Chapter 17
Search and surveillance requests


17.1A by-product of the current digital revolution is that it has created new opportunities for crime both domestically and internationally. At an international level, cross-border crime is even more likely to be committed, or at least facilitated, by digital devices, so the need to modernise the law is higher. However, the ability to protect human rights values using the same methods as employed domestically is diminished. Ordinarily, there are two stages of human rights protections. Firstly, there is the need for prior judicial authorisation for investigative action. Secondly, there are strict controls governing the use and retention of any seized material. These controls include: placing limitations on access to the material; ensuring that irrelevant, confidential, and privileged material is disregarded; and providing appropriate remedies for unlawfulness or unreasonableness. If the seized material is sent overseas, it becomes difficult to ensure that this second tier of privacy protections is complied with.

17.2In 2012, New Zealand enacted the Search and Surveillance Act 2012. The purpose of this Act was three-fold.743 It aimed to modernise the laws of search, seizure, and surveillance, to take into account advances in digital technology, whilst finding an appropriate balance between protecting human rights and law enforcement needs. To achieve those goals, the Act introduced a comprehensive set of rules as to how police and non-police powers of entry, search, seizure, and surveillance should be exercised in New Zealand. The Mutual Assistance in Criminal Matters Act 1992 (MACMA) allows foreign countries the ability to access some of New Zealand’s domestic tools in this area.744
17.3The current search regime in MACMA is inadequate. It only gives foreign countries access to limited search assistance in New Zealand and does not have sufficient inbuilt protections for human rights. MACMA is also inconsistent with the approaches taken in Australia, Canada, and the United Kingdom and by the Council of Europe Convention on Cybercrime (Budapest Convention),745 which is the most widely used and ratified international instrument on point.
17.4The search provisions in MACMA allow the New Zealand Police, once authorised by the Attorney-General, to obtain and execute a search warrant in New Zealand on behalf of a foreign country.746 This chapter considers whether MACMA should be extended to include the following forms of search and surveillance assistance:

Structure of this chapter

17.5We begin this chapter by comparing New Zealand’s domestic search and surveillance regime to that which is available under MACMA. We identify the major differences between the two regimes and explore the rationale for those differences. We then look at New Zealand’s international obligations in relation to this type of assistance. Finally, we discuss the necessary modifications that would be required to the domestic regime if the search and surveillance tools available under MACMA were extended.

17.6Our view is that MACMA should be extended to provide a wider range of search and surveillance assistance to foreign countries in criminal matters. However, any such extension would need to be accompanied by more transparent and stringent human rights protections. To strengthen the Attorney-General’s gatekeeping role in this area, search and surveillance assistance should be subject to strict legislative conditions. Moreover, the Attorney-General should have the discretion to refuse to provide this assistance and should be able to forgo the usual requirement to provide the foreign country with reasons.

743Search and Surveillance Act 2012, s 5(a), (b) and (c).
744These provisions were amended when the Search and Surveillance Act came into force: Search and Surveillance Act 2012, s 335.
745Council of Europe Convention on Cybercrime ETS 185 (opened for signature 23 November 2001, entered into force 1 July 2004) [Budapest Convention].
746Mutual Assistance in Criminal Matters Act 1992, ss 43–50.