Search and Surveillance Bill (Consistent) (Section 21) [2009] NZBORARp 38 (12 June 2009)

Search and Surveillance Bill (45-1): Consistency with the New Zealand Bill of Rights Act 1990

1. I have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990 and conclude that it appears to be consistent with that Act.

	Home \| Databases \| WorldLII \| Search \| Feedback New Zealand Bill of Rights Act Reports

2. The Bill seeks to consolidate existing search, surveillance and other information-

gathering powers and also to address issues such as the search of information in electronic form. The Bill raises several issues under the Bill of Rights Act:

2.1 The provision for search and related powers, particularly without warrant, 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;

2.2 The provisions for immunity and for restriction of interim judicial intervention engage the implicit right to an effective remedy for unreasonable search or other breach of the Act.

2.3 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

2.4 Certain offence provisions, which place the burden of proving reasonable excuse on the accused, engage the right to presumption of innocence.

3. I have concluded that the search and related powers do not 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 powers with right against unreasonable search or seizure

4.1 Warrantless search of persons, places and things in a range of contexts (cll 7-11,

4.2 Search under warrant issued by a judge or other independent issuing officer, including a new category of specifically appointed issuing officer (cl 94-106);

4.3 The making of “examination orders” (cll 31-40) and “production or monitoring orders” that require the recipient to disclose specified information (cll 68-77);

4.5 The issue of a “residual warrant” by a judge in respect of any other investigative device, technique, procedure or activity that may constitute an invasion of privacy (cll 57-67).

6. The first is the definition of search, which, while open to some contention, [1] can be understood for present purposes as follows:

6.1 In order for a given action to constitute a search under s 21, it must entail an intrusion upon reasonable expectations of privacy. [2]

6.2 Unlike the analogous provision of the Canadian Charter, however, s 21 has not been interpreted to further require that a given intrusion into privacy occurs for law enforcement purposes. [3] For example, in Ngan, above, which concerned the taking by police of an inventory of property at the scene of a road accident, the Court held, by a majority, that the opening of a zippered container in the course of that inventory was a search, notwithstanding that it was undertaken in order to safeguard the property, rather than for investigative purposes.

6.3 The use of a surveillance device constitutes a search, but unassisted surveillance

6.4 A requirement to provide information, as provided for under the Bill, constitutes a search. [5]

7. The second question is the definition of reasonableness. The exercise of information- gathering powers involves a balance between the public interest in the objective served by that information-gathering, on the one hand, and the public and private interest in being left alone: see, for example, R v Grayson and Taylor [1997] 1 NZLR

“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.”

8. 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

9. It is also noted that s 21 is to be applied without reference to the provision for justified limitation of protected rights in s 5 of the Bill of Rights Act: the Supreme Court has held that an unreasonable search or seizure is not open to justification.[8]

10. Third, the general requirement of a judicially issued warrant provides prior and independent assurance of the justification for the exercise of a given search power. That can, however, be displaced, as is noted further below.

11. The Bill requires a warrant for certain searches, for examination, production or monitoring, for most surveillance and for other intrusive information-gathering. 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; [9] and

11.2 When undertaking that prior verification, the judge or other independent officer must, by virtue of s 6 of the Bill of Rights Act, ensure that the exercise of that power is so far as possible consistent with the right against unreasonable search and seizure.

12. It follows that while these powers of information-gathering are broad and 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 by the Judge or other issuing officer for consistency with s 21 of the Bill of Rights Act. Accordingly, the powers do not give rise to a risk of unreasonable search or seizure.

13. In addition, however, the Bill provides for the appointment of specialised warrant- issuing officers. The provisions dealing with surveillance, examination orders and residual orders provide only for authorisation by a judge. Search warrants and production orders can be made by a judge or by an appointed issuing officer.

14. It is therefore necessary to consider whether issuing officers are able to provide a sufficiently independent check. Clause 106(1) provides for the appointment by the Attorney-General of issuing officers on a fixed-term basis. Clause 106(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 106(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.

15. Consequently, while certain of the powers subject to warrant give rise to other issues under the Bill of Rights Act, as noted below, these provisions do not raise any issue of inconsistency with s 21.

16. 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.

17. 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.

18. 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

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]

19. It will be seen that 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	Immediate 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	Strong public interest in investigation of serious offences / likelihood of loss

	where evidence at risk	of evidence
16/17	Search of person/vehicle in public place in respect of offences punishable by 14 years imprisonment or more	Strong public interest in investigation of serious offences / somewhat limited intrusiveness of search in public place
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
43(b)	Covert audio recording of oral communication by consent of one participant	Little or no expectation of privacy
44	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
79	Search of person, place or vehicle in controlled delivery under s 12 Misuse of Drugs Amendment Act 19878	Loss of evidence
81	Search of place after arrest where delay would lead to loss of evidence (cl 83(2)(b))	Loss of evidence
82	Search of vehicle after arrest	Loss of intrusiveness/ Loss of evidence
83	Rub-down search of arrested person	Safety/evidence-gathering
86	Search of arrested person where risk to safety, risk of escaping or evidence	Safety/custody/evidence-gathering
115/116	Search incidental to arrest	Effecting lawful arrest/evidence- gathering

20. The second, and related, issue 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.

21. It follows that no issue of inconsistency arises under s 21 in respect of these provisions.

22. Two provisions of the Bill raise issues in resect of the right to an effective remedy for breach of rights affirmed by the Bill of Rights Act.

23. First, cll 157-160 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.

24. 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 for immunity in cll 158 or 159 are not met. It follows that no issue of inconsistency arises in respect of these provisions.

25. Second, cl 172 limits the circumstances in which a court may intervene through

interim relief against 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. The power of the court to grant final relief is unaffected.

26. 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 on

27. The restriction of interim relief under cl 172 necessarily limits the right to that relief as a remedy for an unreasonable search. However,

27.1 Interim relief can still issue when the threshold set out in cl (72(3) is met;

27.2 Final relief, which could be urgently determined if necessary, can still issue; and

27.3 Other remedies, such as exclusion of evidence and civil liability claims, are not affected.

28. It follows that while the issue is, in my view, reasonably finely balanced, the restriction on interim relief does not preclude an effective remedy. Accordingly, no inconsistency arises.

29. Clauses 101(5), 125 and 132 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 125(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 [15]. Consequently, no issue of inconsistency arises.

30. 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 &

31. 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.

32. Clauses 165, 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.

33. 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. [16]

34. This advice has been reviewed, in accordance with Crown Law protocol, by Victoria

1. See, for example, A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (2005) 550 (asserting the “disappointing” unwillingness of New Zealand courts to define “search” and “seizure”).

3. Cf Quebec (Attorney-General) v Laroche [2002] 3 SCR 708, [53] “there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation”.

9. See, for example, Williams, above, [263]ff per Hammond J (sep); Hunter v Southam

12. See, for example, Everitt, above, [76] per Thomas J (sep) & [86] per Blanchard J (sep);

14. 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 (though accepting that the “exigencies of policing” tending against seeking a warrant were in the circumstances a sufficient basis for invoking the warrantless power).

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 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.

New Zealand Bill of Rights Act Reports

Search and Surveillance Bill (Consistent) (Section 21) [2009] NZBORARp 38 (12 June 2009)