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Search and Surveillance Powers Bill (Consistent) (Sections 6, 18, 21 and 25) [2008] NZBORARp 46 (17 November 2008)
Last Updated: 31 March 2020
Search and Surveillance Powers Bill
17 November 2008 Attorney-General
Search and Surveillance Powers Bill 300-1: Consistency with the New Zealand
Bill of Rights Act
Our Ref: ATT395/78
- Further
to brief advice provided in the course of the Cabinet process for this Bill, I
have set out the basis for the conclusion given
at that time that the Bill
appears to be consistent with the New Zealand Bill of Rights Act 1990 ("the Bill
of Rights Act").
- The
Bill provides for comprehensive reform and consolidation of search, surveillance
and other information-gathering powers. As such,
it raises broad questions of
the consistency of those powers and their attendant preconditions and other
safeguards with the right
against unreasonable search and seizure affirmed by s
21 of the Bill of Rights Act. The Bill also raises a number of more specific
issues under the Bill of Rights Act:
2.1 The provisions for immunity and for restriction of interim judicial
intervention engage the implicit right to an effective remedy;
2.2 Rights against arbitrary detention and to freedom of movement are engaged by
powers to detain, to secure search scenes and to
establish road blocks; and
2.3 Certain offence provisions, which place the burden of proving reasonable
excuse on the accused, engage the right to presumption
of innocence.
- I
have concluded that the search and related powers, which vary considerably
according to context and to the extent of the information-gathering
power, are
not such as to give rise to unreasonable search or seizure under s 21. I have
also concluded that the other issues that
arise from the Bill do not give rise
to any inconsistency with the Bill of Rights Act.
Consistency of search and related powers with right against unreasonable search
or seizure
- The
Bill makes broad provision for information-gathering powers and procedures,
along with conditions on their exercise:
4.1 Warrantless search of persons, places and things in a range of contexts (cll
7-11, 14-21, 24-28, 81, 83-86, 117-118);
4.2 Search under warrant issued by a judge or other independent issuing officer
(cl 96-108);
4.3 The making of orders to produce certain information by way of interview
under an "examination order" issued by a judge (cll 33-42)
or in response to a
specific "production or monitoring order" requiring specified information (cll
70-78);
4.4 Surveillance under warrant issued by a judge (cll 44-58); and
4.5 By way of general provision for control of other information-gathering that
involves interference with privacy, the issue of
a "residual warrant" by a judge
(cll 59-69).
- These
provisions must be considered in light of the right against unreasonable search
and seizure affirmed by s 21 of the Bill of
Rights Act.
- The
reasonableness of the exercise of information-gathering powers involves a
balance between the interest of the public and of the
particular individual or
entity concerned in being "left alone" and the public interest in the objective
served by that information-
gathering: see, for example, R v Grayson and Taylor
[1997] 1 NZLR 399 (CA), 407[1]:
"Any search is a significant invasion of personal freedom. How
significant it is will depend on the circumstances. There may be other
values
and interests, including law enforcement considerations, which weigh in the
particular case."
- It
follows that the greater the degree of intrusiveness, the greater the
justification that is required and, further, the greater
the attendant
safeguards to ensure that that justification is present. For example, a search
of the private areas of a house will
necessitate greater justification than a
search of its grounds [2].
- By
way of law enforcement and related competing considerations, it is relevant
that, for example, the circumstances are urgent or
otherwise exigent, for
example where safety is at risk or there is a risk[3] of destruction or other loss of
evidential material[4].
- Further,
while the scope of the term "search" under s 21 remains open to some
contention[5], not all
information-gathering engages the right. Notably, both the voluntary provision
of information by persons entitled to provide
it[6] and gathering of information that is
visible in a public place fall beyond the scope of s 21[7].
Prior independent oversight and interpretation consistent with s
21
- As
noted, the Bill provides for information-gathering both under warrant issued by
a judge or other independent officer and, in a
range of specified circumstances,
without warrant.
- In
respect of the former, the Bill requires a warrant for searches (cll 96-108),
for examination, production or monitoring (cll 33-42,
44-58 and 70-78), for
surveillance (cll 70-
78) and other intrusive information-gathering
(cll 59-69). That requirement is material in the context of s 21 for two
reasons:
11.1 A warrant requirement allows for prior and independent verification that
the exercise of a given information-gathering power
is justified in the
particular context. While there are
other, subsequent procedural
safeguards that apply to the exercise of information-gathering powers, such as
the reporting requirements
under the Bill and the exclusion of improperly
obtained evidence, the precondition of an independently issued warrant acts to
prevent
unjustified exercise of powers[8];
and
11.2 In particular, when undertaking that prior verification, the judge or other
independent officer must, by virtue of s 6 of the
Bill of Rights Act, consider
whether the exercise of that power is consistent with the right against
unreasonable search and seizure.
