Chapter 17
Search and surveillance requests

Necessary modifications to the domestic regime

17.71We have reached the view that New Zealand should consider extending MACMA to include the following forms of search and surveillance assistance:

17.72However, the domestic regimes governing investigative orders and warrants should not be applied in a MACMA context without significant modification in three main areas:

17.73These three areas of necessary modification apply equally in the context of the execution of search warrants under MACMA, particularly where digital devices are involved. At present, MACMA allows the Attorney-General to address these concerns by deciding whether to provide requested search assistance at all or by issuing directions concerning the retention and disposal of the seized material. We question, however, whether MACMA currently contains sufficient guidance as to how the Attorney-General should approach these decisions. The lack of guidance is especially problematic, as the two decisions are inherently interconnected.

17.74Our view is that MACMA should have mechanisms in place to address these concerns, prior to agreeing to provide the assistance sought. We explore what those mechanisms might look like below.

The involvement of foreign law enforcement officers

17.75In processing a mutual assistance request, the New Zealand authorities will never be as familiar with the facts of the underlying case as the foreign law enforcement officers who have carriage of the relevant investigation or proceeding. Issues of language, identification of key actors, and context will routinely arise. There may also be issues with the sheer volume and complexity of the material and the presence of particular subtleties regarding what is and is not relevant. Foreign officers will also have a vested interest in ensuring that any assistance provided by New Zealand complies not only with New Zealand law but also with the laws of their own country governing criminal investigations and proceedings.

17.76These practical realities mean that, on occasion, foreign law enforcement officers have travelled to New Zealand to assist in the execution of a MACMA search warrant. Such involvement may continue to be necessary if MACMA is extended to allow for assistance in obtaining and executing examination orders or surveillance device warrants.

17.77However, the involvement of foreign law enforcement officers in exercising domestic investigative powers raises difficult issues of sovereignty and jurisdiction, including how best to protect New Zealand’s human rights values. MACMA is currently silent on this matter.

17.78The Search and Surveillance Act contains various provisions that govern the role that may be played by “assistants” in executing search and surveillance warrants.820 These provisions could potentially be applied to foreign officers. The difficulty we have, however, is that these provisions were clearly drafted with the domestic context in mind. The difference between New Zealand and foreign law enforcement officers is that the foreign officers are unlikely to be familiar with New Zealand investigative law and practices, they are not subject to New Zealand disciplinary proceedings or complaints processes, and they will have their own agenda in ensuring compliance with foreign legal requirements. This has the potential to increase the risk of human rights breaches.

17.79To mitigate that risk, MACMA could state that the role of any foreign law enforcement officer must be agreed upon by the Central Authority and the requesting country up front. Matters to be considered could include:

17.80This approach seems similar to the United Kingdom, where a request for search assistance must contain the details of any officials from the requesting states who wish to participate in the search and an explanation as to why their presence is necessary.821 The Home Office further notes that it prefers for officers from requesting states to be involved in searches where possible. We do not, however, propose stating a preference in MACMA. This matter seems best left to the discretion of the New Zealand Central Authority to be decided on a case-by-case and country-by-country basis.


Q69 How should the issue of the involvement of foreign law enforcement officers in executing search warrants (and potentially examination orders and surveillance device warrants) be dealt with under MACMA?

Dealing with the seized, produced, or created materialTop

17.81Most of the human rights protections for those who are searched in New Zealand arise from the rules that govern how potential investigative or evidential material is dealt with after the search. These are the rules that regulate:

If this material is obtained pursuant to a mutual legal assistance request, it must be sent overseas at some point. Therefore, the ordinary rules governing these matters in the Search and Surveillance Act cannot apply without modification. We briefly discuss each of these issues in turn.

Dealing with irrelevant information

17.82This issue arises in relation to searches of digital devices and surveillance. These activities, by their nature, result in the initial collection of both relevant and irrelevant material. This material should be reviewed by law enforcement authorities, and irrelevant material should be “locked down” or removed to ensure that there is minimal invasion of privacy. In a MACMA context, this raises these interrelated questions:

17.83By way of example, consider searches of digital devices. The rules in the Search and Surveillance Act explain that, during a search, an enforcement officer may make a forensic copy of any intangible material that could be covered by the warrant (such as a hard drive) and may remove that copy from the premises.822 This can occur even if it is not clear whether there is any relevant material on the hard drive.823 If, however, a forensic copy is created and removed, section 161 provides that it must be examined off site reasonably expeditiously and destroyed if no evidential material is found.824 This section recognises the importance of forensic copies that contain a mixture of relevant and irrelevant material being retained in their entirety.
17.84While some of these rules apply equally to a search under MACMA, section 161 is expressly excluded from applying in the MACMA context.825 Nonetheless, it is an important principle that should apply in the MACMA context to the extent possible. It raises an obvious question as to where the examination for relevance should take place.

