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Countering Terrorist Fighters Legislation Bill (Consistent) (Sections 18, 21, 27) [2014] NZBORARp 26 (12 November 2014)

Last Updated: 24 March 2019

Countering Terrorist Fighters Legislation Bill

12 November 2014

Hon Amy Adams, Acting Attorney-General


Legal Advice:


Consistency with the New Zealand Bill of Rights Act 1990: Countering Terrorist Fighters Legislation Bill

Purpose


  1. We have considered whether the Countering Terrorist Fighters Legislation Bill (‘the Bill’) is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’). We understand that the Bill may be subject to minor editorial and formatting changes. If the changes affect any Bill of Rights Act issues, we will provide you with updated advice.
  2. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching that conclusion, we have considered the consistency of the Bill with s 18 (freedom of movement), s 21 (unreasonable search and seizure) and s 27 (right to justice). Our analysis is set out below.

Summary


  1. The Bill amends the Passports Act 1992, the New Zealand Security Intelligence Service (NZSIS) Act 1969, and the Customs and Excise Act 1996 with the aim of ensuring they are adequate to respond to the threat posed by foreign terrorist fighters (FTFs) and other violent extremists. The Bill amends powers to monitor and investigate; powers to restrict and disrupt travel; the treatment of classified information in court proceedings; and Crown liability for decisions relating to the issuance of travel documents.
  2. We conclude that these amendments place justified limitations on the rights to freedom of movement, security against unreasonable search and seizure, and justice, which are affirmed by the Bill of Rights Act. The limitations have the important objective of protecting national security, public order, safety and the rights of others. We consider them to be rationally connected with this objective, proportional, and minimally impairing of rights.

The Bill


  1. The Bill is a response to the continuing and rapidly evolving threat posed by FTFs and other violent extremists. The Bill contains targeted amendments that will enhance powers to monitor and investigate, and to restrict and disrupt travel of FTFs.
  2. On 24 September 2014, the United Nations Security Council (UNSC) unanimously adopted Resolution 2178 condemning violent extremism and underscoring the need for states to

prevent travel and support for FTFs. UNSC Resolution 2178 reaffirmed that respect for human rights, fundamental freedoms and the rule of law are complementary and mutually reinforcing with effective counter-terrorism measures, and fundamental rights are an essential part of a successful counter-terrorism effort.


  1. Broadly, the Bill provides for:
  2. The provisions in this Bill are subject to a sunset clause of 1 April 2018. In addition, there are two current reviews that will consider the wider issues with both the intelligence and security agencies and the Customs and Excise Act. It is expected that both reviews will result in new legislation that will also be considered for Bill of Rights Act consistency. The sunset clause and the potential amendment bills illustrate the important role of the Bill of Rights Act’s s 7 process. The s 7 process is one element of the continuing dialogue on

human rights issues that occurs between the branches of government through the Attorney- General’s s 7 reporting function; Parliament’s consideration of successive Bills on similar subjects through the use of a sunset clause; and the judiciary’s consideration of Bill of Rights Act cases.


Consistency of the Bill with the Bill of Rights Act

Bill of Rights Act ss 18(2) and (3) – right of citizens to enter, and the right of everyone to leave, New Zealand


