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• Group 1: Powers Of Routine Administrative Inspection
• Group 2: Powers Where Offence Suspected
• Group 3: Measures That Should Be Repealed
• Group 4: Measures That Should Be Preserved But To Which It Is Inappropriate To Apply The Rules Suggested For Groups One And Two

Appendix A

Group 1

Powers of Routine Administrative Inspection

Agricultural Compounds and Veterinary Medicines Act 1997 s 64

Amusement Devices Regulations 1978 regs 15 and 23

Animal Identification Act 1993 s 8

Animal Products Act 1999 ss 87–91

Animal Remedies (Develvetting) Regulations 1994 reg 13

Animal Welfare Act 1999 ss 53, 147(1)

Arms Act 1983 s 12

Arms Regulations 1992 r 29

Auckland Metropolitan Drainage Act 1960 ss 85 and 88

Building Act 1991 ss 76 and 79

Burial and Cremation Act 1964 s 52

Casino Control Act 1990 ss 85–88

Chatham Islands Council Act 1995 s 20

Christchurch District Drainage Act 1951 ss 29 and 42

Commerce Act 1986 s 98

Dairy Industry (IMA Certification) Regulations 2000 reg 15

Dairy Industry Act 1952 s 5

Dairy Industry Regulations 1990 reg 56

Dental Act 1988 s 80

Disabled Persons Community Welfare Act 1975 s 22

Dunedin District Drainage and Sewerage Act 1900 Amendment Act 1906 s 13

Dunedin District Sewerage Acts Amendment Act 1913 s 13

Earthquake Commission Act 1993 ss 32, 33

Electricity Act 1992 ss 6, 105, 114–115 and 159

Employment Relations Act 2000 ss 229–231

Energy Resources Levy Act 1976 s 34

Films, Videos, and Publications Classification Act 1993 s 106

Fisheries Act 1996 s 199(1)

Food Act 1981 ss 12–15, 17, 20, 24, 41 and 112D

Food Hygiene Regulations 1974 r 56

Forests Act 1949 s 67

Forest and Rural Fires Act 1977 s 58

Forest and Rural Fires Regulations 1979 r 10(2)

Forest Disease Control Regulations 1967 reg 13

Freshwater Fish Farming Regulations 1983 regs 32 and 33

Game Industry Board Regulations 1985 reg 20

Gaming and Lotteries Act 1977 s 135

Gas Act 1992 ss 7, 47 and 48

Hazardous Substances and New Organisms Act 1996 s 103

Health and Safety in Employment Act 1992 ss 31, 33 and 35

The Department of Labour says to us:

"Article 12(1)(a) of ILO Convention No 81 requires inspectors to be empowered "to enter freely and without previous notice at any hour of the day or night any workplace liable to inspection. This requirement is based on the fact that work may be carried out at any hour of the day." We agree that the requirement that entry should be in the hours of daylight is inappropriate in this case.

Hospitals Act 1957 s 148

Human Tissue Act 1964 s 8

Hutt Valley Drainage Act 1967 ss 46–54

Insurance Companies (Ratings and Inspections) Act 1994 s 26 (except s 26(1)(d))

International Energy Agreement Act 1976 s 9

Local Government Act 1974 ss 393, 708A and 709

Machinery Act 1950 s 6

Marine Farming Act 1971 s 41

Maritime Transport Act 1994 ss 200(4) and 453(1)

Meat Act 1981 ss 6 and 8

Meat Board Act 1997 ss 70–72

Medicines Act 1981 ss 63, 64, 69 and 101

Mental Health (Compulsory Assessment and Treatment) Act 1992 ss 29, 41, 99, 110C and 113A

Ministry of Energy (Abolition) Act 1989 s 31

New Zealand Grown Fruit and Vegetables Regulations 1975 reg 35

North Shore Drainage Act 1963 s 65

Old People's Homes Regulations 1987 regs 38, 39 and 43

Pesticides Regulations 1983 reg 11

Petroleum Demand Restraint Act 1981 s 17

Pork Industry Board Act 1997 ss 44 and 45

Racing Act 1971 s 60

Radiation Protection Act 1965 s 24 (except s 24(2)(b))

