Creating powers of search, surveillance and seizure
Powers of entry, search, surveillance, and seizure (referred to in this chapter as “search powers”) must be authorised by legislation or the common law (provided that the Government’s actions do not breach section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA)), or be carried out by consent.
Search powers balance important sets of values. On one hand is respect for liberty, dignity, bodily integrity, privacy, and the right to peaceful enjoyment by people of their property. These values are affirmed by the right in section 21 of NZBORA to be secure against unreasonable search and seizure. However, what constitutes a “search” within that right can be difficult to define. The Court of Appeal has expressed the view that a “search” involves state intrusion into reasonable expectations of privacy. Although the exact ambit of that concept has yet to be determined, it may capture a range of activities that might not automatically come to mind—for example, undertaking routine inspections; using a dog to detect concealed forbidden items; using thermal imaging equipment to detect heat inside a building; requiring a person to answer questions; requiring a company to disclose information about its customers; using under-cover officers to obtain information; and accessing the contents of a computer from a distant location by hacking.
On the other hand, and balanced against that right are regulatory and law enforcement objectives underlying particular powers. Searches for regulatory purposes aim to promote compliance with the law through inspections, monitoring, and enforcing compliance with legislative regimes that regulate particular industries or activities (particularly where serious harm can occur from non-compliance, such as physical harm to people, the environment, or the economy). In contrast, searches for law enforcement purposes aim to gather evidence for the prosecution of offences. Search powers for these two purposes occur on a spectrum and there is no clear demarcation between them.
A well-designed set of search powers will strike a balance between respecting individual rights and providing an agency with the vital tools it needs to give effect to a policy or Act. Generally, the more intrusive the search power is, or the more significant the consequences for the individual of the use of the power, the greater the need is for both a strong policy justification and safeguards on the exercise of the power. Safeguards can include prerequisites for the exercise of the power (such as a warrant), conditions on how the power is exercised, or limits on who may exercise the power. More intrusive powers should be restricted to classes of people with higher levels of accountability (see Chapter 18 for more guidance on who should hold a legislative power). Poorly designed search powers may be unjustifiably intrusive or insufficient. They may be difficult to use, be inconsistently exercised, and be subject to challenge in the courts. In such cases, it may be necessary to urgently amend the legislation to rectify defective search powers.
The Search and Surveillance Act 2012 reformed the law of search and seizure. It consolidates the existing Police powers that were previously contained in multiple pieces of legislation. It also provides a detailed set of procedural rules and safeguards that apply to the exercise of Police powers in Parts 2 and 3, and the majority of the powers held by non-Police regulatory agencies (which remain in agency-specific legislation, but are listed in the Schedule of the Act).
The Search and Surveillance Act 2012 strikes a balance between the competing rights discussed above. Therefore, the procedural rules contained in Part 4 of that Act should generally be the starting point for those intending to create new search powers. Part 4 is discussed in more detail at 21.4. Legal advisers and the Ministry of Justice (who play an important “gate keeping” role in respect of search powers) should be consulted to ensure that any proposed departures from the Act are justified.
 Lorigan v R  NZCA 264 at .
Should new search powers be granted?
New search powers should be granted only if the policy objective cannot be achieved by other means.
If the information or evidence concerned can be obtained by means other than by granting new search powers (for example, by recourse to the common law, consent, or existing powers), those alternatives should be used. If new search powers are required, the approach that results in the least limitation on privacy rights should be adopted.
Search powers should not be granted for the convenience of the agency or ease of prosecution. Each search power must have a separate justification for why it is necessary. A general justification that search powers are required is not sufficient. The more invasive a particular search power is, the greater the justification required to create it is. Searches of a person’s body are more invasive than searches of a business premises and generally require a greater justification.
In the regulatory context, search powers may have a legitimate monitoring or deterrent effect, but in the law enforcement context it is inappropriate for search powers to be used for coercive or deterrent reasons.
Search powers must be proportionate to their objective. Consequently, search powers connected to lower-level offending give rise to concerns. Advice should be sought from the Ministry of Justice if there is a proposal to provide search powers in respect of lower-level offences. These types of powers require clear justification and careful scoping.
Statutory law enforcement search powers must be triggered by suspicion that a specific matter or class of matters has taken place. Generally-worded law enforcement search powers (which allow “fishing expeditions”) are likely to be interpreted narrowly by the courts, and should not be authorised by legislation.
In some cases, the effective exercise of search powers might necessitate the inclusion of a power to require information to be produced (such as codes to access computers) or questions to be answered. However, these powers are likely to be used in situations where prosecutions are likely to follow, and the privilege at general law (and in the Evidence Act 2006) against self-incrimination should be respected. If grounds exist to override that privilege, then the overriding of the privilege should be explicitly stated. If not, then the privilege should be affirmed.
