Crime Prevention Unit

Organised Crime

Office of the Minister of Justice
Cabinet Business Committee

LAW COMMISSION REPORT SEARCH AND SURVEILLANCE POWERS

Paper 1: Overview

Proposal

1. The Law Commission report on Search and Surveillance Powers (NZLC 97)) was tabled in Parliament on 7 August 2007. This suite of papers outlines the key recommendations contained in that report and, in a small number of instances, subsequent changes in approach sought by agencies and agreed to by the Commission. It also contains proposals for an examination power (Paper 8) that were not considered in the Commission’s report. The papers seek Cabinet agreement to the relevant recommendations and the issuing of drafting instructions to the Parliamentary Counsel Office to prepare a Bill to implement those recommendations agreed to.

2. The suite of papers comprises:

• Paper 1: Overview, dealing with chapter 1 of the Law Commission report (introductory issues); chapter 2 (values); chapter 3 (common issues); chapter 15 (reporting); chapter 16 (implementation) and fiscal and miscellaneous issues;

• Paper 2: Surveillance (chapter 11);

• Paper 3: Computer searches (chapter 7);

• Paper 4: Warrantless search powers (chapter 5 and aspects of chapters 8 and 9);

• Paper 5: Production and Monitoring Powers (chapter 10);

• Paper 6: Clarification and codification: chapter 4 (applying for and issuing search warrants); chapter 6 (executing search powers); chapter 8 (search of persons); chapter 9 (vehicle search); chapter 12 (privileged and confidential material); and chapter 13 (post execution procedures);

• Paper 7: Remedies and immunities (chapter 14);

• Paper 8: Examination powers.

Executive Summary

4. Core police search powers are contained in statutes that are up to 50 years old; the law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non-police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. Further, the law has not kept pace with technology. The ability of criminals to use computers and other electronic devices to commit or facilitate illegal activity needs to be matched by appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in the investigation of criminal activity. At the same time, reasonable checks and balances must be provided against inappropriate use of those powers.

5. The Commission report Search and Surveillance Powers contains 300 recommendations and proposes reform of the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights.

6. This first paper in a suite of eight outlines key issues considered in the report, in particular with regard to values underpinning search and surveillance powers, common issues relating to the exercise of search and surveillance powers, reporting on the exercise of such powers and fiscal issues associated with the overall package of proposals. Approval is sought to issue drafting instructions to the Parliamentary Counsel Office to draft a Bill to implement the recommendations contained in the report.

Background

7. The Report, Search and Surveillance Powers, contains a comprehensive review of the current law and problems with it. It considers a wide range of New Zealand and overseas legislation and reviews aspects of the common law pertaining to the issues it examines.

8. Search and surveillance powers are essential to police and other enforcement agencies in that they provide authority to investigate criminal activity and to secure evidential material that is often crucial to the trial and conviction of offenders. Over recent decades there have been a number of developments which have transformed the type of powers available and the way that they are exercised:

• numerous state agencies now have an operational law enforcement role, with some agencies having more extensive search powers than the police;

• the number of discrete statutory search regimes has correspondingly increased;

• law enforcement powers (which require the officer to have a reasonable belief or suspicion that an offence has been committed before exercising the power) and routine inspection powers (which are designed to ensure compliance with a regulatory regime and require no threshold relating to criminal activity to be met before they are exercised) have sometimes become intermingled;

• technological advances have provided enforcement officers with new or better ways to obtain evidential material.

9. It is against that background that the Commission report was prepared and the recommendations in this suite of papers made.

Introduction

10. Search powers are scattered throughout several dozen statutes and an even greater number of enactments provide search or inspection powers without warrant for regulatory purposes. Many such powers have been added to the statute book in an ad hoc manner, resulting in an overall statutory regime that is incoherent and inconsistent. In particular:

• there are inconsistencies in the way search powers are framed and how they may be exercised;

• not all search powers and procedures are found in statute, some powers and responsibilities having been developed by the courts to fill gaps in the statute;

• legislation does not always meet law enforcement needs or adequately provide protections to those who may be subject to search;

• there is uncertainty as to the nature or extent of some existing search powers and procedures;

• the law has not kept pace with changes in technology;

• legislation governing the use of surveillance by law enforcement agencies has been piecemeal.

11. In addition the Commission noted that judicial dissatisfaction has been expressed with aspects of the status quo, such as the quality of applications for search warrants and the fact that a number of matters are not dealt with in legislation, including seizure of evidential material falling outside the scope of the specific search power being exercised.

12. The Commission undertook a comprehensive review of the law, both in New Zealand and overseas. However, in order to focus on the areas of the law where the most problems have been identified and to confine its report within manageable limits, the Commission excluded certain powers from the full scope of its review, including:

• regulatory or inspection powers;

• those powers that are subject to a particular statutory threshold but are being exercised in a similar regulatory context (such as those under the Tax Administration Act 1994 and the Commerce Act 1986);

• intelligence gathering powers;

• defence force powers;

• powers to maintain the security of particular institutions such as the courts and prisons;

• powers provided for a specific and self-contained policy objective, such as the collection of DNA samples;

• forfeiture regimes enacted to operate in a specific legislative framework, such as under fisheries legislation.

13. Later in this paper when implementation of the Commission report is discussed, I will deal with the possible extension of procedural aspects of the Commission’s recommendations to regulatory or inspection powers.

Values underpinning Search and Surveillance

14. A number of high-level values influenced the Commission’s approach to and recommendations on search and surveillance powers. Broadly, those values fell within two main categories: human rights values and law enforcement values. The Commission did not see those values as being incompatible or in direct competition with each other; there is a good measure of complementarity between them in a democratic society. Search powers that encroach too far on human rights values are unlikely to gain legislative or community support. Similarly investigative powers that are too tightly controlled and prevent law enforcement officers from doing their job effectively will bring human rights norms into disrepute.