Radiation Protection Regulations 1982 r 16

Resource Management Act 1991 ss 332 and 333

Rock Oyster Farming Regulations r 34

Rotoaira Trout Fishing Regulations 1979 reg 35

Rotorua City Geothermal Energy Empowering Act 1967 s 4

Sale of Liquor Act 1989 ss 131, 175(1) and 177A

Secondhand Dealers Act 1963 s 16

Securities Act 1978 s 67

Stock Diseases Regulations 1937

Taupo Fishing Regulations 1984 r 21

Tax Administration Act 1994 s 16

Transport Services Licensing Act 1989 ss 39E and 39P(1)

Weights and Measures Act 1987 s 28

Wellington Regional Water Board Act 1972 s 36

Wild Animal Control Act 1977 s 12 (excluding ss (10) and (11)) and s 14 Wildlife (Farming of Unprotected Wildlife) Regulations 1985 r 24

Wool Board Act 1997 s 51

Zoological Gardens Regulations 1977 reg 26

Group 2

Powers Where Offence Suspected

Agricultural Compounds and Veterinary Medicines Act 1997 s 69

Animal Products Act 1999 s 94

Animal Welfare Act 1999 ss 127(2), 131–145

Anthrax Prevention Regulations 1987 reg 6

Arms Act 1983 ss 19, 60, 60A and 61

Biosecurity Act 1993 ss 111 and 118

Boxing and Wrestling Act 1981 s 9

Building Societies Act 1965 s 122A

Commerce Act 1986 s 98A

Commodity Levies Act 1990 ss 19–23

Companies Act 1993 s 365

Conservation Act 1987 s 40

There are no requirements for a warrant where entry is to be outside daylight hours, no obligations as to notification and no limitations on the use of force and these provisions should prevail over the rules we propose in paragraph 12.

Corporations (Investigation and Management) Act 1989 ss 17, 18, 21, 22, 24 and 25

Crown Minerals Act 1991 s 7

Crown Minerals (Minerals and Coal) Regulations 1999 r 25

Crown Minerals (Petroleum) Regulations 1999

Dog Control Act 1996 ss 14, 17, 19, 28, 42, 55, 57 and 64

Driftnet Prohibition Act 1991 ss 13 and 15

Earthquake Commission Act 1993 s 34

Employment Relations Act 2000 ss 229–231

Fair Trading Act 1986 ss 47 and 47E

Fencing of Swimming Pools Act 1987 s 11

Films, Videos, and Publications Classification Act 1993 ss 107, 109–113 (except s 111A)

Financial Transactions Reporting Act 1996 ss 38, 39 and 44–51

Fisheries Act 1996 ss 199 (2), 206 and 207

Food Act 1981 s 15A

Friendly Societies and Credit Unions Act 1982 ss 8, 89 and 137

Gaming and Lotteries Act 1977 s 117

Hazardous Substances and New Organisms Act 1996 s 119

Holidays Act 1981 ss 31 and 32

Hospitals Act 1957 s 144

Immigration Act 1987 ss 137, 138

The powers conferred by s 137(2), which are confined in their effect to wharves and airports, should not be subject to any time limitation.

