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Search and Surveillance Act 2012

General provisions in relation to search, surveillance, and inspection powers - Privilege and confidentiality - Surveillance

140: Effect of privilege on surveillance conducted under this Act

You could also call this:

"What happens to your private stuff when someone is spying on you"

If you claim something is private, you have the right to stop people from looking at it while they decide if you are right. You can prevent surveillance of your private information. If you are right, the records of your private information must be destroyed if possible. You can ask a court to decide if your private information can be looked at or if the records must be destroyed. The court can ask to see the records to make a decision. If someone records your private information while they are surveilling you, that information cannot be used in court unless you agree or the court says it is okay. When someone is surveilling you, they must try to avoid looking at your private information and must destroy any records of it if they accidentally get it, unless that is impossible.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM2136850.

Topics:
Crime and justice > Police and safetyRights and equality > Privacy
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139: Other privileges, or

"Claiming the right to stay quiet or keep information secret"

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141: Claims for privilege in respect of surveillance, or

"Telling authorities what you don't want them to see when they're surveilling you"

Part 4General provisions in relation to search, surveillance, and inspection powers
Privilege and confidentiality: Surveillance

140Effect of privilege on surveillance conducted under this Act

  1. A person who makes a claim of privilege (being a privilege recognised by this subpart) in respect of any surveillance has the right—

  2. to prevent, to the extent that it is reasonably practicable to do so, the surveillance under this Act of any communication or information to which the privilege would apply if it were sought to be disclosed in a proceeding, pending determination of the claim to privilege, and subsequently if the claim to privilege is upheld:
    1. if the claim to privilege is upheld, to require the destruction of any record of any such communication or information, to the extent that this can be achieved without destruction of any record of any other communication or information.

      1. A person who is undertaking surveillance authorised by this Act (whether under a surveillance device warrant or otherwise) must—

      2. take all reasonable steps to prevent the interception of any communication or information to which a privilege recognised by this subpart would apply if the communication or information were sought to be disclosed in a proceeding:
        1. destroy any record of a communication or information made as a consequence of the surveillance to which a privilege recognised by this subpart would apply if the communication or information were sought to be disclosed in a proceeding, unless that is impossible or impracticable without destroying a record of information to which such a privilege does not apply.

          1. A person undertaking surveillance under this Act who is uncertain about whether this section applies to any information or communication or record of a communication or information may apply to a District Court Judge for an order determining whether—

          2. the communication or information can be the subject of surveillance; and
            1. any record of such communication or information is required to be destroyed under this section.

              1. For the purposes of determining any application, the Judge of the appropriate court may require the record of the information or communication to be produced to him or her.

              2. If evidence of any communication or information recorded as a consequence of surveillance under this Act is evidence to which a privilege recognised under this subpart applies, that evidence is not admissible in any proceedings except—

              3. with the consent of the person entitled to waive that privilege; and
                1. if the court agrees to admit it.