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Digest No. 1959

Search and Surveillance Bill 2009 (Supplementary Order Paper 2012 No 12)

Date of Introduction: 02 July 2009
Portfolio: Justice
Select Committee: Justice and Electoral
Date report presented: 04 November 2011
SOP No 12 released: 07 March 2012 (Hon Judith Collins – Minister of Justice)
Published: 20 February 2012by John McSoriley BA LL.B, BarristerLegislative AnalystP: (04) 471-9626 (Ext. 9626) 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 legislative reform of search and surveillance powers. The Bill provides a framework for search and surveillance undertaken for the purposes of law enforcement and regulatory compliance. To achieve this, numerous statutes are amended by the Bill.

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. That Bill was discharged (i.e. the Parliament dropped it) on 02 July 2009.

The Search and Surveillance Bill (this Bill) was introduced on 02 July 2009 and is described in Bills Digest No 1696.

The Select Committee reported the Bill on 04 November 2011 and the main changes made are described in Bills Digest No 1879.

Background

Supplementary Order Paper No 12 “updates the amendments to the various statutes the subject of the Bill “to take account of developments since 2010, when the Bill was reported back” [1]   . The following additional Acts are brought within the scope of the Bill:

  • the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (Clause 191A);

  • the Criminal Proceeds (Recovery) Act 2009 (Clauses 201A to 201F);

  • the Electricity Industry Act 2010 (Clause 221);

  • the Financial Markets Authority Act 2011 (Clause 225AA);

  • the Insurance (Prudential Supervision) Act 2010 (Clause 240C);

  • the Waste Minimisation Act 2008 (Clauses 281A-281C).

The Supplementary Order Paper also amends certain Acts to enable authorised persons to apply for a search warrant under Clause 6. These are;

  • the Health Practitioners Competence Assurance Act 2003 (Clause 235);

  • the Immigration Advisers Licensing Act 2007 (Clause 240A);

  • the International Energy Agreement Act 1976 (Clause 293B);

  • the Petroleum Demand Restraint Act 1976 (Clause 266).

The Supplementary Order Paper removes references to the Electricity Reform Act 1998, the Health and Safety in Employment Act 2000 and the Employment Relations Act 2000 from the Bill (Clauses 221, 234, and 300).

Main amendments proposed

Supplementary Order Paper No 12

Supplementary Order Paper No 12 proposes many technical or drafting amendments. The following appear to be substantive amendments reflecting government policy decisions.

Tracking devices

SOP No 12 amends the definition of tracking device to read as follows; “means a device that may be used to help ascertain, by electronic or other means, either or both of the following:

  • the location of a thing or a person;

  • whether a thing has been opened, tampered with, or in some other way dealt with; but

  • does not include a vehicle or other means of transport, such as a boat or helicopter”.

In relation to when a surveillance device warrant is required to use a tracking device, SOP No 12 proposes that amendments be made to take account account of the new definition of tracking device, and set out that, where a device is installed to ascertain if an item has been tampered with, a warrant is not required if the installation does not involve trespass to land or to goods (Part 1, Clause 3, amending definition of “tracking device”; Part 2, amending Clause 42(b)).

Comment

The definition in the Bill at present begins: “”means a device that, when installed in or on a thing, may be used to help ascertain etc.” “The new definition means that devices that are not installed in or on a thing will fall within the scope of the Bill, and their use will require a surveillance device warrant” [2]   .

Searches associated with arms

The Bill currently provides a power to search for and seize arms, provided that certain circumstances exist. SOP No 12 proposes to enable the Police to seize and detain licences under the Arms Act 1983 as well as arms. SOP No 12 also proposes that, in addition to when a protection order under the Domestic Violence Act 1995 is in force against the person in question, a search power also arises if a police safety order under that Act is in force against the person (Part 2, amending Clause 18 of the Bill).

Rights of journalists to protect sources

The Bill recognises the rights conferred on a journalist under the Evidence Act 2006 to protect certain sources.

SOP No 12 proposes that in any case involving the applicability of these rights, the appropriate court to determine the matter will be the High Court, rather than the District Court (Part 4, amending Clause 130 by inserting new subsection (3); cf. Section 68 of the Evidence Act 2006).

Use of visual surveillance devices by fishery officers

“The Bill amends the Fisheries Act 1996 to clarify that fishery officers may, for the purpose of administering the Fisheries Act 1996, use visual surveillance devices, eg cameras, to observe public places (clauses 228 and 228A). Although a District Court has held that fisheries officers have the right to use such devices in the course of their observations of public places, there is now, following the decision of the Supreme Court in Hamed & Others v R [2011] NZSC 101, some doubt whether superior courts would reach the same result. The amendments remove that doubt” [3]   .

Copyright: © NZ Parliamentary Library, 2012
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  1. Explanatory note, Supplementary Order Paper No 12, p. 90.   [back]
  2. Ibid, p. 91.   [back]
  3. Ibid p. 92.   [back]