Human rights values

15. A number of human rights values were identified by the Commission.

• Privacy: This is the key human right implicated by search and surveillance powers. Where enforcement activities are concerned, the concept extends to all interferences with reasonable expectations of privacy. The NZ Court of Appeal has acknowledged privacy as the underlying concept informing interpretation and application of section 21 of the Bill of Rights Act (protecting people from unreasonable search and seizure, whether of the person, property, or information or otherwise);

• Personal integrity: Often the exercise of search powers will not only intrude on privacy, but also involve detention and restraint on freedom of movement. Powers must be framed to interfere with these rights only to the extent necessary to achieve their objective;

• Property rights: The exercise of a search power will often require entry to homes and other private places and may result in a person’s property being seized. While the right to property is not generally protected by the Bill of Rights Act, section 21 does specifically refer to property as something that is subject to a reasonableness requirement when being searched or seized;

• Rule of law: A search and seizure should only occur if a law authorises it. Such powers should only be exercised if they are genuinely needed. That requires that the law be expressed in objective rather than subjective terms; be clearly expressed; be subject to judicial supervision, preferably in advance of the power being exercised; and be exercised reasonably.

Law enforcement values

16. Human rights instruments only protect citizens against unreasonable or arbitrary interference. As the courts have recognised, from time to time privacy must give way to the wider interest of the community in the detection and prosecution of crime. The Commission recognised the following law enforcement values:

• Effectiveness: Search powers must be sufficient to ensure that they can be effectively deployed. Where powers are granted in an overly restrictive fashion they are likely to frustrate law enforcement officers. This may result in a culture where the legal regulation of search powers is poorly regarded by those empowered to exercise them. Worse, some laws may go unenforced if investigation powers are regarded as too cumbersome or complex to effectively investigate an alleged breach;

• Simplicity: Unnecessary complexity in the formulation and regulation of search powers may lead to misunderstanding in the scope of the power and officers inadvertently conducting an illegal search, resulting in legal challenge which may lead to the exclusion of evidence;

• Certainty: Like complexity, uncertainty can result in risk-averse behaviour in some officers and risk-taking by others. It results in a greater likelihood that the exercise of the power will be challenged in court;

• Responsiveness to different operational circumstances: Search powers need to be drafted to accommodate the wide variety of situations in which the power may need to be exercised and to ensure that the power can be exercised lawfully in all circumstances where officers are called upon to act;

• Human rights consistency: Enforcement agencies benefit from having search powers that are human rights consistent. They need community support to perform their roles – if given untrammelled powers there is a danger that citizens will neither support nor co-operate with agencies exercising such powers.

Reasonable expectations of privacy

17. In New Zealand and overseas, the key concept that is used to balance human rights values and law enforcement values is reasonable expectations of privacy. In broad terms the courts, in determining whether reasonable expectations of privacy are implicated, look at the nature of the law enforcement activity in issue, the way the activity is regulated by the law, and the extent to which the activity can be regarded as intruding on human rights values. If those values are interfered with, the courts then focus on the nature and importance of the interests at stake and the reasonableness of the particular intrusion on the expectations of privacy when set against applicable law enforcement values.

18. Overseas case law and international human rights norms indicate that a search and surveillance activity without consent is presumptively unreasonable, unless it meets the following criteria:

• it is conducted pursuant to a warrant;

• the warrant has been validly issued;

• the warrant is issued by a neutral officer (that is, someone who is capable of acting judicially, although he or she need not be a judge);

• the warrant is issued only where both the applicant and the issuing officer are satisfied that the required threshold exists that:

• seizure and/or offending can be prevented;

• the items to be searched for/seized and the location at which/means by which they are to be searched for/seized are stated with particularity;

• the warrant can, in the discretion of the issuing officer, be refused (even where the normal prerequisites are satisfied) and/or may be made the subject of conditions (such as who may search/seize, when search/seizure may occur, etc) or, as a minimum, must be read as not authorising unreasonable execution in the circumstances of a particular case;

• the search power or seizure is exercised:

Departing from the presumptive requirements: justified limits

19. These six requirements were considered by the Commission to be presumptively required to achieve consistency with the Bill of Rights Act. However, the courts have recognised that no rights are absolute and all, including section 21 of that Act, can be subject to reasonable limits. On this basis certain warrantless powers can be justified and a suspicion threshold, rather than belief, may be necessary to meet the objective of the search. In determining the reasonableness of legislation and/or an intrusion on an individual’s expectation of privacy, the courts usually consider a range of factors:

• the significance of the values underlying the Bill of Rights Act in the particular case or context;

• the importance in the public interest of the intrusion on the particular right;

• the effectiveness of the intrusion in protecting the interests put forward to justify those limits sought to be placed on the right in the particular case;

• the proportionality of the intrusion.

20. The presumptive requirements for a reasonable search and whether, with regard to any specific power, there is justification for departing from those requirements form the basis for the Commission’s consideration of search and surveillance powers.

Common Issues

21. The Commission’s report makes specific recommendations to reform certain aspects of the law that are common to the exercise of search and surveillance powers: the threshold for the use of the power; what material or evidence may be the object of the search and seizure; what constitutes a valid consent search and in what circumstances it may be exercised; and the seizure of an incriminating item seen in plain view while exercising another search power or while lawfully in the place where the item is found.

Threshold for the use of search and surveillance powers

22. Legislation governing the use of search powers commonly uses either of two tests: “reasonable grounds to believe” or “reasonable grounds (or good cause) to suspect”. The Commission noted that a standard threshold for the exercise of search powers is desirable and that, due to the intrusiveness and impact of search and surveillance powers, reasonable belief should normally be the threshold. The Commission reached this view because:

• adopting the suspicion test may be seen as signalling a legislative intention to reduce the threshold required before exercising a search power to an unacceptably low level;

• there is no evidence that the reasonable belief standard is too high a standard to be applied in this context, nor that it results in particular problems as currently applied;

• a distinction should be made between routine searches and those that need to be taken in emergency or special circumstances, where a lesser threshold may be appropriate.

23. The test proposed by the Commission requires the existence of reasonable grounds to believe firstly, that a specified offence is being, has been, or will be committed and secondly that the evidence to be seized is in the place to be searched. However, recent discussions with government agencies and lawyers about the powers that should be available for the proposed Serious and Organised Crime Agency have led to a reconsideration of that position.

24. A number of people consulted about those powers expressed the view that the threshold of reasonable belief that an offence had been committed is too high for the production powers proposed by the Commission. Often, it is only when the document sought has been produced and examined that it is possible to determine whether an offence has been committed. The lower threshold of good cause to suspect was suggested as a way of avoiding this difficulty.

25. However, as the Commission noted, there is a great deal of uncertainty about the nature of the difference between the two thresholds. The application of a reasonable suspicion threshold for production powers and a reasonable belief threshold for other powers would perpetuate that uncertainty and create the potential for inconsistency in the use of search and surveillance powers. Moreover, a lesser threshold applying only to the issue of production orders would not make sense. People who complied with a production order would be subject to a lower threshold than those who did not comply and for whom a search warrant would be required to obtain the same documents. That would provide an incentive for non-compliance with production orders and would thus be undesirable. The Commission’s reasons for proposing a standard test for all search and surveillance powers thus still have considerable force.