Incorporated Societies Act 1908 s 34A

Industrial and Provident Societies Act 1908 ss 13 and 13A

International Energy Agreement Act 1976 s 11

Land Transport Act 1998 ss 119 and 123 (except s 123(1)(b))

Local Government Act 1974 ss 709A(10)(c), (11), (12) and (13) and 709H

Marine Mammals Protection Act 1978 ss 13 and 14

Marine Reserves Act 1971 ss 18–18H

Maritime Transport Act 1994 ss 55, 58(1)(c), 59 , 235, 335 and 453(2)

Massage Parlours Act 1978 s 36

Medicines Act 1981 s 66

National Parks Act 1980 ss 61, 65 and 66

Ozone Layer Protection Act 1996 ss 22–24

Proceeds of Crime Act 1991 ss 30–35

Radiocommunications Act 1989 ss 120–125

Real Estate Agents Act 1976 ss 88–91

Reserves Act 1977 ss 95, 100 and 100A

Resource Management Act 1991 ss 315, 323, 327, 328, 330 and 334

Rotoaira Trout Fishing Regulations 1979 r 54

Sale of Liquor Act 1989 ss 175(2), 177 and 178

Submarine Cables and Pipelines Protection Act 1996 ss 18 and 20

Trade in Endangered Species Act 1989 ss 37–39A

Transport Accident Investigation Commission Act 1990 s 12

Transport Act 1962 ss 68E and 69D

Transport Services Licensing Act 1989 s 39P(2)

Wild Animal Control Act 1977 ss 12 (10), (11) and 13

Wildlife Act 1953 ss 39 and 61

Wool Board Act 1997 s 52

Group 3

Measures that Should be Repealed

Arms Act 1983 section 13

A1  Section 13 authorises the Police Commissioner to issue a warrant for the seizing of weapons in possession of a licensed dealer. The provision entitles police to retain the seized goods, which become the property of the Crown. The provision is strange because it does not indicate any grounds whatsoever for seizure. We are told by police that the power is exercised seldom. As presently worded, it is much too wide and should be repealed.

Atomic Energy Act 1945 section 15

A2  This Act was designed to regulate the prospecting for and mining of uranium. Section 15 confers a power of entry onto premises on which mining is carried out to check for the presence of uranium and other prescribed materials. Ownership of such materials vests in the Crown and, as a matter of policy, these materials are not mined. The provision has never been used and should be repealed.

Boilers, Lifts, and Cranes Act 1950 sections 6 and 7

A3  Sections 6 and 7 give powers of entry to surveyors. We are told that the powers are not used any more and the sections can be repealed. The powers of inspection are now those contained in the Health and Safety in Employment Act 1992.

Burial and Cremation (Removal of Monuments and Tablets) Regulations 1967 regulation 5

A4  Authorises removal of dilapidated or neglected monuments or tablets. Implicit in this provision is the power of entry. We are told that the power is not exercised and we recommend that the regulation be repealed.

Camping Grounds Regulations 1985 regulation 10

A5  Requires camping grounds to maintain records of occupants and make them available for an inspection. The justification for this requirement advanced by the Ministry of Health is that it is useful for tracing a person with a communicable disease or any contact with such person. We recommend that this provision be revoked.

Conservation Act 1987 section 48A(3)

A6  Gives the Controller and Auditor-General the power to enter, during normal working hours, premises of any Fish and Game Council to inspect books and papers. Other auditors manage without such powers.

Education Act 1989 sections 78A, 78B, 318 and 327; Royal New Zealand Foundation for the Blind Act 1963 section 6

A7  These sections confer powers of entry and inspection, and in some cases removal, of records by the Ministry for Education. Alone among government agencies, that ministry has failed to respond to our request for some account of their use of these powers. We can only assume that the powers are not needed and we recommend that these sections be repealed.

Films, Videos, and Publications Classification Act 1993 sections 108 and 111A

A8  Section 108 gives an inspector, under the statute, or a member of the police "in the course of carrying out his or her lawful duties" who discovers a publication believed to be objectionable a right to seize the publication. We are told that this power is seldom employed. This power is plainly open to abuse and the section should be repealed. Section 111A gives a power to stop vehicles. We are told that this power has probably never been exercised. There seems no justification for it.

Food Act 1981 section 36

A9  Relates to a procedure under which an outsider can formally require an officer to procure a sample of any food that is for sale. We are told that it is not used in practice and recommend that it be repealed.

