A purpose clause has been added to the Bill and this clause provides that the purpose of the Bill is to :
“facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by:
modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the uses of those technologies; and
providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006; and
ensuring investigative tools are effective and adequate for law enforcement needs” (Part 2, inserting New Clause 4A (the “purpose” clause)).
Section 5 of the Interpretation Act 1999 sets out the great importance of an Act’s purpose clause: “The meaning of an enactment must be ascertained from its text and in the light of its purpose” and “The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment”. “Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics, examples and explanatory material, and the organisation and format of the enactment”.
In the bar-2 Bill, the definition of “enforcement officer” is amended so the:
the definition does not to apply to Part 4 of the Bill (“General provisions in relation to search and inspection powers” – this part is given its own (but identical) definition of enforcement officer);
the definition does not apply to Part 5 of the Bill (“Amendments, repeals, and miscellaneous provisions” – each Act amended in Part 5 has its own provisions relating to the persons who exercise enforcement powers under the particular Act) ;
Apart then from Parts 4 and 5 of the Bill, for the purposes of the rest of the Bill, the bar-2 Bill defines the term “enforcement officer” as:
any person authorised by this Bill or any enactment specified in column 2 of the Schedule to the Bill to exercise a power of entry, search, or seizure; but
does not include such a person in relation to the exercise by that person of any power of entry, search, or seizure under any enactment not part of this Bill or under any enactment not specified in column 2 of the schedule.
The definition is presaged on the definition of “enactment” in Section 29 of the Interpretation Act 1999 where the term is defined as meaning “the whole or a portion of an Act or regulations”. A “portion” of an enactment would include, for example, a section of an Act (Part 1, Clause 3, amending the definition of “enforcement officer”).
This is a redundant definition and is therefore deleted from the bar-2 Bill. The problem which this definition addressed is that some of the powers in Part 4 of the Bill may be exercised by persons in relation to some provisions in a particular Act but not in relation to others. An easier way of making the distinction has been found by creating a schedule to this Bill which sets out the Acts concerned and the provisions of those Acts which are related to the powers under Part 4 of this Bill (Part 1, Clause 3, deleting the definition of “relevant enactment”; cf. see the discussion of the definition of “enforcement officer” above).
The bar-2 Bill includes replacement definition of “strip search” which is to mean: “a search where the person conducting the search may require the person being searched to undress, or to remove, raise, lower, or open any item or items of clothing so that the genitals, buttocks, or (in the case of a female) breasts are:
covered only by underclothing (Part 1, Clause 3, replacing the definition of “strip search”).
“Trespass surveillance” and “visual trespass surveillance”
The bar-2 Bill includes two new definitions, those of “trespass surveillance” and “visual trespass surveillance”. Trespass surveillance means surveillance that involves trespass onto private property. Visual trespass surveillance means trespass surveillance involving the use of a visual surveillance device. (Part 1, Clause 3, inserting definitions of “trespass surveillance” and “visual trespass surveillance”).
“Unlawfully at large”
The definition of “unlawfully at large” in the Bill as introduced defines that term to mean any one or more of seven situations such as “a prison breaker within the meaning of the Corrections Act 2004 or the Parole Act 2002” or “a special patient or restricted patient within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 who has escaped or failed to return on the expiry or cancellation of a period of leave”.
Another of those situations is “a person for whose arrest a warrant is in force”
The bar-2 Bill expands this situation to read: “a person for whose arrest a warrant is in force (unless no other warrant is in force except a warrant or warrants issued under Part 3 of the Summary Proceedings Act 1957 or Sections 19B or 19D of the Crimes Act 1961 ((Part 1, Clause 3, amending the definition of “unlawfully at large”).
Part 3 of the Summary Proceedings Act 1957 is headed “Enforcement of Fines” and Sections 19B and 19D of the Crimes Act 1961 also relate to the payment of fines.
Police powers (Part 2 of the bill)
Power of Police to stop vehicles
The Bill, in addition to the powers to stop and search the vehicle, now gives a constable the additional power to “require any person in or on the vehicle who the constable has reasonable grounds to suspect has committed an offence punishable by imprisonment to supply all or any of his or her name, address, other contact details, and date of birth” (Part 2, Subpart 2, Clause 10(1), inserting new paragraph (aa)).
