Police search and seizure inquiry

17 June 2002

Kia ora,

A reminder - if you are planning on commenting on the Law Commission's inquiry into police search and seizure, the deadline for comments is the end of this month.

The Terms of Reference for the inquiry are:

The Commission shall review the scope and adequacy of current powers to search persons and places and associated powers to seize in order to determine an appropriate balance between law enforcement agencies and the protection of individual rights. The review will include:

• he circumstances in which such searches pursuant to a warrant may be undertaken;
• circumstances in which such searches without a warrant may be undertaken;
• hreshold for the granting of search warrants (and specifically the circumstances, if any, in which they should be extended to non-imprisonable offences);
• he extent, if at all, to which people should be compelled to assist in the execution of a search warrant;
• power to seize material revealed in such searches;
• sistency of current search warrant powers, and any recommended new or revised powers, with the Bill of Rights Act 1990; and
• whether present rules adequately protect civil liberties.

For more information about the Inquiry, and a copy of the Law Commission's preliminary paper, go to http://www.lawcom.govt.nz/lick on 'News' then click on 'The Law Commission's Preliminary Paper Entry, Search and Seizure has been released 18 April 2002'

See also the media releases from The Law Commission and Nandor Tanczos below.

Comments on the paper and responses to the questions raised should be sent by 30 June to Mr Michael Josling, Law Commission, PO Box 2590, Wellington or by email to com@lawcom.govt.nz

The Law Commission has published its first discussion paper of an intended comprehensive examination of central and local government agency powers to enter private property, carry out searches, and seize goods for use as evidence.

The discussion paper expresses the tentative view that some powers should be abolished and others modified.

In relation to police powers, the paper asks whether there should be a change to the rule that search warrants be available only where the offence is punishable by imprisonment.

The paper suggests the need to rationalise the rules that prevent the police when searching premises because one offence is suspected from seizing evidence of a different offence chanced upon in the course of the search.

It proposes a more precise definition of police search powers on arrest and of police powers to enter premises, without a warrant, to effect an arrest.

It suggests in relation to most powers (other than police powers) that they be made subject to a uniform set of rules. One advantage of this being it would then be easier for those scrutinising new legislation (such as select committees) to spot departures from standard powers.

The difficulties that result from the Bill of Rights provision as to "unreasonable search and seizure" are discussed. This provision originates in the opposition of the American colonists in the reign of George III to certain Crown investigatory practices. Its application in New Zealand in the twenty-first century is a continuing source of difficulty. Care is taken by the United States Supreme Court to ensure that front-line police have clear rules under which to operate. In New Zealand, by contrast, the police are left uncertain as to just what the extent of their powers is in any given case. The Law Commission invites consideration of whether the Bill of Rights should be amended to substitute some test other than the vague test of reasonableness.

"The present state of the law" says Commissioner Donald Dugdale "is productive of endless litigation resulting, on occasion, in acquittals on grounds that bear little relation to the merits of the case. Surely we can do better. No doubt it adds to the sporting attraction of criminal processes if there is a chance of the accused being restored to his friends and his relations on the grounds of some Bill of Rights technicality. But it does little to improve law enforcement".

Green Justice Spokesperson Nandor Tanczos today welcomed the Law Commission's inquiry into police search and seizure powers but warned that it would be a waste of time unless the Commission actively got out into the community.

"The people who are most affected by the application of these powers are generally young, poor and/or brown. They are the most alienated from our political and legal systems and the least able to get fair representation through these kinds of processes.

"The people that the Commissioners most need to hear from may not even know what 'making a submission' means. They may be illiterate as well. It will be a sham if the Commission relies on submissions to find out what really happens on the streets of this country," said Nandor.

"If the Commissions doesn't want this to be a whitewash, and I don't think they do, they have to get out onto the marae, they have to hold well-publicised public meetings and they have to promote the inquiry outside the mainstream. It's only by going face to face that they will get any real sense of what is happening."

Nandor also called on the public to participate in the inquiry. He urged people to get copies of the discussion paper released today and make comments on it.

"It is really important that people who have been stopped and searched by police tell the Commission about their experiences. Most judges, lawyers or parliamentarians have never been stopped and searched by police and they have no idea what it feels like or even how often it happens.

"Most New Zealanders would be disgusted to know what really happens on the streets. It won't stop until we start to talk about it openly."

The President of the Police Association Greg O'Connor told a select committee last year that before Nandor became an MP he was stopped and searched under the Misuse of Drugs Act by police because his appearance could have led police to think he was carrying a knife.

"Since Greg O'Connor admitted that police use search and seizure powers in an arbitrary and discriminatory way the Courts have also criticised the way the police use these powers in the recent Fowlie case.

"Not all police officers do so, but my experience is that those who abuse the rights of people have little come-back. I strongly recommend people take part in this Law Commission review," he said.

"Big ups to the Commission for doing this inquiry but it will be a white-wash is they don't get out and talk to the people."

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