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Part III Tracking devices

35 ELECTRONIC TRACKING DEVICES enabling the location of a vehicle or package to be monitored are a useful law enforcement tool. The only statutory provision in New Zealand making provision for the use of tracking devices is the Misuse of Drugs Amendment Act 1978 section 13 which applies only to the investigation of drug offences. The problem in other cases is that because the physical affixing of the device and probably its ultimate removal would constitute trespass (to land, or even if the affixing is in a public or other place which the officer is licensed to enter, to the chattel to which the device is affixed) there is a risk that evidence so obtained may be ruled inadmissible as unlawfully obtained. Our terms of reference require us to advise on:

The power to use tracking devices, which enable the location of objects such as packages and vehicles to be monitored.

They do not extend to tracking the movement of human beings.

36 Except for the trespass involved in the affixing or removal of the device there is no obvious reason why surveillance that is permissible by the use of manpower should be regarded as impermissible when carried out more efficiently with the aid of an electronic device. Statutory provision for the issue of warrants authorising electronic tracking is common in comparable jurisdictions with our own. Examples are:

• in the United Kingdom, the Police Act 1997 section 93 and the Regulation of Investigatory Powers Act 2000 Part II;
• in Canada section 492.1 of the Criminal Code;
• in Queensland, the Crime Commission Act 1997 section 82 and the Police Powers and Responsibilities Act 1997 section 68;
• in the Northern Territory, the Surveillance Devices Act 2000;
• in Victoria, the Surveillance Devices Act 1999;
• in Western Australia, the Surveillance Devices Act 1998 section 7.

37 Our recommendation is that legislation be enacted along the lines of the Canadian provision which is in the following terms:

492.1 (1) A justice who is satisfied by information on oath in writing that there are reasonable grounds to suspect that an offence under this or any other Act of Parliament has been or will be committed and that information that is relevant to the commission of the offence, including the whereabouts of any person, can be obtained through the use of a tracking device, may at any time issue a warrant authorizing a peace officer or a public officer who has been appointed or designated to administer or enforce a federal or provincial law and whose duties include the enforcement of this Act or any other Act of Parliament and who is named in the warrant

(a) to install, maintain and remove a tracking device in or on any thing, including a thing carried, used or worn by any person; and

(b) to monitor, or to have monitored, a tracking device installed in or on any thing.

(2) A warrant issued under subsection (1) is valid for the period, not exceeding sixty days, mentioned in it.

(3) A justice may issue further warrants under this section.

(4) For the purposes of this section, “tracking device” means any device that, when installed in or on any thing, may be used to help ascertain, by electronic or other means, the location of any thing or person.

(5) On ex parte application in writing supported by affidavit, the justice who issued a warrant under subsection (1) or a further warrant under subsection (3) or any other justice having jurisdiction to issue such warrants may authorize that the tracking device be covertly removed after the expiry of the warrant

(a) under any terms or conditions that the justice considers advisable in the public interest; and

(b) during any specified period of not more than sixty days.