Surveillance

Question 1

What rights to privacy do people have?

Answer 1

Everyone has the right to privacy in their own home, the right to refuse entry to others and the right to expect that they should be able to conduct lawful activities in private.

When Police lawfully enter private premises then you can carry out lawful surveillance by means of your unaided observation, unaided sense of hearing, and unaided sense of smell. You can also record, by way of audio or visual device, what you see or hear there, providing that the device you use does not enhance (e.g. amplify or enlarge) your ability to observe or hear.

However, surveillance by way of a device that enhances your ability to conduct that surveillance, is recognised as more intrusive.

Where surveillance with the use of a surveillance device is concerned, the Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private. (Exceptions apply only in situations of emergency or urgency).

Question 2

What is Police Surveillance?

Answer 2

Police surveillance is planned and directed activity. Either open or covert, and for the purpose of:

• observing, and any recording of that observation, of 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 3

What does the Search and Surveillance act regulate when it comes to Surveillance?

Answer 3

The Search and Surveillance Act 2012 regulates only those surveillance activities undertaken by means of a device. It 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 4

What is a Surveillance device?

Answer 4

A surveillance device is a device which assists and enhances your normal capabilities to carry out the surveillance.

A surveillance device may be any one or more of the following kinds of device:

• a visual surveillance device
• an interception device
• a tracking device

Question 5

What is a Visual Surveillance device?

Answer 5

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 record, 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 6

What does Section 46 allow?

Answer 6

Section 46 Activities for which surveillance device warrant required

(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device.

Some exceptions apply to the requirement to obtain a surveillance device warrant for the use of a visual surveillance device. These are:

• situations of emergency or urgency (although use of a surveillance device in these situations must still be reported in the on-line system); and
• activities that do not require a warrant

Question 7

When is Surveillance unlawful?

Answer 7

Surveillance is unlawful if it involves a trespass, which is unauthorised entry onto private land or unauthorised handling of goods, unless authorised by a surveillance device warrant.

Where surveillance with a surveillance device is concerned, the Search and Surveillance Act restricts surveillance activity in places an individual ‘ought reasonably to expect’ are private.

Those places include land (in private ownership) and any private premises on that land, and ‘goods’.

Goods generally mean chattels and include vehicles and other tangible belongings.

Question 8

What is a private premises?

Answer 8

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

Question 9

What is a non-private premises?

Answer 9

Non-private premises 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.

Note: Not all parts of hospitals, bus stations etc are non-private premises. Areas that would be considered as private are:

• hospitals – theatres, consulting rooms
• railway station – office area , staff meal room

Question 10

What is Private activity?

Answer 10

The definition of private activity acknowledges fundamental human rights. A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.

But – ‘ought reasonably to expect’ must be an objective test i.e. what any person would expect.

Where private activities occur is of key importance.

Question 11

What is private communication?

Answer 11

(a) means a communication (whether in oral or written form, or in the form of a telecommunication, or otherwise) made under circumstances that may reasonably be taken to indicate that any party to the communication desires it to be confined to the parties to the communication; but
(b) does not include a communication of that kind occurring in circumstances in which any party to the communication ought reasonably 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.

Note that any person can reasonably expect their communication to be private when it occurs in circumstances where they have the right to expect it will not be intercepted or recorded.

Where reasonable expectations of privacy are interfered with or intruded upon by the use of an interception device, a surveillance device warrant is required.

Question 12

What is trespass Surveillance?

Answer 12

Surveillance that involves trespass onto land or trespass to goods.

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

For surveillance purposes, if you do not have consent to enter onto private property, then you are trespassing.

Question 13

What are the Restrictions on use of surveillance devices?

Answer 13

Any warrant application to use a visual surveillance device for trespass surveillance will only be authorised for obtaining evidential material for serious offences.

Any warrant application to use an interception device, whether or not a trespass surveillance occurs, is restricted to obtaining evidential material for serious offences only.

(A serious offence is an offence punishable by 7 years imprisonment or more).

Section 46 – Activities for which surveillance device warrant required

(d) Use of a surveillance device that involves trespass onto private property

Question 14

What is curtilage?

Answer 14

Means the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common daily activities’ take place.

Activities that do not require a warrant cover the use of a visual surveillance device within the curtilage of private property but usage is restricted to time limitations.

Question 15

Curtilage surveillance limitations?

Answer 15

The legislation sets time limitations on the use of a visual surveillance device for surveillance activity within the curtilage of private property.

Section 46 – Activities for which surveillance device warrant required

(e ) observation of private activity in the curtilage of private premises, and any recording of that observation, if any part of the observation or recording is by means of a visual surveillance device, and the duration of that observation, for the purposes of a single investigation, or a connected series of investigations, exceeds –

(i) 3 hours in any total 24-hour period; or
(ii) 8 hours in total

Question 16

What is an interception device?

