New Zealand Law Students Journal
Last Updated: 30 August 2012
TARGETED VISUAL SURVEILLANCE IN NEW ZEALAND: AN ANALYSIS AND CRITIQUE OF THE SEARCH AND SURVEILLANCE BILL
SAMUEL P. BESWICK*
Surveillance law in New Zealand will soon undergo considerable reform. The Search and Surveillance Bill (“the Bill”) will be the first piece of legislation in New Zealand to address state surveillance activities comprehensively.1 Based on an extensive Law Commission Report,2 it aims to resolve the problems apparent in the present state of the law, which has been described as a “mess”, rife with inconsistencies, incoherence, and uncertainty.3 Though currently there are laws that govern audio interception techniques4 and tracking devices,5 there is virtually no statutory regulation of visual surveillance.6
Nor does New Zealand have a warrant regime to authorise
* BCom/LLB(Hons), University of Auckland. High Court Judges’ Clerk. I wish to acknowledge and thank Associate Professor Scott Optican for his guidance and suggestions in writing this article, which is an abridged version of a supervised dissertation.
1 Search and Surveillance Bill 2009 45-1 [“SSB”]. On 24 May 2010, the Justice and Electoral Committee announced that the current Bill was likely to be redrafted in response to substantial criticisms raised in Select Committee submissions. The Committee, which has been considering the Bill since August 2009, intends to release an interim report to facilitate a process of further consultation with submitters: Justice and Electoral Committee “Search and Surveillance Bill” (press release, 24 May 2010); Tracy Watkins “‘Chilling’ Surveillance Bill Sent Back for Rewrite” Stuff (New Zealand, 25 May
2010). This article aims to raise relevant points for consideration in that regard. See also Barry Wilson and Ian McIntosh “Big Brother to Get More Rights” The New Zealand Herald (New Zealand, 20 November 2009).
2 Law Commission Search and Surveillance Powers (NZLC R97, 2007) [“LCR”].
3 Sir Geoffrey Palmer, quoted in Amy Mansfield “Law Commission Report Damning of
Outdated Search and Surveillance Laws” NZ Lawyer (New Zealand, 17 August 2007).
4 See Crimes Act 1961, Part 11A; Misuse of Drugs Amendment Act 1978, ss 14 and 15A.
5 See Summary Proceedings Act 1957, ss 200A–200P.
6 LCR, above n 2, at 316–317. Cf Summary Offences Act 1981,
s 30 (prohibits peeping and peering); Crimes Act 1961, s 216H (prohibits
As a consequence, covert state-directed visual surveillance has tended to
be regulated only by s 21 of the New Zealand Bill of
(“NZBORA”), which protects “the right to be
secure against unreasonable search or
seizure”. Though in theory
s 21 provides security to individuals from unreasonable state surveillance,
is insufficient to regulate this complex field of law. Jurisprudence
around s 21 has produced little guidance as to what
activities trigger a reasonable expectation of privacy (and thereby amount
to a search), nor the implications
of such a finding.8 In fact to
date, no non- trespassory electronic visual surveillance activity by the state
has been found to be an unreasonable search
by a New Zealand court.
This article presents a broad overview and analysis of the surveillance
scheme created by the Bill. For illustrative purposes,
critiques the Bill predominantly in terms of visual surveillance devices,9
though much of the discussion is equally applicable to other forms of
surveillance. Part II outlines the scope of the Bill’s
warrant regime, in particular, the conditions that attach to visual surveillance
of premises. Part III discusses
further aspects of the warrant regime
created by the Bill, while the exceptions to those provisions are
in Part IV. Part V then considers the consequences of the
independent oversight provisions created by a reporting requirement.
well as explaining the proposed new surveillance regime, this article offers
suggestions throughout where reform of
the Bill may be
A. Scope of Surveillance Regime
Clause 42 of the Bill outlines four activities for which a
7 See R v Fraser  2 NZLR 442 (CA) at 452; R v Bailey HC Auckland CRI-2007-085-
7842, 7 October 2009, Winkelmann J at . Note that the appeal of R v Bailey was heard on 8 and 9 June 2010: R v Hunt CA809/2009, William Young P, Glazebrook, and Ellen France JJ.
8 See Scott Optican “What is a ‘Search’ under s 21 of the New Zealand Bill of Rights Act
1990? An Analysis, Critique and Tripartite Approach”  NZ L Rev 239; see also R v
Fraser, above n 7; R v Gardiner (1997) 15 CRNZ 131 (CA).
9 Eg photo and video cameras, thermal imaging devices, aerial
surveillance devices, and satellites.
warrant is required:10
(a) use of an interception device to intercept a private communication:
(b) use of a tracking device:
(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:
(d) observation of private activity in the curtilage of
private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of the observation, for the purposes of a single investigation, or a connected series of investigations, exceeds—
(i) 3 hours in any 24 hour period; or
(ii) 8 hours in total.
The Bill has steered away from involving itself in the complications of s
21 NZBORA jurisprudence by not defining its scope solely in terms of a reasonable expectation of privacy or a gradation of privacy rights.11
Instead, the scope of the Bill is clear: it covers certain places and some
actions. In terms of surveillance, it applies in three
interception of private communications;12 attaching a device to
track the movement of a person or thing;13 and surveilling private
activities in or around private premises.14 These actions
will trigger the cl 42 warrant requirement; activities that fall outside of
this scope will not.
1. Surveilling Private Premises
A warrant must be obtained when using a visual surveillance device to
10 Note cl 43(1) contains six specific exceptions to cl 42.
11 Cf R v Williams  NZCA 52;  3 NZLR 207 (CA) at 241–242; Criminal Code RSC 1985 c C-46 (Can), s 487.01(4).
12 Replacing Crimes Act 1961, Part 11A, and Misuse of Drugs Amendment Act 1978, ss
14 and 15A.
13 Replacing Summary Proceedings Act 1957, ss 200A–200P.
14 Note that the Bill also contains a narrow residual warrant
regime: SSB, cls 57–67. See LCR, above n 2, at 345–347; Human
Commission, below n 40, at 9–10; HRF & ACCL, below n 40, at
observe “private activity in private premises”.15
Hence, if the police install a video camera to record continuously
through a suspected drug dealer’s dining room window over
a period of
months, or place hidden cameras in a private dwellinghouse, that activity will
be in breach of the Bill unless a warrant
is obtained.16 Yet not
all cases will be so clear cut. The applicability of the cl 42 warrant
requirement will depend on what exactly constitutes
premises’ and what amounts to ‘private activity’.