  1. The schedule to the Bill inserts a new schedule in the Passports Act. We have considered whether cls 1-4 of the new schedule could give rise to an issue of inconsistency under section 18(2) of the Bill of Rights Act. Section 18(2) affirms the right of New Zealand citizens to enter New Zealand. In general, the clauses allow the Minister of Internal Affairs, on grounds of national security, to refuse to issue or to cancel a passport or a refugee travel document, to cancel a certificate of identity or to cancel emergency travel documents.
  2. Similarly, we have also considered whether cls 1-6 of the new schedule could give rise to an issue under s 18(3) of the Bill of Rights Act, which affirms everyone has the right to leave New Zealand. Clauses 5 and 6 allow the Minister to refuse to issue or cancel a refugee travel document on grounds of national security. Collectively the documents referred to in cls 1-6 are ‘travel documents’.
  3. We note that s 18(3) is one of the fundamental rights recognised by international human rights treaties. For instance, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), to which New Zealand is a party, confirm that everyone shall be free to leave any country, including their own. [1] However, the ICCPR permits certain restrictions on this right, including where it is necessary to protect national security, public order, or the rights and freedoms of others. [2]
  1. The powers in cls 1-6 are designed to restrict and disrupt travel. Currently, the Minister of Internal Affairs can cancel or refuse to issue a travel document on the grounds of national security if the Minister believes on reasonable grounds that a person is a danger to the security of New Zealand because they intend to engage in: a terrorist act, the proliferation of weapons of mass destruction, or an unlawful activity designed to cause serious economic damage to New Zealand. The Bill amends this power to allow the Minister to cancel or refuse to issue a travel document where the person is a danger to another country. The Bill also makes it clear that the cancellation can take place where the person is overseas.
  2. Clause 7 of the new schedule provides for temporary suspension of travel documents. This responds to the situation where a person could leave New Zealand before the Minister determines whether the person is a danger to New Zealand or another country. The Bill will provide a power for the Minister to suspend a person’s passport or travel document if the Minister believes the person is likely to travel imminently and a report regarding the danger that the person presents to the security of New Zealand or another country is being prepared.
  3. Clauses 1-7 appear to give rise to a prima facie issue of inconsistency under section 18(2) and/or (3) of the Bill of Rights Act.

Is this a justified limitation under section 5 of the Bill of Rights Act?


  1. Where a provision is found to pose a limit on a particular right or freedom, it may nevertheless be consistent with the Bill of Rights Act if it can be considered a reasonable limit that is demonstrably justified in terms of s 5 of that Act. Following the guidance of the New Zealand Supreme Court decision in Hansen v R, [3] the s 5 inquiry may be summarised as:
  1. does the objective serve a purpose sufficiently important to justify some limitation of the right or freedom?
  2. if so, then:

i.is the limit rationally connected with the objective?

ii.does the limit impair the right or freedom no more than is reasonably necessary for sufficient achievement of the objective?

iii.is the limit in due proportion to the importance of the objective?


  1. The purpose of the travel restrictions in the Bill is to restrict the movement of FTFs. Resolution 2178 urged nations to restrict the movement of FTFs, including their onward travel if the person is outside their home country. The UNSC expressed grave concern over the acute and growing threat posed by FTFs travelling for the purpose of the perpetration, planning or preparation of, or participation in, terrorist acts or providing or receiving terrorist training. We consider that this is a significant and important objective and, therefore, the first limb of the s 5 inquiry is satisfied.
  1. The suspension or cancellation of travel documents will restrict the movements of FTFs travelling with New Zealand travel documents. The right to movement is limited to the extent necessary to accomplish this objective as the Minister must be satisfied that the person is a danger to New Zealand or another country. The amendment contained in the Bill is limited to terrorism-related danger to another country (danger to New Zealand is already covered in the Passports Act, although the Bill re-enacts the relevant provisions) and does not include an equivalent of the existing provision in relation to economic damage to New Zealand in respect of other countries.
  2. The UN Human Rights Committee (UNHRC) states that liberty of movement is an indispensible condition for the free development of a person and interacts with several other civil and political rights. [4] The UNHRC also notes that restrictions on liberty of movement may be authorised to protect national security, public order and the rights and freedoms of others.
  3. Refugees are particularly vulnerable to any restrictions on their freedom of movement. Customs advises that any request to cancel a refugee travel document would be subject to particular scrutiny and careful consideration by the Minister. Cancellation of a refugee travel document would not, in itself, mean the person would lose their refugee status nor be expelled from New Zealand. The 1951 UN Convention Relating to the Status of Refugees and the 1967 Optional Protocol to the Treaty contemplate that compelling national security and public order grounds are sufficient reasons that a person should not hold a refugee travel document. [5]
  4. The objective of restricting movement of FTFs is proportional to the protection of national security, public order and the rights and freedoms of others. This is especially the case where violent extremists are involved in gross and extensive violations of human rights and international humanitarian law.
  5. In terms of the specific right of citizens to return to New Zealand, the powers to restrict and disrupt travel do not limit existing provisions to protect this right. Section 23(3) of the Passports Act requires the Minister to issue a journey-specific emergency travel document to a citizen outside New Zealand if the person has been refused a passport or their passport is cancelled and the emergency travel document is necessary to enable the person to return to New Zealand. An emergency travel document issued under s 23(3) cannot be cancelled on grounds of national security under s 25A. The right of a citizen to enter New Zealand is illusory without the positive obligation on the Minister to issue an emergency travel document. [6]
  6. In our opinion, cls 1-7 restricting the movement of FTFs are justified.

