4. S&S - Surveillance

Question 1

What is surveillance?

Answer 1

police surveillance is a planned and directed activity. Either open or covert and be for the purpose of:
• Observing, and any recording of that observation, or people, vehicles, places and things
• Ascertaining (tracking) the location of a thing or person, or whether a thing has been interfered or tampered with
• Intercepting a private communication

Question 2

What does the S&S Act 2012 do regarding surveillance?

Answer 2

It regulates surveillance activities undertaken by using a device and establishes clear boundaries for the lawful use of a surveillance device:
• Where trespass is not involved
• Where trespass is involved
• Where warrantless powers exist

Question 3

What is a surveillance device?

Answer 3

a device which assists and enhances your normal capabilities to carry out the surveillance. May be a visual surveillance device, an interception device, or a tracking device.

Question 4

What is a visual surveillance device?

Answer 4

a visual surveillance device:

a) Means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment, or other device that is used to observe, or to observe and records, a private activity, but
b) Does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

Question 5

What does the Act do about private land and goods? When is surveillance unlawful?

Answer 5

It restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private. This includes land (in private ownership) and any private premises on that land and ‘goods’.

Surveillance is unlawful if it involves trespass, which is unauthorised entry onto private land or unauthorised handling of goods.

Question 6

What is the definition of goods?

Answer 6

generally means chattels and include vehicles and other tangible belongings.

Question 7

What is the definition of private premises?

Answer 7

means a private dwellinghouse, a marae, and any other premises that are not within the definition of non-private premises.

Question 8

What is the definition of non-private premises?

Answer 8

means premises, or part of a premises, to which members of the public are frequently permitted to have access, and includes any part of a hospital, bus station, railway station, airport or shop.

Question 9

What is the definition of private communication?

Answer 9

a) Means a communication (oral, written, telecommunication, or otherwise) made under circumstances that may reasonable be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
b) Doesn’t include circumstances where any party to the communication ought reasonable to expect that the communication may be intercepted by some other person without having the express or implied consent of any party to do so

Question 10

What is the definition of trespass surveillance? When does it occur?

Answer 10

surveillance that involves trespass onto land or trespass to goods.

Trespass surveillance occurs the moment an enforcement officer steps onto private property without consent.

Question 11

For what activities is a surveillance device required (s46)?

Answer 11

a) interception device to intercept a private communication.
b) tracking device
c) observing and recording of private activity on private premises with a visual surveillance device
d) use of surveillance device involving trespass to land or goods
e) observing and recording of private activity in curtilage with a visual surveillance device for a single investigation, or series of investigations, exceeding 3hrs in 24hrs, or 8hrs total

Question 12

What is the definition of curtilage?

Answer 12

the land immediately surrounding a house or dwelling, but excluding any associated ‘open fields beyond’. It defines the boundary within which a home owner can have a reasonable expectation of privacy.

Question 13

What is the definition of interception?

Answer 13

includes hearing, listening to, recording monitoring, acquiring, or receiving the communication either when it is taking place or while it is in transit.

Question 14

What is the definition of an interception device?

Answer 14

a) Means any electronic, mechanical, electromagnetic, optical or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication; but
b) Does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing

Question 15

What conditions are required for a surveillance device warrant to be issued for an interception device or trespass surveillance?

Answer 15

for gathering EM for:
• Offences punishable by 7yrs or more imprisonment
• Identified Arms Act 1983 offences
• Identified Pyschoactive Substances Act 2013 offences

Question 16

What is meant by voluntary oral communication (s47)?

Answer 16

– is communication between one or more persons where at least on party in the communication gives their consent for the communication to be recorded. There is no requirements to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Question 17

What is the definition of a tracking device?

Answer 17

a) Means a device that may be used to help ascertain, by electronic or other means, either or both of the following:
a. The location of a thing or a person
b. Whether a thing has been opened, tampered with, or in some other way dealt with, but
b) Does not include a vehicle or other means of transport such as a boat or helicopter

Question 18

What conditions are required for a surveillance device warrant to be issued for a tracking device?

Answer 18

It must be to obtain EM for the investigation of any offence punishable by imprisonment.

Question 19

In what situations can a s48 be used?

Answer 19

When are entitled to apply for one, as the situation is one of criminal activity, and it is impracticable to do so in the circumstances.

Only applies to RGTS offence has been, is being or is about to be committed:
• punishable by 14+ years imprisonment and believe use of device would obtain EM
• RGTS there is a risk of injury, or to life or safety of a person, or serious damage or loss of any property and the use of surveillance device is necessary to prevent offending from being committed or continuing
• RGTS certain Arms Act or Drugs offences and use of a surveillance device would obtain EM in relation to the offence

Question 20

What are the time constraints of using s48?

Answer 20

the warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48hrs. An application must be made if surveillance is to continue beyond this time.

Question 21

What is required to use an interception device in an emergency?

Answer 21

approval should be sought from a DI unless:

• the immediacy of the situation doesn’t allow for prior planning and approval - statutory criteria is met
• an opportunity arises to obtain EM that would otherwise be lost.

Question 22

What is the requirement to report on use of surveillance device in emergency or urgency (s60)?

Answer 22

when a warrantless surveillance power is used, notification must be provided to a judge within 1 month after the date of the last day of when the 48hrs used was.

Question 23

What is the period of time a surveillance device warrant may be issued for?

Answer 23

a surveillance device warrant may be issued for a period of no more than 60 days after the date on which the warrant is issued, and is in force for that period. To extend this, a new application must be made.