Answer 16

(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.

Note: A surveillance device warrant is required to use an interception device to intercept a private communication.

Section 46 – Activities for which surveillance device warrant required

(a) Use of an interception device to intercept private communications

Question 17

What are the limitations on the use of an interception device?

Answer 17

The Search and Surveillance Act limits the use of an interception device, to intercept a private communication, whether or not that communication occurs in private or non- private premises, to obtaining evidential material for serious offences only.

A surveillance device warrant will only be authorised for use of an interception device for gathering evidential material for:

• offences punishable by 7 or more years imprisonment
• identified Arms Act 1983 offences
• identified Psychoactive Substances Act 2013 offences

Question 18

What is voluntary oral communication?

Answer 18

A voluntary oral communication is a communication between one or more persons where at least one party in the communication gives their consent for the communication to be recorded (section 47).

There is no requirement to obtain a surveillance device warrant to intercept and record a voluntary oral communication.

Question 19

What is a tracking device?

Answer 19

(a) means a device that, may be used to help ascertain, by electronic or other means, either or both of the following:

(i) the location of a thing or a person;
(ii) 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.

Although the use of a tracking device is considered to be less intrusive to an individual’s privacy (as it only reveals the location of a thing or a person in possession of that thing), the use of a tracking device requires a surveillance device warrant.

A surveillance device warrant may authorise the use of a tracking device to obtain evidential material for the investigation of any offence punishable by imprisonment.

Section 46 – Activities for which surveillance device warrant required

(b) Use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods.

Question 20

Using a surveillance device in an emergency or urgency?

Answer 20

A surveillance device warrant need not be obtained for use of surveillance devices in some situations of emergency or urgency.

Section 48 acknowledges that in certain situations, police may need to act immediately without warrant to use any 1 or more surveillance devices.

Two key ingredients exist for any situation to be recognised as one of emergency or urgency.

Ingredient – ‘entitled to apply’
Means – you would be entitled to make an application for a surveillance device warrant as the situation is one of serious criminal activity.

Ingredient – ‘impracticable in the circumstances’
Means – you need to use a device urgently as it is not immediately practicable to obtain a surveillance device warrant.

Question 21

What type of offence does an emergency or urgency surveillance require?

Answer 21

Surveillance without warrant in situations of emergency or urgency is permitted only where the above circumstances apply and the suspected offence has been, is being, or is about to be committed and is:

• punishable by 14 years imprisonment or more and
• you believe that use of the surveillance device would obtain evidential material in relation to the offence:
• an Arms Act 1983 offence
− or a person by reason of their physical or mental condition (however caused) is incapable of having proper control of the arms; or may kill or cause bodily injury to any person;
− or that under the Domestic Violence Act 1995 a protection order or a police safety order is in force against the person;
− or there are grounds to make an application against him or her for a protection order.
• a drug offence; or
there is a situation which is:
• likely to cause injury or serious property loss / damage and surveillance is necessary to prevent offending from being committed or continuing
• presenting risk to life and safety and surveillance is necessary as an emergency response (section 14)

Question 22

What time constraints exist for emergency/urgent surveillance?

Answer 22

In situations of emergency or urgency police must be able to act with immediacy and with adequate tools to be able to fulfil their duties and obligations under the Policing Act 2008.

However, the warrantless period for the use of a surveillance device in a situation of emergency or urgency is a period not exceeding 48 hours.

An application for a surveillance device warrant must still be made if the surveillance might continue beyond the period within which it is practicable to obtain a warrant.

The warrantless period allows police flexibility to act. The time restriction that applies before a warrant application must be made ensures proper oversight and reporting is maintained.

Approval to use an interception device in an emergency situation should be obtained from a Detective Inspector unless:

• the immediacy of the situation does not allow for prior planning and approval from a Detective Inspector in consultation with Legal Services; and
• statutory criteria is met; and
• an opportunity arises to obtain evidential material that would otherwise be lost if not taken at the time.

Question 23

What does section 60 require?

Answer 23

Report on use of surveillance device in situation of urgency or emergency.

When a warrantless surveillance power is exercised the enforcement officer must provide a notification (report in the Search and Surveillance system) to a Judge within 1 month after the date of the last day of any period of 48 hours or less over which the surveillance device was used.

Question 24

What is the period for a surveillance device warrant can be issued up to?

Answer 24

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.

There is no warrant renewal procedure under the Act. To extend the period of 60 days or the lesser period for which the warrant is valid, a new application for a surveillance device warrant will be required.