The Law Commission and the Ministry of Justice conducted a review of the Search and Surveillance Act 2012, was is required by section 357 of that Act. The review was referred to us by the then Minister of Justice on 28 June 2016 and we jointly reported to the Minister within one year of that date.
The Search and Surveillance Act 2012 controls how police and some other government agencies search people or property or use surveillance devices for the purpose of investigating crime. When it was enacted, it created greater consistency and transparency in the way in which search, seizure and surveillance power are carried out by police and other enforcement agencies. Four years later, it is timely to consider whether it continues to operate effectively both as a tool for the investigation of crime and as a mechanism to safeguard the rights and interests of those people investigated.
The Law Commission and Ministry of Justice called for public submissions on the issues arising under this review in 2016.
Terms of reference
Terms of reference for the statutory review of the Search & Surveillance Act 2012
Section 357 of the Search and Surveillance Act 2012 (the Act) requires the Minister of Justice to refer a review of the operation of the Act to the Law Commission and the Ministry of Justice by 30 June 2016. The Law Commission and the Ministry of Justice must report jointly to the Minister of Justice within one year of that referral.
The terms of reference for the review are as follows.
1. As required by s 357 of the Act, the review will consider:
- the operation of the provisions of the Act since 1 October 2012;
- whether they should be retained or repealed; and
- whether any amendments to the Act are necessary or desirable.
2. The review will identify and focus on core policy issues. Smaller or more technical matters will be worked through by the Ministry of Justice with the intention that they be implemented at the same time as any reforms made as a consequence of the review.
3. Without limiting the scope of the review, the Law Commission and the Ministry of Justice will consider whether any changes to the Act are required to ensure it enables effective law enforcement and maintains consistency with human rights laws, now and into the future, in light of:
- developments in technology and their broader implications;
- any significant case law on, or relevant to the review of, the Act since its enactment; and
- international legislative developments relating to search and surveillance since the Act’s enactment.
4. As suggested in the report of the First Independent Review of Intelligence and Security, the review will also consider whether the Act (or any related legislation) should be amended to enable broader use of the capabilities of the Government Communications Security Bureau and/or New Zealand Security Intelligence Service to support police investigations.
5. The process for the review will include:
- inviting public submissions;
- consultation with relevant government agencies and private sector organisations; and
- establishing an expert advisory panel to provide technical expertise and advice representing a range of perspectives.
Review of the Search and Surveillance Act 2012 (NZLC IP40, 2016)
The Law Commission and the Ministry of Justice jointly published an Issues Paper describing possible ways to improve the operation of the Search and Surveillance Act 2012. This Paper, Review of the Search and Surveillance Act 2012 (NZLC IP40, 2016), examines different regimes established by the Act in relation to surveillance device warrants, search warrants (with a special focus on searches of digital data), warrantless searches, privilege, production and examination orders, and the use of intelligence agencies’ capabilities for law enforcement purposes. It outlines potential problems with the operation of the Act and options for reform.
In preparing this Paper, the Commission and the Ministry held preliminary consultation with a range of organisations, including Police, other enforcement agencies, prosecutors, trial lawyers and other people whose work engages the Act. Those meetings informed the issues discussed in this Paper. The Commission and the Ministry of Justice now seek public feedback on those issues and possible options for reform.
Review of the Search and Surveillance Act 2012 Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2018)
This Report is the product of a unique joint review of the Search and Surveillance Act 2012 (the Act) conducted by the Law Commission and the Ministry of Justice. As required by the Act, it has been completed within one year of receiving the terms of reference.
The terms of reference asked the Commission and Ministry to consider the operation of the provisions in the Act since 1 October 2012 and to determine whether any amendments are necessary or desirable. Our objective is to ensure that the Act enables effective law enforcement and maintains consistency with human rights laws, now and into the future, in light of developments in:
• case law, and
• international search and surveillance legislation.
No formal Government response to the Report Review of the Search and Surveillance Act 2012 Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141) was received. This was a joint review with the Ministry of Justice.
One recommendation has been implemented to date (Recommendation 53, preservation order regime, relating to the Cabinet decision to accede to the Budapest Convention).
Further implementation work is underway by the Ministry of Justice.