Bill of Rights Act section 21 – Unreasonable search and seizure


  1. Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise. There are two limbs to the s21 right. First, s 21 is applicable only in respect of those activities that constitute a “search or seizure”. Secondly, where certain actions do

constitute a search or seizure, s 21 only protects against those searches or seizures that are

“unreasonable” in the circumstances.


  1. Assessing the reasonableness of search powers involves striking a balance between the interest of the public and of the particular individual or entity concerned to be ‘left alone’, and the public interest in the objective of the search. [7] Whether a search is unreasonable

will depend on many factors, including the nature of the place or object being searched, the degree of intrusiveness into personal privacy and the rationale for the search. [8] The greater the degree of intrusiveness, the greater the justification required (and the greater the attendant safeguards required to ensure that the justification is present).


  1. While the Bill draws upon the Search and Surveillance Act 2012, the provisions of this Bill relate primarily to national security issues. In the context of the amendments to the NZSIS Act, it is appropriate that the safeguards are adapted to this unique environment.

Safeguards under the NZSIS Act are not exclusively judicial but include executive and parliamentary oversight. [9] Where the search is not related to national security but to criminal offences, departure from the framework provided by the Search and Surveillance Act would need to be justified.

Warranted searches involving visual surveillance


  1. New s 4IA of the NZSIS Act proposes to expand the scope of visual surveillance in line with the Search and Surveillance Act. Currently, the NZSIS cannot generally undertake visual surveillance in a private setting or visual surveillance which would involve trespass onto private property. An example of such surveillance would include installing a video camera in private premises for the purpose of observing activities of security concern.
  2. The current safeguards and oversight in the NZSIS Act will continue and will apply to the visual surveillance powers set out in the Bill. These include:
  1. the visual surveillance authorised by the warrant is necessary for the detection of activities prejudicial to security; or for the purpose of gathering foreign intelligence information essential to security; and
  2. the value of the information sought to be obtained under the proposed warrant justifies the visual surveillance; and
    1. the information is not likely to be obtained by any other means; and
  3. any communication sought to be intercepted or seized under the proposed warrant is not privileged in proceedings in a court of law under ss 58 or 59 of the Evidence Act 2006 (communication with ministers of religion and medical privilege); or any rule of law that confers privilege on communications of a professional nature between a lawyer and his or her client.
  1. New s 4IA(7) states that this section shall have effect notwithstanding anything to the contrary in any other Act. We understand that the purpose of this subsection is not intended to limit the Bill of Rights Act. Consequently, we consider that provision will be read consistently with the Bill of Rights Act and thus not limit s 21 and allow unreasonable search and seizure because it does not have a specific legislative reference to overriding the Bill of Rights Act. [10]
  2. The Bill also provides that the new visual surveillance powers would be subject to s 4F of the NZSIS Act, which requires prior approval of the Director and notification of the Minister in charge of the NZSIS before entering any place that is not specified in the warrant or owned or occupied by the person identified in the warrant. Where the warrant is a domestic warrant, the Commissioner must also be advised. The Director or Minister can direct that the NZSIS not proceed with, or discontinue, the proposed activity.

30.A warranted search power allows for prior and independent verification that the search is justified. Such a power will generally be reasonable and not limit the s 21 right if it requires an independent officer to be satisfied that there are reasonable grounds to suspect an activity prejudicial to security, or for the purpose of gathering foreign intelligence information essential to security. [11]


  1. While powers of information-gathering in the Bill are broad, their exercise remains subject not only to the preconditions under the relevant provisions of the Bill and NZSIS Act, but also to oversight by the Inspector-General 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.

