"Well-meaning, but without understanding": Are warrantless police information requests to third parties contrary to section 21 of the New Zealand Bill of Rights Act 1990?

Abstract

Early in their investigations, it is common practice for police to make warrantless requests to banks, telecommunications providers, power companies and other service providers. In making these requests, the police hope to obtain information about their suspect (such as financial transaction records or call records) which will assist the police in obtaining search warrants. New Zealand courts have dismissed claims that requests constitute an unreasonable search or seizure per s 21 of the New Zealand Bill of Rights Act 1990, holding that principle 11(e)(i) of the Privacy Act 1993 authorises both the disclosure and use of information. This paper argues that such an approach does not reflect the first principles approach advocated in Hamed v R and by the Canadian Supreme Court because it gives insufficient weight to privacy interests, to the fact that disclosure of personal information is often compulsory when using services and to the nature of the information sought. It concludes that such requests are thus searches or seizures and, not being authorised by any positive law (the Privacy Act in particular), will be unreasonable in most cases. This paper argues that police should instead utilise the production order regime in the Search and Surveillance Act 2012.