26. This leads to the conclusion that the proposed standard test for exercise of search and production powers should be modified to require the existence of reasonable grounds to suspect that an offence has been, is being, or is about to be committed and reasonable grounds to believe that the evidence sought is in the place to be searched. The reasons for this are:

• it will permit the exercise of search powers to gather evidence at an early stage of an investigation when it may be difficult to determine whether or not an offence has been committed;

• it would be anomalous if the initial threshold for the exercise of a search power were to be higher than for arrest and charge, both of which have a “good cause to suspect” threshold, since that would result in a lower threshold for a warrantless search incidental to arrest than for a search conducted pursuant to a warrant;

• it involves only a minor departure from existing law, as it reflects the present statutory threshold for one of the grounds for the issue of a search warrant under the Summary Proceedings Act 1957;

• the privacy rights of the search subject remain sufficiently protected because there must still be reasonable grounds to believe that evidence is in the place to be searched.

27. The proposed standard threshold will apply to all law enforcement search powers, unless there is a compelling justification for a lower test. Such justification exists, for example, with regard to firearms offences under the Arms Act 1983 (where there is potential for immediate and life-threatening harm if urgent action is not taken) and generally in relation to powers at the border under the Customs and Excise Act 1996 (where a short period of time exists to assess the risk and conduct the search).

28. I propose that unless a compelling justification exists for a different test, the threshold to be adopted as the standard statutory test for the exercise of law enforcement search powers should be:

• reasonable grounds to suspect that an offence has been, is being, or is about to be committed, and

• reasonable grounds to believe that evidential material in relation to the suspected offence is in the place to be searched.

Power to seize evidential material

29. Section 198(1) of the Summary Proceedings Act 1957 specifies the things that may be the subject of a search warrant. Currently the most common form of warrant issued authorises the search for and seizure of evidence. The Courts have held that a thing will constitute evidence of the commission of an offence if its form or existence would directly or indirectly make one or more of the factual elements of the offence more likely.

30. Other legislative approaches are taken to the things that may be searched for and seized both in New Zealand and overseas. The Serious Fraud Office Act 1990 allows things that are “relevant to the investigation” to be searched for and seized. The Police and Criminal Evidence Act 1984 (UK) authorises the seizure of material that is of “substantial relevance” to the investigation of an offence.

31. Having regard to the law enforcement benefits in adopting a broader approach to what may be seized than the current “evidence” test, but taking into account the human rights values, the Commission recommended that the term “evidential material” should be used to describe the items that may be the subject of a search power (with or without warrant) and that the term should be defined as “evidence or any other item of significant relevance to the investigation of the specified offence”.

32. However, officials have subsequently reached the view that the qualification “significant” may not be helpful. It is not clear how the courts would interpret it. To the extent that it might narrow the test currently in the Serious Fraud Office Act, that would be undesirable. Officials instead propose, and the Commission agrees, that it should be sufficient that items are “relevant to the investigation of the specified offending”. This test better reflects the expanded interpretation given to the term “evidence” by the courts. It retains the current link between the item to be seized and the offending under investigation, but allows sufficient breadth to enable investigators to seize any material that may be necessary to bring the investigation to a successful conclusion.

33. The proposed test will also apply to intangible material (electronic data) as well as tangible items and to exculpatory material as well as inculpatory material. Exculpatory material, which has the effect of eliminating a suspect, notwithstanding other evidence pointing to their possible involvement, will clearly be highly relevant to the investigation of the specified offence.

Forensic material

34. Section 198(1)(b) of the Summary Proceedings Act is often used to obtain items such as clothing which may require forensic analysis to produce evidential material linking the suspect to the crime scene. Items may be seized for DNA analysis, ballistics tests or drug residue analysis. A search for forensic material is different from a conventional search and seizure, as scientific analysis is necessary to determine whether evidential material is actually present in the seized item.

35. In these cases the seized item cannot be classified as evidential material until the post-seizure examination has occurred, whereas section 198 of the Summary Proceedings Act requires, on its face, that the item must reasonably be believed to be evidence before it may be seized. The courts have adopted an expansive approach to the interpretation of section 198 in recognition of this difficulty.

36. The Commission proposed a power to seize items which there are reasonable grounds to believe may contain evidential material and to undertake the forensic examination of those items. Such a provision will make the authority to seize and examine such items clear and is consistent with the way the law has been developed by the courts. It would apply to both warranted and warrantless searches. I support this approach.

Consent

37. A law enforcement officer may search a person, place or vehicle with consent, whether or not there is a power to conduct the search. To be lawful, however, the consent must be validly given and this will generally depend on whether it is voluntary, informed, not obtained by deception or misrepresentation, and given by a person with actual authority.

38. The absence of any statutory guidance as to when a consent search may be validly conducted gives rise to a number of problems. First, there is the potential for law enforcement officers to undertake searches randomly or indiscriminately. Secondly, the inherently coercive circumstances in which the search occurs often means it is difficult for the courts to determine whether informed consent was freely given. Thirdly, the lack of a requirement for consent searches to be conducted for a law enforcement purpose opens the possibility that they can be used as an instrument for harassment on the basis of unjustified discrimination. These considerations led to proposals for codification overseas and to the development of a code governing consent searches under the United Kingdom Police and Criminal Evidence Act.

39. The Commission concluded that the present uncertainty in the law is unsatisfactory and that statutory guidance is necessary to allow people being searched and law enforcement officers to know where they stand. Rather than proposing a detailed code of the type in force in England, which is restrictive and unnecessarily elaborate, it recommended that before a consent search is undertaken the enforcement officer should be simply required to:

• have good reason to undertake such a search;

• advise the person of that reason;

• advise the person that he or she can refuse to consent to the search.

A consent search that does not comply with these requirements should be unlawful.

40. Good reason for a consent search will exist if it is undertaken for one of the following purposes:

• crime prevention;

• protection of life or property, or prevention of injury or harm;

• investigation of possible criminal activity;

• any purpose for which a statutory power of search would exist if the
  appropriate threshold of suspicion or belief were met (to cover searches
  undertaken by agencies for a reason other than a core law enforcement
  purpose, such as those under the Biosecurity Act 1993).