Fumigation Regulations 1967 regulation 24

A10  This regulation permits the inspection of a fumigation cell. We are told that there are in fact annual inspections, but that they are carried out under the Health and Safety in Employment Act 1992. This regulation should therefore be revoked.

General Harbour (Safe Working Load) Regulations 1982; General Harbour (Ship, Cargo, and Dock Safety) Regulations 1968

A11  We are told that these are to be revoked as at 31 March 2003 because it is uncertain whether the power has ever been exercised, and they are not needed.

Geothermal Energy Regulations 1961 regulation 3

A12  The Ministry of Economic Development agrees that these should be revoked.

Insurance Companies (Ratings and Inspections) Act 1994 section 26(1)(d)

A13  Section 26 of this statute confers powers of inspection which extend to taking possession of documents. There may or may not be a right of entry implicit in section 26(1)(d) conferring the power to take possession of relevant documents. We are told that the power has not been used in recent memory. There is no obvious justification for the power to take possession of documents and section 26(1)(d) should be repealed.

Intellectually Handicapped Persons Homes Regulations 1955 regulation 18

A14  Provides for visits and inspections of a licensed home. It should be revoked because there are adequate powers under the Disabled Persons Community Welfare Act 1975.

International War Crimes Tribunals Act 1995 sections 11, 29, 48–55

A15  Sections 11, 29, 48–55 include search warrant powers. The powers have never been exercised and unless there is some international obligation to maintain them these provisions should be repealed.

Land Act Regulations 1949 regulations 20(2) and 21

A16  Are acknowledged by Land Information New Zealand not to be needed.

Land Transport 1998 sections 122 and 123(1)(b)

A17  Section 122 empowers an enforcement officer to seize and impound a vehicle for up to 12 hours in an emergency if it is believed to be in the interests of public safety. The Minister of Transport was unable to justify the existence of this power. Section 122 should be repealed. Section 123 authorises the seizure and impounding of a vehicle for the preservation of evidence in hit-and-run or failure to stop situations. The power extends to the situation where there has been a failure to stop despite a signal or request under section 114 subsection (1) or (2). The power seems to be plainly excessive and section 123 should either be repealed or section 123(1)(b) should be repealed.

Lead Process Regulations 1950 regulation 26

A18  Provides for a register of persons engaged in a lead process. It is said that it has been invoked infrequently in the past and that its purpose is to identify lead workers and keep track of them and their blood lead results. There are doubts as to the current utility of this and the regulation should be revoked.

Maori Community Development Act 1962 sections 30–36

A19  Sections 30–36 provides certain powers to Maori wardens designed to prevent unruly behaviour. Sections 31 and 32, in particular, give powers of entry to property. Te Puni Kokiri was unable to tell us the extent to which these powers are exercised in practice. We are not persuaded that the power of entry is necessary and recommend that it should be repealed.

Massage Parlours Act 1978 section 35

A20  Section 35 empowers entry and inspection "at any time". Section 36 empowers the issue of a search warrant. Section 37 empowers the entry of premises where it is believed that there is an unlicensed massage parlour. We are advised that the powers under section 35 are exercised frequently and that the powers under section 36 and 37 are exercised from seldom to regularly. What this seems to mean is that police exercise their general right of entry under section 35 and do not, in the normal case, bother about warrants. The section 35 power no doubt reflects the social climate that existed when the statute was enacted, but it does not seem to us to be justified. We recommend its repeal.

Military Manoeuvres Act 1915 sections 2 and 3

A21  This Act confers a right of entry onto land, referred to in a proclamation, for the purpose of conducting military manoeuvres. No example is known of its use since World War II, and it may be that it has not been used since World War I, which is when it was enacted. The provision should be repealed.

Mines Rescue Trust Act 1992 section 8

A22  Confers powers of entry and inspection that have never been used. The section should be repealed. The Department of Labour says:

The power is not essential. In the event that a mining operator failed to supply the required information to the Mines Rescue Trust Board, the Board could have recourse to the Ministry of Economic Development. The option exists for the Ministry to revoke mining licences for non-compliant operators.

