Chapter 17
Search and surveillance requests
Comparing the two regimes
17.7Our comparison of MACMA and the Search and Surveillance Act indicates that New Zealand does not provide foreign countries with access to the full range of search and surveillance powers for criminal investigations and prosecutions that are available domestically.
The Search and Surveillance Act 2012
17.8When the Search and Surveillance Act came into force in 2012, it significantly reformed this area of law in New Zealand. The Act created the following new orders and warrants for use in investigating criminal matters:
- Examination orders: These orders require a person to answer questions about specified information. Non-compliance is an offence.
- Surveillance device warrants: These warrants allow enforcement officers to conduct certain types of surveillance using interception, tracking, and visual surveillance devices.
- Declaratory orders: These are non-binding judicial opinions on the legality and reasonableness of any proposed novel search, seizure, or surveillance activity under the Act.
- Production orders: These orders require a person to produce specified documents in their possession or control. They are a less intrusive alternative to a search warrant.
17.9In addition to introducing these new investigative powers, the Search and Surveillance Act consolidated and reformed the rules surrounding search warrants. These rules explain how a search warrant is applied for, issued, and executed. They also govern the retention and disposal of seized material. In relation to empowering provisions, however, the Act only provides that the Police may obtain a search warrant in relation to imprisonable offences. All of the other empowering provisions regarding search warrants are spread throughout various enactments. These are listed in Schedule 2 of the Act and include the power to obtain a search warrant under MACMA.
Current orders in MACMATop
Search and seizure
17.10Currently, MACMA contains four provisions governing mutual legal assistance search requests. These provisions explain that a foreign country may request the Attorney-General to assist in obtaining “an article or thing by search and seizure”. In response, the Attorney-General may authorise a Police officer to apply for a search warrant if satisfied that:
- there is criminal matter in the foreign country in respect of an offence punishable by imprisonment for a term of two years or more; and
- there are reasonable grounds for believing that an article or thing relevant to the proceedings is located in New Zealand.
17.11The Police officer must then apply for a search warrant in accordance with the Search and Surveillance Act. In determining whether to make such an application, an officer must apply a test in section 44(1) of MACMA. In brief, this requires the officer to be satisfied that the thing is potential evidence of the offending, intended for use in the offending, or something in respect of which the offence was committed.
17.12If a search warrant is issued, the Search and Surveillance Act rules relating to the execution of search warrants and claiming privilege and confidentiality apply, but not the procedures relating to seized or produced materials. Rather, MACMA contains its own procedure for this.
17.13Any material seized must be delivered to the Commissioner of Police. The Commissioner must then retain custody of the material pending written directions from the Attorney-General as to how it should be dealt with. If the Commissioner receives no directions within one month of the seizure, he or she must arrange for the seized material to be returned to its owners.
What other search and surveillance provisions are available under MACMA?Top
17.14Prior to 2012, it was clear that the only search or surveillance assistance New Zealand could provide to a foreign country under MACMA was obtaining and executing a search warrant. The situation now is more uncertain for two reasons.
17.15The Search and Surveillance Act provides that production orders and surveillance device warrants are available if a statute is a listed enactment in the Schedule and empowers a law enforcement officer to apply for a search warrant. MACMA is listed in the Schedule, but there is a technical argument that such an inclusion is ineffective, as MACMA itself does not empower a law enforcement officer to apply for a search warrant. Instead, it empowers the Attorney-General to authorise such an application. The distinction is significant, because it reflects the Attorney-General’s important gatekeeping role and the status of MACMA as a gateway Act. Further, the way in which the relevant MACMA provision is drafted makes it plain that the Attorney-General may only authorise a Police officer to apply for “a search warrant in accordance with section 44 of this Act”.
17.16Secondly, the surveillance device warrant regime in the Search and Surveillance Bill was substantially re-drafted during the Select Committee process and was worded in such a way that makes it difficult to apply in a MACMA context.
17.17This gives rise to a question of whether some of the search and surveillance powers in the Search and Surveillance Act 2012 should be made available to foreign countries under MACMA. We discuss the possibility of each of these orders below.
Examination orders
17.18Under the Search and Surveillance Act, the Police may obtain an examination order to require a person to answer questions in relation to identified information, which they have previously refused to answer, at a specified time and place. Failure to comply with such an order is an offence punishable by up to one year’s imprisonment. A person who is subject to such an order may still assert privilege, or escape liability, on the basis of reasonable excuse not to answer the questions.