41. The Commission noted that these requirements may result in increased legal challenges as to whether good reason existed before the officer sought to conduct a consent search and whether advice on the right to refuse was given. However, legal challenge to the admissibility of evidence found in the course of a consent search is not uncommon now and it is possible that clarification of the law may result in fewer challenges if people know that they have been advised properly.

42. The Commission recognised that some searches by law enforcement officers, such as searches conducted as a condition of entry to a place or vehicle, would fall outside the ambit of these requirements as the issue of consent is dealt with by the person’s acceptance of the entry conditions. Examples include entry to a secure facility such as a prison or a court room. Nor would the requirements for a valid consent search extend to the exercise of statutory powers of inspection where consent is not required.

43. I agree that there are benefits to be gained by clarifying the law in this area and recommend that the Commission’s proposals be adopted.

Who may give consent?

44. The Commission made two recommendations to clarify who may give consent. First, only a person who has the actual authority to do so may give a valid consent. Where the person does not have that authority, the search will be unlawful. This makes it clear, for example, that a neighbour or visitor in the drive-way to a house whom the police mistake to be an occupier could not provide a valid consent to search that property. In some cases it will be difficult for an enforcement officer to know whether a person who purports to give consent has the authority to do so, but if an officer reasonably believes they do, a court is most unlikely to reject any evidence found as a result of the search.

45. Secondly, the Commission recommended that a person under 14 years of age should never have authority to consent to the search of a private place or vehicle (unless someone under 14 is driving a vehicle and nobody with actual authority is present in the vehicle).
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46. While selecting any particular age is somewhat arbitrary, it is an offence for a parent or guardian to leave children under 14 without making reasonable provision for their supervision or care. The law thus considers those over 14 to be capable of being in charge of premises in the absence of adults. Although a person has to be 15 years of age to hold a learner licence to drive a car, it is desirable that a consistent approach be adopted for both places and vehicles. This proposal will not mean that a 14 year old will automatically be able to provide a valid consent. As with a person of any age, that will be dependent on whether he or she had actual authority and whether the consent was voluntary and informed in the circumstances of the case. However, this proposal will ensure that a person under 14 will not be able to provide a valid consent.

47. I agree with both these proposals.

Implied licence

48. An implied licence is a form of consent for another person to enter private property for a lawful purpose. An occupier of a house with an unlocked gate is usually regarded by the common law as giving an implied licence to members of the public to walk to the door of the property and knock or seek an invitation to enter. The precise scope of a law enforcement officer’s right to enter property pursuant to an implied licence is unclear, but though the Commission endeavoured to formulate a basis for codifying the concept, it reluctantly concluded that it was not practicable to do so for law enforcement purposes.

49. The Commission recommended that while the concept should not be defined in legislation, there should be a statutory provision that the common law concept of implied licence is not affected by the codification of other powers and authorities.

50. I accept that there are difficulties in codifying the concept of implied licence and support the Commission’s proposal.

Plain view

51. When a police officer is exercising a search power, it is not uncommon for the officer to find incriminating evidence, the seizure of which is not authorised by the search power. The item may not be specified in the warrant that is being executed, or it may be evidence of another offence. Similarly, an officer may see an incriminating item when lawfully in a place for a reason other than conducting a search. Evidence that is discovered and seized in these circumstances is often referred to as a “plain view seizure”. The courts have noted that the law on plain view seizures is unclear and a matter for legislative reform.

52. The Commission recommended that in these circumstances the police officer should be able to lawfully seize the evidence if:

• the item is discovered in an area that can otherwise lawfully be searched; and

• the officer has reasonable grounds to believe that the item is evidence of an offence.

53. The Commission proposed that the principles governing a plain view seizure should also apply to vehicles and people and that there should be no restriction as to the type of offence for which a plain view seizure may occur. The authority to seize an item does not, however, confer any power to enter to seize it. Specific statutory authority to enter must exist, such as, for example, a police officer’s power to enter a parked car to seize stolen property or drugs visible from the street. In the case of a personal search, a plain view seizure would be permitted where, for example, a person is being lawfully searched for an offensive weapon and drugs are discovered in his or her possession.

54. Non-police officers, exercising a law enforcement, regulatory or compliance function, may also find incriminating items. The Commission recommended that, subject to any specific statutory exceptions, officers exercising an inspection power should be able to seize only items reasonably believed to be evidential material relating to an offence for which the officer has statutory jurisdiction. The risks in seizing an item in respect of which the non-police officer has no expertise, and which may be lawfully possessed in certain circumstances, outweigh any potential benefits in immediately seizing the item for delivery to the police. The better option is for the discovery to be reported to the police so they can determine what action should be taken using their general law enforcement powers.

55. I agree with the Commission’s proposals as to codification of plain view seizures.

56. In the Commission’s report it proposed an exception to the position outlined in paragraph 54. It recommended that Customs officers should be entitled to seize objectionable publications (in terms of the Films, Videos, and Publications Classification Act 1993) irrespective of whether the publication is imported or exported, thus falling within Customs jurisdiction, or domestically produced. Sometimes the source of the publication is difficult to ascertain when it is found, and sometimes objectionable publications falling within Customs jurisdiction are found at the same time as such material outside its jurisdiction. As the expertise required to identify the material as objectionable is the same in either case, the Commission recommended that Customs officers should have the authority to seize any item that they reasonably believe to be an objectionable publication and that comes into plain view in the course of a lawful search, whether or not it is a prohibited import or export. I agree.

57. The amendment to the Customs and Excise Amendment Bill agreed to by Cabinet Economic Development Committee on 7 November 2007 (EDC Min (07) 25/8) will only partially implement the Commission’s recommendation in the previous paragraph (in that the agreement sought and approval given relates to seizures of objectionable publications by customs officers executing only warrant powers, rather than when exercising both warrant and warrantless powers). I recommend that that amendment not proceed in that Bill and instead be comprehensively dealt with in the proposed Search and Surveillance legislation.

58. Since the publication of the Commission’s report, Customs have requested authority for plain view seizures of illegal drugs on the same basis as the Commission recommended for objectionable material. Except under section 18(5) of the Misuse of Drugs Act 1975 (in relation to prohibited plants or seeds), Customs officers have no authority to seize drugs that have not been imported or are not destined for export. Given that the expertise required to identify a drug as illegal is the same in both contexts, I recommend that Customs officers exercising a lawful power of search be empowered to seize items that are reasonably believed to be illegal drugs, whether or not they are a prohibited import or export.