Obstetric Regulations 1986 regulation 10

A23  Require record keeping by midwives and the production of the register to appropriate officers on demand. We are told that this provision is not used and not needed and should be revoked.

Opossum Regulations 1953 regulations 20 and 21

A24  Empowers the entry by officers appointed by the Director-General of Conservation onto dwellings (with a warrant) and other premises (during business hours without a warrant) to inspect opossum skins intended for sale and to seize disqualified skins. This power has not been exercised in recent times and should be revoked.

Pharmacy Regulations 1975 regulation 47

A25  Provides for the appointment of inspectors of dispensary premises in which prescriptions are dispensed and equipment in such premises. The Ministry of Health has made no attempt to justify this provision and it should be revoked.

Physiotherapy Amendment Act 1953 section 11

A26  Confers the right to enter and inspect premises in which there is ultrasonic therapy apparatus for the purposes of examining that apparatus and any premises to ascertain whether there has been, or has been committed, an offence under the Act. This provision is not used and should be repealed.

Plumbers, Gasfitters, and Drain Layers Act 1976 section 39E

A27  Confers powers of entry and inspection which are neither used nor needed and this section should be repealed.

Police Act 1958 section 50

A28  Section 50 empowers a warrant to seize police property in the possession of a former member of police. We are told that it has never been exercised and that the repeal would have little impact, we suggest that this be done.

Postal Services Act 1998 sections 12 and 22

A29  Section 22 prohibits the posting of "any indecent article or representation of any kind". Section 5 empowers a postal operator to detain postal articles for opening and examination where there are reasonable grounds to suspect that it has been posted in contravention of section 21, which relates to the posting of any noxious substance or thing or any dead animal, section 22 and section 24, which relates to any dangerous material such as an explosive. Section 12 entitles the Chief Executive of the department for the time being responsible for the administration of the Act, to enter at a reasonable time (unless the premises are a private dwelling), the postal operator's premises to ensure compliance with the section 12 obligation to record the detention and opening. Section 22 should be repealed because such issues are best left to the machinery of the Films, Videos, and Publications Classification Act 1993. The power of entry conferred on the Chief Executive by section 12 should be repealed.

Public Audit Act 2001 sections 27 and 29

A30  Sections 27 and 29 confer on the Auditor-General a power to inspect bank accounts and to have access to premises. We are told that "neither power has been exercised in recent years. However, there is a demonstrable case for both powers to continue, particularly to enable auditors to examine and report upon cases of employee fraud". Other auditors manage perfectly well without such powers and, in our view, sections 27 and 29 should be repealed.

Public Works Act 1981 section 178

A31  Is acknowledged by Land Information New Zealand to be in need of repeal.

Reserve Bank of New Zealand Act 1989 sections 99 and 102

A32  Sections 99 and 102 confer on the Reserve Bank powers that have never been used, but powers that it considers to be an important element under the prudential supervision system for banks and need to be retained. The Bank says:

Presently we have a benign financial system environment. We cannot assume that this will continue. At some future time these powers could become important in managing a financial system problem. The Reserve Bank regards it as essential that effective entry, search and seizure powers are included in its Act.

We recommend that these provisions be repealed.

Spray Coating Regulations 1962 regulation 40

A33  Entitles the taking of paint samples. This provision has never been used and should be revoked. The Department of Labour says it intends to revoke the regulations in their entirety.

Statistics Act 1975

A34  Section 35 gives a right of entry to the government statistician to factories, farms, mines, workshops, offices or places of business for the purposes of inspecting any part of the premises, any goods that are stored or offered for sale and any books of account, vouchers, documents or other business records. We are told that the right of entry has never been exercised. We are told by Statistics New Zealand that it does need a power to enter premises. We are not persuaded that this is so and recommend the repeal of section 35.

