The right to be free from unreasonable search and seizure is well-recognised by the international human rights community. Section 21 of the New Zealand Bill of Rights Act 1990 (NZBoRA 1990) incorporates this right into New Zealand law, stating that: "Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise."
This right to be free from unreasonable search and seizure is primarily concerned with protecting the privacy interests of individuals against intrusions by the State. The Court of Appeal of New Zealand and Supreme Court of New Zealand have both recognised that the protection of privacy is core purpose of s21 NZBoRA 1990. Chief Justice Elias described the right protected as "the right to be let alone" however it currently does not provide a full right to privacy of the kind in Article 17 of the International Convention on Civil and Political Rights. Individuals subjected to a search or seizure that is unreasonable they may have a claim for a remedy, generally the exclusion of any evidence obtained by the search or seizure.
An analysis of whether an unreasonable search of seizure has occurred under section 21 is a two-step process of asking:
Was there a search or seizure? Was the search or seizure unreasonable?
Unlike other rights protected under the NZBoRA 1990 there are no possible grounds for a reasonable limitation on section 21 under section 5 of the NZBoRA 1990 as if a search or seizure is unreasonable it is contradictory to say it could then be reasonably justified.
Search and Surveillance Act 2012
While the NZBORA 1990 establishes the overall right to be free from unreasonable search and seizure the Search and Surveillance Act 2012 provides the statutory framework for the practical application of the law in this area in New Zealand. Searches and seizures that do not comply with the requirements of the Act will be unlawful. The purpose section of the Act states that these requirements "recognise the importance of the rights and entitlements affirmed in other enactments including the New Zealand Bill of Rights Act 1990". The provisions of the Search and Surveillance Act 2012 accommodate the need to protect against unreasonable search and seizure. Therefore, cases involving possible unreasonable searches or seizures will involve significant consideration of whether the Search and Surveillance Act 2012 has been complied with.
Unlawfulness vs unreasonableness
If a search or seizure is unlawful under the Search and Surveillance Act 2012 then it is also likely to be considered an unreasonable search or seizure. However, the concepts of unlawfulness and unreasonableness are independent and it is therefore possible that, for example, a lawful search can be unreasonable. Despite this, the courts have said that in terms of the most common remedy of exclusion of evidence an unlawful search should usually be considered an unreasonable search. Elias CJ went so far as to say that unlawful searches should automatically be unreasonable. An exception is that where the search is only unlawful on minor or technical grounds it may still be reasonable.
Search
The Search and Surveillance Act 2012 does not provide a definition for the term "search". While the courts have not formed a single definition, Elias CJ has said that police investigation which invades private space where individuals have an expectation of privacy constitutes a search. McGrath J recognised "search" has a broad meaning in terms of section 21 of "an examination or investigation for the purpose of obtaining evidence". It is not settled whether a reasonable expectation of privacy must exist for there to be a search. In many cases there will be little difficulty in deciding that there has been a search as the Search and Surveillance Act 2012 specifically identifies and gives procedure for most common types of search. Common activities that are searches include:
Entry into and inspection of buildings, enclosed spaces or vehicles. Physical examination of a person. Taking bodily samples. Internal examination of personal property (for example a bag or wallet).