Unreasonable search and seizure in New Zealand information
The right to be free from unreasonable search and seizure is well-recognised by the international human rights community.[1] 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[2] and Supreme Court of New Zealand[3] 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"[4] 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.[5] 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.[6]
^International Convention on Civil and Political Rights, Art 17.
^Williams v Attorney-General [2007] NZCA 52.
^Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, (2011) 25 CRNZ 326.
^Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, (2011) 25 CRNZ 326, at [10].
^Helu v Immigration and Protection Tribunal [2015] NZSC 28, at [118].
^Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, (2011) 25 CRNZ 326, at [162].
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