(a) Private Premises
The Bill seeks to clarify the scope of the term ‘private
premises’ by defining it both positively (“a private
a marae, and any other premises that are not within the definition of
non-private premises”) and
negatively (a non-private premises being
“premises, or part of a premises, to which members of the public are
to have access, and includes any part of a
hospital, bus station, railway station, airport, or shop”).17
The Law Commission Report used the term ‘building’ as
opposed to ‘premises’. The Commission
private buildings include “private residences, offices and commercial
premises to which no member of
the public would normally have access”;
non-private buildings shared the definition adopted by the
Clearly private houses fall within the scope of the Bill. But by adopting a
different term and definition than that
recommended by the
Commission, the position in relation to private offices and commercial premises
is less certain. On a plain
meaning interpretation of the Bill, private
premises should include private offices and commercial premises.
accords with overseas authority19 and is consistent
15 SSB, cl 42(c). A visual surveillance device is defined broadly in the Bill to cover practically all devices that enhance the human eye (aside from spectacles or contact lenses) or are capable of visual recording: cl 3.
16 Cf R v Gardiner, above n 8, where the Court of Appeal held that non-trespassory targeted video surveillance did not amount to an unreasonable search under s 21.
17 SSB, cl 3.
18 LCR, above n 2, at 329.
19 See Kathleen Lomas “Bad Physics and Bad Law: A Review of the Constitutionality of
Thermal Imagery Surveillance after United States v Elkins” (2000) 34 USFL Rev 799 at 806,
the Court of Appeal’s statements in R v Williams, which recognise a reasonable expectation of privacy in relation to commercial premises.20
Additionally, the narrow definition of premises, focussing on privacy in the
traditional house, may result in non-house dwellings
(such as mobile
homes and caravans) receiving lesser (or no) protection of the Bill, even when
they are situated on private
land.21 By contrast, in
Australia premises can include vehicles.22 Generally the
courts are averse to warrantless searches and are hence likely to
adopt a wide interpretation of premises;23 nevertheless a
more encompassing legislative definition would resolve this uncertainty
(b) Private Activity
Clauses 42(c) and (d) incorporate the Law Commission’s
recommendation, and the generally held judicial view, that
privacy is the
value that surveillance legislation and the NZBORA aim to
protect.24 ‘Private’ in this sense means that there is
an expectation that others are not watching (rather than that the
subject matter of the activity is necessarily private).25
Nevertheless, reducing cl 42’s application only to
‘private activity’ unnecessarily complicates
straightforward ‘private premises’ test. The aim of protecting
privacy may be thwarted by a requirement
that enforcement officers and
warrant issuers turn their minds to whether activity conducted on a premises is
likely to be private.
It reflects the approach taken in R v Gardiner,
where the Court of Appeal considered that evidence which indicated the
appellants believed they were being surveilled was
a factor that reduced their
reasonable expectation of privacy.26 But such a
20 R v Williams, above n 11, at 241 (though at a lesser degree to private dwellinghouses).
21 Note that the Bill does not address the status of vehicles in relation to surveillance, despite the Court in R v Williams recognising some reasonable expectation of privacy in vehicles: ibid.
22 See Surveillance Devices Act 2004 (Cth), s 17(2).
23 R v Williams, above n 11, at 273: “the route of judicial pre-authorisation is preferable”.
24 Ibid; R v Jefferies  1 NZLR 290; LCR, above n 2, at 312–313.
25 See SSB, cl 3; Kathleen Lomas, above n 19, at 821–822: “mundane activities within the home are just as much none of the government’s business as are intimate activities”. See also Thomas Clancy “What does the Fourth Amendment Protect: Property, Privacy, or Security?” (1998) 33 Wake Forest L Rev 307.
26 R v Gardiner, above n 8: the defendants, apparently
suspecting that their conversations were being taped, instead communicated via a
which was then captured by
consideration detracts from the main issue — that surveillance devices
enable officers to conduct prolonged, high definition
video surveillance of the
interior of private dwellinghouses. This is inherently intrusive. If officers
need to conduct such surveillance,
the question should focus on whether they
have the requisite probable cause to obtain a warrant, not whether the occupier
to exclude external prying. A preferable approach is to replace
the term ‘private activity’ in cls 42(c) and (d)
‘activity’, which would create a simple test, requiring a
warrant to be obtained for all
surveillance of private premises (as it
is for traditional searches).
2. Surveilling the Curtilage
Clause 42(d) covers surveillance of “private activity in the curtilage of private premises”. The purpose of this clause is to require a warrant to be obtained in situations such as R v Fraser, where the police intend to conduct extended surveillance of a suspect’s backyard or private property.27 The Law Commission recommended a “more nuanced approach” to legislating surveillance of activities that occur outside of a private premises.28 Individuals have a lesser expectation of privacy in activities occurring outside the home, which “are more susceptible of visual observation by a casual observer and enforcement officers”; thus a less strict standard of surveillance of those activities is considered appropriate.29 In order to enable officers to conduct “fleeting observation”,30 the Bill permits them to surveil the curtilage of a private premises without a warrant, so long as such surveillance does not last longer than 3 hours in a 24-hour period, or 8 hours in total. This allows, for example, a police helicopter equipped with a surveillance device to fly over houses without triggering the warrant requirement.31
Clauses 42(c) and (d) reflect a more straightforward approach to the
gradation of privacy rights than that adopted by the Court
the video surveillance.
27 R v Fraser, above n 7.
28 LCR, above n 2, at 329.
29 Ibid; cf Krista Boa “Privacy Outside the Castle: Surveillance Technologies and
Reasonable Expectations of Privacy in Canadian Judicial Reasoning” (2007) 4
Surveillance & Society 329 at 338–339, discussing the oft misunderstood privacy implications of state-directed surveillance.
30 LCR, above n 2, at 329.
31 See eg R v Peita  NZCA 157; (1999) 17 CRNZ 407.
private dwellings have a high expectation of privacy, while less privacy
attaches to the exterior curtilage.32
‘Curtilage’ is not defined in the Bill and may become subject to
a not insignificant amount of litigation. The
Oxford English Dictionary
defines it as:33
A small court, yard, garth, or piece of ground attached to a
dwelling-house, and forming one enclosure with it, or so
regarded by the law;
the area attached to and containing a dwelling-house and its
The Law Commission noted that ‘curtilage’ is used in some
legislation but has never been statutorily defined.
Commission’s non- exhaustive definition considered that curtilage
covers “the immediate surrounds of the
buildings, including decks and
gardens, whether or not they are fenced or enclosed”.34
Though this provides some guidance, the word contains ambiguities.
Attempting to define the immediate surrounds of a building
For instance, is a glass patio part of a house, so that a surveillance warrant
is always required, or akin to
a deck, where short-term warrantless
surveillance may occur? The issue is complicated further when considering
types of premises have a larger curtilage than others
(for example, a farm house compared to an apartment).35
By not defining curtilage in the Bill, enforcement officers (and citizens)
are not given sufficient guidance over when cl 42 might
be in issue. This may
result in arguments arising at trial as to the admissibility of surveillance
evidence captured without
a warrant.36 Such problems have
arisen in the United States, where curtilage is defined not just in proximity
to a private premises, but
also in terms of domestic use
32 Cf R v Williams, above n 11, at 241–242, which discusses a complex gradation of privacy rights between and within different places.