Search powers should also respect other privileges such as legal professional privilege.
Is a warrant required for the exercise of new search powers?
All searches for law enforcement purposes should be carried out under a warrant unless there are good reasons why a warrant should not be required.
The starting point is that all law enforcement searches should be carried out under a warrant issued by an independent judicial officer.
Warrantless search powers can be exercised without independent judicial oversight; therefore, a compelling reason must exist to create them. Generally, a real risk must exist that some serious harm or damage will occur or evidence will be lost if officers are required to obtain a search warrant.
However, consideration must still be given to whether or not any risk can be satisfactorily addressed by obtaining a warrant but delaying notice to the person or the occupants of a property that is the subject of the search. In the law enforcement context, compelling reasons must exist for granting warrantless search powers in respect of non-imprisonable offences.
In the regulatory context, it may be appropriate to allow warrantless inspections to take place without notice if it is the only effective way to ensure that certain regulatory standards are being adhered to (for example, the inspections of restaurants). Regardless of the context, all search powers must be proportionate to their objectives and all searches must be carried out by properly authorised and trained officers.
Warrantless search powers should rarely extend to dwelling houses or marae and only in circumstances where there is a compelling justification for such a high level of intrusion. Such powers should rarely be granted in the regulatory context.
How should the search powers be framed?
New search powers for law enforcement purposes should be exercisable only if there are “reasonable grounds to suspect” the relevant factual situation has occurred, and “reasonable grounds to believe” that evidence will be found or that a particular thing may be achieved during the course of that search.
In the law enforcement context, legislation should set out the thresholds that must be satisfied before a search power is exercised. The default thresholds below are based on the search powers of the Police in section 6 of the Search and Surveillance Act 2012 and should apply to any new search powers:
- there are “reasonable grounds to suspect” the relevant factual situation has occurred (such as a criminal offence); and
- there are “reasonable grounds to believe” that evidence will be found, or a particular thing might be achieved, during the course of the search (a common example is that evidence relating to a criminal offence may be found).
Compelling reasons must exist for relying on different thresholds in a law enforcement context (such as a suspicion that the person is carrying a dangerous item or may otherwise pose a serious and imminent threat to themselves or other people).
In the regulatory context, suspicion of a breach is not always necessary for search or inspection powers to be exercised. However, the power must still be justified (for example, a search or inspection power is required to monitor compliance with legislation). Even so, those powers must be capable of being exercised only for the purpose of monitoring compliance or detecting breaches of the legislation.
What procedure should apply to the exercise of the search power?
New search powers should apply the rules and procedures set out in Part 4 of the Search and Surveillance Act 2012.
The starting point is that legislation that creates new search powers should contain a specific statutory provision that applies Part 4 of the Search and Surveillance Act 2012.
Part 4 sets out a comprehensive set of rules concerning the conduct of searches by consent; the application for, and issuing and execution of, search warrants; the conduct of warrantless searches; how to treat legally privileged and confidential material; and the application of other legal privileges. Part 4 also addresses what happens to seized material following the end of proceedings or an investigation, and what immunities apply to those people who issue and execute orders and search warrants under the Act.
The rules and procedures in Part 4 should be specifically assessed for their relevance and applicability to the new search powers. Legal advice should be sought for this assessment. In many cases, Part 4 will need to be applied with modifications to suit the particular circumstances of the new powers. However, applying the rules in Part 4, with or without modifications, should be preferred over creating new bespoke provisions. Good reasons are required for not applying or for modifying the procedures in Part 4. Those reasons might include the need for a more specialised or technically complex set of rules and procedures (see, for example, the Animal Welfare Act 1999).
Who should exercise search and surveillance powers?
Search and surveillance powers should be held by a person with the appropriate level of expertise and accountability.
In general, the more invasive the search or surveillance power is, the more expertise and accountability the person holding the power should have. At a practical level, the person exercising the power must have access to the information and means to exercise the power (such as sufficient facts to determine whether the prerequisite conditions for exercising the power have been met) and sufficient expertise (perhaps demonstrated by training, qualifications, and experience) to exercise any discretion.
In relation to accountability, officials must consider whether the person exercising the power will be subject to sufficient safeguards, appropriate to the nature of the decision and proportionate to the invasiveness of the power. Safeguards could include one or more of the following:
- oversight or supervision of the exercise of the power by a person with higher levels of accountability:
- requirements to publicly report on the exercise of the powers:
- being potentially subject to investigation by the Ombudsmen or subject to the Official Information Act 1982.