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NEW ZEALAND LAW COMMISSION

TE AKA MATUA O TE TURE

Preliminary Paper 50

Entry, Search and Seizure

A discussion paper

The Law Commission welcomes your comments
on this paper and seeks your response
to the questions raised.

These should be forwarded to the Law Commission
PO Box 2590, DX SP 23534, Wellington
com@lawcom.govt.nz
by 30 June 2002

April 2002

Wellington, New Zealand

Table of Contents

Introduction

This discussion paper has been triggered by a request by its Minister to the Law Commission pursuant to section 7(2) of the Law Commission Act 1985 to prepare a report responding to the following Terms of Reference:

The Commission shall review the scope and adequacy of current powers to search persons and places and associated powers to seize in order to determine an appropriate balance between law enforcement agencies and the protection of individual rights. The review will include:

• the circumstances in which such searches pursuant to a warrant may be undertaken;
• the circumstances in which such searches without a warrant may be undertaken;
• the adequacy of current powers in the light of modern technologies;
• the threshold for the granting of search warrants (and specifically the circumstances, if any, in which they should be extended to non-imprisonable offences);
• the extent, if at all, to which people should be compelled to assist in the execution of a search warrant;
• the power to seize material revealed in such searches;
• consistency of current search warrant powers, and any recommended new or revised powers, with the Bill of Rights Act 1990; and
• whether present rules adequately protect civil liberties.

The review shall cover the powers of all law enforcement agencies.

After it had received that request, but at a stage when the job was a long way short of completion, the Commission was requested, pursuant to section 6(2)(d) of the Commission's statute, by the Ministry of Justice which was faced with certain deadlines in its legislative timetable to provide advice within a limited time on some aspects of these Terms of Reference. That advice was duly given and a copy has been published by the Commission in its Study Paper series under the title Electronic Technology and Police Investigations – Some Issues (NZLC SP12). Because that study paper deals with them nothing is directly said in the present publication about the topics discussed in two of the bullet points in the Terms of Reference set out above, namely:

• the adequacy of current powers in the light of modern technologies (though we do discuss in paragraph 30 section 487.01 of the Canadian Criminal Code that gives general power to superior courts to authorise what would otherwise amount to unlawful search and seizure; this provision if imitated in New Zealand would provide a machinery enabling police to make use of new technologies as they became available without the need for specific legislation); and
• the extent, if at all, to which people should be compelled to assist in the execution of a search warrant.

Submissions on the present paper are invited by 30 June 2002.

The Commissioner having, at this preliminary stage, the carriage of this project is DF Dugdale and the researcher is Michael Josling.