17.19Under the Act, examination orders may only be made in relation to sufficiently serious suspected offences. How serious the offence needs to be depends on whether the order is being made in a “business” or “non-business” context. In a business context, examination orders are directed at persons who may hold information in a professional capacity that they do not want to disclose voluntarily. In this context, an examination order may only be made if the offence in question is punishable by five years’ imprisonment or more. In a non-business context, the offence must be a serious or complex fraud punishable by seven years’ imprisonment or more, or an offence committed by an organised criminal group.
17.20In both cases, an application for an examination order may only be made by a Police Inspector or more senior officer, and it must be approved by the Police Deputy Commissioner, Assistant Commissioner, or District Commander. Once an examination order has been issued, the Commissioner or a delegate of the Commissioner must conduct the examination and provide a formal report to the issuing judge within one month.
17.21As discussed in Chapter 16, similar examination orders are available to foreign countries under MACMA in relation to proceeds of crime investigations and proceedings. Given this, and our guiding principle that the tools that New Zealand can employ in domestic criminal matters should, if appropriate, be available for international investigations and prosecutions, our preliminary view is that MACMA should allow for the possibility of obtaining and executing a general examination order on behalf of a foreign country.
17.22Extending MACMA to include this type of assistance raises concerns about:
- whether there should be any scope for a foreign law enforcement officer to assist the Commissioner in conducting the examination, for instance, by observing and providing advice during any breaks;
- how to provide adequate human rights protections if the transcript of the examination is sent overseas; and
- how the cost of this assistance should be divided between New Zealand and the foreign country, given that it is likely to be resource intensive.
These concerns may not be so fundamental as to preclude the availability of examination orders under MACMA and could be dealt with through particular provisions.
17.23We envisage that the requirements would need to be at least as stringent as those in the domestic regime:
- The foreign offending would need to meet the same seriousness thresholds as those used in the Search and Surveillance Act, if not higher.
- The Attorney-General would need to consult with the Police Commissioner regarding the appropriateness and efficacy of providing this assistance.
- The examination order would need to be approved by the court. This would include the requirement in the Search and Surveillance Act that a judge must be satisfied that a compulsory examination is necessary given the nature and seriousness of the foreign offending, the nature of the information sought, the relationship between the person to be examined and the suspect, and any alternative ways of obtaining the information.
- The Commissioner of Police (or a New Zealand delegate) would have to conduct the actual examination, in order to ensure that New Zealand rules surrounding privilege and the right against self-incrimination were complied with.
- The Commissioner (or delegate) would have to provide the usual report to the issuing judge.
17.24MACMA should also include a requirement that New Zealand and the foreign country must reach an agreement in advance on procedural matters including cost, the role of any foreign law enforcement officer, and the use and retention of the transcript.
17.25Such an agreement might be made on a case-by-case basis or through a general memorandum of understanding or treaty, which would allow New Zealand to screen countries in advance based on their human rights protections. An additional option would be to give the Central Authority discretion to refuse to provide this type of assistance without having to provide reasons.
Question
Q64 Do you think New Zealand should be able to obtain and execute a general examination order on behalf of a foreign country for criminal investigations and prosecutions?
Surveillance device warrants
17.26Domestically, a law enforcement officer must obtain a surveillance device warrant before using a device to:
- intercept or record a private communication;
- ascertain the location of a person or thing;
- determine, by means of trespass, whether a thing has been opened, tampered with, or in some other way dealt with;
- observe or record private activity in private premises or (in certain circumstances) in the curtilage of private premises; or
- observe or record any activity, by means of trespass.
17.27There are some exceptions to this rule, for example, this type of surveillance may be conducted without a warrant:
- for 48 hours in some emergency situations; and
- for an enforcement officer being lawfully in private premises and recording what he or she observes or hears there.
17.28Surveillance device warrants are only available in relation to sufficiently serious suspected offences. Whether an offence is sufficiently serious depends on the type of surveillance that is proposed. A penalty of seven years’ imprisonment is generally required for visual surveillance or an interception device. Only the Police may currently apply for a warrant for these types of surveillance.
17.29If a surveillance device warrant is issued and executed, the Act provides that the responsible law enforcement agency must report to the issuing judge within a month of the warrant expiring. The Act also provides detailed rules about the extent to which information obtained as a result of surveillance may be retained by the law enforcement agency that collected it and the circumstances in which such information, or part of it, must be destroyed.