17.85As previously explained, the New Zealand authorities will never be as familiar with the underlying case as the foreign law enforcement officers who are responsible for the criminal investigation or proceeding. The foreign law creating the offence will often be very different to what New Zealand investigators are used to, and the requesting jurisdiction’s rules of evidence may be unfamiliar. Indeed, the material may not be in English. In addition, in many cases, it may not be viable to excise irrelevant material from a forensic copy without affecting its overall integrity. Therefore, operational needs and effectiveness would favour the examination taking place overseas. This would also be the most cost-effective option.

17.86However, we are not sure it would be appropriate to simply send the material to the foreign country for examination before there is some determination of what is relevant. New Zealand law enforcement authorities must minimise the invasion of privacy by at least attempting to identify and “lock down” irrelevant material prior to sending it overseas.

17.87One solution would be for MACMA to create a presumption in favour of forensic copies being initially searched in New Zealand by New Zealand Police or under their supervision. The Central Authority could, however, negotiate a different solution on a case-by-case basis if it was satisfied that sufficient safeguards for the search subject were in place in the requesting country.

17.88Realistically, the Central Authority can only make this assessment after the search, once the scale and nature of the seized material is known and, if it becomes necessary to consider offshore screening, having regard to the case-specific undertakings provided by the requesting country. Such a negotiation might be necessary in relation to surveillance, as, for the assistance to be effective, the data may need to be provided to the requesting country in real time.


Q70 How should MACMA deal with the issue of sending seized (or created) material overseas in response to a request that contains both relevant and irrelevant information?

Confidentiality and privilege

17.89The provisions in the Search and Surveillance Act relating to confidentiality and privilege currently apply to searches under MACMA.826 We envisage that the equivalent provisions would also apply to examination orders, production orders, and surveillance device warrants if MACMA was extended to include these types of assistance.
17.90Given the nature of search warrants, production orders, and examination orders, privilege and confidentiality are likely to be claimed during the exercise of the relevant investigative power or shortly afterwards. The Act then provides a mechanism for the claim to be tested in court.827 Pending resolution of such a claim, a search must be suspended.828 Further, in some instances, it may be necessary to brief an independent third party to identify potentially privileged material and to provide advice to the court. These interim measures may result in both extensive cost and delay. This, in turn, could undermine the effectiveness of the mutual legal assistance process.

17.91This raises the question of whether the material may be sent overseas for privilege and confidentiality claims to be dealt with in the foreign jurisdiction. Clearly, this would not be a problem if the person making the claim consented, but what if they did not? On the one hand, it may seem unnecessary to allow privilege and confidentiality claims to be dealt with in both New Zealand and the foreign jurisdiction. Further, New Zealand may have complete faith in some jurisdictions to address these matters appropriately. On the other hand, resolution of these claims could again be seen as part of the search. This is consistent with the fact that, domestically, this type of material may not be formally seized whilst a claim of privilege remains outstanding.

17.92One option to deal with this issue might be to amend MACMA to state that claims of privilege and confidentiality should be dealt with in New Zealand prior to sending material overseas, wherever that is possible. The cost of this process could be shared with the foreign country, and delays could be minimised by framing the obligation so that only claims raised within a specified timeframe must be the subject of prior resolution. The foreign country could then provide an assurance that it will act in accordance with any later claims successfully made in a New Zealand court. Alternatively, the matter could simply be left to the foreign country to resolve, if the Central Authority felt confident in its justice system.

17.93A similar approach could be taken in relation to surveillance device warrants. Since these are executed covertly, subjects do not have the opportunity to make claims of privilege or confidentiality at the time. For that reason, the Search and Surveillance Act places an obligation on law enforcement officers to take all reasonable steps to avoid intercepting privileged or confidential communications and to destroy the record of such a communication if it is accidentally made.829 Officers may refer any questionable communication to the court for clarification. This process could also be followed in a MACMA context, and again, any later claims could either be left to the foreign country to resolve or could be the subject of assurances that the foreign country would abide by a decision of a New Zealand court.


Q71 How should MACMA deal with the issue of sending potentially privileged or confidential seized (produced or created) material overseas in response to a request?


17.94As we noted in our 2007 report, the key protection available to search targets domestically is the ability to challenge evidential material produced in court (either on the basis that the material is beyond the scope of the search power or was obtained unreasonably in terms of section 21 of the New Zealand Bill of Rights Act).830 In our opinion, a search subject must be entitled to challenge the exercise of a search power in this way even if the relevant evidential or investigative material has been sent overseas. The issue is therefore how to ensure that the material is not used in the foreign trial if a New Zealand court finds that the investigative action undertaken in New Zealand was unlawful or unreasonable.

