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Search and Surveillance review aims for greater clarity and transparency in statute

02 March 2018 - By Yasmin Moinfar-Yong

The Law Commission and the Ministry of Justice have published a joint report on the operation of the Search and Surveillance Act 2012. The report finds that the Act has largely been working well and does not need a major overhaul. The 67 recommendations in the report aim to provide greater clarity and transparency in the Act around when and how enforcement officers exercise can search and surveillance powers, and update the Act to keep pace with developments in technology.

The report, Review of the Search and Surveillance Act 2012 (NZLC R141, 2017), was tabled in Parliament by the Minister of Justice on 30 January. It is available on the Law Commission’s website. The report covers areas such as the principles underlying the Act, surveillance technology, searches of electronic devices and internet sites, and undercover operations. The joint review was mandated by the Act and, as required by the statute, was completed within one year.

The Act sets out the search and surveillance powers available to police. It also governs how a wide range of enforcement officers with search, surveillance, examination and inspection powers under other legislation exercise those powers (for example, fisheries inspectors, immigration officers, and Inland Revenue and Department of Internal Affairs investigators).

Greater guidance recommended

The report finds that the Act should provide greater guidance on when and how enforcement officers can exercise search and surveillance powers. Much of this is instead supplied by case law relating to section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) which guarantees the right to be free from unreasonable search or seizure, and section 30 of the Evidence Act 2006, which determines the admissibility of improperly obtained evidence in criminal proceedings.

Surveillance cameras mounted on a pole

The Act empowers enforcement officers to apply for search warrants and production orders where certain statutory criteria are met, but does not specify when they must obtain a warrant or order. Enforcement officers must determine, case-by-case, whether the proposed activity is likely to amount to a search in terms of section 21 of NZBORA: if so, they are likely to seek a warrant/order; if not, they are likely to proceed without one. Section 21 case law establishes that a search is activity that amounts to state intrusion on reasonable expectations of privacy (Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [163] per Blanchard J, together with Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729 at [22]).

In other areas, the Act is silent. For example, the Act requires enforcement officers to obtain a surveillance device warrant before conducting certain types of surveillance, but it does not mention other types of surveillance. Again, enforcement officers who wish to undertake surveillance activity not covered by the Act must determine, case-by-case, whether the activity is likely to constitute a search.

The report observes that the concept of “reasonable expectations of privacy” can be difficult to apply and creates uncertainty for enforcement officers as to when they must obtain warrants and orders. The lack of guidance in the Act also does not assure the public that their privacy interests are being adequately and proactively protected.

A principles provision

The report recommends addressing these issues in a number of ways. First, it recommends a principles provision be inserted into the Act. This would require enforcement officers and issuing officers to consider principles such as the need to follow the procedures set out in the Act before intruding on the privacy of any person; to minimise intrusions on privacy; to obtain a warrant or order in preference to exercising a warrantless power; to take account of any relevant cultural considerations or impacts on vulnerable people; and to exercise powers in a manner that protects privilege.

The proposed principles are based primarily on existing case law. Their inclusion in the Act would help to ensure they are addressed before a search or surveillance occurs, rather than only being considered in hindsight during an admissibility inquiry under section 30 of the Evidence Act.

Policy statements

The report recommends that chief executives of enforcement agencies issue publicly available policy statements in relation to certain types of investigatory activity not explicitly addressed by the Act. Examples include public visual surveillance (such as using CCTV cameras), social media monitoring and covert or undercover operations.

These policy statements would provide guidance on grey areas where it may be unclear whether a particular type of activity is lawful or reasonable in the absence of a warrant. They should address some of the difficulty in drawing a bright line between conduct that intrudes on a reasonable expectation of privacy and conduct that does not.

The report also recommends that agencies should issue policy statements in relation to production orders, which require third parties such as telecommunications or electricity service providers to produce information. These policy statements would provide guidance on when enforcement officers should apply for production orders and what applications should contain.

Declaratory orders

The report recommends clarifying the purpose and effect of declaratory orders, to encourage their greater use. These orders allow enforcement officers to seek authorisation for activity where no specific warrant, order or power appears to be available. The report concludes that declaratory orders provide a useful mechanism for enforcement officers to seek judicial guidance on whether proposed activity that may constitute an intrusion into reasonable expectations of privacy is lawful and reasonable.

Covert operations

The report proposes amendments to the Act to regulate covert operations, such as police undercover operations. It finds that the absence of statutory rules is undesirable, given that some covert operations may involve significant intrusions on privacy. Its proposals would provide greater transparency and safeguards around this investigative technique, while also recognising its legitimacy in appropriate cases.

The statutory regime proposed in the report contains two features:

  • Constraints on the circumstances in which enforcement officers can use covert operations (through a combination of warrants and policy statements, depending on the seriousness of the operation), and
  • Mechanisms to identify and address any inappropriate practices (through an external auditing process and by requiring policy statements to be publically available).

The report also recommends the introduction of more comprehensive immunity and assumed identity regimes, to clarify the legal boundaries of covert operations.

Updating the Act to keep pace with technology

Another area the report focuses on is developments in technology. It proposes changes to the surveillance regime to allow some enforcement agencies to use new technologies, such as keystroke logging and other electronic data surveillance, to investigate crime more effectively.

The report also recognises the continued need to protect individuals’ privacy, in light of the significant amount of personal information many people now create or store electronically. It recommends enforcement officers should be required to obtain a warrant to search electronic devices, such as smartphones, except in urgent situations. It also proposes amendments to clarify the rules around searching information on the internet.

The report is awaiting a Government response.

Yasmin Moinfar-Yong is a Legal and Policy Advisor with the Law Commission.

Last updated on the 2nd March 2018