Transport Act 1962 section 68BA(2)(b)

A35  To the extent that this provision gives a warden powers to enter and move vehicles "for the convenience of the public" it is excessive and should be revoked.

Water Power Regulations 1934 regulation 6(15) and (16)

A36  The Ministry of Economic Development agrees that these regulations should be revoked.

Wellington Water Works Act 1871 section 23

A37  Section 23 empowers the Wellington City Council as follows:

The Wellington City Council, in response to our inquiry, replied:

The Council does not recall ever using [the section] ... However now that you have reminded us that this Act is still in existence and with the increasing concern with water conservation, we will consider the possibility of using the Act more often in future.

This provision should be repealed.

Group 4

Measures that Should be Preserved but to Which it is Inappropriate to Apply the Rules Suggested for Groups One and Two

Accident Insurance Act 1998 section 223 and 231

A38  Are preserved by the Injury Protection Rehabilitation and Compensation Act 2000 section 343. The powers have never been exercised but there seems no point in interfering with them as they may be expected to become spent before too long.

Children, Young Persons, and Their Families Act 1989

A39  There is power under sections 39 and 40 for a warrant authorising entry to search for and seize a child or young person who has suffered or believed to be at risk of various classes of ill treatment, and section 40 contains analogous provisions where there is a reasonable belief that a child or young person is in need of care and protection. Section 42 allows entry, search and removal without warrant in emergency situations. Sections 91, 92 and 95 provide for inspection by social workers where a child or young person is living in court-directed accommodation.

Section 105 gives powers to remove a child or young person by force if necessary where a placement order has been revoked or varied. Section 123 permits a warrant granting power of entry to a social worker or member of the police to enforce access rights. Section 305 is broadly analogous to section 95 and empowers entry to inspect where a young person is living under supervision.

Section 386 authorises the use of a warrant to enter and search by force if necessary specified premises to remove a child or young person who has fled or been removed from a directed place of residence. Sections 400 and 401 provide general powers of entry to check on social services and residential accommodation, and section 409 grants a comparable power in relation to organisations that have contracted to provide services.

Sections 384–384K, inserted in 2001, contain various powers of searching and seizing items from children and young persons in residential care. We see no reason to disturb any of these provisions.

Health Act 1956 sections 34, 70, 71, 77, 81–83, 101, 111 and 128

A40  These sections confer on various officers strong powers to abate nuisances, cause unsanitary buildings to be pulled down, occupy land and buildings and requisition vehicles in the event of an infectious disease, disinfect premises, destroy infected articles, inspect ships and aircraft liable to quarantine, disinfect and fumigate ships and enter and board them for that purpose, together with a general power in section 128 of entry for the purposes of the Act. There are comparable powers in the Health (Infectious and Notifiable) Diseases Regulations 1966, regulations 7 and 10. We do not deal with these separately because we are told that they are expected to be modified by a new Public Health Bill, to replace the Health Act, which is planned to be introduced early in 2002.

Summary Proceedings Act 1957

A41  By virtue of section 93(1) of this statute a bailiff may be empowered by warrant to seize property to be sold to meet unpaid fines. The power extends to enter a premises by force, if necessary, and to use a wheel clamp to immobilise a vehicle. Precise information as to the extent to which these powers are in fact used does not exist, but the Department for Courts suggests that the power is exercised in approximately one in every 30 cases of enforcement. The Department says, "Many units report that they use warrants to seize on a daily basis".

A42  Our only concern with these powers is the unqualified power to enter by force if necessary. The statute should provide that force to effect an entry should be used only after either a warning to the occupant, if he is present, of an intention to use force if he continues to obstruct entry or with the authority of a warrant from a judicial officer.

Tuberculosis Act 1948 section 8

A43  Confers certain powers of entry with the basic object of limiting the spread of tuberculosis. We are told that, in this case also, the provision will be replaced by the new Public Health Bill.

Wild Animal Control Act 1977 s 16

A44  Confers emergency powers.