17.95There are at least two potential ways of resolving this issue. One option would be to refuse to send the material overseas until a New Zealand court has finally determined the legality and reasonableness of the investigative action. We are not in favour of this option. It could easily be used as a delay tactic to undermine the foreign investigation or proceeding. This would undermine the effectiveness of the entire process, especially if there are legitimate operational reasons for the foreign country to access and act on material quickly, in some cases, before the relevant parties become aware of its existence.

17.96The second option, which we prefer, would be to ask the foreign country to provide an assurance that it would act in accordance with any subsequent finding of a New Zealand court regarding the legality or reasonableness of the investigative action. In relation to this issue, there is no option of leaving admissibility to the foreign court to decide, as that court would have no jurisdiction to determine whether the investigative action complied with New Zealand law.


Q72 How should MACMA deal with a New Zealand Bill of Rights Act challenge to an investigative action taken under the Search and Surveillance Act in response to a request?

Collateral use

17.97New Zealand has a legitimate interest in ensuring that any material provided to a foreign country in accordance with a mutual legal assistance request is only used for the purpose for which it was obtained. This protects against abuse of process.

17.98Domestically, arguments of abuse of process would be raised during court proceedings regarding admissibility. That would not, however, be appropriate if the allegation is that a foreign authority is at fault. As a matter of jurisdiction, that would be an issue for the foreign court.

17.99Nevertheless, we consider that, given the intrusive nature of search and surveillance assistance, it would be appropriate for New Zealand routinely to seek assurances from foreign countries regarding the use of any material that is provided, prior to agreeing to provide the assistance sought. Notably, New Zealand regularly provides such an assurance whenever it makes a mutual legal assistance request to a foreign country. As discussed in Chapter 21, this is supported by a provision in MACMA that explicitly restricts the use that may be made of material provided to New Zealand.831

17.100We note that making search and surveillance assistance conditional on such an assurance would mirror the approach taken to this issue under the Extradition Act 1999.


Q73 How should MACMA protect against the collateral use of any seized (produced or created) material that is sent overseas in response to a request?

Access, retention, and disposal

17.101Finally, we note that the Search and Surveillance Act contains extensive rules surrounding access to and retention and disposal of seized, produced, and created material.832 These rules minimise interference with property and privacy rights and uphold the rule of law. To provide similar protection, MACMA could contain the following:
(a) A presumption in favour of only sending copies of seized or produced material overseas, wherever that is possible. This would include forensic copies of digital devices. Original material could then remain in New Zealand and be the subject of the usual access application process under the Act.
(b) A requirement that the foreign country should provide an undertaking to:


Q74 How should MACMA deal with issues of access, retention, and disposal of seized (produced or created) material that is sent overseas in response to a request?


17.102As noted throughout this chapter, providing search and surveillance assistance under MACMA may require a significant investment from the New Zealand authorities in terms of both time and resources. This can be problematic, as the customary approach is that the costs of providing mutual legal assistance are borne by the requested country. MACMA provides that the Attorney-General may ask for a contribution towards costs from a requesting country, but at present, this request may only be made if New Zealand is considering refusing the request on the basis of excessive cost. This is not the most diplomatic way of raising such a sensitive issue.

17.103In light of this issue, we put forward the option in Chapter 20 of including a provision in MACMA that specifically raises the possibility of a cost contribution as a condition of agreeing to a request. We suggest that this could apply to requests that would lead to “excessive”, “substantial” or “extraordinary costs” and that MACMA could contain a list of matters that would potentially qualify. In our opinion, almost all of the search and surveillance assistance that is currently or potentially available under MACMA should be included on such a list.

17.104Alternatively, New Zealand could consider reversing the costs presumption in relation to search and surveillance assistance. This would, however, be out of line with the general approach taken to this issue overseas, and in turn, there would be concerns about reciprocity.

820Search and Surveillance Act 2012, s 3 (the definition of an “enforcement officer”), s 56 (a person may assist in executing a surveillance device warrant if they are supervised at all times by an officer named in the warrant), and s 113 (a person may assist in executing a search warrant, but they are subject to the control of the officer who has overall responsibility for executing the warrant and must be reasonably supervised).
821Home Office, above n 787, at 23–24.
822Search and Surveillance Act 2012, s 110(h).
823Search and Surveillance Act 2012, s 112.
824Search and Surveillance Act 2012, s 161.
825Mutual Assistance in Criminal Matters Act 1992, s 44(3).
826Mutual Assistance in Criminal Matters Act 1992, s 44(3); and Search and Surveillance Act 2012, pt 4, subpt 5.
827Search and Surveillance Act 2012, s 147.
828Search and Surveillance Act 2012, s 146.
829Search and Surveillance Act 2012, ss 140 and 141.
830Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [7.65].
831Mutual Assistance in Criminal Matters Act 1992, s 23.
832Search and Surveillance Act 2012, pt 4, subpt 6.