Surveillance Definitions

Question 1

What is a surveillance device?

Answer 1

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 2

What is a visual surveillance device?

Answer 2

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 3

What does Section 46 oultine?

Answer 3

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 4

Whta is Private Land and Goods?

Answer 4

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.

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.

Question 5

What is a Private Premise?

Answer 5

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

Question 6

What is a Non-Private premise?

Answer 6

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 7

Where is it considered Private Activity?

Answer 7

A participant in an activity can reasonably expect the activity is private, if it is carried out in private premises.

Question 8

What is Private Communication?

Answer 8

Private communication –

(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.

Question 9

What is Trespass and Trespass Surveillance?

Answer 9

Trespass surveillance means –
Surveillance that involves trespass onto land or trespass to goods.

Question 10

What are the restrictions on using Surveillance devices?

Answer 10

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

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

Question 11

What are activities for which a Surveillance Device warrant is required?

Answer 11

Section 46 – Activities for which surveillance device warrant required
(d) Use of a surveillance device that involves trespass onto private property

Question 12

What is curtilage?

Answer 12

Curtilage –
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.

Question 13

What are the Curtilage Limitations?

Answer 13

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 14

What is Interception?

Answer 14

Intercept in relation to a private communication, includes hear, listen to, record, monitor, acquire or receive the communication either –

• when it is taking place, or
• while it is in transit

Question 15

What is a Interception Device?

Answer 15

Interception device –

(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.

Section 46 – Activities for which surveillance device warrant required
(a) Use of an interception device to intercept private communications

Question 16

What are the limitations on use of an Interception Device?

Answer 16

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 17

What is Voluntary Oral Communication?

Answer 17

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 18

What is a Tracking Device?

Answer 18

Tracking device –

(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.

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.