Power of Police to search persons in relation to Drug offence
The bar-2 Bill provides that “a constable may search any person found in or on a place or vehicle, in relation to which a search warrant is issued under [Clause 6 of the Bill (the general power for an issuing officer (i.e. a District Court or High Court Judge or J.P. Community Magistrate, registrar or deputy registrar authorised under the Bill) to issue a search warrant)], if the offence that was specified in the application for the search warrant is an offence against the Misuse of Drugs Act 1975” (Part 2, Subpart 7, inserting new Clause 18A into the Bill).
Powers Police to obtain information from person in vehicle stopped in roadblock
In relation to an authorised road block implemented without a warrant, the power of a constable to require any person in or on any vehicle stopped by the road block to state any or all of his or her name, address, and date of birth is limited to apply only in respect of persons “who the constable has reasonable grounds to suspect has committed an offence punishable by imprisonment” (Part 2, Subpart 10, Clause 30, amending paragraph (c)).
Examination orders and the role of the Police
In relation to examination orders, instead of applications for such orders being made only by the Commissioner of Police, they may be made by a constable above the level of inspector if approved by a Deputy Commissioner, an Assistant Commissioner or a District Commander (but not an acting District Commander – and there is now no provision for the Commissioner his or herself) but it remains clear that the examination pursuant to the examination order is to be carried out by the Commissioner or delegate of the Commissioner. A new supervisory provision is inserted requiring the Commissioner of Police or delegate of the Commissioner who conducted the examination to provide an examination order report within one month after the completion of the examination conducted under the order, to the Judge who made the order (or another Judge of the same court if the original Judge is unable to act) with the following information:
whether the examination resulted in obtaining evidential material;
whether any criminal proceedings have been brought or are under consideration as a result of evidential material obtained by means of the examination;
any other information stated in the order as being required for inclusion in the examination order report (Part 2, Clause 31, substituting subsection (1); Clause 33, substituting subsection (1); Clause 37(2), inserting new paragraphs (da) and (db); inserting New Clause 40A).
Enforcement officers’ powers and orders (Part 3 of the Bill)
Use of surveillance and interception devices restricted
The Bill is amended to provide that nothing in Subpart 1 of Part 3 of the Bill (headed “Surveillance device warrants and declaratory orders”) authorises any enforcement officer to undertake trespass surveillance (other than by means of a tracking device – a tracking device is a device that, when installed in or on a thing, may be used to help ascertain, by electronic or other means, either or both, the location of that thing or a person in possession of that thing or whether a thing has been opened, tampered with, or in some other way dealt with) except in order to obtain evidential material in relation to an offence punishable by at least seven years imprisonment or against the following provisions of the Arms Act 1983:
Section 44 (“Selling or supplying pistol, military style semi-automatic firearm, or restricted weapon to person who does not hold permit to import or to procure”);
Section 45 (“Carrying or possession of firearms, airguns, pistols, restricted weapons, or explosives, except for lawful, proper, and sufficient purpose”);
Section 50 (“Unlawful possession of pistol, military style semi-automatic firearm, or restricted weapon”);
Section 51 “Unlawful carriage or possession in public place of firearm, airgun, pistol, ammunition, explosive, or restricted weapon”);
Section 54 (“Use or attempted use of firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive to resist or prevent arrest or commit offence”); or
Section 55 (“Carrying firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive with criminal intent”).
The same restriction is put on the use by an enforcement officer of an interception device (Part 3, Subpart 1, inserting New Clause 42AA into the Bill).
Activities for which surveillance device warrant required
The bar-2 Bill includes an addition to the list of activities for which a surveillance device warrant is required. That activity is to use a surveillance device that involves trespass onto private property (Part 3, Subpart 1, amending Clause 42 by inserting new paragraph (ca)).
Exemption from need to obtain a surveillance device warrant
The Bill provides a list of situations (generally for reasons of urgency or emergency) where a surveillance device may be used for a period before a warrant must be obtained .
The bar-2 Bill reduces this period from 72 hours to 48 hours and also provides that that period runs from the time that the device is first used (Part 3, Subpart 1, Clause 44, amending subclause (1)).
