Collins Judith: Search and Surveillance Bill — In Committee 
Collins Judith: Search and Surveillance Bill — In Committee 
[Volume:678;Page:969] 
Hon JUDITH COLLINS (Minister of Justice) 
: 
 Part 3 of the Search and Surveillance Bill contains the surveillance device declaratory order and production order regimes. This has been subject to much debate and it was not clear that the bill as introduced struck the right balance between human rights and enforcement needs. The Justice and Electoral Committee therefore very carefully considered this part of the bill. The amendments it has made are astute sensible and valuable. 
The select committee has amended this part to limit the use of visual surveillance devices in circumstances that involve a trespass and every use of an interception device to offences punishable by 7 years’ imprisonment or more. This means that such devices will be used only to investigate serious offences ensuring that the investigative benefit justifies the level of intrusion involved. There is an exception for certain Arms Act offences that are punishable by less than 7 years’ imprisonment. This recognises that these offences can have very serious consequences to people’s safety. 
As a further protection the use of such surveillance will be limited to the police the Customs Service and the Department of Internal Affairs—the only agencies who currently investigate offences punishable by 7 years’ imprisonment or more. The Customs Service and the Department of Internal Affairs will be authorised to carry out this surveillance only if they can demonstrate they have developed this capability to a satisfactory standard and can do so in a manner that protects human rights as provided by the regime. A statutory amendment would be required if any other agencies wished to be authorised to use such powers. This means that the appropriateness of other agencies to conduct such surveillance will be determined by Parliament. This ensures that such a potentially intrusive power is granted only after full debate and careful scrutiny by the House. This is an important protection that I welcome. 
This part also protects citizens by regulating the use of surveillance devices that are currently unregulated. There is currently nothing to stop any agency from using a tracking device so long as it does not commit a trespass nor is this use regulated now except in the case of police and the Customs Service. The use of visual surveillance devices is subject to even less regulation. All agencies can use a visual surveillance device such as a camera or binoculars providing they do not commit a trespass. This means that police can currently set up a camera that looks directly into someone’s home without any limits other than a possible claim after the fact under the New Zealand Bill of Rights Act 1990. The bill regulates such visual surveillance by requiring enforcement officers to apply for a warrant. This requires enforcement officers to justify the use of such surveillance before it is used protecting citizens from unjustified invasions of privacy. 
This part also contains an innovative regime that recognises the pace at which technology is advancing: the declaratory order. Declaratory orders allow agencies to obtain a judicial view as to the reasonableness of a new device technique or procedure before using it. This gives agencies a degree of comfort about the admissibility of such techniques and devices although it is not determinative. Such declaratory orders are also subject to reporting requirements to Parliament. This enables Parliament to keep track of the use of such techniques giving it the option to regulate if appropriate. 
Finally this part also includes the production order regime. A person presented with a production order is required to provide the documents that are described in the order. This regime reflects a current and common practice of police in executing search warrants against occupiers willing to assist. The courts have held that a search warrant may be executed by the police sending a copy of the search warrant to a company and the company sending the documents to the police. The production order regime therefore is effective and efficient. It allows the people with the best knowledge about where a document is to be found to locate it so that enforcement officers do not have to search through irrelevant and potentially confidential information. The fact that companies organisations and individuals may refuse to comply on the grounds of self-incrimination or a recognised privilege such as the right of journalists to protect their sources provides adequate protection for those who receive production orders. This part really does strengthen all of the powers of people to in fact resist unlawful searches.