33 ‘Curtilage’ in JA Simpson and ESC Weiner (eds) Oxford English Dictionary (2nd ed, Clarendon Press, Oxford, 1989) at 160.
34 LCR, above n 2, at 329.
35 See R v Williams, above n 11, at 241–242.
36 Under the Evidence Act 2006, s 30.
(which requires consideration of whether the area is used and enjoyed
“as an adjunct to the domestic economy of the family”).37
To avoid these issues, the legislature should define curtilage in
the Bill. This could be done by adopting the Law Commission’s
definition with a more extensive non-exhaustive list to provide
guidance to judges, warrant issuers, and enforcement
this might not prevent arguments along the fringe, it would go some
way toward bringing certainty
to cl 42(d).
(b) A Warrant Preference Rule?
The ‘3 hours in a 24-hour period, or 8 hours in total’
leeway was included on the recommendation of the Law
Commission so as not to
curtail ordinary police practice.38 It aims to safeguard
individuals’ privacy rights without stifling legitimate law
enforcement interests in acquiring
evidence of criminality. The chief concern
with the provision is that, although it allows passing unobtrusive
not to be blocked by the warrant procedure, it also gives officers
an opportunity to surveil targets for up to eight hours without
Furthermore, the Bill does not define what ‘in total’ means: it does
not specify the point at which it ‘resets’
allowing for surveillance
for another eight hour period.
Given the general purpose of the surveillance device regime —
to regulate targeted surveillance — it may be
desirable to include a
warrant preference rule into cl 42(d).39 This could retain the
current leeway, with the exception that, when targeting a particular person or
property in circumstances where
it is not impracticable to obtain a
surveillance warrant, a warrant should be sought. The purpose of the rule would
be to distinguish
between indirect or fleeting observations of a private
dwelling (which should not demand a warrant), and short term targeted
(where the argument for a warrant may be stronger). This is in
line with the Law Commission’s recommendations, and
some of the critics’ concerns that the Bill greatly expands
37 Care v United States  USCA10 93; 231 F 2d 22 at 25 (10th Cir), cert denied 351 US 932 (1956). See
Anthony Amsterdam “Perspectives on the Fourth Amendment” (1974) 58 Minn L Rev
349 at 370.
38 LCR, above n 2, at 329–330.
39 Ibid, at 331.
power to spy on citizens.40
(c) Beyond the Curtilage
By defining the scope of the Bill in terms of proximity to private premises the legislature has limited its application considerably. A number of areas where one might otherwise hold a reasonable expectation of privacy are not covered, such as private land masses. In R v Bailey, for instance, the police installed surveillance cameras in a privately-owned forest in Urewera to capture evidence of alleged terrorist training activity.41 The surveillance was purportedly authorised by warrants obtained under s 198 of the Summary Proceedings Act
1957. In the High Court, however, Winkelmann J held that the s 198 warrant provision did not apply to electronic surveillance (and the search was, in part, unreasonable under s 21 of the NZBORA).42
Peculiarly, the new warrant regime is equally inapplicable to like cases
— in Bailey the police were surveilling activity in a private
forest, not near a premises. Hence, their actions would still be outside of the
Bill’s jurisdiction. This undermines the Bill’s objective to
provide coherent and effective law enforcement powers:43 uncertainty
around state surveillance of private property remains because the
Bill’s warrant regime does not properly
In the United States there is no reasonable expectation of privacy in
‘open fields’ beyond the curtilage.44 The United
States Supreme Court has held that open fields do not present the same
privacy issues as
40 See Human Rights Foundation of New Zealand and Auckland Council for Civil Liberties Inc “Joint Submission to the Justice and Electoral Committee on the Search and Surveillance Bill 2009” [“HRF & ACCL”]; Human Rights Commission “Submission to
the Justice and Electoral Committee on the Search and Surveillance Bill 2009”.
41 R v Bailey, above n 7.
42 Ibid, at –, : the general search warrant provision in s 198 of the Summary Proceedings Act 1957 does not extend to the authorisation of electronic surveillance, because (a) it is directed to searches for “things” and (b) it requires a warrant to be executed in person.
43 SSB (explanatory note) at 1.
44 The open fields doctrine: Hester v United States  USSC 101; 265 US 57 (1924) at 59; see Richard Wilkins “Defining the ‘Reasonable Expectation of Privacy’: An Emerging Tripartite Analysis” (1987) 40 V and L Rev 1077 at 1097–1100; Ric Simmons “Technology- Enhanced Surveillance by Law Enforcement Officials” (2005) 60 NYU Ann Surv Am L
711 at 714–716.
private residences, and there is no overriding public interest in protecting activities which occur in such places. The Court specifically rejected the proposition that Fourth Amendment considerations beyond the curtilage should be determined by the individual circumstances of each case, reasoning that this would result in a “highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions.”45
Law enforcement would be frustrated if officers had to turn their
minds to complicated privacy issues before every
search of an open field,
in turn running the risk that the constitutional right would be
“arbitrarily and inequitably
Notwithstanding these concerns, the open fields doctrine has been criticised as an outdated law unsuited for modern society, which allows officers to avoid the requirements of a warrant, the Fourth Amendment (idem quod s 21 NZBORA), and probable cause.47 The Court of Appeal has rejected the open fields doctrine. Whereas in the United States the specific circumstances are irrelevant when considering private property beyond the curtilage, the Court of Appeal in R v Williams expressly accepted that “outward signs of an increased (subjective) expectation of privacy (such as signs, barricades or security) ... should be taken into account” when assessing a reasonable expectation of privacy.48 The Court in R v Peita suggested that situations could arise where aerial surveillance of private land would implicate s 21, although “each case must be considered on its own facts”.49 The open fields approach was also rejected in R v Bailey, where Winkelmann J analysed separately the different areas of the privately-owned forest targeted by police. She found that a reasonable expectation of privacy did not exist (and so s
21 was not in issue) in relation to surveillance of activities in open view
when the respondents exerted no control over who could
come onto the land.
However, where the respondents had made an effort to exclude the public
from entering and observing
activities on the land,
45 New York v Belton  USSC 190; 453 US 454 (1981) at 458.
46 Oliver v United States  USSC 75; 466 US 170 (1984) at 182.
47 See Larry Mays and Ronald Pincomb “The Fourth Amendment and Aerial
Surveillance: Searching for Guidelines” (1984) 1 Just Q 17 at 20–21.
