IR-01-22-31928
5 December 2022
AS Van Wey
[FYI request #20866 email]
Dear AS Van Wey
Request for information
Thank you for your Official Information Act 1982 (OIA) request dated 16 October 2022 asking for
information relating to Police Instructions.
My response to each of your questions can be found below.
I am writing to request a copy of the Police Manual chapters about Electronic interception,
whether interception is by Police with a lawful warrant, or the unlawful interception by a known
or unknown person/entity.
The Police manual chapter ‘Introduction to Electronic Interception’ has been provided as requested.
Please note some information is withheld under section 6c of the OIA, as the making available of the
information is likely to prejudice the maintenance of the law including the prevention, investigation and
detection of offences and the right to a fair trial.
I also request information as to the general steps which must be taken by the Police when a
person makes a formal complaint to the Police (e.g., documentation of complaint in the police
system, general steps of an investigation, general steps for obtaining evidence, etc.).
This information is publicly available therefore this part of your request is refused under section 18(d)
of the OIA. The following URL provides a good outline for victims of the general steps taken by Police:
https://victimsinfo.govt.nz/en/home/police-investigation/
Last, I request policies which inform the decision making for bringing charges and
prosecution.
This information is publicly available therefore this part of your request is refused under section 18(d)
of the OIA.
The fol owing URL provides information on the Solicitor-Generals Prosecution Guidelines, these
guidelines form the decision making of charging and prosecutions:
https://www.crownlaw.govt.nz/publications/prosecution-guidelines/
The Police manual chapter ‘Charging Decisions’ has also been published on open-source websites
and recently updated. You can find a copy of such at the fol owing URL:
https://policepolicy.nz/policies/charging-decisions/
You have the right to ask the Ombudsman to review my decision if you are not satisfied with the
response to your request. Information about how to make a complaint is available at:
www.ombudsman.parliament.nz.
Yours sincerely
Alex Bryan
Detective Sergeant
National Criminal Investigations Group
New Zealand Police National Headquarters
Introduction to Electronic Interception
Table of Contents
Table of Contents
2
Policy statement and principles
4
What
4
Why
4
How
4
Overview
5
Introduction
5
Purpose of electronic surveillance operations
5
Assessing the need for electronic interception
5
Caution and advice
5
Quick reference guide: surveillance device warrants and warrantless powers
6
Disclosure of electronic interception policy
6
Health and safety
6
Definitions, terminology and functions
7
Table of ‘Police instructions’ definitions, terminology and functions
7
Table of legislative definitions related to surveillance
8
Introduction to Electronic Interception
RESTRICTED” This is an operational Police document classified as Restricted. The contents may not be copied or disseminated
without prior approval from the Manager: Crime Monitoring Centre
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Introduction to Electronic Interception
Policy statement and principles
What
he Search and Surveillance Act 2012 regulates surveillance devices, including the use of electronic interception devices outlined in
this chapter.
The use of surveillance devices must comply with the powers, rules and obligations of the Act to safeguard against unjustified
intrusions on ‘reasonable expectations of privacy’, a right that is given expression in section 21 of the New Zealand Bill of Rights Act
1990.
s6(c)
Why
The use of electronic interception devices under the surveillance device regime of the Act enables Police to use these devices to
investigate crime, target and catch offenders.
How
To meet its objectives and obligations when carrying out electronic interception, Police will:
‑ balance the complementary values of law enforcement and human rights
‑ ensure electronic interception is lawful and reasonable with respect to people’s expectation of privacy
‑ make a careful assessment before using electronic interception devices to determine if the cost, criminal offending and
evidential material available warrants such a commitment
‑ before intercepting or recording a private communication, generally obtain a surveillance device warrant, unless in some
situations of emergency or urgency
‑ apply TENR operational threat assessment before placing interception devices operationally
‑ comply with the reporting requirements involving interception devices under the Act.
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Introduction to Electronic Interception
Overview
Introduction
s6(c)
s6(c)
.
his chapter is:
‑ designed as a comprehensive aid to all Police contemplating the use of covert policing techniques
‑ written with the assumption that a reader has no previous knowledge of the surveillance laws, practice and procedure
pertaining to these topics
‑ produced and maintained by the Manager: CMC. Recommendations for amendments and alterations or additions should be
directed to the manager.
Purpose of electronic surveillance operations
An electronic surveillance operation focuses on obtaining evidence against offenders by intercepting their private communications:
s6(c)
s6(c)
Assessing the need for electronic interception
s6(c)
A
careful assessment must be made:
‑ to determine if the criminal offending warrants such a commitment
‑ of the evidential material available to support any application for a surveillance device warrant.
s6(c)
Any electronic operation has to be approved at district (District Commander) level and Manager: CMC. To obtain these approvals a full
operation order is required. s6(c)
See the section titled, ‘Internal Approvals’ in the part ‘Surveillance device warrants’ of the ‘Surveillance’ chapter for more guidance
about the approval requirements on the three types of surveillance devices intended to be used and the circumstances of how they
will be used.
As with all investigative methods, careful and appropriate planning is required. It may identify an alternative or simpler investigative
option. Ensure that your planning remains realistic and achievable.
Caution and advice
Deployment of electronic investigative techniques are considered intrusive powers. It is paramount that we comply with the relevant
law and obtain the appropriate authorities before using any such power to safeguard against unjustified intrusions on ‘reasonable
expectations of privacy’, a right that is given expression in section 21 of the New Zealand Bill of Rights Act 1990.
