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SAS12

Search and Surveillance Act 2012 - new powers

NZ $70.00
incl GST
Michael Heron Dale la Hood
Michael Heron
Russell McVeagh
Auckland
Dale La Hood
Luke, Cunningham and Clere
Wellington
Published: 5 June, 2012
Pages: 82

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Introduction

The Search and Surveillance Act 2012 is a major change to New Zealand criminal procedure law. While it draws on and in some cases codifies the previous law, it also introduces totally new powers and regulation. Even in relation to those areas of the law that remain broadly unchanged police officers, departmental enforcement officer, lawyers and judges alike will have to come to terms with new statutory details. In this respect the Act is similar to the reform brought about by the Evidence Act 2006: a few large changes; many small changes; and a new and comprehensive point of reference for enforcement action and legal argument.

Broadly speaking, the Act does two things: first, it creates powers, some new and some similar to the previous law to greater and lesser extents; and secondly, it regulates powers, both those created by the Act itself, and those contained in other (pre-existing) enactments. Evident throughout is a balancing of two major competing purposes: the requirements of law enforcement on the one hand and those of human rights on the other (see ss 5(b) and 5(c) respectively).

The structure of the paper is functional, rather than conforming the structure of the Act (although there are some common boundaries). Chapter 1 discusses both the Act’s new general search warrant (replacing s 198 of the Summary Proceedings Act 1957) and its regulation of search warrants generally. Chapter 2 discusses warrantless powers of entry and search, most of which are available to police only. Chapter 3 looks in detail at the specialist area of computer searches, for which the Act makes new and technologically up-to-date provision. Chapter 4 analyses the new regime under the Act for surveillance and interception by law enforcement officers, which is perhaps the biggest area of reform (and, after R v Hamed [2011] NZSC 101, (2011) 25 CRNZ 326, the most controversial). Chapter 5 analyses the new regime for production and examination orders, while Chapter 6 discusses the Act’s detailed regulation of the execution of various powers under it (sitting alongside the high-level human rights regulation of s 21 of the New Zealand Bill of Rights Act 1990). Finally, Chapter 7 discusses privilege, immunities and other miscellaneous matters.

Through the discussion of the above areas, the booklet seeks to present a comprehensive introduction to the substantive provisions of the Act, with a particular emphasis on those sections likely to be of the most practical importance. In addition, it identifies some of the legal issues that are likely to arise and potential problems or deficiencies of clarity in the new provisions, and attempts to place the Act in its wider legal, law enforcement and human rights context.

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