“Specified law enforcement agencies”, visual trespass surveillance and interception devices
The bar-2 Bill provides that only the New Zealand Customs Service and the Department of Internal Affairs (“specified law enforcement agencies”) and the Police may carry out visual trespass surveillance or use interception devices. But a specified law enforcement agency must be approved by the Governor-General by Order in Council made on the recommendation of the Minister of Justice before being able to do so. Applications for a surveillance device warrant seeking authority to use visual trespass surveillance or an interception warrant may only be made by a constable or by an enforcement officer employed or engaged by a specified law enforcement agency so approved by Order in Council (Part 3, Subpart 1, amending Clause 45 by inserting new subclause (5); inserting New Section 45A).
Conditions for issuing surveillance device warrant
The bar-2 Bill expands the conditions for issuing a surveillance device warrant which are that there are reasonable grounds:
to suspect that an offence has been committed or is being committed, or will be committed in respect of which this Bill or any of the enactments specified in column 2 of the Schedule to the Bill authorises the enforcement officer to apply for a warrant to enter premises for the purpose of obtaining evidence about the suspected offence; and
to believe that the proposed use of the surveillance device will obtain information that is evidential material in respect of the offence; and
the restrictions in Clause 42AA (see “Use of surveillance and interception devices restricted” above) do not prevent the issuing of a surveillance device in the circumstances (Part 1, Subpart 1, substituted Clause 46).
Issue of surveillance device warrant and legal professional privilege
The Bill as introduced provides that a Judge must not issue a surveillance device warrant that would permit the surveillance or recording of communications normally protected by legal professional privilege unless the communication is for a dishonest purpose or for the committing of an offence.
The bar-2 Bill weakens this protection for legal professional privilege. A Judge must not issue a surveillance device warrant that “is primarily intended to facilitate” surveillance or recording of activity between a lawyer and his or her client that is communication of a kind to which legal professional privilege normally applies unless the Judge is satisfied that “there is a prima facie case” that the communication is to be made or received for a dishonest purpose or for the purpose of planning to commit or committing an offence (Part 1, Subpart 1, amending Clause 49).
Surveillance device warrant report to the Judge
The bar-2 Bill contains amendments relating to the obligation of the person who carries out the surveillance device warrant to report to the Judge who issued the warrant (or if that Judge is unable to act, another Judge of the same Court) informing him or her whether evidential material was obtained, if so whether it was it the evidential material specified in the warrant and whether criminal proceedings resulted or are under consideration (Part 3, Subpart 1, amending Clause 53).
Retention of raw surveillance data, excerpts, and information obtained and disposal
The bar -2 Bill inserts a new provision relating to the retention of raw surveillance data, but this is subject to the power of a Judge receiving a surveillance device warrant report to give directions as to the destruction or retention of the material obtained as a result of the use of the surveillance device and is also subject to any enactment requiring the retention of information that is part of a Court record.
The new provision provides that raw surveillance data may be retained by the law enforcement agency that collected it:
until the conclusion of criminal proceedings in relation to an offence in respect of which it was collected including the later of:
the conclusion of any appeal proceedings brought in relation to the offence;
the expiry of any period for bringing such an appeal; or
until the later of a maximum period of three years, or any further period specified in an order (described immediately below), if:
no criminal proceedings have commenced in relation to any offence in respect of which the data was collected; but
the data is required for an ongoing investigation by the agency.
A Judge may make orders extending the retention by up to a further two years if the agency applies before the expiry of the initial 3-year period and the Judge is satisfied that the data is required for that ongoing investigation. A Judge may make an order allowing excerpts of raw surveillance data to be retained in accordance with the order if:
the law enforcement agency that collected the data applies for the order; and
the Judge is satisfied that excerpts may be required for a future investigation.
Information that is obtained from raw surveillance data but that does not itself constitute raw surveillance data (see description of definition of “raw surveillance data” above) may be retained by the agency that collected it if there are “reasonable grounds to suspect” that the information may be relevant to an ongoing or future investigation by that agency”.