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Introduction to Electronic Interception
Definitions, terminology and functions
Table of ‘Police instructions’ definitions, terminology and functions
s6(c)
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Introduction to Electronic Interception
Document
‘Document’ includes call associated data and the content of
telecommunications in respect of which, at the time an application is made under section 71 for a production order
against a network operator, the network operator has storage capability for, and stores in the normal course of its
business, that data and content.
(s70)
Enforcement
‘Enforcement officer’ means
officer
1. a constable
2. any person authorised by an enactment specified in column 2 of the Schedule, or by any other enactment that
expressly applies any provision in Part 4, to exercise a power of entry, search, inspection, examination or
seizure.
Evidential
‘Evidential material’, in relation to an offence, or a suspected offence, means evidence of the offence, or any other
material
item, tangible or intangible, of relevance to the investigation of the offence
Intercept
‘Intercept’, in relation to a private communication, includes hear, listen to, record, monitor, acquire, or receive the
communication either:
‑ while it is taking place; or
‑ while it is in transit.
Interception
‘Interception device’ means any electronic, mechanical, electromagnetic, optical, or electro‐optical instrument,
device
apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private
communication (including a telecommunication); but does not include a hearing aid or similar device used to correct
subnormal hearing of the user to no better than normal hearing.
Issuing officer ‘Issuing officer’ means:
‑ a Judge:
‑ a person, such as a Justice of the Peace, Community Magistrate, Registrar, or Deputy Registrar, who is for the
time being authorised to act as an issuing officer under section 108 of the Act.
Judge
‘Judge’ means a District Court Judge or a Judge of the High Court.
Law
‘Law enforcement agency’ means any department of State, Crown entity, local authority, or other body that employs
enforcement
or engages enforcement officers as part of its functions.
agency
Network
‘Network operator’ has the same meanings as in section 3(1) of the Telecommunications (Interception Capability)
operator
Act 2004, e.g. ‘network operator’ means:
‑ a person who owns, controls, or operates a public telecommunications network; or
‑ a person who supplies (whether by wholesale or retail) another person with the capability to provide a
telecommunications service.
(s70)
Non‐private
‘Non‐private premises’ means premises, or part of a premises, to which members of the public are frequently
premises
permitted to have access, and includes any part of a hospital, bus station, railway station, airport, or shop.
Precursor
‘Precursor substance’ has the same meaning as in section 2(1) of the Misuse of Drugs Act 1975, e.g. any substance
substance
specified or described in Part 1 or Part 2 or Part 3 of Schedule 4.
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Introduction to Electronic Interception
Psychoactive Psychoactive substance means a substance, mixture, preparation, article, device, or thing that is capable of inducing
substance
a psychoactive effect (by any means) in an individual who uses the psychoactive substance.
Psychoactive substance includes:
‑ an approved product:
‑ a substance, mixture, preparation, article, device, or thing that is, or that is of a kind that is, or belongs to a
class that is, declared by the Governor‐General by Order in Council made under section 99 to be a
psychoactive substance for the purposes of this Act.
Section 9, Psychoactive Substances Act 2013
See ‘Part 13 ‐ Psychoactive Substances’ in the Drugs chapter for further information.
Private activity ‘Private activity’ means activity that, in the circumstances, any 1 or more of the participants in it ought reasonably to
expect is observed or recorded by no one except the participants.
Private
‘Private communication’:
communication
‑ 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
‑ 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.
Private
‘Private premises’ means a private dwellinghouse, a marae, and any other premises that are not within the definition
premises
of non‐private premises.
Production
‘Production order’ means a production order made under section 74 of the Act.
order
Raw
‘Raw surveillance data’:
surveillance
data
‑ means actual video recordings or actual audio recordings; and
‑ includes full transcripts, or substantial parts of transcripts, of audio recordings.
Surveillance
‘Surveillance device’ means a device that is any 1 or more of the following kinds of devices:
device
(a) an interception device
(b) a tracking device
(c) a visual surveillance device.
Surveillance
A report required by statute to the Judge who issued the Surveillance Device warrant, or if that Judge is unable to
device warrant act, to a Judge of the same court who issued the warrant. The report must be provided within 1 month after the
report
expiry of the period.
(s59)
Thing seized
Does not include anything made or generated by a person exercising a search or surveillance power (for example,
photographs, drawings, or audio or video recordings made by or on behalf of that person, or a forensic copy of a
computer hard drive).
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Introduction to Electronic Interception
Tracking device‘Tracking device’ means a device that may be used to help ascertain, by electronic or other means, either or both of
the following:
1. the location of a thing or a person
2. whether a thing has been opened, tampered with, or in some other way dealt with
but does not include a vehicle or other means of transport, such as a boat or helicopter.
Trespass
‘Trespass surveillance’ means surveillance that involves trespass to land or trespass to goods.
surveillance
Vehicle
‘Vehicle’ means any conveyance that is capable of being moved
under a person’s control, whether or not the conveyance is used for the carriage of persons or goods, and includes a
motor vehicle, aircraft, train, ship, or bicycle.
Visual
‘Visual surveillance’ device:
surveillance
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 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.
Visual trespass ‘Visual trespass surveillance’ means trespass surveillance involving the use of a visual surveillance device.
surveillance
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