Warrantless searches involving situations of emergency or urgency


  1. New s 4IC also provides for surveillance activities to take place in situations of emergency or urgency. Only the Director or Acting Director may authorise such surveillance. A similar power is available to Police under the Search and Surveillance Act but may be authorised by a front-line officer.
  2. Similar to warranted searches, the conditions in s 4A(3) would need to be met. The Bill includes additional safeguards that:
  1. Warrantless search powers lack prior independent oversight, but may be reasonable where the delay inherent in obtaining a warrant would have a disproportionately adverse effect. Warrantless search powers have been accepted as reasonable where there is a serious threat to safety or property, [12] evidence may be lost or destroyed [13] or the search is undertaken in the context of a regulated activity. [14] The capacity of courts to exclude evidence obtained as a result of an unreasonable search from a subsequent criminal trial provides an additional safeguard. [15]
  2. The second, and related, issue is that, in addition to the conditions and corresponding justifications provided in the Bill, the Bill’s 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 case law 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. [16] 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.
  3. It follows that no issue of inconsistency arises under s 21 in respect of emergency or urgent surveillance provisions.

Access to Customs’ information


  1. Clause 7 of the Bill provides that NZSIS and Police may directly access New Zealand Customs data for security and counter-terrorism purposes. The data that Customs holds includes passenger movement, trade data and intelligence holdings.
  2. The Customs and Excise Act contains significant search and surveillance powers. As an example of one such power, a High Court decision has held that s 151 provides that a Customs officer may examine or analyse any goods that are subject to the control of Customs or the officer has reasonable cause to suspect are subject to the control of Customs. Section 151 is designed to provide Customs officers with the widest possible powers to deal with persons who arrive in New Zealand from overseas. Customs officers are entitled to examine and analyse such articles as may be of interest to them by any means whatsoever. Section 151 does not provide a requirement of reasonable cause or suspicion of criminal activity, and the information obtained may be retained for law enforcement purposes. An example of the information obtained includes data downloaded from a cell phone. [17]
  3. It is entirely appropriate for Customs to have wide latitude to search and seize goods at the border without a warrant for the purposes of border protection. What is of issue is

NZSIS and Police having access to data taken by Customs without a warrant for border protection and then using it for other purposes such as investigation of suspected criminal offending. We consider that comprehensive examination of data, either from cell phones, laptops or other storage media, for general law enforcement purposes would require at least reasonable suspicion. [18]


  1. The Bill states that the use of Customs’ information by NZSIS and Police is for the purpose of conducting counter-terrorism investigations. The investigations involve addressing serious threats to safety or property and the information taken by Customs is in the strictly regulated environment at the border. This power to access Customs’ information will be subject to a sunset clause expiring on 1 April 2018. In addition, in November 2013 Cabinet agreed to a full review of the Customs and Excise Act. The review process now underway aims to develop new legislation that improves facilitation of travel and trade through the border, supports Customs’ border management and has the flexibility to adapt to new technologies and developments. It is intended to have new legislation passed in 2017.
  2. Based on the above, we consider that access to Customs’ information for the limited

purpose of counter-terrorism investigations appears to be a reasonable search and seizure.


Bill of Rights Act Section 27 – Right to justice


  1. Section 27(1) of the Bill of Rights Act provides that every person whose interests are affected by a decision by a public authority has the right to the observance of the principles of natural justice. In general, the principles of natural justice include:
    1. prior notice of an impending decision and adequate opportunity to prepare a case
      1. disclosure of relevant material
    1. opportunity to be heard (in person or on the papers) before the decision or following an ex parte application
      1. opportunity to have legal representation
      2. cross examination where there is an oral hearing or right of reply or challenge
      3. provision of reasons for a decision to the affected party, and
    1. that the process is fair and free from bias through an independent decision-making body or the ability of an affected person to challenge the decision.
  2. Section 27(1) is engaged by the amendments to the Passports Act contained in the schedule to the Bill, which in certain circumstances will:
  1. allow the suspension of a person’s travel document without any requirement to notify

the person of the suspension

  1. extend the closed court processes to judicial review and other litigation involving national security and classified information, and
  1. enable the withdrawal of classified information in an expanded range of proceedings.
  1. The right to natural justice is inherently flexible and context-specific. Its requirements depend heavily on the statutory framework in question and nature of the power being exercised. Each of the clauses that engages section 27(1) is considered further below.

Notice for suspension or cancellation of travel documents


  1. Clauses 1(5), 2(5), 3(5), 4(5), 5(5) and 6(4) of the new schedule to the Passports Act allow the Minister of Customs to defer giving notice to a person that their travel document has been refused or cancelled, or a certificate of identity cancelled. This gives rise to a prima facie issue of inconsistency under section 27(1) of the Bill of Rights Act. The right to justice can impose an obligation on a decision-maker to ensure prior notice is given to anyone whose rights or interests may be adversely affected by an impending hearing or decision.