Reporting on the Exercise of Search and Surveillance Powers

59. Reporting on the exercise of law enforcement search and surveillance powers can serve a number of valuable purposes. It facilitates either internal or external oversight of the enforcement officer’s exercise of the power; it provides a performance measure as to how officers carry out their duties; it provides feedback to key participants in the search and surveillance regime; and it provides information on which law reform or reviews of law enforcement powers and their processes can draw. Three mechanisms for reporting on the exercise of search powers are currently used: reporting to the head of the enforcement agency; to the warrant issuing officer; and to Parliament.

60. The Commission found present arrangements to be piecemeal. However, it did not consider that a comprehensive statutory framework for reporting the exercise of all search and surveillance powers would be justified, given the administrative burden that would be imposed on enforcement officers and the significant additional resourcing that would be required. Instead it proposed a strengthening of existing reporting mechanisms.

Internal reporting within the enforcement agency

61. The Commission noted the importance of robust internal procedures to ensure proper supervision and review of the exercise of search and surveillance powers. So far as search warrants were concerned it concluded there was nothing to be gained by supplementing existing arrangements with a statutory regime.

62. Owing to the exceptional nature of warrantless powers and the fact that they may be exercised without prior independent judicial approval, the Commission recommended a statutory requirement that the exercise of all warrantless search and surveillance powers be reported to a designated officer within the agency. The report should briefly describe the circumstances that led to the exercise of the power, whether evidential material was seized and whether charges were laid or contemplated.

63. The Commission recommended this reporting requirement should not apply to four search powers: the initial frisk search of a person following arrest; the search of an arrested person at a police station pursuant to section 57A of the Police Act 1958; consent searches; and where a warrantless power of entry had no accompanying power of search. As the exercise of the first two powers is not predicated on the officer meeting a particular threshold of belief or suspicion there is no element requiring supervisory review, and in the latter two instances the exercise of a search power is not involved.

64. I agree with these proposals.

Reporting to the issuing officer

65. The Commission accepted that a requirement to advise the issuing officer of the outcome of the exercise of a search or surveillance device warrant could be seen as providing independent oversight of the exercise of the power. However, it concluded such a requirement was not justified for two reasons. First, generally such a step would not provide an effective form of review of the law enforcement officer’s execution of the warrant as there is no meaningful action the issuing officer can take at that stage of the process; secondly, such a general requirement for reporting on the exercise of all search and surveillance powers would impose an unnecessary additional administrative burden on judicial resources as other mechanisms already exist for challenging the execution of the warrant.

66. However, a special case may be made for surveillance, as this is where the greatest public unease may arise. Currently under the interception regime in the Crimes Act, police must report to a High Court judge on the use of an interception device.

67. Subsequent to the publication of the Commission’s report, due to concerns raised by Police and Customs about notifying people that they have been subject to surveillance (as originally recommended by the Commission, see paragraph 44 Paper 2: Interception and Surveillance), it is now proposed that instead of notification, there should be a report to a judge following the exercise of a surveillance power (except as permitted without warrant for up to 3 hours in a 24 hour period or up to 8 hours in aggregate in respect of the curtilage of a private building; see Paper 2: Interception and Surveillance, paragraph 23 and recommendation 2). Where the power has been exercised pursuant to a warrant, the report should be to the issuing judge.

68. The report will need to include information on:

• evidential material of the offending in relation to which the power was exercised;

• evidential material of other offending obtained;

• irrelevant material obtained;

• any privileged or confidential material obtained and how that has been dealt with;

• how all information obtained by exercise of the surveillance power has been dealt with;

• if the enforcement agency wishes to retain the material, the reasons why they want to do so;

• if the enforcement agency does not wish to retain the material, the steps that have been or will be taken to destroy it.

69. Upon receipt of that report, the judge should have power to:

• give directions as to the retention or destruction of material obtained by the use of the warrant or emergency warrantless power;

• make a report to the Chief Executive of the relevant agency about any breach of the terms of the warrant or use of the emergency warrantless power outside the permitted scope;

• order that the subject of the surveillance be notified that he or she was under surveillance if satisfied that the warrant should not have been issued or that there has been a serious breach of its terms or that the use of the device was significantly outside the scope permitted by the emergency warrantless power and that, having regard to the gravity of the breach, the public interest in notification outweighs any potential prejudice to on-going or subsequent investigations or to the safety of informants or undercover officers.

70. The ability for the judge to order that the surveillance subject be notified of the unlawful exercise of a surveillance power is consistent with the approach in several overseas jurisdictions. In Canada it is mandatory for the law enforcement agency to give notice of the use of a surveillance device to the subject of the surveillance, though notification may be deferred by judicial order for up to three years in some cases. In Victoria, Western Australia and Queensland, the judge may order disclosure of the use of a listening device and in New South Wales, a judge may direct that the subject be given information about the surveillance if the judge is satisfied that the use of a listening device was not justified and was an unnecessary interference with the privacy of the person concerned.

71. However, Customs believes that the first three bullet points in paragraph 69 above provide clear mechanisms to ensure accountability, especially when coupled with the requirement to include information as to adverse reports in an agency's annual report to Parliament. Customs believes that the oversight of Parliament is the appropriate method to ensure poor practice is rectified rather than notification and is very concerned that any notification to the subject of surveillance will prejudice maintenance of the law. It is common for individual suspects to be of ongoing interest to law enforcement agencies; disclosing the fact of surveillance makes it much more difficult to surveil that individual or their associates again in future. Customs maintains that notification has the potential to expose the precise nature of the techniques and technologies employed by law enforcement agencies, and may also lead to the identification of undercover law enforcement officers and members of the public who assist them through allowing their premises to be used for surveillance purposes. Customs also believes that overseas law enforcement agencies will be unlikely to work cooperatively with New Zealand agencies if there is the potential that the NZ agency may have to notify an individual thus jeopardising an international operation and revealing techniques also utilised by those overseas agencies.

72. Noting that Customs is the only enforcement agency to consider that notification is always inappropriate following a significant breach of a surveillance power, I agree with the proposal set out in paragraph 69 as striking the appropriate balance between the need for surveillance operations generally to be kept secret, but at the same time allowing notification only in those cases where there has been a serious breach of the power purportedly being exercised and the judge has determined that the public interest justifies that course.

