Search and Surveillance Bill

Part 3 of the Search and Surveillance Bill contains the surveillance device, declaratory order, and production order regimes. This has been subject to much debate, and it was not clear that the bill as introduced struck the right balance between human rights and enforcement needs. The Justice and Electoral Committee therefore very carefully considered this part of the bill. The amendments it has made are astute, sensible, and valuable.

The select committee has amended this part to limit the use of visual surveillance devices in circumstances that involve a trespass and every use of an interception device to offences punishable by 7 years’ imprisonment or more. This means that such devices will be used only to investigate serious offences, ensuring that the investigative benefit justifies the level of intrusion involved. There is an exception for certain Arms Act offences that are punishable by less than 7 years’ imprisonment. This recognises that these offences can have very serious consequences to people’s safety.

As a further protection, the use of such surveillance will be limited to the police, the Customs Service, and the Department of Internal Affairs—the only agencies who currently investigate offences punishable by 7 years’ imprisonment or more. The Customs Service and the Department of Internal Affairs will be authorised to carry out this surveillance only if they can demonstrate they have developed this capability to a satisfactory standard and can do so in a manner that protects human rights as provided by the regime. A statutory amendment would be required if any other agencies wished to be authorised to use such powers. This means that the appropriateness of other agencies to conduct such surveillance will be determined by Parliament. This ensures that such a potentially intrusive power is granted only after full debate and careful scrutiny by the House. This is an important protection that I welcome.

This part also protects citizens by regulating the use of surveillance devices that are currently unregulated. There is currently nothing to stop any agency from using a tracking device so long as it does not commit a trespass, nor is this use regulated now, except in the case of police and the Customs Service. The use of visual surveillance devices is subject to even less regulation. All agencies can use a visual surveillance device, such as a camera or binoculars, providing they do not commit a trespass. This means that police can currently set up a camera that looks directly into someone’s home, without any limits other than a possible claim, after the fact, under the New Zealand Bill of Rights Act 1990. The bill regulates such visual surveillance by requiring enforcement officers to apply for a warrant. This requires enforcement officers to justify the use of such surveillance before it is used, protecting citizens from unjustified invasions of privacy.

This part also contains an innovative regime that recognises the pace at which technology is advancing: the declaratory order. Declaratory orders allow agencies to obtain a judicial view as to the reasonableness of a new device, technique, or procedure before using it. This gives agencies a degree of comfort about the admissibility of such techniques and devices, although it is not determinative. Such declaratory orders are also subject to reporting requirements to Parliament. This enables Parliament to keep track of the use of such techniques, giving it the option to regulate if appropriate.

Finally, this part also includes the production order regime. A person presented with a production order is required to provide the documents that are described in the order. This regime reflects a current and common practice of police in executing search warrants against occupiers willing to assist. The courts have held that a search warrant may be executed by the police sending a copy of the search warrant to a company and the company sending the documents to the police. The production order regime therefore is effective and efficient. It allows the people with the best knowledge about where a document is to be found to locate it, so that enforcement officers do not have to search through irrelevant and potentially confidential information. The fact that companies, organisations, and individuals may refuse to comply on the grounds of self-incrimination or a recognised privilege, such as the right of journalists to protect their sources, provides adequate protection for those who receive production orders. This part really does strengthen all of the powers of people to, in fact, resist unlawful searches.

I want to start by saying that when the current legal regime applicable to search and surveillance is compared with the regime that is set out in Part 3, then what the Minister of Justice says is right. This is a much better regime. It does call, as she correctly described, for approval prior to the fact, and that will be judicial approval. This is the element that was missing in the matter that was decided by the Supreme Court late last year. It is a shame Parliament did not manage to get this regime in place prior to that decision, but the reality is we are getting it in place now and that is something that I think we should all be reasonably pleased about.

The matters that I particularly wanted to draw attention to in this part, and I would be grateful if the Minister would have a think about these, are, first of all, the typescript amendment in the name of my colleague David Parker, which would continue the process that each of the three Labour typescript amendments have started, which is to mainstream the protections that appear in the Search and Surveillance Bill by applying them to the Serious Fraud Office.

In respect of this part of the bill, the way in which that would occur is that clause 69 would be applied to the Serious Fraud Office because the Director of the Serious Fraud Office would be, for the purposes of the Act, an enforcement officer who would be entitled to apply for a production order. So just as we have begun to build in or attempted to build in the Serious Fraud Office, right from the beginning, in the interpretation clause, so that exercise continues in a necessary clause in respect of this part.

The other matter that I want to draw the Committee’s attention to is one that was referred to by the Minister in her introductory remarks. It might also be interesting to hear from a member of the Justice and Electoral Committee on this, because it relates to the regime that would be set up by clauses 57 through to 61, the declaratory orders provisions. On my reading of the reported-back bill, what was originally proposed was a residual warrants regime. So a law enforcement agency would have to obtain a residual warrant if it wanted to obtain evidence relating to an offence, and the agency wanted to use a device, technique, procedure, or activity that might constitute an intrusion into the reasonable expectation of privacy of any person. All that has been struck out by the select committee, and it has been replaced with this declaratory orders regime.