48 R v Williams, above n 11, at 241–242.
49 R v Peita, above n 31, at .
their expectation of privacy was found to be objectively reasonable.50
Hence, the warrantless surveillance of that activity by the state was
unreasonable under s 21 of the NZBORA (despite there being no
Because the Courts recognise a reasonable expectation of privacy
beyond the curtilage, the legislature must keep apace by
proscribing a warrant
regime which addresses state surveillance activities beyond the curtilage.
Thus cl 42(d) should be
extended at least to cover all surveillance
of private land, regardless of its proximity to buildings. Just as
must obtain a warrant to conduct a physical search of private
property, so they should have to get a warrant to
electronic surveillance of such property. (The cl 42(d) leeway would continue
to permit fleeting surveillance,
however.) This would bring certainty
both to police and the public regarding the circumstances in
the state can target citizens through surveillance. It would
also enhance the legitimacy of police surveillance actions
by requiring all
non-public property surveillance to be subjected to the Bill’s provisions,
thereby better safeguarding the
privacy rights of individuals.
B. Warrant Regime
1. Warrant Application Requirements
A common criticism of the present warrant system is a general lack of specificity in warrant applications.51 It is unsatisfactory for state officers to exert intrusive powers on the basis of a warrant that is overly wide or lacking in specificity. Rather, a warrant application (and warrant) must be “as specific as the circumstances allow” to enable the Judge to determine the persuasiveness of the evidence gathered.52
Accordingly, cl 45(1) requires that the following particulars be included in
an officer’s application for a surveillance warrant:
(a) the name of the applicant:
50 R v Bailey, above n 7, at –.
51 LCR, above n 2, at 208–210; R v Williams, above n 11, at 261, 273; SSB (explanatory note) at 1–2.
52 Tranz Rail Ltd v Wellington District Court  NZCA 259;  3 NZLR
780 (CA) at .
(b) the provision authorising the making of an application for a search warrant in respect of the suspected offence:
(c) the grounds on which the application is made:
(d) the suspected offence in relation to which the surveillance device warrant is sought:
(e) the type of surveillance device to be used:
(f) the name, address, or other description of the person, place, vehicle, or other thing that is the object of the proposed surveillance:
(g) a description of the evidential material believed to be able to be obtained by use of the surveillance device:
(h) the period for which the warrant is sought.
It can be difficult to ascertain specificity in surveillance warrant applications. In some circumstances, it may be appropriate to surveil activities though the identity of a specific target person, place, or object may not be known to police (for example, when tracing drug traffickers).53 For this reason, cl 45(2) contains an exception to cls
45(1)(f) and (g): where the target person, place, or object cannot be
identified in the warrant application, the officer must
instead “state the
circumstances in which the surveillance is proposed to be undertaken in enough
detail to identify the
parameters of, and objectives to be achieved by,
the proposed use of the surveillance device”. Clause 45(2) follows
approach adopted in Australia, by seeking to permit surveillance where full
information is not available, while ensuring that
warrants are not sought merely
to aid fishing expeditions into suspected illegal activity.54
Nevertheless, without adequate restraint cl 45(2) borders on a
‘general warrant’ — it could be
used to sanction
surveillance of an unspecified target and object. What the courts
require from, and how strictly they
interpret, “enough detail” will
determine the extent to which the provision contains scope for abuse.
Additionally, the disclosure requirements in cls 45(3) and (4) aim to
prevent abuse of surveillance powers by requiring applicants
53 LCR, above n 2, at 334.
54 See Surveillance Devices Act 2004 (Cth), s 17(1)(b)(viii);
Surveillance Devices Act 1999 (Vic), ss 19(1)(c), 19(2)(c); Surveillance Devices
Act 1998 (WA), ss 13(8)(b)–(d).
the details of any previous (within three months) warrant applications and
the result of those applications. This is intended to
deter officers from
unreasonably hounding suspects through surveillance, or reapplying via
alternative avenues for warrants
that have previously been
2. Conditions for Issuing
Traditional attitudes toward targeted surveillance are that it should be
highly restricted, only to be used when essential.
Hence, under the
current interception and tracking device warrant regimes, an officer generally
must exhaust alternative
strategies before undertaking surveillance of
alleged illegal activity.55 The Law Commission and the drafters
of the Bill rejected this approach, recommending that surveillance
be available in the same circumstances as search
warrants.56 That is, a warrant should generally be available for
offences punishable by imprisonment, and should generally not be
for infringement offences or for offences that are prescribed by
regulation.57 Hence, cl 46 allows a surveillance warrant
to be obtained in relation to any “offence” that “has been
or is being committed, or will be committed”. This
significantly expands the scope of surveillance warrants in New
There have been a number of criticisms that the Bill’s scope is too
wide in allowing surveillance for any type of offence.59
Surveillance is inherently intrusive: it infringes upon personal
privacy, liberty, and
55 Crimes Act 1961, s 312C(1)(c); Summary Proceedings Act 1957, s 200B(2)(c).
56 LCR, above n 2, at 331–332; the Law Commission focused on the similarities between surveillance and a traditional search, and concluded that “the former are not intrinsically more intrusive than the latter”.
57 Ibid, at 90–92.
58 Warrants are valid for up to 60 days (SSB, cl 50(1)(c)), and permit enforcement officers to use reasonable force to enter specified premises, areas, vehicles, and things to install, maintain, or remove a surveillance device (SSB, cl 50(3)(g)).
59 See HRF & ACCL, above n 40; Human Rights Commission, above
n 40; Chief Justice of New Zealand “Submission to the Justice
Electoral Committee on the Search and Surveillance Bill 2009”.
security regardless of whether it is conducted pursuant to a warrant.60
There is genuine concern that a broad approach to surveillance applications
will result in the use of targeted surveillance which
is out of all proportion
to the alleged offending.61 Two approaches have been raised to
placate these concerns. The first, submitted by the Chief Justice, is
to amend cl
46 so that surveillance warrants are available only for specified
offences.62 This would effectively create a
‘floor’ to prevent surveillance being used on low-level
is the approach currently adopted for interception
warrants and in the Australian federal jurisdiction.63
A second approach would be to require a warrant issuer to turn their mind to
the intrusiveness of surveillance and balance that
against the need of
enforcement officers to gather evidence efficiently. This is the approach
applied in Victoria, where a judge
in considering a warrant application must
have regard to:64
(a) the nature and gravity of the alleged offence in respect of which the warrant is sought; and
(b) the extent to which the privacy of any person is likely to be affected; and
(c) alternative means of obtaining the evidence or information sought to be obtained; and
(d) the evidentiary value of any evidence sought to be obtained; and
(e) any previous warrant sought or issued under this Division in
connection with the same offence.
60 Bell Gully “Submission to the Justice and Electoral Committee on the Search and
Surveillance Bill 2009” at 4–5.