73. With regard to search warrants, while the Commission proposed that there be no general reporting requirement to the warrant issuing officer, it recommended that, for feedback purposes, an issuing officer should be able to request information on a case-by-case basis on the outcome of the execution of the warrant that he or she has approved. Enforcement officers should accommodate such requests. Not only will such reporting serve to assist newly appointed issuing officers, but more generally it will allow issuing officers to become aware of the outcome of a judicial process that they have authorised.

74. The Commission recommended that, when requested, the information to be provided to the issuing officer should include: whether the warrant was executed; whether evidential material was obtained as a result; the exercise of any warrantless powers in conjunction with the execution of the warrant and whether charges were laid or contemplated.

75. I agree with this approach.

Reporting to Parliament

76. The Commission concluded that routine external monitoring of the exercise of all search and surveillance powers was not justified, but noted that it was desirable, for the purposes of transparency and research, for law enforcement agencies to report to Parliament on the exercise of warrantless powers and on the execution of surveillance device warrants.

77. These particular powers were identified as justifying reporting to Parliament because warrantless powers are not subject to the same external scrutiny that applies to powers that are exercised under warrant and surveillance device warrants will almost always be exercised covertly. In both cases accountability and transparency will be bolstered by annual reporting. Though this would extend existing reporting obligations, the Commission was of the view it would not impose an undue administrative burden on enforcement agencies, as the information required for annual reporting purposes would be able to be extracted from papers prepared for internal reporting requirements.

78. The Commission recommended that the information to be reported in respect of the exercise of warrantless powers and the execution of surveillance device warrants should be based on the existing statutory requirements relating to the execution of interception warrants with minor modifications. The Commission’s report detailed these requirements, including the number of warrantless powers exercised, the type of surveillance device used (audio interception, visual or tracking) and the length of time that they were used, details of prosecutions where evidence obtained by the exercise of the power was used, and the number of occasions where charges were not laid within 90 days of the exercise of the power. The Commission recommended the annual reporting of similar information concerning the execution of surveillance device warrants, including the reporting of the number of applications for surveillance device warrants granted and refused and the number of warrants that authorised entry onto private premises. I also recommend that corresponding information regarding the use of residual warrants (discussed in paragraphs 45 to 49 in Paper 2: Interception and Surveillance) be included in annual reports to Parliament.

79. A strong case can also be made for requiring reporting to Parliament in respect of the exercise of the examination power proposed in Paper 8. As noted in that Paper, an examination power is an exception to the general rule against the use of coercive powers in law enforcement investigations and its misuse may significantly impact on public perceptions of law enforcement agencies and the justice system generally. Accordingly, I propose that law enforcement agencies be required to include in their annual reports to Parliament details of the number of times the examination power has been exercised and the rank or position of the officers who approved applications for examination orders.

80. In addition I recommend that, where a judge makes a report under the proposal in paragraph 69 to the Chief Executive of the relevant agency about a breach of a surveillance device power, there be a legislative requirement that the fact and nature of any such adverse report must be noted in the agencies’ Annual Report to Parliament.

81. The Commission also recommended that existing annual reporting requirements relating to the exercise of related powers under the Misuse of Drugs Amendment Act 1978 (detention warrants), section 317B Crimes Act 1961 (road blocks) and the Criminal Investigations (Bodily Samples) Act 1995 (bodily samples) should be retained.

82. I agree that the reporting requirements proposed by the Commission should enhance accountability and expand the availability of information relating to the use of important law enforcement powers.

Implementation

83. I propose that a search and surveillance powers statute be drafted to implement the recommendations contained in this suite of papers. The legislation will have five main components dealing with:

• All police search powers – this will comprise the core of the legislation and will simplify and consolidate the law in one place. It will include provisions to replace section 198 of the Summary Proceedings Act 1957 (the general search warrant power), statutory search powers currently scattered throughout the statute book, and warrantless powers (see this paper and paper 4: Warrantless Powers);

• Amendments to substantive search powers for non-police enforcement agencies;

• Surveillance powers for enforcement officers (see paper 2: Interception and Surveillance);

• Production powers for enforcement officers (see paper 5: Production and Monitoring Powers);

• Generic procedural provisions governing the exercise of search and surveillance powers by all enforcement officers. This will cover matters such as applying for and issue of search and surveillance device warrants and production orders, the way in which search powers are exercised, post execution procedures and reporting requirements, and protections and immunities (see this paper and Papers 3: Computer Searches, 6: Clarification and Codification and 7: Remedies and Immunities).

84. The generic procedural provisions will automatically apply to existing law enforcement powers unless a specific exception is justified by an enforcement agency. Consultation on the nature and extent of these exceptions is being undertaken and I will separately seek approval for any that may be required.

85. There is potential for the generic procedural provisions governing the exercise of search and surveillance powers to extend to regulatory powers exercised for inspection or compliance purposes. This will be determined on a case-by-case basis with relevant agencies. Consultation on this matter is progressing and should the proposal prove viable, I will separately seek approval for inclusion in the new statute of the appropriate extension of the procedural regime to certain regulatory powers.

86. I note that a Search and Surveillance Powers Bill has already been included in the 2008 legislative programme. I propose that drafting instructions be issued to the Parliamentary Counsel Office jointly by the Ministry of Justice and the Commission reflecting the approvals given to the recommendations in this suite of papers, with a view to introducing a Bill into Parliament in 2008.

Review of legislation

87. As well as consolidating existing law and clarifying procedural requirements, the proposed Search and Surveillance Powers Bill will provide law enforcement officers with new or enhanced powers. In particular, the availability of the proposed surveillance device warrant regime to non-police agencies enters unchartered territory to some extent and may raise concerns about the potential creep of state powers and the emergence of a “surveillance society”. Similarly, the new examination power to be available to the police needs to be closely monitored to ensure that it is achieving the right balance between law enforcement values and human rights values. To ensure that the legislation effectively protects the rights of individuals, as well as meeting the operational needs of law enforcement agencies, I propose that the bill include a requirement for a mandatory review after 5 years similar to that contained in section 202 of the Evidence Act 2006. The review should be conducted jointly by the Ministry of Justice and the Law Commission and result in a report to the Minister of Justice.