- It
follows that while these powers of information-gathering are broad and, in the
case of the general provision for examination, production
and monitoring, in
part novel in New Zealand law, their exercise remains subject not only to the
preconditions under the relevant
provisions of the Bill but also to oversight
for consistency with s 21 of the Bill of Rights Act.
- In
this regard, it is also necessary to consider the capacity of the issuing
officer to act as an independent check[9].
The provisions dealing with surveillance, examination orders and residual orders
provide only for authorisation by a judge. Search
warrants and production orders
can, however, be made by a judge or by an appointed issuing officer.
- In
respect of the latter, cl 108(1) provides for appointment, by the
Attorney-General, of issuing officers on a fixed-term basis.
Clause 108(2) in
turn requires that a person may only be appointed if he or she "has sufficient
knowledge, skill, and experience
to act as an issuing officer". While cl 108(2)
does not make express reference to necessary independence from the applicant,
that
requirement must be taken to be implicit: it would, for example, clearly be
both beyond the scope of the power and potentially inconsistent
with s 21 for an
issuing officer to act where he or she was not sufficiently separated from the
applicant.
- Consequently,
while certain of the powers subject to warrant give rise to other issues under
the Bill of Rights Act, these powers
do not raise any issue of inconsistency
with s 21.
Warrantless search powers
- The
Bill also provides for warrantless search powers in a range of specific contexts
and also for the limited exercise of certain
surveillance powers without warrant
in emergency situations.
- As
the exercise of a warrantless power lacks the inherent prior safeguard afforded
by independent verification through the warrant
process, two issues arise under
s 21.
- The
first is whether the absence of a prior safeguard is itself justified in the
context of the particular powers provided for under
the Bill. It has been
recognised that a search without warrant will be appropriate where the process
of obtaining a warrant would
have a disproportionate adverse effect. By way of
relevant example, powers of warrantless search have been accepted where:
18.1 There is a serious threat to safety or property[10];
18.2 There is a prospect of evidence being lost or destroyed, including through
absconding or in the particular context of vehicle
searches, the risk that a
vehicle may move away[11];
18.3 The search is undertaken as an incident to a lawful arrest or other
detention where, for example, necessary to obtain evidence
or ensure safety of
the detainee[12]; or
18.4 The search is undertaken in the context of a regulated activity, such as
commercial activity carried out under conditional licence
or border crossing,
where limited routine inspections are incidental to the regulation of that
activity[13].
- The
provisions for warrantless search under the Bill correspond to these
considerations:
Cl
|
Context
|
Apparent justification
|
7
|
Entry to arrest person unlawfully at large
|
Strong public interest in arrest of person unlawfully at large / inherent
likelihood to abscond
|
8
|
Entry to arrest or secure evidence where suspect believed likely to abscond
or evidence at risk
|
Urgency/likelihood to abscond/likelihood of loss of evidence
|
9
|
Stopping vehicle to arrest person either unlawfully at large or suspected
of imprisonable offence
|
Public interest in arrest of such persons / limited intrusiveness of
vehicle stopping
|
10
|
Search of vehicle stopped under cl 9 where person arrested or seen
fleeing
|
Public interest in investigation of apparent offence/limited intrusiveness
of vehicle search
|
11
|
Search of person in Police custody
|
Safety
|
14
|
Entry to prevent offence involving injury or serious damage to property or
respond to risk to life or safety
|
Urgency/safety
|
15
|
Entry to secure evidence in respect of offences punishable by 14 years
imprisonment or more where evidence at risk
|
Strong public interest in investigation of serious offences
/ likelihood of loss of evidence
|
16/17
|
Search of person/vehicle in public place in respect of offences punishable
by 14 years imprisonment or more
|
Safety / regulated activity
|
18
|
Search of person or vehicle and attendant entry to place or vehicle of
armed person where that person in breach of the Arms Act, incapable
of
controlling the arms, at risk of killing or causing bodily injury or is or could
be subject to a protection order
|
Safety / regulated activity
|
19
|
Search of place or vehicle for certain controlled drugs and precursor
substances where offending suspected and risk of loss of evidence
|
Regulated activity / likelihood of loss of evidence
|
20
|
