The Search and Surveillance Act 2012 (Act) governs the issuing and exercise of search warrants and surveillance device warrants by both the Police and non-Police enforcement agencies (including commercial regulators such as the Commerce Commission and the Financial Markets Authority).
Now seeking public submissions
The Act provided for a five-year review to enable Parliament to reconsider the legislation. The review involves, as a first step, the Law Commission recommending changes to the Minister. The Law Commission has canvassed the views of enforcement agencies, the judiciary, and others. It is now seeking public submissions. The submissions made on the Issues Paper1 will influence the ultimate recommendations made to the Minister – and it is therefore important for interested parties to have their say before the focus of the recommendations is fixed.
Overview of the Issues Paper
The review is not intended to re-open the key policy decisions underpinning the Act unless there are readily apparent and significant problems. Rather, the review is intended to address shortcomings in the Act and consider whether it strikes the right balance between enforcement or regulatory objectives and individual rights.
The Issues Paper covers a wide range of matters – posing some 49 questions in respect of 11 topics, including:
the availability of surveillance device warrants,
the impact of recent developments in technology,
protecting privileged material and irrelevant private information in the context of digital searches by enforcement agencies,
production and examination orders, and
the possible ways in which intelligence agencies could be used for law enforcement purposes.
Surveillance warrants for non-Police agencies and commercial regulators?
The Law Commission has asked whether the availability of surveillance warrants should be extended to allow their use for a wider range of regulatory and law enforcement purposes – including for non-Police agencies and commercial regulators. Currently, the Act limits the availability of surveillance warrants to offences punishable by seven years’ imprisonment or more and certain offences under the Arms Act 1983 and the Psychoactive Substances Act 2013.
Subject to those limitations, the Act authorises the issuing of warrants for interception devices, tracking devices, and certain types of visual surveillance which involve:
the observation and recording of private activity in private premises,
the observation and recording of private activity in private grounds if that observation exceeds three hours in a twenty-four hour period or eight hours in total, and
the use of surveillance devices that involve trespass to land or goods.
The Law Commission asks whether surveillance warrants should be available for any offence for which a search warrant could be obtained. This reopens a policy debate during the passage of the Act. In 2007, the Law Commission recommended that surveillance warrants should be available to the same extent as search warrants. The bill initially adopted that approach but limitations were introduced during the Select Committee process following opposition from a range of interested parties (including Bell Gully).
The Law Commission’s approach to this issue is to ask whether the use of surveillance warrants is intrinsically more intrusive than search warrants. If not, the Law Commission considers that, at a principled level, the thresholds should not be different. For example, a search warrant could be issued to seize a mobile phone to obtain (say) text messages stored on it but there is a higher threshold for intercepting text messages, calls, and emails being sent to the mobile phone. The Law Commission questions the higher threshold for surveillance warrants.
We remain of the view that the availability of surveillance warrants should not be extended.
Surveillance can be considerably more intrusive than searches under a warrant. Surveillance involves covert monitoring of unguarded behaviour and communications as opposed to the seizure of physical evidence. Unlike a warrant, covert surveillance can continue for an extended period of time and is inherently more indiscriminate in obtaining private and irrelevant information.
The relative degree of intrusion is not the only – or necessarily even the first – question. It is also important to ask whether there is a demonstrated need to expand an agency’s investigative powers. That should involve considering the public interest in the detection and enforcement of different laws, the usefulness of surveillance for those purposes, and the public interest in persons being free from unreasonable surveillance.
Search warrants are widely available to many commercial regulators tasked with enforcing laws that are designed to achieve economic objectives (e.g., such as protecting competition in markets, workplace health and safety, and the interests of investors). Those objectives are worthy but the types of wrongdoing which they strike at are very different from the types of offences for which Police require surveillance warrants when dealing with serious crime, arms offences, and drug offences. A convincing case would need to be made to justify the extension of the power to obtain surveillance warrants to numerous regulatory agencies.
The Law Commission has asked whether the Act should provide greater protection for privileged material both at the stage when search warrants are applied for and also when the warrants are exercised.2 At present:
There is a common law duty of candour on any person applying for a search or surveillance warrant to make full disclosure of all facts relevant to whether the warrant should be issued, which includes raising the possibility that the search may uncover privileged material.3 Failure to comply with this duty will risk the warrant being held to be invalid and the search unlawful.4
The Act currently sets out a framework for dealing with privileged material obtained when executing physical searches, which is designed to minimise the risk of enforcement agents inadvertently seeing privileged material.5 For example, if a search warrant authorises the search of materials held by a lawyer in relation to their client, the lawyer or their representative must be present during the search and given the ability to claim privilege on their client’s behalf.
The Law Commission has asked whether the Act could be amended to require an applicant for a search or surveillance warrant to identify any privilege issues of which the applicant is reasonably aware. Failure to comply with this requirement would allow the issuing officer to refuse the application, or could result in the search being deemed unlawful and any evidence gathered inadmissible.6 In essence, this would codify one aspect of the duty of candour.
We do not consider that there is a gap in the existing common law. However, there is benefit in creating an express statutory obligation to bring privilege issues to the issuing officer’s attention.
In the context of digital searches, the Law Commission also asks whether a statutory duty should be imposed on enforcement officers carrying out searches to take all reasonable steps to minimise access to privileged or irrelevant material. An express statutory duty already applies with respect to surveillance. At present, the general law (developed under the New Zealand Bill of Rights Act 1990) requires agencies exercising search warrants to provide mechanisms to ensure that privileged material is protected and to ensure that the safeguards set out in search warrants are followed.7 This applies equally to physical and digital searches. Enforcement agencies need to have a plan for identifying and isolating privileged material (e.g., appointing an independent third person to identify digital privileged material).
Similarly to the proposal for an express duty of candour regarding privileged material, we consider that a statutory obligation would be a useful mechanism to enhance protection of privilege.
Submissions close on
Friday, 16 December 2016. Bell Gully will make a submission focusing principally on the requirements for the issuing and exercise of search warrants.
If you would like to talk to us further about the review of the search and surveillance legislation, please contact one of our team.
This publication is necessarily brief and general in nature. You should seek professional advice before taking any action in relation to the matters dealt with in this publication.