Budapest Convention and Related Matters Legislation Amendment Bill

2.1. Are there any publicly available inquiry, review or evaluation reports that have informed, or are relevant to, the policy to be given effect by this Bill?

YES

The Review of the Search and Surveillance Act 2012, New Zealand Law Commission and the Ministry of Justice, 2017 (accessible at https://www.lawcom.govt.nz/assets/Publications/Reports/NZLC-R141.pdf), particularly recommendations 44 and 53.

Ko tō tatou kāinga tēnei: the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain on 15 March 2019, 2020 (accessible at https://christchurchattack.royalcommission.nz/the-report/), particularly recommendation 18.

2.2. Does this Bill seek to give effect to New Zealand action in relation to an international treaty?

YES

The Bill ensures New Zealand complies with the Council of Europe’s Convention on Cybercrime, also known as the Budapest Convention. The Convention can be accessed at https://rm.coe.int/1680081561. Accession to the Convention will occur once the Bill has passed.

2.2.1. If so, was a National Interest Analysis report prepared to inform a Parliamentary examination of the proposed New Zealand action in relation to the treaty?

YES

National Interest Analysis: The Council of Europe Convention on Cybercrime, prepared by the Department of Prime Minister and Cabinet and the Ministry of Justice, accessible at https://www.parliament.nz/resource/en-NZ/PAP_111537/1d0d9f0ea47ad05ae2e26dbf00143b5fa88a9d70

2.3. Were any regulatory impact statements provided to inform the policy decisions that led to this Bill?

YES

The national interest analysis satisfied the requirements for regulatory impact analysis.

National Interest Analysis: The Council of Europe Convention on Cybercrime, prepared by the Department of Prime Minister and Cabinet and the Ministry of Justice, accessible at https://www.parliament.nz/resource/en-NZ/PAP_111537/1d0d9f0ea47ad05ae2e26dbf00143b5fa88a9d70.

2.3.1. If so, did the RIA Team in the Treasury provide an independent opinion on the quality of any of these regulatory impact statements?

NO

The RIA did not consider the national impact analysis to meet the threshold for independent review, although this was primarily due to it being a national impact analysis rather than a regulatory impact analysis, and not due to any specific assessment of the significance of the proposal.  

2.3.2. Are there aspects of the policy to be given effect by this Bill that were not addressed by, or that now vary materially from, the policy options analysed in these regulatory impact statements?

YES

The Bill’s amendments to the Mutual Assistance in Criminal Matters Act 1992 go slightly beyond what was anticipated by the national impact analysis. In addition to what was originally proposed, the Bill codifies common-law requirements to notify affected parties before evidentiary material is sent offshore under the Act. This provides greater clarity for law enforcement and will ensure new search powers included in the Bill are exercised in a way that is compliant with human rights.

2.4. Has further impact analysis become available for any aspects of the policy to be given effect by this Bill?

NO

2.5. For the policy to be given effect by this Bill, is there analysis available on:

(a)   the size of the potential costs and benefits?

YES

(b)   the potential for any group of persons to suffer a substantial unavoidable loss of income or wealth?

NO

The national impact analysis included high-level analysis of the size of costs and benefits on pages 12-15. This includes estimates of compliance costs for businesses.

National Interest Analysis: The Council of Europe Convention on Cybercrime, prepared by the Department of Prime Minister and Cabinet and the Ministry of Justice, accessible at https://www.parliament.nz/resource/en-NZ/PAP_111537/1d0d9f0ea47ad05ae2e26dbf00143b5fa88a9d70.

2.6. For the policy to be given effect by this Bill, are the potential costs or benefits likely to be impacted by:

(a)   the level of effective compliance or non-compliance with applicable obligations or standards?

NO

(b)   the nature and level of regulator effort put into encouraging or securing compliance?

NO

The key benefits of the Bill arise from New Zealand’s accession to the Convention and will not be affected by the level of compliance.

Additional benefits arising from the new investigatory tools for law enforcement could be undermined by a failure to comply – for example, preservation directions will rely on the compliance of the person who holds the records. However, this is unlikely, as we expect compliance to be high. This is the case with similar provisions in the Search and Surveillance Act, like production orders. Failure to comply is an offence under the Bill.

3.1. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with New Zealand’s international obligations?

The primary policy intent of the Bill is to become compliant with the Budapest Convention, and care has been taken to ensure it complies with the Convention’s obligations. New Zealand is not yet a party to the Convention but intends to accede once the Bill has passed.