Consultation

88. The following Government agencies and organisations have been consulted in the development of this suite of papers and provided with Papers 1 to 7: NZ Police, NZ Customs Service, Crown Law Office, Treasury, Serious Fraud Office, Te Puni Kokiri, Ministry of Women’s Affairs, Ministry of Agriculture and Forestry, Department of Conservation, Department of Labour, Department of Internal Affairs, Commerce Commission, Ministry of Economic Development, Ministry for the Environment, Ministry of Transport, Ministry of Fisheries, Maritime NZ, Ministry of Health, Ministry of Social Development, NZ Food Safety Authority, Ministry of Pacific Island Affairs, Human Rights Commission, State Services Commission, Securities Commission, Office of the Privacy Commissioner and the Inland Revenue Department. The Department of Prime Minister and Cabinet has been provided with these papers as they have been developed. All of these agencies and organisations were also consulted on an earlier version of Paper 8: Examination powers.

89. The following Government agencies have been consulted in the development of Paper 8: Examination Powers: NZ Police, Serious Fraud Office, State Services Commission and Department of Prime Minister and Cabinet.

90. There is widespread support for the recommendations in these papers. There is one recommendation in this suite of papers with which the NZ Customs Service does not agree, and the reason for their view is set out in paragraph 71 of this paper and a split recommendation included in recommendation 18 of this paper. Consultation is continuing with a number of agencies as to possible extension of the proposed procedural regime to regulatory powers, but the agreements sought in these papers can be made independently of that process. Any decisions made by Cabinet in relation to enforcement powers will not pre-determine or influence the outcome of that consultation relating to regulatory powers.

Financial Implications

91. Paper 6: Clarification and Codification proposes that only specifically appointed and trained issuing officers should be authorised to issue search warrants. Financial implications arise for the Ministry of Justice in providing appropriate training for issuing search warrants. Specialised training for issuing officers (including the existing regime of Registrars/Deputy Registrars and Judicial JPs) will ensure that issuing officers have the skills to scrutinise search warrant applications, to cover modern technologies such as computer searches. This will reduce the resources currently required for hearing and resolving challenges to the validity of search warrants.

Human Rights

92. The proposals in these papers appear to be consistent with the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993. However, the Crown Law Office has advised that it will pay close scrutiny to the drafting of recommendation 11 in Paper 7 (relating to Crown immunity) when it vets the proposed legislation for Bill of Rights compliance. Further, the Human Rights Commission, although having raised no specific concerns at this time, has indicated that it would appreciate the opportunity to see the draft legislation before it is introduced to identify possible human rights issues. Officials will ensure that the Human Rights Commission is given that opportunity.

Legislative implications

93. A draft Bill will be prepared by the Parliamentary Counsel Office to implement the recommendations in this suite of papers agreed to by Cabinet. I propose that the Bill should be introduced and referred to Select Committee in 2008.

Regulatory impact analysis

94. The attached Regulatory Impact Statement (RIS) complies with the principles of the Code of Good Regulatory Practice and the regulatory impact analysis requirements.

Publicity

95. I propose that, once decisions have been taken by Cabinet on this suite of papers, they should be publicly announced.

Recommendations

I recommend that Cabinet Business Committee:

1. Note that the Law Commission’s report Search and Surveillance Powers identified a number of problems with the existing law governing search and surveillance powers and made recommendations designed to make law enforcement powers certain, clear and consistent and to bring the law up to date;

2. Agree that the standard statutory threshold for the exercise of law enforcement search powers be reasonable grounds to suspect that an offence has been, is being, or is about to be committed, and reasonable grounds to believe that evidential material in relation to the suspected offence is in the place or vehicle to be searched, unless a compelling justification exists for a different test;

3. Agree that the term “evidential material” be defined as “evidence or any other item of relevance to the investigation of the specified offending”;

4. Agree that evidential material expressly include intangible items and exculpatory as well as incriminating material;

5. Agree that a specific power to seize forensic material be introduced to permit an enforcement officer to seize an item that he or she believes on reasonable grounds may contain material that could, when examined scientifically, constitute evidential material;

6. Agree that the requirements for a valid consent search be codified to provide that before conducting a consent search, an enforcement officer must have a good reason for the search, and advise the person of that reason and that he or she may refuse to consent to the search;

7. Agree that good reason for a consent search will exist if it is conducted for one of the following purposes:

• crime prevention;

• protection of life or property, or prevention of injury or harm;

• investigation of possible criminal activity;

• any purpose for which a statutory power of search would exist if the appropriate threshold of suspicion or belief were met;

8. Agree that if the requirements for a valid consent search are not complied with by the enforcement officer, the search be unlawful;

9. Agree that the requirements for a valid consent search do not apply to a search conducted by a law enforcement officer where it is a condition of entry or pursuant to a statutory power of inspection;

10. Agree that a search power exercised in reliance on consent given by a person without actual authority to give that consent be unlawful;

11. Agree that a person under 14 never has the authority to consent to an enforcement officer searching a private place or vehicle (unless someone under 14 is driving it and nobody with actual authority is present in the vehicle);

12. Agree that the concept of implied licence to enter private land not be defined in statute but, to avoid doubt, there should be a provision that nothing in the legislation affects the common law concept of implied licence;

13. Agree that the law relating to “plain view” seizures be codified to provide that a police officer may seize anything that:

• he or she has reasonable grounds to believe is evidence of an offence;

• comes into view while the officer is lawfully exercising a search power or is otherwise lawfully in the place or vehicle in which the thing is observed, even if the seizure of the item is not authorised by the terms of any search power that is being exercised;

14. Agree that unless expressly authorised by statute, no officer exercising an inspection or law enforcement power other than a police officer may make a “plain view” seizure unless he or she has statutory jurisdiction in respect of the offence disclosed;

15. Agree that the amendment proposed in the Customs and Excise Amendment Bill to allow Customs officers to seize objectionable publications found while executing a search warrant and the new proposed power to seize illegal drugs in the exercise of any search power, whether or not the publication or drug is a prohibited import or export, be implemented in the Search and Surveillance legislation;

16. Agree that except for searches expressly excluded from the requirement, an enforcement officer be required to report details of the exercise of any warrantless search or surveillance power as soon as practicable to the chief executive of, or official with delegated responsibility within, his or her agency;

17. Agree that there be no general requirement for an enforcement officer to report on the execution of a search warrant to the issuing officer, but that the enforcement officer should be required to submit a report to the issuing officer providing details of the execution of the warrant when such a report is requested by the issuing officer;

18. EITHER (Justice, Police, Crown Law)

(a) Agree that where a surveillance power is exercised an enforcement officer be required to report to a judge who may:

• give directions as to destruction or retention of material obtained;