Notice should be given if a person could not reasonably be expected to foresee the hazard they face in a decision-making process. [19]


  1. The Bill allows the Minister to defer notice for up to 30 days. The Minister must be satisfied that giving notice sooner would prejudice an ongoing investigation or put the security or safety of any person at risk.
  2. Clause 7 of the new schedule allows the Minister to suspend a person’s travel documents for up to 10 working days, if satisfied on reasonable grounds that: a report is being prepared regarding the danger that the person presents to the security of New Zealand or another country; and the person is likely to travel before the report is prepared. Clause 6 is silent as to notice and we understand that notice would not normally be given, and that the deferral of notice provisions set out above would apply. In any event, if the person is likely to travel, they will be aware of the suspension once they attempt to use their travel document.
  3. Deferring the requirement to give notice of a cancellation aims to avoid the disclosure of an intelligence investigation and any risk to intelligence operators or the public. Omitting notice of a suspension aims to avoid alerting a person to the intelligence investigation and thereby reduce the risk the person will attempt to leave the country by other means. We consider these to be important objectives.
  4. We consider the limits on s 27(1) are rationally connected to these objectives, as the absence or deferral of notice will reduce the safety and departure risks. The restrictions do not limit the right any more than is reasonably necessary. The Minister may only choose not to give notice in narrow circumstances. The limits are also in due proportion to the importance of the objectives. Further, the impact of the lack of notice is mitigated by the limited duration of the suspension. The deferral and suspension periods may pass without the subjects being aware of them. The absence of notice is therefore likely to adversely affect only a subset of people whose travel documents are suspended or cancelled. Judicial

review will be available to a person who does become aware of the suspension or deferral.


  1. We consider that any possible limit on the right to the observance of the principles of natural justice is justified.

Extending closed court processes


  1. Clause 8 of the new schedule provides that in judicial review proceedings and other litigation involving national security and classified information, the information be heard by the High Court in absence of the person affected, their lawyer, and members of the public. This provision triggers the natural justice elements of having access to all relevant material and having the opportunity to challenge that material. [20] These provisions currently exist under ss 29AA and 29AB of the Passports Act.
  2. Clause 8 may result in a person who may not have committed a criminal offence being denied travel documents without knowing, or with limited knowledge of, the evidence on which the refusal, denial, cancellation or suspension was based (if the information is classified security information). We therefore consider that the legislation gives rise to a prima facie issue of inconsistency under section 27(1) of the Bill of Rights Act.
  3. Clause 8 seeks to ensure that judicial review and other legal challenges under the Passports Act that involve national security and classified security information can take place and that national security and intelligence holdings are protected. This is an important objective.
  4. We consider the provisions allowing the Court to hear such information in the absence of the person affected or his or her lawyer are rationally connected to this aim. There are a number of safeguards built into ss 29AA and 29AB of the Passports Act that illustrate this rational connection.
  5. Sections 29AA(5) to (7) set out the definition of ‘classified security information’. These sections provide a clear indication of the kind of information that may be considered classified and the circumstances in which this information may be withheld. They include information that is:
    1. relevant to whether there are or may be grounds for believing that the person is a danger to the security of New Zealand; that the refusal to issue, or the retention or cancellation of the passport will prevent or effectively impede the ability of the person to carry out the action; that the danger to the security of New Zealand cannot be effectively averted by any other means; and
    2. held by an intelligence or security agency or by the Police; and
    1. the head of the agency or Police has certified that the information cannot be disclosed because the nature of the information means disclosure would be likely to:
      • (i) prejudice the security or defence of New Zealand; or
  1. Section 29AB(2)(b) also requires that the person affected must be provided with a summary of the information upon which a decision has been made. This summary is provided by the Attorney-General, and must be approved by the Court (s 29AB(2)(a)).
  2. Although the person affected will not have access to classified security information, it will be available to the Minister, the Attorney-General, and the High Court. Moreover, a summary approved by the Court will be available to the person affected. We note that the principles of fairness do not require that the passport-holder has unrestricted access to the evidence against them. So long as all the information is available to the High Court in

approving the summary released to them, their right to ‘confront the evidence against them’ is respected.


