I refer to [Ministry of Justice Chief Operating Officer Carl] Crafer’s [response to a letter about court security and the searching of lawyers] published in issue 928 of LawTalk May 2019. Unfortunately, he does not explain why he decided to distinguish between lawyers employed by the Ministry of Justice and other lawyers. Pursuant to s 4 of the Lawyers and Conveyancers Act 2006 all lawyers do have a statutory oversight obligation to uphold the rule of law. In addition, lawyers have a very important role to ensure that basic human rights under ss 23(1) and 24(c) and (f) of the NZ Bill of Rights Act 1990 be afforded to ordinary citizens when dealing with the executive and judicial branches of the government. While lawyers are not exempt from the provision of the Court Security Act 1999 (“the Act”), any suggestion that they may be denied entry to the courts, will sound alarm bells.

The Act regulates the security at all courts, as defined in s 3. Subsections (1) and (2) of s 13 provide court security officers with the power to ask for consent to search, as well as the power to deny entry to anyone who refuses to be searched (“may seek permission to search” and “may deny entry”, not “must”). From the wording of these provisions it is clear that the legislature granted Court Security Officers a discretion.

On 27 March 2019 the Law Society advised its members that a notice was received from the Ministry of Justice advising that effective immediately all persons entering court buildings would be screened, with the exception of the judiciary, employees of the Ministry of Justice, Police and Corrections. Mr Crafer, under delegated authority from the Chief Executive of the ministry, was the author of this notice and he confirmed his decision to extend the exemption.

The notice from the Ministry of Justice of 29 March 2019 raises interesting rule of law issues.

1. First, while court security officers are appointed by the Chief Executive of the ministry under s 5(1) of the Act, s 7(2) stipulates that a court security contract may not contain provisions inconsistent with the Act. A court security officer’s powers and duties are defined in s 10 of the Act, which includes a reference to s 13 and the discretion contained therein. It is doubtful whether the Chief Executive could direct court security officers to make compulsory searches of persons entering court buildings as such a direction would remove their discretion under s 13.
2. Second, on 29 March 2019 the Chief Executive did not have the power to exempt any person from the provisions of the Act. At that stage s 24(1)(h) required any exemption to be done by regulation and the exclusion of “Ministry of Justice staff and Corrections” in the directive appears to have been unlawful. It was only on 8 April 2019 that the amendment to s 24(1)(h) came into force empowering the Chief Executive to exclude individual persons or classes of persons.

There is no provision in the Act for so-called “lighter touch searches”; only to the discretionary power of court security officers. As the security level has been reduced to MEDIUM there seems no reason why the inexplicable discrimination between lawyers employed by the ministry and other lawyers should be continued. The Chief Executive now has the power under s 24(1)(h) to exclude lawyers known to court security officers from searches under the Act and should do so. Lawyers are all officers of the High Court of NZ and they have unique professional obligations. They deserve to be treated with more courtesy and respect.

Henry Laubscher
Barrister, Auckland