The bar-2 Bill inserts a new provision relating to disposal of raw surveillance data. A law enforcement agency must ensure that any raw surveillance data, excerpts from raw surveillance data, and information obtained from it that is not itself raw surveillance data, and that is not retained as permitted above or as part of a Court record, is deleted or erased (Part 3, Subpart 1, inserting New Clause 56A and 56B; cf. Clauses 55(1) and 56(1)).
The Bill as introduced provides for a residual warrants regime. It sets out the circumstances in which a law enforcement agency must obtain a residual warrant. This is if, in order to obtain evidential material relating to an offence, the agency wishes to use a device (other than a surveillance device), or a technique, procedure or activity that may constitute an intrusion into the reasonable expectation of privacy of any person. The Bill makes provision for applications for such warrants, their issuing and for the carrying out activities authorised by residual warrants.
The bar-2 Bill replaces the residual warrant regime with a “declaratory order regime”. A declaratory order is a statement that the Judge is satisfied that the use of a device, technique, or procedure, or the carrying out of an activity specified in the Order is reasonable and lawful. But the declaratory order is “advisory” in character and does not affect the jurisdiction of any Court to determine whether the activity that was the subject of the order was reasonable and lawful” (Part 3, Subpart 1, substituting Clauses 57-67).
General provisions in relation to search and inspection powers (Part 4 of the Bill)
Application of Part 4
A new complicated but very important provision is inserted in Part 4 providing for the application of that Part.
Part 4 applies “to the extent and in the manner” provided by Parts 2, 3 and 4 in respect of:
the Police powers conferred by Part 2; and
search warrants and examination orders applied for, issued, or made under Part 2; and
powers conferred on enforcement officers by Part 3; and
surveillance device warrants, declaratory orders, and production orders applied for, issued, or made under Part 3; and
any other matter provided for in Parts 2, 3 and 4.
Part 4 also applies in respect of powers conferred by the statutes listed in the Schedule to the Bill and particularly identified in that schedule and in Subparts 1 and 2 of Part 5 of the Bill.
It is also states that if any provision in Subparts 1-5 of Part 4 applies in respect of a power conferred by an enactment listed in the Schedule, then Subparts 6-9 of Part 4 also apply in relation to that power, “to the extent and in the manner identified in those subparts” (Part 4, Subpart 1, inserting New Clause 87AA).
The bar-2 Bill contains new definitions for computer searches and makes it clear that remote-access searching of computers is permitted in only two situations: where a computer had the capability to lawfully access a computer system (and therefore was considered part of that system); and where there was no physical location to search. The bar-2 Bill also provides that very person executing a search warrant authorising a remote access search may access and copy intangible material from the thing being searched (including copying by means of previewing, cloning, or other forensic methods) and may use “reasonable measures to gain access to the thing and to create forensic copy of material in the thing. The same rights are given to persons called on to assist a person executing a remote access search warrant (Part 4, Subpart 1, inserting New Section 87AD; Subpart 3, inserting New Clauses 108A and 110A ).
The Bill as introduced provides that the Attorney-General may authorise any Justice of the Peace, Community Magistrate, Registrar, Deputy Registrar, or other person to act as an issuing officer for a term (not more than three years) specified in the notice of authorisation.
The bar-2 Bill prevents the Attorney-General from authorising an enforcement officer to act as an issuing officer and requires the Attorney-General to remove an issuing officer from that office should they become an enforcement officer. Power is also given to the Attorney-General to remove issuing officers for a justifiable reason. The bar-2 Bill also stipulates that issuing officers must not consider search warrant applications from agencies where they are employed.
The bar-2 Bill also amends permissible search times from “any time which is reasonable in the circumstances” to “any time which is reasonable”.
It is also made clear that the ability to use force applies in relation to property only and not people and also the power to detain a person while conducting a search is restricted to enforcement officers who were investigating offences for which they had a related power of arrest. The provision allowing enforcement officers to temporarily secure a search scene once a warrant application had been made is limited to situations where there are reasonable grounds to suspect evidential material will be destroyed, removed, hidden, or tampered with (Part 4, Subpart 2, amending Clause 106 and inserting New Clause 106A; amending Clause 108(a) and (c); Clause 111, inserting new subclause (2); Clause 113, inserting new subsection (1A)).
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