Proposed Food Bill search powers questioned
The New Zealand Law Society has questioned proposals to give a food safety officer the power to enter certain specified places without a search warrant and to use reasonable force to secure entry.
In its August submission to the Primary Production select committee on the Food Bill, the Law Society said the power given by clause 275 was particularly intrusive because there were minimal controls on its exercise and it could be used for so broad a range of purposes that there were no material limitations.
The select committee reported back to Parliament on 16 December 2010 and recommended no changes to clause 275.
The Law Society’s submission focused on the implications of the New Zealand Bill of Rights Act 1990 for the clause 275 power to search without a warrant. It noted that the clause 275 power was necessary to allow routine inspections to ensure compliance with the Act.
“It is important for consistency with the New Zealand Bill of Rights Act that the power to search without a warrant be as limited as possible and that it not be available for the purpose of collecting evidence for a criminal investigation,” the submission stated.
There were minimal safeguards provided in respect of the clause 275 power. There were no conditions of any substance for exercising the power, and no judicial supervision or supervision by a third party of conditions.
“Clause 275 does not specify any general threshold that needs to be met, or grounds that need to exist before it can be used,” the Law Society said. “In comparison, the requirement for a [search] warrant is a reasonable belief that there is, at any place, any thing in relation to which an offence against the Act has been/is being committed, or that there has been/is being/is intended to be used by a person for the commission of an offence against the Act; or that is evidence of the commission of an offence against the Act.”
The Law Society submission suggested that to ensure entry is proportional to the objectives of the Food Bill, it would be desirable to include a general condition for the use of the clause 275 power. This could be a requirement that the officer reasonably believes that entry is necessary to protect against risks to human life and public health, or to monitor for compliance with the regulatory regime.