NovemberJune 2017, 2010, Wellington, Wellington, New New Zealand Zealand | | REPORT REPORT 141 119 REVIEW OF THE KO TE AROTAKE SEARCH AND I TE SEARCH AND SURVEILLANCE SURVEILLANCE ACT 2012 ACT 2012 June 2017, Wellington, New Zealand | REPORT 141 REVIEW OF THE SEARCH AND SURVEILLANCE ACT 2012 KO TE AROTAKE I TE SEARCH AND SURVEILLANCE ACT 2012 NOTE: THIS IS A REDACTED VERSION OF THE REPORT. THE REDACTIONS RELATE TO A COURT JUDGMENT THAT IS SUBJECT TO A SUPPRESSION ORDER UNTIL FINAL DISPOSITION OF THE TRIAL. Law Commission / Te Aka Matua o te Ture The Law Commission / Te Aka Matua o te Ture is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand. The Commissioners are the Hon Douglas White QC (President), Donna Buckingham, Helen McQueen, and Hon Dr Wayne Mapp QSO. The General Manager is Jasmine Tietjens. Street address: Level 19, 171 Featherston Street, Wellington Postal address: PO Box 2590, Wellington 6140, New Zealand Document Exchange Number: sp 23534 Telephone: (04) 473-3453, Facsimile: (04) 471-0959 Email: [email protected] Internet: www.lawcom.govt.nz Ministry of Justice / Tāhū o te Ture Street address (National Office): Justice Centre, 19 Aitken Street Postal Address: DX SX10088, Wellington 6011, New Zealand Telephone: (04) 918-8800, Facsimile: (04) 918-8820 Internet: www.justice.govt.nz The Māori language version of the Report’s title was developed for the Commission and the Ministry by Kiwa Hammond, Tohuao and Toi Reo Māori. Cover image by Thomas Kvistholt on Unsplash (https://unsplash.com/photos/oZPwn40zCK4). A catalogue record for this title is available from the National Library of New Zealand. Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka. ISBN: 978-1-877569-81-4 (Print) ISBN: 978-1-877569-80-7 (Online) ISSN: 0113-2334 (Print) ISSN: 1177-6196 (Online) This title may be cited as NZLC R141 This title is also available on the Internet at the Law Commission’s website: www.lawcom.govt.nz ii Law Commission and Ministry of Justice Report 27 June 2017 Hon Mark Mitchell Associate Minister of Justice Parliament Buildings WELLINGTON Dear Minister NZLC R141 – Review of the Search and Surveillance Act 2012 Ko te Arotake i te Search and Surveillance Act 2012 We are pleased to submit to you the above Report under section 357 of the Search and Surveillance Act 2012. Yours sincerely Douglas White Rajesh Chhana President Deputy Secretary Policy Law Commission / Te Aka Matua o te Ture Ministry of Justice / Tāhū o te Ture Review of the Search and Surveillance Act 2012 iii Foreword Legislation frequently does not tell enforcement officers what coercive powers they have or how they are to exercise them. Far too much is therefore left to their individual discretion and judgement. Courts are left to determine the legality and reasonableness of their actions after the event, usually in the context of challenges to the admissibility of evidence in subsequent criminal proceedings. This unnecessarily occupies valuable court time in resolving the disputes that inevitably arise. In a liberal democratic society … the exercise of coercive powers by the state should be subject to clear and principled controls ... Sir Geoffrey Palmer These words appear in the foreword to the Law Commission’s 2007 Report, Search and Surveillance Powers. It was the most substantial report that the Commission had then produced, making 300 recommendations on the use of investigative and evidence- gathering powers by law enforcement agencies. The Search and Surveillance Act 2012 ultimately responded to the challenge of bringing coherence, clarity and consistency to this area of the law. It went further than the scope of the Commission’s original review, which had focused on criminal law enforcement. Some of the Act’s provisions also extend to those who ensure compliance with regimes that regulate many lawful activities. Yet the foreword comment in the Commission’s original Report still provides the underlying theme of this review of the Act, which has been jointly conducted by the Law Commission and the Ministry of Justice over the course of one year. The review itself and its timeframe were mandated by the Act, in recognition of the significant changes its provisions made to search and surveillance law. The terms of reference require this review to reflect the relationship between the two public interests lying at the heart of the Act. The first is the need to equip enforcement agencies effectively and adequately for their role in protecting the public by detecting and prosecuting offending or by enforcing regulatory compliance; the second is the need to ensure that this role is clearly regulated, able to be audited and only occurs where it is justified. In other words, law enforcement must only intrude on the protection of individuals’ rights to privacy, dignity and property to the extent that the intrusion is necessary and proportionate. Five years on from the Act’s commencement, rapid changes in both technology and in the way crimes are committed have altered the context in which the Act must operate. This review assesses how the Act’s provisions are working and does so against the background of that technological change and in the light of significant case law and international legislative developments. iv Law Commission and Ministry of Justice Report That has required consideration of how the Act can balance the public interests in effective law enforcement and in the protection of human rights values in this new environment and how to ensure, as far as possible, that it will continue to do so in the future. Douglas White Rajesh Chhana President Deputy Secretary Policy Law Commission / Te Aka Matua o te Ture Ministry of Justice / Tāhū o te Ture Review of the Search and Surveillance Act 2012 v Acknowledgements We gratefully acknowledge all those who helped us to isolate issues with the current legislation or who provided a submission or comment on those issues or a view on the proposals we formulated. This includes members of the judiciary, representatives from enforcement agencies, the legal profession, other institutions or organisations and members of the public. A list appears in Appendix 3. Members of our Expert Advisory Group were chosen for their wide variety of technical or legal expertise in privacy and human rights, investigative and surveillance technology, trial process and evidential issues. While the recommendations in this Report remain those of the Commission and the Ministry, the group’s collective wisdom was very valuable in consolidating or amending our thinking around those proposals. The members of the Advisory Group were: . Dr Andrew Butler . Nick Chisnall . Katrine Evans . Dr David Harvey . Maarten Kleintjes . Associate Professor Scott Optican . Dean Pemberton Our Officials Group included representatives from the New Zealand Police, Department of Internal Affairs, Inland Revenue, Crown Law Office, Department of the Prime Minister and Cabinet, Ministry for Primary Industries, New Zealand Customs Service and Ministry of Business, Innovation and Employment. The group provided helpful guidance on the issues we selected for our Issues Paper and also engaged in rigorous discussion of our preliminary policy proposals. The Commissioner responsible for this reference was Donna Buckingham. The legal and policy advisers for this Report were Dena Valente (Ministry of Justice), Kate Salmond (Law Commission), Yasmin Moinfar-Yong (Law Commission), Linda McIver (Law Commission) and Hanna Shaw (Ministry of Justice). The assisting Commission law clerks were Emily Watson, Rebecca McMenamin and Fady Girgis. vi Law Commission and Ministry of Justice Report Contents Foreword .............................................................................................................................. iv Acknowledgements .............................................................................................................. vi Executive summary ............................................................................................................... 6 The scope of the review ........................................................................................................................ 6 The objectives of the review ................................................................................................................ 7 Overview of the Act .............................................................................................................................. 8 What is wrong with the current law? .................................................................................................. 9 Overview of the reforms .................................................................................................................... 11 Areas where we do not recommend reform ..................................................................................... 15 Further work to be undertaken ........................................................................................................ 15 List of recommendations ..................................................................................................... 16 PART 1 Overarching issues .................................................................................................