61 See eg “Council ‘Spied on Woman 21 Times’” BBC News (United Kingdom, 5
November 2009); “The Anti-Terror Law Used on Litterbugs” BBC News (United
Kingdom, 17 April 2009).
62 Chief Justice of New Zealand, above n 59, at .
63 Crimes Act 1961, ss 312B(1), 312CA(1), 312CC(1) (participation in organised crime, serious violent offending, and terrorism); Misuse of Drugs Amendment Act 1978, ss 14 and 15A (drug dealing). See also Surveillance Devices Act 2004 (Cth), s 6 (offences punishable by 3 years imprisonment or more).
64 Surveillance Devices Act 1999 (Vic), s 17(2); see also Crime
and Misconduct Act 2001 (Qld), s 123.
Similarly, the current tracking device regime requires the judge to
consider the public interest in issuing a warrant, taking
into account the above
factors.65 This approach effectively requires the
judge to undergo a balancing exercise which assesses whether an
privacy rights can be justifiably interfered with by the
state in the circumstances. Such an assessment reflects the Court
Appeal’s concerns in R v McGinty, that a “clear and strong
case has to be made out for the grant of a warrant to intercept private
it is a step never to be lightly authorised in the New
Zealand society.”66 Though introducing a
‘floor’ or an assessment of factors may conflict with the
of an all-encompassing surveillance regime,
such considerations should not be lightly disregarded given
invasiveness of targeted state surveillance. Neither the Law Commission
nor the legislature have given a reasoned explanation
as to why suspected
minor offences warrant the full invasive powers of state surveillance.
Efficiency in gathering evidence
should not automatically trump an
individual’s right to be free from unreasonable state intrusion.
The current threshold that must be met to exercise search or surveillance powers differs depending on the particular laws, some requiring ‘reasonable grounds to believe’ and others the lesser
‘reasonable grounds to suspect’.67 After
considering the different standards and contexts within which the
thresholds apply in New Zealand, the Law Commission
‘reasonable grounds to believe’ be the prerequisite for the
exercise of law enforcement powers,
“a threshold that should be
departed from only in exceptional cases”.68
It is interesting, then, that the drafters of cl 46 chose to define the
conditions for issuing surveillance warrants by reference
to two limbs:
65 Summary Proceedings Act 1957, s 200B; see Alex Conte “Crime and Terror: New
Zealand’s Criminal Law Reform Since 9/11” (2005) 21 NZULR 635 at 657.
66 R v McGinty  NZCA 55;  NZLR 524 (CA) at 528.
67 LCR, above n 2, at 56–59.
68 Ibid, at 21 (emphasis added).
(a) Where there are reasonable grounds to suspect that an offence punishable by imprisonment69 has been committed, or is being committed, or will be committed; and
(b) Where there are reasonable grounds to believe that a
surveillance warrant will obtain information that is evidential material in
respect of the offence.
Clause 46 employs a lower standard than that recommended by the Law Commission, requiring that officers need only have a reasonable suspicion (rather than belief) of an offence. Though both approaches demand an objective assessment, reasonable grounds to believe employs “a much higher test” than the suspicion test.70 Suspicion requires a degree of likelihood, while belief requires a “view that the state of affairs in question actually exists.”71 Hence, evidence of a one- off cannabis sale may give officers a reasonable suspicion that a suspect has drug paraphernalia at his house, but that alone will not meet the reasonable belief threshold when applying for a warrant two months later.72 The cl 46 bi-partite test was criticised in a number of Select Committee submissions, which argued that the intrusiveness of surveillance powers requires that the higher threshold should apply.73
The concern is that the suspicion test reduces the threshold to an
unacceptably low level. Also, there is no evidence to suggest
that the belief
test operates inadequately.
3. Issuing Judges
In relation to search warrants, the Bill creates a new regime of issuing
officers, which includes judges, justices of the peace, community
court registrars, and deputy registrars.74 Clause 48 applies a
stricter approach — only High Court or District Court judges
69 SSB, cl 6; or an offence where an enactment authorises a warrant.
70 R v Karalus (2005) 21 CRNZ 728 (CA) at .
71 R v Sanders  3 NZLR 450 (CA) at 461.
72 R v Karalus, above n 70, at .
73 Human Rights Commission, above n 40, at 7; HRF & ACCL, above n 40, at .
74 SSB, cl 3.
issue surveillance warrants. Though the Law Commission supported, in
principle, an all-encompassing approach, it recognised
that the current
surveillance regime requires a High Court judge to issue interception warrants
(and a District Court judge
may issue tracking device warrants), and
there is genuine public concern about the expansion of surveillance
powers. Therefore, on balance, the Commission recommended a stricter
standard than for search warrants, requiring judges
alone to issue surveillance
warrants. This approach is consistent with Australian regimes, where all state
issuers to judges75 or Supreme Court
judges.76 The Chief Justice advised a higher standard still,
submitting to the Select Committee that the intricacies of determining
of privacy issues and the need for confidentiality dictate that
surveillance warrants should be issuable by High Court Judges only.77
Though it may not be practical to so limit the number of issuers, the
submission highlights the need for judges to assess warrant
critically to safeguard individual freedoms in the ex parte
4. The Plain View Rule
In relation to the execution of a warrant, cl 51(3) introduces the plain view
evidence rule into the surveillance scheme: windfall
evidential material in relation to one offence, that is inadvertently
obtained during the lawful surveillance of a different
offence, in respect of
which a surveillance warrant could have been issued,79 is not
inadmissible in criminal proceedings by reason only that it was obtained in the
course of surveilling a different offence.80 In other
words, evidence of illegality caught in plain view of a lawful surveillance
device is not inadmissible merely because the
officer did not have a warrant
75 Surveillance Devices Act 1998 (WA), s 12; Surveillance Devices Act 2007 (NSW), s
17(2); Surveillance Devices Act 2007 (NT), s 19(2); see also Criminal Code RSC 1985 c
C-46 (Can), s 487.01(1).
76 Crime and Misconduct Act 2001 (Qld), s 121(2); Surveillance Devices Act 1999 (Vic), s
14; Listening and Surveillance Devices Act 1972 (SA), s 6(1); Police Powers (Surveillance
Devices) Act 2006 (Tas), s 9(2).
77 Chief Justice of New Zealand, above n 59, at .
78 “Search and Surveillance Bill 2009” No 1696 (22 July 2009) Bills Digest at 2.
79 Meaning that the offence would meet the cl 46 requirements (not that the officer necessarily had the requisite probable cause for a warrant).
80 SSB, cl 51(2)–(3).
capture that evidence.