Search of person found in places or vehicles searched under cl 19
|
Likelihood of loss of evidence
|
21
|
Search of person believed unlawfully to possess controlled drugs
|
Likelihood of loss of evidence
|
22
|
Internal examination of person arrested for certain drug offences provided
that person prepared to permit examination
|
Empirical likelihood of internally concealed evidence / qualified consent
(see cll 22(3)(b) and 23)
|
25/26
|
Search of person/vehicle in public place suspected of possession of
offensive weapons/disabling substances
|
Safety
|
27
|
Search of vehicle for stolen property
|
Limited intrusiveness of vehicle search / loss of evidence
|
45
|
Use of surveillance device without warrant for up to 72 hours where not
practicable to obtain a warrant
|
Safety / public interest in investigation of serious offences
/ loss of evidence
|
81
|
Search of person, place or vehicle in controlled delivery under s 12 Misuse
of Drugs Amendment Act 19878
|
Loss of evidence
|
83
|
Search of place after arrest where delay would lead to loss of evidence (cl
83(2)(b))
|
Loss of evidence
|
84
|
Search of vehicle after arrest
|
Loss of evidence
|
85
|
Rub-down search of arrested person
|
Safety/evidence-gathering
|
89
|
Search of arrested person where risk to safety, risk of escaping or
evidence
|
Safety/custody/evidence- gathering
|
117/118
|
Search incidental to arrest
|
Effecting lawful arrest/evidence-gathering
|
- The
second, and related, point is that in addition to the conditions and
corresponding justifications provided in the Bill, those
safeguards may where
necessary be supplemented by way of interpretation consistent with the Bill of
Rights Act, including s 21. There
is a consistent body of New Zealand caselaw
that has indicated that use of a warrantless power may not be lawful,
notwithstanding
that the conditions for its exercise are satisfied, where it
would have been reasonably possible to obtain a warrant[14]. It follows that even if
the
evident justification for a given power were not available in
some cases, that power will be interpreted so as not to give rise to
an
unreasonable search and so would not breach s 21.
- It
follows that no issue of inconsistency arises under s 21 in respect of these
powers.
Other issues
Right to an effective remedy
- Two
provisions of the Bill raise issues in respect of the right to an effective
remedy for breach of rights affirmed by the Bill of
Rights Act.
- First,
cll 157-159 provide for immunities on the part of people who discharge functions
under the Bill: issuing officers have the
immunities of a District Court Judge
(cl 157), people acting reasonably and in good faith under warrant are not
civilly or criminally
liable (cl 158) and people acting under warrantless powers
are not civilly or criminally liable provided that they act reasonably
and also
reasonably believe that the preconditions of that power are met (cl 159). The
standard for warrantless powers is thus higher
than that applicable to people
acting under warrant.
- While
these provisions do limit the scope for recourse in respect of an unreasonable
search, they do not preclude recovery against
the Crown (see cl 160) and also
against individuals personally where the conditions in cll 158 or 159 are not
met. It follows that
no issue of inconsistency arises in respect of these
provisions.
- Second,
cl 172 limits the circumstances in which a court may intervene on an interim
basis in the exercise of an information-gathering
power under the Bill. Under cl
172(3), interim relief may only issue where there is a prima facie case of
unlawfulness, where the
applicant would suffer substantial and irremediable harm
and where the investigation or prosecution would not be unduly hindered[15]. The power of the court to grant final
relief is unaffected.
- The
provision balances, on the one hand, the right of recourse to the courts to
ensure that the exercise of statutory powers is lawful
and to obtain effective
protection against unlawful exercise and, on the other, the competing public
interest in ensuring that that
recourse does not have a disproportionate adverse
effect.
- In
many instances remedies after the fact, such as exclusion of evidence or civil
liability, will suffice. Nonetheless, it is recognised
that the exercise of
potentially very far-reaching powers can have effectively irremediable
consequences. The clause allows for intervention
in such instances and, in doing
so, strikes a necessary balance. It follows that no issue of inconsistency
arises in respect of cl
172.
Privilege against self-incrimination
- Clauses
113(b), 126(3) and 133 of the Bill make express provision for the privilege
against self-incrimination affirmed by ss 25(a)
and (d) of the Bill of Rights
Act in relation to assistance with searches and compliance with production and
examination orders.
