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Part IV Bill of Rights issues

38 WE HAVE BEEN ASKED, in relation to each of the three changes proposed above, to comment in relation to the Minister of Justice’s obligations to Cabinet under the Cabinet Office Manual and the Attorney-General’s obligations to the House of Representatives under the New Zealand Bill of Rights Act 1990 section 7 on whether the proposals have implications under that statute. The relevant provision is section 21:

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

Discussion is made more difficult by the Court of Appeal’s current policy of refraining from defining “search” and concentrating on the issue of reasonableness.

39 In relation to interception warrants, what is proposed is no more than a refinement of an existing power. The existence of that power (assuming it to be a search power) has not been treated as unreasonable in any of the cases both in the High Court or the Court of Appeal in which the existing power has been considered. In Bouwer (page 112) the Court of Appeal observed:

Parliament has decided that it is in the interests of justice that, under conditions prescribed by it and under the supervision of the High Court, eavesdropping techniques are to be made available to the police for the detection of serious crime. If and to the extent that such surveillance within the limits of the warrant constitutes a search and/or a seizure, what is done is rendered lawful. The Court will exclude the resulting material if it considers that what has been done is nevertheless unreasonable. In this manner the values underlying s 21 can be accommodated in accordance with s 5.

We think, therefore, that the Minister and the Attorney-General can certify properly that there are no Bill of Rights implications.

40 The proposal in Part II is to impose on the party subjected to the search a new obligation to assist the searcher. This would be a breach of section 21 if the view were taken that such an obligation transformed an otherwise reasonable search into an unreasonable one. The existence of comparable obligations in other democracies establishes reasonably conclusively either that the search is not thereby rendered unreasonable or that if there is a limitation of the rights described in section 21 it can be demonstrably justified in a free and democratic society.

41 In relation to Part III, it is not clear whether use of a tracking device is a “search”. The US Supreme Court says not, and that nothing in the Fourth Amendment prohibits the police from augmenting their sensory facilities with such enhancement as is afforded by science and technology (US v Knotts 460 US 276 (1983)). Note that this case considers only the monitoring and not the act of installation. The Supreme Court of Canada has come to a contrary view (R v Wise [1992] 1 SCR 527). The Canadian provision that we recommend for adoption was enacted subsequently to R v Wise and its constitutionality seems to be accepted. Even if the use of a tracking device is a search, the existence of comparable measures in other democracies establishes reasonably conclusively either that such a search would not be unreasonable or that if there is a limitation of the rights described in section 21 such limitation can be demonstrably justified in a free and democratic society.