The plain view rule effectively allows officers to seize evidence in the
absence of a warrant for it.81 This invites potential for abuse if
officers were opportunistically to obtain a warrant in relation to one
offence, hoping to uncover
some other type of criminality. To quell this risk,
United States courts require four conditions to coalesce for plain view evidence
to be admissible at trial: (1) a prior justified intrusion into the search area
(such as consent, a warrant, or statutory authority);
(2) the evidence was in
plain view to be seen by those lawfully present; (3) the incriminating nature
of the evidence was “immediately
apparent”; and (4) the discovery
was “inadvertent”.82 Officers cannot undertake
fishing expeditions for incriminating evidence outside of the scope of their
warrant; but if such evidence
is discovered inadvertently and its
incriminating nature is obvious, the seizure of that evidence is
New Zealand courts recognise only a “limited” plain view
rule (in relation to stolen property),83 and have not developed a
thorough jurisprudence on it. The Bill purports to expand the application of
the rule, yet it does not
detail the test that will apply to cl 51(3). It
is conceivable that the courts will follow the United States approach in
Coolidge v New Hampshire,84 though the effect cl 51(3) will
have on surveillance cases is not immediately apparent. Presumably, any
illegal activity that is
inadvertently captured by a lawfully-placed
surveillance device will be in plain view.85 But if police
intentionally go beyond the scope of a surveillance warrant to capture other
types of illegality, this is less likely
to satisfy the requirements of the
81 The plain view rule applies to seizures of evidence, not searches. In the context of surveillance it applies to the electronic capturing of evidence.
82 Coolidge v New Hampshire  USSC 154; 403 US 443 (1971) at 466; Howard Wallin “Plain View Revisited” (2002) 22 Pace L Rev 307 at 307–308, 324; cf Don Stuart Charter Justice in Canadian Criminal Law (2nd ed, Carswell, Scarborough, 1996) at 248, asserting that
‘inadvertence’ is not a requirement.
83 R v Williams, above n 11, at 223; McFarlane v Sharpe  NZLR 838 (CA) at 844; R v
Power  NZCA 299; (1999) 17 CRNZ 662 (CA).
84 Coolidge v New Hampshire, above n 82. This is recommended by the Law Commission: LCR, above n 2, at 82.
85 For example, police might have a warrant to use a thermal
imaging device to search a house for unlawful hydroponic systems, but lawfully
capture evidence of domestic violence also.
C. Warrantless Surveillance: Emergency or Urgency
In some situations of emergency or urgency it may not be feasible for an
officer to obtain a warrant before undertaking surveillance.
circumstances may present a need for surveillance. This need must be
balanced carefully against the
intrusiveness of permitting the state to
surveil individuals in the absence of a warrant: “warrantless searches
not be the norm”.86 There are three pertinent
issues in regard to determining the legitimacy of warrantless surveillance: the
approval process for permitting
surveillance, the timeframe for which it
should run, and the offences to which warrantless surveillance should
1. Approval Process
In relation to the approval process, three approaches are available. The
first is to permit officers to undertake emergency surveillance
retrospective judicial approval. The Law Commission, however, considered that
this would be “pointless”,
as retrospective approval has no
practical effect, and disproval would produce unclear consequences.87
The second option, applied in several Australian jurisdictions, is to
permit emergency surveillance subject to an internal authorisation
process.88 Again this is unsatisfactory, as “[i]f there
is time to obtain internal approval then there ought to be sufficient time
obtain a telewarrant”.89
Consequently, the Bill proscribes the third option: to permit an officer to
undertake emergency surveillance, “leaving the question
of the lawfulness
of the warrantless use of the device for determination in later civil or
criminal proceedings”.90 Understandably, if there is
86 R v Williams, above n 11, at 272–273.
87 LCR, above n 2, at 340. Cf Crimes Act 1961, s 312G(9), and Misuse of Drugs Amendment Act 1978, s 19(9): retrospective approval provisions available to a judge to validate emergency use of an interception device.
88 Surveillance Devices Act 1999 (Vic), s 25; Surveillance Devices Act 2007 (NSW), s 32; Surveillance Devices Act 2004 (Cth), s 28. See Crimes Act 1961, s 312G, and Misuse of Drugs Amendment Act 1978, s 19, which prescribe an “emergency permits” scheme for judges to sanction the use of interception devices.
89 LCR, above n 2, at 340.
urgent situation, an officer should not be discouraged to act due to an
impractical requirement to obtain approval. Nevertheless,
it should be
recognised that this approach bypasses the (arguably) most important
accountability measure on officers, that being
oversight. In that regard, the need for officers to comply with the strict
provisions in the Bill is
heightened. If it is later found that
the warrantless surveillance was unjustified, this may have repercussions at the
reporting stage (which in turn becomes the crucial accountability measure)
or when considering the admissibility of evidence
2. Timeframe for Warrantless Surveillance
Clause 44 specifies certain exceptions to the cl 42 warrant requirement. In specific situations, an officer may use a surveillance device for up to
72 hours without obtaining a warrant, if the officer would be entitled to
apply for a warrant but, due to time constraints,
be “impracticable in the circumstances”.92 After the
expiry of the 72 hour time period, evidence obtained pursuant to cl 44
will be obtained illegally unless the surveillance
has been sanctioned by a cl
42 warrant. Therefore officers will either have to cease the surveillance or
seek a warrant under the
cl 45 procedure. Again, it may be desirable to
incorporate a warrant preference rule into cl 44, stipulating that
emergency surveillance is permissible in certain
circumstances, but where it is not impracticable to obtain a surveillance
warrant, a warrant should be sought.93
3. Circumstances in which Warrantless Surveillance is
Those situations to which cl 44 applies are where an officer has
reasonable grounds to suspect there is offending involving serious harm
or danger, or specified drug offending. Specifically, the warrantless
applies to offences punishable by a term of at least
14 years imprisonment, to offences where injury to a person or serious
to property is likely or where there is an emergency that
91 See Evidence Act 2006, s 30.
92 SSB, cl 44(1)(b). The Law Commission recommended that the maximum period to permit emergency surveillance should be only 48 hours: LCR, above n 2, at 340.
93 See ‘A Warrant Preference Rule’ discussion
may endanger the life or safety of any person, and to specified offences in
relation to possessing arms in dangerous circumstances
under the Arms Act
1983 and certain drug offending under the Misuse of Drugs Act 1975.94
This strict detailing of the offences for which warrantless surveillance
is permissible is consistent with an approach to surveillance
that balances an
individual’s right not to be arbitrarily targeted by the state, against
the need of law enforcement to act
competently in emergencies.
In relation to each of those grounds, cl 44(2) requires also that the
enforcement officer have reasonable grounds to believe that the use of
the surveillance device is necessary to obtain the evidential material or to
prevent the suspected offending. This
mirrors the cl 46 bi-partite test,
requiring reasonable grounds to believe that the warrant will be effective
reasonable grounds to suspect that there is
criminality. It also differs somewhat from the Law Commission’s
which stipulated that the belief threshold should apply
to general serious offending and drug offending, and
threshold to offending involving personal harm or danger and Arms Act
offending.95 In circumstances of a serious emergency, it is more
justifiable that the lesser suspicion test apply — the need to act is
in light of imminent harm. Nevertheless, a lower threshold should
not be used as a lax standard to surveil extensively
in the absence
of sufficient probable cause.