I have some concerns about the way in which this might operate in practice. What would happen is, as the Minister has said, if there is a new type of device that law enforcement agencies want to use, they can go to a judge and seek, effectively, an opinion about the propriety of the use of that device. But there are some fish-hooks, I think, in the regime as it is set out. The application will be made to a judge. A judge is defined now in this legislation as either a High Court judge or a District Court judge. It is expressly provided in clause 57(2) that “A declaratory order is advisory in character and does not affect the jurisdiction of any court to determine whether the activity that was the subject of the order”—of the court—“was reasonable and lawful.” That is going to put a District Court in some difficulty, I imagine, if on some previous occasion an opinion—advisory only, but none the less from a higher court such as the High Court—has been obtained. If the High Court purports to give one of these advisory opinions in circumstances that are very similar to those that then come before a District Court, it is difficult to imagine circumstances in which the District Court is going to be able to feel free to depart from the views that were expressed on the earlier occasion.

The other concern about the declaratory orders is really that it is a novel procedure. We have a declaratory judgments procedure in our Judicature Act at the moment, whereby, on a set of existing facts, it is possible to go to the court and ask for the law to be declared on those facts. But they are real facts, not hypotheticals, which seems to be the situation that this regime contemplates. We have never put our courts in the position of having to decide on hypotheticals put to them by a law enforcement agency. Our courts generally decide contentious litigation based on real-world facts. Where in the adversarial model does the evidence to contest what is put up by the enforcement officer come from, in this envisaged regime? How does the court undergo an adversarial process in order to come to the view that is envisaged it would by this procedure? Why on earth would we not just do what we expect agencies to do at the moment? They get an opinion from the Solicitor-General, the Crown Law Office, or, on occasion, a Crown solicitor, on the legality of a proposed method of surveillance, and they proceed on the basis of that opinion.

I think we are putting the courts in an odd position, where we say the courts can pass an advisory view—and it is expressed to be just an advisory view—yet we are not clear in the legislation about any procedure that would have to be engaged in by the courts, particularly where the “hearing the other side” practice would come from. We say that they would be advisory only, so presumably in real-world facts that came before the court that were very similar to the theoretical position that was put to the court, the court would still be free to come to a different view. If that is the case, what is the utility of this procedure, is it likely to ever be used, and what sort of comfort is it likely to be able to give enforcement agencies in the ultimate analysis?

Those are the particular concerns that I wanted to raise about this part. I commend the amendments in David Parker’s name. I think the general regime that the part sets out is a great improvement, as far as protections for our people from potentially unlawful search and surveillance is concerned, but I do wonder whether the declaratory orders regime is, in the end, going to be worth the paper it is written on.

I am very pleased to speak on Part 3 of the Search and Surveillance Bill. I would like to congratulate the officials and the Justice and Electoral Committee, because, again, this is another substantial part of this very good bill. Going through and looking at the changes the select committee made, changes in the Supplementary Order Paper, and changes that have been made by officials, it is clear that it has been very carefully scrutinised. It is also clear that there has been a concern about getting that balance right between privacy and using the powers in an appropriate way. I am very pleased to see that that has been addressed.

There are four subparts to Part 3: Subpart 1, “Surveillance device warrants and declaratory orders”; Subpart 2, “Production orders”—which I will talk about a little bit later on—Subpart 3, “Police and Customs officer powers to search in relation to delivery under section 12 of Misuse of Drugs Amendment Act 1978”; and the last subpart, Subpart 4, “Warrantless powers of entry and search incidental to arrest or detention”.

Just talking about the bill’s surveillance regime initially, this covers the interception devices that can interpret communications, otherwise known as audio surveillance; tracking devices that can detect where things are located or whether a thing can be opened or tampered with; and visual surveillance. Only a judge, importantly, can issue a surveillance order, a warrant, and they have got to be satisfied that all the conditions are met. I think the thing that impresses me in this particular bill is that it is very prescriptive. There is a recipe you have got to follow, there are criteria that have to be met, and there is a high level of scrutiny. I am very pleased to see that.

Not being a legal person, and speaking as a member of the public, as I am when I am not in Parliament, I am pleased to know that we have these protections here. I think the degree of intrusiveness of surveillance will depend on, obviously, the circumstances. So, for example, video surveillance will not always be more intrusive than searching a house under a warrant, but there are significant privacy concerns with regard to visual surveillance involving trespass and audio surveillance, so these methods are limited to very serious offending. I think it is entirely appropriate that they are used only in very serious situations and are not used frivolously or with a very low-level hurdle to cross.

I will speak a little bit about production orders. This part of the bill also introduces the production order regime, and that means really that when a person is presented with a production order, they have got to produce the goods that are described in that particular document. It is something that the Serious Fraud Office has been able to do, but this is now going to be extended to the police. Importantly, there is going to be provision for people who feel that they cannot comply and that they must refuse for reasons such as self-incrimination or recognised privilege.

We talked before in the debate on Part 2 about journalists and about how they want to protect their sources of information. New Zealand is a country of free speech, and I feel that all of us here, if we were in a situation where someone had to blow a whistle or wanted to say something using anonymity, would respect that.

Similarly, I know that it will be welcomed by journalists that they can protect their sources. Indeed, there has been a real improvement in that power for journalists to protect their sources. So in a situation where there is a production order, the journalist can invoke this situation and not divulge their source at all. Again, I think that this is another substantial part. There are a number of subparts. It is very prescriptive and very comprehensive, and I applaud the committee and the officials in respect of this section. Thank you.

I want to come to production orders, but one of the great benefits of these sorts of debates is that Parliament sometimes actually comes up with issues that officials have not thought of. Charles Chauvel raises a very important point in respect of the declaratory orders in respect of new technology.

Progress to be reported presently.

House resumed.

The Chairperson reported progress on the Search and Surveillance Bill and no progress on the Crown Pastoral Land (Rent for Pastoral Leases) Amendment Bill.

Report adopted.

The House adjourned at 9.56 p.m.