• make a report to the Chief Executive of the agency exercising the power about any breach of the power;

• order the subject of surveillance to be notified where he or she is satisfied that the warrant should not have been issued or that there has been a serious breach in the exercise of the power and the public interest in notification outweighs any potential prejudice to on-going or subsequent investigations or to the safety of informants or undercover officers;

OR (Customs)

(b) Agree that where a surveillance power is exercised an enforcement officer be required to report to a judge who may:

• give directions as to destruction or retention of material obtained;

• make a report to the Chief Executive of the agency exercising the power about any breach of the power;

19. Agree that except for searches expressly excluded from the requirement, prescribed details of the exercise of warrantless search or surveillance powers, surveillance device warrants executed, and the exercise of the examination power be required to be included in the relevant enforcement agency’s annual report to Parliament;

20. Agree that where a Judge makes an adverse report about the exercise of a surveillance power, the fact and nature of the judicial report be noted in the relevant enforcement agency’s annual report to Parliament;

21. Agree that existing statutory requirements for the annual reporting of the issue of detention warrants, the use of road blocks, and the taking of bodily samples be retained;

22. Note that it is proposed a search and surveillance powers statute be drafted to implement the Law Commission’s recommendations agreed to, consolidating police search powers, amending specific search powers for enforcement agencies other than police, and providing for the surveillance and production powers of all enforcement officers and generic procedural provisions governing the exercise of search and surveillance powers;

23. Note that a Search and Surveillance Powers Bill has been included in the 2008 legislative programme;

24. Agree that drafting instructions to Parliamentary Counsel be provided jointly by the Ministry of Justice and the Law Commission;

25. Note that when a draft Bill is ready for introduction, I will seek approval for any exemptions from the generic procedural provisions relating to the exercise of law enforcement powers that have been justified by enforcement agencies;

26. Note that when a draft Bill is ready for introduction, I will seek approval for the extension of the generic procedural provisions to certain regulatory powers exercised for inspection or compliance purposes if consultation with regulatory agencies confirms that their application is appropriate and practicable.

Hon Annette King
Minister of Justice

Date signed:

REGULATORY IMPACT STATEMENT

Executive Statement

1. Legislation is required to implement proposals made by the Law Commission in its report on Search and Surveillance Powers (NZLC 97). The recommendations made in the attached suite of Cabinet papers, if agreed to, will allow a Bill to be drafted to give effect to the Commission’s proposals and, in a small number of instances, changes in approach to that recommended by the Commission (sought by agencies since the Commission’s report was tabled and supported by the Commission). Given the wide ranging nature of reforms to the law of search and surveillance proposed by the Commission and discussed in the attached suite of Cabinet papers, there is no alternative to the promulgation of legislation to give effect to those recommendations and to address deficiencies in the existing law in a comprehensive manner.

Adequacy Statement

2. The Ministry of Justice has reviewed this Regulatory Impact Statement (RIS) and has determined that it is adequate according to the criteria agreed by Cabinet. The MED Regulatory Impact Analysis Unit decided not to review this RIS because it considered that the proposals contained in this suite of Cabinet papers would not significantly impact on economic growth.

Status Quo and Problem

3. Core police search powers are contained in statutes that are up to 50 years old; the law has thus become outdated and has been supplemented by case law to fill gaps in the legislation. Search powers have been granted to non-police law enforcement agencies and have developed in a piecemeal manner scattered throughout various pieces of legislation, often in an incoherent or inconsistent manner. Further, the law has not kept pace with technology. The ability of criminals to use computers and other electronic devices to commit or facilitate illegal activity needs to be matched by appropriate legislative powers to enable law enforcement agencies to extract electronic information and use surveillance devices in the investigation of criminal activity. At the same time, reasonable checks and balances must be provided against inappropriate use of those powers.

4. The Commission report Search and Surveillance Powers and the recommendations in the attached suite of Cabinet papers propose reform of the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights.

Objectives

5. The principal objective of the proposals contained in the attached suite of Cabinet papers is to provide coherent and effective powers of search and surveillance which will increase certainty in law enforcement and allow use of available technologies to tackle crime in the 21st century, while at the same time recognising human rights values.

Alternative Options

6. Given the complexity of the current law and the need to consolidate and update existing statutory provisions, implement new laws and codify aspects of the common law, there is no sensible alternative to the legislation proposed in the attached suite of Cabinet papers. Ad hoc amendments to current statutes as an alternative would add to the incoherence and inaccessibility of the law. So too would the option of leaving the issues to be addressed through case law. That latter option would have the disadvantage of uncertainty and continuing costs arising from challenges to the admissibility of evidence.

Preferred Option

7. The proposed search and surveillance powers statute to implement the recommendations contained in this suite of papers will have five main components dealing with:

• All police search power – this will comprise the core of the legislation and will simplify and consolidate the law in one place. It will include provisions to replace section 198 of the Summary Proceedings Act 1957 (the general search warrant power), statutory search powers currently scattered throughout the statute book, and warrantless powers;

• Amendments to susbstantive search powers for non-police enforcement agencies;

• Surveillance powers for enforcement officers;

• Production powers for enforcement officers;

• Generic procedural provisions governing the exercise of search and surveillance powers by all enforcement officers. This will cover matters such as applying for and issue of search and surveillance device warrants and production orders, the way in which search powers are exercised, post execution procedures and reporting requirements, and protections and immunities.

8. The benefits attaching to greater certainty and simplicity in the law will outweigh
any costs associated with the implementation of the Bill.

9. There will be costs associated with businesses complying with production orders (to produce documents as evidential material of a specified offence to an enforcement agency following an order issued y an independent officer acting judicially), but the choice as to whether a standard search warrant or production order will be sought for use in any given case will vest with the relevant enforcement agency. On that basis it impossible to quantify the volume of production orders that will be sought and issued. However, whatever compliance costs are incurred by businesses issued with a production notice must be off-set against the disruption that would otherwise occur by physical entry and search of business premises under a search warrant. Very often production powers will be less intrusive and involve less cost, than the use of search warrants as an alternative.

Implementation and Review

10. The legislation will include a provision, similar to that contained in the Evidence Act 2006, that it is to be reviewed jointly by the Ministry of Justice and the Law Commission within five years of the date of which the legislation comes into force, and a report provided to Parliament.

Consultation

11. The Police, Customs, Department of Prime Minister and Cabinet, Ministry of Economic Development and Treasury have been consulted on this statement.