalties of, in the case of an individual, imprisonment for a term not exceeding one year or a fine not exceeding $15,000 or both and, for a body corporate, a fine not exceeding $40,000. This Bill provides, for individuals, the single penalty of imprisonment for up to one year. The penalty for a body corporate is unchanged (Part 4, Subpart 8, Clause 165).

Failing to comply with an production order

There is no change in this penalty; in the case of an individual, a term of imprisonment not exceeding one year.; in the case of a body corporate, a maximum fine of $40,000 (Part 4, Subpart 8, Clause 166).

False application for examination order, production order, search warrant, surveillance device warrant, or residual warrant

In the former Bill, the penalty was for a term of imprisonment not exceeding three years. In this Bill the penalty is for a term of imprisonment not exceeding one year (Part 4, Subpart 8, Clause 167).

Leaving search location in breach of direction

There is no change in this penalty: imprisonment for a term not exceeding three months ((Part 4, Subpart 8, Clause 168).

Failing to stop or failing to comply with directions in relation to search of a vehicle

This offence carried a penalty under the former Bill of a fine not exceeding $1,000. This Bill provides that the penalty may only be a term of imprisonment not exceeding three months (Part 4, Subpart 8, Clause 169).

Failing to carry out obligations in respect of computer searches

Under the former Bill this offence carried a penalty of imprisonment for a term not exceeding one year or a fine not exceeding $2,000, or both. This Bill provides for only one penalty: a term of imprisonment not exceeding three months (Part 4, Subpart 8, Clause 170).

Disclosing information acquired through the exercise of a search or surveillance power

The former Bill provided only a penalty, in the case of an individual, of a fine not exceeding $10,000 and, in the case of a body corporate, of a fine not exceeding $50,000. In this Bill the penalty in the case of an individual, is to be only a term of imprisonment not exceeding six months and, in the case of a body corporate, a fine not exceeding $100,000 (Part 4, Subpart 8, Clause 171).

Amendments, repeals, and miscellaneous provisions

The former Bill and this Bill amend search and seizure powers that are used for law enforcement purposes in the following Acts: Agricultural Compounds and Veterinary Medicines Act 1997; Animal Products Act 1999; Antarctic Marine Living Resources Act 1981; Antarctica (Environmental Protection) Act 1994; Aviation Crimes Act 1972; Boxing and Wrestling Act 1981; Civil Aviation Act 1990; Conservation Act 1987; Customs and Excise Act 1996; Dog Control Act 1996; Electoral Act 1993; Electoral Finance Act 2007; Extradition Act 1999; Films, Videos, and Publications Classification Act 1993; Financial Transactions Reporting Act 1996; Food Act 1981; Gambling Act 2003; Hazardous Substances and New Organisms Act 1996; Health Practitioners Competence Assurance Act 2003; Human Assisted Reproductive Technology Act 2004; Human Tissue Act 2008; Immigration Advisers Licensing Act 2007; International Crimes and International Criminal Court Act 2000; International War Crimes Tribunals Act 1995; Land Transport Act 1998; Local Government Act 2002; Marine Mammals Protection Act 1978; Marine Reserves Act 1971; Maritime Security Act 2004; Maritime Transport Act 1994; Motor Vehicle Sales Act 2003; National Parks Act 1980; Overseas Investment Act 2005; Ozone Layer Protection Act 1996; Petroleum Demand Restraint Act 1981; Prostitution Reform Act 2003; Radiation Protection Act 1965; Radiocommunications Act 1989; Reserves Act 1977; Resource Management Act 1991; Sale of Liquor Act 1989; Trade in Endangered Species Act 1989; Unsolicited Electronic Messages Act 2007; Wild Animal Control Act 1977; Wildlife Act 1953; and Wine Act 2003.

This Bill also amends the search and seizure powers used for law enforcement purposes in fifteen additional Acts which are as follows: Animal Welfare Act 1999; Biosecurity Act 1993; Children, Young persons and Their families Act 1989; Commodity Levies Act 1990; Dairy Industry Restructuring Act 2001; Driftnet Prohibition Act 1991; Employment Relations Act 2000; Fisheries Act 1996; Health and Safety in Employment Act 1992; Major Events management Act 2007; Meat Board Act 2004; Pork Industry Board Act 1997; Reserve Bank of New Zealand Act 1989; Social Security Act 1964; and the Tax Administration Act 1994 (Part 5, Subparts 1-4, Clauses 175-284; Schedule to the Bill).

In the former Bill, the Electoral Act 1993 and the Electoral Finance Act 2007 were to be amended in respect of the search and seizure powers that are used for law enforcement purposes in those Acts. Those Acts are not so amended by this Bill.

This Bill also amends ten Acts in relation to their search and seizure powers (and related provisions) used for regulatory purposes. These ten Acts are: Anti-Personnel Mines Prohibition Act 1998; Chemical Weapons (Prohibition) Act 1996; Commerce Act 1986; Credit Contracts and Consumer Finance Act 2003; Electricity Act 1992; Fair Trading Act 1986; Forests Act 1949; Gas Act 1992; International Energy Agreement Act 1976; and Weights and Measures Act 1987 (Part 5, Subpart 2, Clauses 285-294).

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  1. Search and Surveillance Bill, 2009 No 45-1, Explanatory note, General policy statement, p. 1.   [back]