While cl
126(4)(b) provides that the privilege
does not extend to a right to refuse assistance in accessing a computer system
where that assistance
is not itself incriminating, that is consistent with the
principle that the privilege does not extend to independently existing
evidence[16]. Consequently, no issue of
inconsistency arises.
Detention incidental to search / freedom of movement
- The
Bill provides for detention incidental to search (cll 21, 23 & 116) and also
makes specific provision for the securing of
places and vehicles subject to
search (cll 115 & 119) and for road blocks for search purposes (cll
29-32).
- Each
of these powers is necessarily limited to such exercise as is reasonably
necessary for the related search. As such, no issue
of inconsistency arises.
Reverse onus provisions
- Clauses
166 and 168-170 provide for summary offences of failure, without reasonable
excuse, with production orders, directions to
remain pending a search, detention
pending search, directions to stop a vehicle or request to provide assistance in
respect of a
computer search. As summary offences subject to s 67(8) of the
Summary Proceedings Act, these provisions place an onus on the accused
to prove
the excuse.
- As
such, these provisions are inconsistent with the right to the presumption of
innocence affirmed by s 25(c) of the Bill of Rights
Act. It is therefore
necessary to consider whether that inconsistency is justifiable. In the context
of non-compliance with a statutory
requirement where the nature of the excuse
may only be known to the person concerned, these provisions appear
justified.
- This
advice has been reviewed, in accordance with Crown Law protocol, by Fergus
Sinclair, Crown Counsel.
Yours sincerely
Ben Keith Crown Counsel
Footnotes
- See,
similarly, Sugrue v Attorney-General [2006] 3 NZLR 464 (PC), [23] (s 21 BORA
concerned with prevention of invasion of personal
freedom and privacy); R v Ngan
[2007] NZSC 105; [2008] 2 NZLR 48 [104] (SC) per McGrath J.
- See,
for example, Fraser [2005] 2 NZLR 109.
- See,
for example, Williams [2007] NZCA 52; [2007] 3 NZLR 207, [123]
- See,
for example, Ngan, above n 1, [112] per McGrath J.
- See,
for example, A Butler & P Butler The New Zealand Bill of Rights Act: A
Commentary (2005) 550 ("disappointing" unwillingness
of New Zealand courts to
define "search" and "seizure").
- Provision
of information where the provider is advised that a warrant is held or that a
warrantless power to compel provision is available
is not voluntary: see R v
Sanders [1994] 3 NZLR 450.
- For
example, in R v Dodgson (1995) 2 HRNZ 300 (CA), the inspection of a vehicle
grille was held not to be a search, but rather an "external observation".
- See,
for example, Hunter v Southam [1984] 2 SCR 145.
- See,
similarly, R v Baylis (19880 65 CR (3d) 62 (Saskatchewan CA).
- See,
for example, R v Feeney [1997] 2 SCR 13; R v Godoy [1999] 1 SCR 311
- See,
for example, R v Rao (1984) 12 CCC (3d) 97.
- See,
for example, Cloutier v Langlois [1990] 1 SCR 158.
- See,
for example, British Columbia Securities Commission v Branch [1995] 2 SCR 3;
Simmons v R [1988] 2 SCR 495.
- See,
notably, R v Laugalis [1993] NZCA 551; (1993) 10 CRNZ 350 (CA) and, more recently and among many
others, R v D [2008] NZCA 359, [30]ff (accepting that the "exigencies of
policing" tending against seeking a warrant were in the circumstances a
sufficient basis
for invoking the warrantless power). The New Zealand courts
have tended against imposition of a standard of necessity.
- The
word "not" is missing from cl 172(3)(d).
- See,
for example, Saunders v UK (19960 [1996] ECHR 65; 23 EHRR 313, 338.
In addition to the general disclaimer for all documents on this
website, please note the following: This advice was prepared to assist
the
Attorney-General to determine whether a report should be made to Parliament
under s 7 of the New Zealand Bill of Rights Act 1990
in relation to the Search
and Surveillance Powers Bill. It should not be used or acted upon for any other
purpose. The advice does
no more than assess whether the Bill complies with the
minimum guarantees contained in the New Zealand Bill of Rights Act. The release
of this advice should not be taken to indicate that the Attorney-General agrees
with all aspects of it, nor does its release constitute
a general waiver of
legal professional privilege in respect
of this or any other matter. Whilst care has been taken to ensure that this
document is an accurate reproduction of the advice provided
to the
Attorney-General, neither the Ministry of Justice nor the Crown Law Office
accepts any liability for any errors or omissions.
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