17.30There may be some instances when New Zealand might wish to provide surveillance assistance to a foreign country, for example, the interception of a New Zealand-based phone call concerning an overseas drug trade. We think that surveillance device warrants should be available to foreign countries under MACMA.
17.31As with examination orders, it may be appropriate to consider whether the current seriousness threshold for surveillance device warrants in the Search and Surveillance Act is appropriate or whether a higher threshold is required. The other domestic requirements for a surveillance device warrant in the Search and Surveillance Act would also apply in this context.
17.32There are also concerns as to any role for foreign law enforcement officers in conducting the surveillance and sending surveillance data overseas and the potential cost of this form of assistance. These concerns could be addressed by the Central Authority in deciding whether or not to grant the request. Procedural matters would need to be agreed in advance, and the foreign country would need to provide sufficient undertakings or assurances to satisfy the Central Authority that human rights values would be appropriately protected.
17.33This seems to be the same type of approach that Australia and the United Kingdom have taken in relation to this issue.
- In Australia, surveillance assistance is available to foreign countries but only if the alleged foreign offending is punishable by at least three years’ imprisonment and the foreign country has given appropriate undertakings in relation to the use and destruction of surveillance data and any other matter the Attorney-General considers appropriate. The Attorney-General also has discretion to simply refuse to provide this assistance.
- In the United Kingdom, interception assistance is available to foreign countries but only if they have signed a treaty to that effect with the United Kingdom. The Home Office Guidelines set out a number of requirements and restrictions.
17.34We do not consider that the power to conduct surveillance without a warrant in urgent or emergency situations should be extended to foreign countries under MACMA. This is a highly invasive power, covertly exercised in extraordinary circumstances. Despite limiting the assistance New Zealand can provide, we think the Attorney-General’s gatekeeping role should never be sidestepped, and the Central Authority’s oversight role is even more critical in relation to this kind of investigative action.
Question
Q65 Under what conditions should New Zealand be able to obtain and execute a surveillance device warrant on behalf of a foreign country for criminal investigations and prosecutions?
Declaratory orders
17.35The declaratory order regime does not involve the exercise of any investigative power and is not binding on any future court, but it allows the lawfulness of any new method of search or surveillance to be tested before being used. It is a forward-looking regime that was designed, at least in part, to accommodate inevitable advances in technology.
17.36Cross-border crime almost always involves the use of digital technology, and foreign countries may well propose different investigative techniques to combat this than those routinely used in New Zealand. In such cases, obtaining an advisory opinion from a judge, in advance, as to whether the proposal would be consistent with New Zealand’s human rights protections would provide much needed transparency and clarity.
17.37As the Search and Surveillance Act is currently drafted, it may already be possible for a law enforcement officer to obtain a declaratory order in relation to potential assistance under MACMA. The situation would be clearer if MACMA or the Search and Surveillance Act contained an express statement to this effect.
Production orders
17.38A production order requires the person who is the subject of the order to provide a law enforcement officer with all of the documents in the order that are in his or her possession or control.
17.39Production orders were designed to be a less intrusive means of carrying out a search in circumstances where the subject of the search is likely to be cooperative. Banks and telecommunications companies, for example, are likely to prefer complying with production orders.
17.40A further difference between production orders and search warrants is that production orders can be prospective in nature. That is, they can require the person to produce documents covered by the order that come into his or her possession at any time while the order is in force. The maximum length of such an order is 30 days.
17.41There is a strong case for including the obtaining and executing of a production order in the forms of assistance that New Zealand may provide to a foreign country under MACMA. Notably, production orders are already available under MACMA in the context of proceeds of crime investigations and proceedings. The more compelling factors, however, are simplicity and cost. For instance, where a search warrant request is received from a foreign country relating to bank or telecommunications documents, the least expensive and intrusive option is to allow the company in question to retrieve the documents itself.
17.42Given the nature of production orders, another benefit is that foreign law enforcement officers would never need to be involved in the execution of an order.
17.43The role of foreign enforcement officers and issues of cost are not areas of concern in relation to production orders, in contrast with other forms of search and surveillance assistance. Our only remaining concern with providing this type of assistance under MACMA relates to sending the produced material overseas. However, amendments to MACMA could address this by strengthening the Attorney-General’s gatekeeping role in relation to this type of assistance. We outline potential amendments to that effect at the end of this chapter.
Question
Q66 Should New Zealand be able to obtain and execute a production order on behalf of a foreign country for criminal investigations and prosecutions?