D. Reporting Requirement
This article has already discussed the first of the two key state
accountability mechanisms in the Bill, that being a warrant requirement.
mandatory obligation to obtain a warrant before executing targeted
surveillance aims to uphold the legitimacy and integrity of
techniques, by subjecting to judicial scrutiny officers’ reasons
for conducting surveillance.
This is a prospective accountability
mechanism. The second independent oversight safeguard involves
the legitimacy of officers’ conduct in executing a
surveillance power after the fact. This is a retrospective accountability
mechanism which is effected through a reporting
94 SSB, cl 44(2).
95 LCR, above n 2, at 340–341.
The Bill attempts to temper fears of abuse of surveillance powers by
imposing detailed reporting standards. Within one month of
a warrant expiring,
or from the last day of any emergency surveillance, the person who carried out
the surveillance activities
must provide to a judge of the warrant-issuing
court a report detailing:96
(a) Whether the surveillance activities resulted in obtaining evidential material, or, in the case of emergency surveillance, whether the cl 44(2) objectives were met;
(b) The circumstances in which the surveillance device was used; and
(c) Where relevant, any other information that was stated in the warrant as
being required in the report.97
The purpose of the reporting requirement is to ensure the
accountability of officers who utilise surveillance
a retrospective oversight procedure. It is similar to the procedure
currently applied to interception
under the current drafting of the Bill, the reports will potentially have little
or no effect. The following discussion
outlines three fundamental criticisms
of the reporting requirement, and recommends amendments to the Bill.
1. Judge May Order Destruction of Material
Clauses 55 and 56 should cause concern to liberty and privacy
advocates for the use of the word ‘may’ in
circumstances. The first is that a judge may give directions as to the
96 SSB, cls 53 and 54; see also cl 50(1)(d). The New Zealand Police Association submitted that more rigorous reporting requirements will take further police resources away from frontline work and the advancement of cases: New Zealand Police Association “Submission to the Justice and Electoral Committee on the Search and
Surveillance Bill 2009” at –. Counter to this argument are concerns that increased
state surveillance necessarily requires stricter regulatory oversight.
97 SSB, cl 50(2) authorises a judge to impose any other reasonable conditions when issuing a warrant.
98 Crimes Act 1961, s 312P.
retention of material obtained as a result of surveillance.99
This is the only mention of what should be done with post-surveillance
material, and is a topic notably absent from the Law Commission
One of the inherent concerns of surveillance is its ability (and tendency) to
capture non-illegal activity, whether classified as
private or otherwise. Though
one has no reasonable expectation of privacy in illegal activity, the concern is
that, in utilising
surveillance devices, officers will capture legitimately
private activity.100 Where that activity has no relation to the
alleged illegal activity, the state can have no interest in retaining
it is of concern that the Bill not only contains an implicit
presumption against destroying irrelevant, inadvertently captured, potentially
private activity, but that destruction of that material is subject to
the discretion of the judge receiving the warrant
report. The provision also
significantly increases judicial influence in monitoring the actions and
consequences of law enforcement
agencies from an early stage, which, as the
Chief Justice asserted, presents an inappropriate expansion of the
This approach is at odds with overseas jurisdictions102 and the current interception device regime, which contains strict provisions directing the destruction of acquired evidence. Under s 312I(1) of the Crimes Act, any person who intercepts a private communication “must, as soon as practicable”, destroy any records that are irrelevant to the specific crimes for which interception devices are permitted to be used. Furthermore, relevant records must be “destroyed as soon as it appears that no proceedings, or no further proceedings, will be taken”.103
Clearly the interception device regime was drafted so as to grant
99 SSB, cls 55(1)(a) and 56(1)(a).
100 R v Williams, above n 11, at 231.
101 Chief Justice of New Zealand, above n 59, at ; see Simon Bronitt and James Stellios “Telecommunications Interception in Australia: Recent Trends and Regulatory Prospects” (2005) 29 Telecomm Pol’y 875 at 882–885.
102 See mandatory destruction provisions: Regulation of Investigatory Powers Act 2000 (UK), s 15(3); Surveillance Devices Act 2004 (Cth), s 46; Crime and Misconduct Act 2001 (Qld), s 131; Surveillance Devices Act 1998 (WA), s 41; Surveillance Devices Act 1999 (Vic), s 36; Surveillance Devices Act 2007 (NSW), s 41. Cf Surveillance Devices Act 2007 (NT), s 45(5); Listening and Surveillance Devices Act 1972 (SA), s 6C (prescribing a discretion not to destroy evidence).
103 Crimes Act 1961, s 312J(1).
no greater powers than they need to gather evidence, with the rights of the
individual central to the focus. Overseas jurisdictions
provisions. The United Kingdom and most Australian jurisdictions state that
the presiding judge or magistrate
must order the destruction of evidence that is
irrelevant to an investigation or that no longer needs to be
The Bill on the other hand raises serious questions about what will
happen to retrieved material after its usefulness
in an investigation
expires. If material is not destroyed there is a concern that it might be kept
in an archive or a surveillance
database, an expansion of police authority
that is not warranted by the Bill. The legislature should therefore
a provision into the Bill similar to the interception device
requirement, so that there is a presumption in favour of
irrelevant surveillance footage. This would reduce the need for judicial
interference, and would strike a better balance
between the privacy concerns
of individuals and law enforcement requirements, which indicate no obvious
need to retain irrelevant
2. Judge May Refer Breaches of Conditions
A second discretion given to the judge upon receiving a report is
whether or not to refer breaches of the warrant conditions
under cl 46, or
non-compliance with cl 44, to the relevant agency’s chief
executive.105 It is not apparent why this provision falls to a
judge to determine — the Chief Justice considered it to be an
responsibilit[y] not appropriately conferred upon
Judges”106 — nor why referring breaches is
discretionary. Where an officer breaches the conditions of a warrant, or the
surveillance boundaries, it should be mandatory to report the
breach. The extent of the breach, or whether the officer intentionally
or innocently committed it, are
104 See Regulation of Investigatory Powers Act 2000 (UK), s 15(3); Surveillance Devices Act 2004 (Cth), s 46; Crime and Misconduct Act 2001 (Qld), s 131; Surveillance Devices Act 1998 (WA), s 41; Surveillance Devices Act 1999 (Vic), s 36; Surveillance Devices Act 2007 (NSW), s 41. Cf Surveillance Devices Act
2007 (NT), s 45(5); Listening and Surveillance Devices Act 1972 (SA), s 6C (prescribing a discretion not to destroy evidence).