  1. In our view, the provisions restricting available information to a summary reflect a balancing exercise between the importance of protecting classified information and the need to preserve an individual’s right to natural justice. We consider the Bill provides a

person with an adequate opportunity and ability to gain access to all relevant material relied on in reaching a particular decision, and ensures that the person has a reasonable opportunity to challenge that material.


  1. Clause 8(2) provides that classified information may be withdrawn from proceedings where national security is involved. If this decision is taken, the classified information must be kept confidential, must not be disclosed by the Court, and must be returned to the relevant agency. The Court must continue to make the decision or determine the proceedings without regard to the classified information or as if the information had not been available in making the decision subject to the appeal or review. We understand that if the withdrawn classified information was the evidence relied upon by the decision maker, on review or appeal without that evidence the decision will appear to be unsupported by evidence and the challenge by the affected party will succeed.
  2. We consider that, in light of the numerous safeguards incorporated in the proposal, the limitation is justified in terms of section 5 of the Bill of Rights Act.

Limitation of Crown liability


  1. Clause 9 of the new schedule to the Passports Act provides a limitation on Crown liability in relation to any decision made under clauses 1-7 (for example, a decision to refuse to issue a passport on grounds of national security). The Crown would not be liable for any loss or damage unless a person acting under those clauses had not acted in good faith or has been grossly negligent. Examples of the damages contemplated by this clause include individual loss due to prevention of travel, as well as loss to other individuals or commercial entities associated with the travel (such as an airline carrier). Section 27(3) of the Bill of Rights Act

affirms the right to bring civil proceedings against the Crown and have those proceedings heard in the same way as proceedings between individuals. On balance we do not think this right is abridged. The likely cause of action that would be brought is an action for public law compensation, and the clause as drafted will not be effective to exclude that form of relief. [21]

Conclusion


  1. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.

Jeff Orr


Chief Legal Counsel Office of Legal Counsel

Footnotes

[1]Article 12, ICCPR; Article 13, Universal Declaration of Human Rights. [2]Article 12, ICCPR.

[3]Hansen v R [2007] NZSC 7 [123].

[4] Article 12, UNHRC General Comment para 1.
[5] See, eg, Art 28 UN Convention Relating to the Status of Refugees. The current powers to refuse to issue or cancel a refugee travel document were incorporated into the Passports Act in 2005 to help ensure New Zealand meets its obligations under those agreements. [6]Abdelrazik v Canada (Minister of Foreign Affairs & International Trade) 2009 FC 580 at [152].

[7]‘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’: R v Grayson and Taylor [1997] 1 NZLR 399 (CA) at 407.

[8]Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [172].

[9] See Klass v Germany [1978] ECHR 4; (1979-80) 2 EHRR 214 and subsequent decisions.
[10] Hansen at paras 53-56, 61, 150-158, 252, 285-290 (per Blanchard, Tipping, McGrath, Anderson JJ).
[11] Hunter v Southam [1984] 2 SCR 145.

[12]R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [123].

[13]R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [112].

[14] Such as a commercial activity carried out under a conditional licence: see, eg, British Columbia Securities Commission v Branch [1995] 2 SCR 3; Simmons v R [1988] 2 SCR 495.
[15] Section 30 Evidence Act 2006. This includes where, notwithstanding that the conditions for exercise of the warrantless power have been satisfied, it would have been reasonably possible to obtain a warrant: see, eg, R v Laugalis [1993] NZCA 551; (1993) 10 CRNZ 350 (CA); R v Dobson [2008] NZCA 359 at [30] ff.
[16] 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).

[17]R v Steven Baird HC AK CRI-2009-004-13439 [27 May 2011].

[18] United States of America v. Howard Wesley Cotterman, No. 09-10139, 9th Cir.; 2013 U.S. App. LEXIS 4731.
[19] Khalon v Attorney-General [1996] 1 NZLR 458.
[20] Daganayasi v Minister of Immigration [1980] 2 NZLR 130; Taito v R [2002] UKPC 15; (2002) 19 CRNZ 224,

[2002] UKPC 15; (2002) 6 HRNZ 539; R v Durval (1995) 13 CRNZ 215.

[21] Currie v Clayton [2014] NZCA 511 at [80].

Disclaimer

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 Countering Terrorist Fighters Legislation 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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