105 SSB, cls 55(1)(b) and 56(1)(b).
106 Chief Justice of New Zealand, above n 59, at .
Ideally, referring all breaches would serve dual purposes. First, it would
facilitate the re-training or disciplining (where necessary)
of the officer who
committed the breach. Secondly, it would highlight the breach so that steps
could be taken to prevent similar
breaches in the future. The Law Commission
discussed in detail the benefits of reporting:107
Reporting requirements enable the supervision and monitoring of the exercise
of enforcement powers. Reporting also enables information
on the use of
these powers to be collated so that their value, their appropriateness to
the particular circumstances in which
they are exercised, and the necessity for
any changes in substance or procedure can be assessed.
An internal oversight procedure may be more suitable than requiring
judges to regulate all breaches. Regardless, the phrases
stating that breaches
of the Bill may be reported should be redrafted to state that they
must be reported. This is crucial to the transparency of the justice
system, perceived legitimacy of police actions, and effectiveness
of the Bill.
In the absence of such an amendment, it is hoped that judges will approach their
discretion not to refer breaches cautiously.
3. Judge May Order Notification
The third and most concerning discretion imparted to the judge is
whether or not to order that the subject of the surveillance
be notified after
the fact.108 The Law Commission, originally in favour of a
notification presumption, changed its stance after
pointed out that this had the
potential to seriously compromise ongoing or future enforcement
operations”.109 The Commission identified that it can take
months or years for surveillance evidence to trickle down to a prosecution,
alerting a suspect to the presence of surveillance has the
potential to compromise future investigations.
107 LCR, above n 2, at 433.
108 SSB, cls 55(1)(c) and 56(1)(c).
109 LCR, above n 2, at 341.
In light of this, the Commission recommended reversing the
presumptive approach: notification should be given within
seven days after the
conclusion of surveillance unless a judge grants postponement or dispensation.
Where an officer seeks to
suspend notification, the judge should do so
unless she is satisfied that there is no risk of prejudice to any
or future investigations. This in itself would be sufficient to
block the notification of a number of surveillance targets
appropriate circumstances). For instance, it would have allowed the
police in R v Bailey to postpone notification while
successive warrants were sought during the lengthy investigation into the
camps.110 But the Bill goes considerably
Under cls 55(2) and 56(2) of the Bill, a judge must not
order that a surveillance target be notified of any surveillance
unless the judge is satisfied that the public interest in
outweighs any potential prejudice to:111
(a) any investigation by the law enforcement agency:
(b) the safety of informants or undercover officers: (c) the supply of information to the law
(d) any international relationships of the law enforcement
In addition to this requirement, the judge must not order
notification unless she is satisfied that the warrant should not have been
issued, or that there was a serious breach of any
of the conditions in the
warrant or any applicable statute, or that there was a serious breach of the cl
The test under the Bill raises the threshold so high that, when applying the
opt-out provision, it would be near impossible for
anyone to be notified of
the fact that they have been the subject of state surveillance. Even if an
officer used a surveillance
device in a manner that clearly
110 R v Bailey, above n 7. Though see criticisms in HRF & ACCL, above n 40, at , concerning the potential for police to abuse the opt-out procedure.
111 SSB, cls 55(3) and 56(3).
112 SSB, cls 55(2)(b) and 56(2)(b).
breached the law or a person’s rights, the person would have no
opportunity to be notified of this fact where the public interest
outweigh “any potential prejudice” to a variety of state interests.
Also, a person who was wrongly surveilled
in a manner which violated that
person’s reasonable expectation of privacy would have no prospect of being
the high threshold of illegality were met.
The second limb of the threshold test (requiring illegality)
is unnecessary and encroaches too far on individual
rights. At the least
this limb should be removed from the Bill. In her Select Committee Submission,
the Privacy Commissioner
advised that “notification after the fact
should be a matter of course”.113 Citizens ought to know when
their government has been watching them. The Commissioner recommended that the
clauses be amended to
include a stricter presumption in favour of notification,
or alternatively, the imposition of a “standing obligation on the
or enforcement officer to notify the subjects of surveillance device warrants
that the surveillance has occurred”.114 The Law Commission
also recommended that judges be able to give directions as to the person or
people to be notified — a recommendation
that was not incorporated
into the Bill.115 The legislature should take note of these
concerns. Surveillance is intended to be undetectable; without an
requirement, subjects of surveillance will usually
have no way of ever knowing when the state has been targeting them. Such a
position runs counter to the principles of a free democracy, and unduly
favours law enforcement interests above privacy rights
Notwithstanding the Select Committee’s acceptance that the current
drafting of the Bill requires substantial
113 Privacy Commissioner “Submission to the Justice and Electoral Committee on the Search and Surveillance Bill 2009”; see New York Criminal Procedure Law, § 700.50.3: notification within a “reasonable time” or no later than 90 days; Canadian Criminal Code, s 487.01(5.1): notification within a “reasonable time”.
114 Privacy Commissioner, above n 113, at 3: a mere letter would be sufficient notification.
115 LCR, above n 2, at 343.
116 Justice and Electoral Committee, above n 1.
comprehensive surveillance regime is necessary for New Zealand. From a system where targeted visual surveillance receives almost no statutory regulation, the Bill extends a wide surveillance warrant regime which applies to any offence punishable by imprisonment. The new warrant regime will facilitate the use of surveillance devices in police investigations by clarifying the circumstances in which surveillance is permissible. Nevertheless, the Bill contains some ambiguities, particularly in regard to surveillance beyond the curtilage and the
‘private activity’ condition. Clarification of these issues would better
determine the scope of the warrant requirement; as a corollary it would
indicate those circumstances in which warrantless surveillance
prohibited by the Bill.
The circumstances in which warrantless emergency surveillance is permissible
are rightly narrow. Warrantless surveillance should
be preferably avoided and
permitted only when necessary. If surveillance is conducted without a warrant
in circumstances where
a warrant ought to have been sought it is likely to
constitute both a violation of the Bill and a breach of s 21 of the
NZBORA.117 Such breaches will have a direct impact on the
admissibility of evidence at trial.118 Theoretically, breaches
will also result in consequences at the reporting stage, although this
article has canvassed the
inadequacies of those provisions. Reform of the
reporting provisions — introducing a presumption in favour of
of irrelevant material, reporting of breaches, and notification
after the fact — is appropriate. While the Bill in its present
to reconcile adequately legitimate law enforcement interests and human rights
values, it is hoped that a redrafted Search
and Surveillance Bill will strike a
more satisfactory balance.
117 R v Williams, above n 11, at 221–222, 271; R v Laugalis (1993) 10 CRNZ 350 (CA) at
118 See Evidence Act 2006, s 30.