Consideration has also been given to how amendments to the Mutual Assistance in Criminal Matters Act (MACMA) might affect arrangements for mutual legal assistance. Because mutual legal assistance is reciprocal, any changes to what New Zealand is able to request through MACMA creates new obligations. The Bill ensures that any provisions within MACMA to make outgoing requests are mirrored by powers to act on incoming requests.

3.2. What steps have been taken to determine whether the policy to be given effect by this Bill is consistent with the principles of the Treaty of Waitangi?

Māori have been consulted on the decision to accede to the Convention. Public consultation in 2020 garnered a number of submissions from Māori groups and individuals. Officials undertook further, targeted, consultation in 2023.

Issues raised by Māori include the risk that measures for accession could exacerbate the disproportionate representation of Māori in the criminal justice system, or that it could undermine data sovereignty. Officials have sought to address these concerns as much as possible when developing the Bill.

We do not think the Bill will significantly impact the representation of Māori within the criminal justice system as its overall impact on the system is expected to be minimal.

Some degree of data-sharing is necessary to meet the requirements of the Convention, however, we consider that the Bill contains a number safeguards to ensure data is only shared when it is likely to be evidence of criminal offending. Large datasets with a high degree of Māori interest are not likely to be captured by new provisions.  

3.3. Has advice been provided to the Attorney-General on whether any provisions of this Bill appear to limit any of the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990?

YES

Advice provided to the Attorney-General by the Ministry of Justice, or a section 7 report of the Attorney-General, is generally expected to be available on the Ministry of Justice’s website upon introduction of a Bill. This will be accessible on the Ministry’s website at https://www.justice.govt.nz/justice-sector-policy/constitutional-issues-and-human-rights/the-bill-of-rights-act/advice/  

3.4. Does this Bill create, amend, or remove:

(a)   offences or penalties (including infringement offences or penalties and civil pecuniary penalty regimes)?

YES

(b)   the jurisdiction of a court or tribunal (including rights to judicial review or rights of appeal)?

YES

The Bill creates the following new offences in the Search and Surveillance Act:

-       failure to comply with a preservation direction (cl 18-19)

-       false application for a preservation direction (cl 18-19)

-       disclosing matters relating to a preservation direction (cl 18-19)

-       disclosing that a surveillance device warrant has been issued (cl 21)

The penalties for these offences align with penalties for similar offences already in that Act.

Clauses 58 and 61-62 of the Bill amend existing offences in the Crimes Act relating to the development and procurement of software for committing crimes. These amendments are minor and the penalties remain the same.

Clauses 36 and 38 of the Bill amend the Mutual Assistance in Criminal Matters Act so that the power to issue search warrants, production orders and surveillance device warrants under that Act sit with High Court judges. Currently, search warrants can be issued under MACMA by an issuing officer, while the other powers are not possible under MACMA.

3.4.1. Was the Ministry of Justice consulted about these provisions?

YES

The proposals were developed by the Ministry of Justice.

3.5. Does this Bill create, amend or remove any provisions relating to the collection, storage, access to, correction of, use or disclosure of personal information?

YES

Clauses 18 and 19 of the Bill create preservation directions in the Search and Surveillance Act. These are a new power for law enforcement to require documents to be preserved by the person that holds them. These documents will generally be customer records held by businesses.

The amendments to the Mutual Assistance in Criminal Matters Act extend existing powers in the Search and Surveillance Act (namely production orders and surveillance device warrants) to make them available in response to mutual legal assistance requests. This will enable collection of personal information in circumstances where it is not currently possible.

3.5.1. Was the Privacy Commissioner consulted about these provisions?

YES

The Privacy Commissioned submitted on the proposal to accede to the Convention during the public consultation period. Officials subsequently consulted with his office on the development of the Bill.

The Privacy Commissioner has raised concerns about provisions in the Bill which grant the Commissioner of Police the power to issue preservation directions and responsibility for reviewing preservation directions issued (this second power must be delegated).

We carefully considered these concerns but have been unable to resolve them entirely without undermining the policy intent, which is that preservation directions should be able to be issued quickly.

3.6. Has there been any external consultation on the policy to be given effect by this Bill, or on a draft of this Bill?

YES

DPMC and the Ministry of Justice ran a formal public consultation process in 2020, which informed the initial policy decisions taken by Cabinet in 2021. This involved an open call for submissions as well as targeted consultation with industry and Māori.

Further targeted consultation with Māori occurred in 2023.

3.7. Have the policy details to be given effect by this Bill been otherwise tested or assessed in any way to ensure the Bill’s provisions are workable and complete?

NO

4.1. Does this Bill contain any provisions that could result in the compulsory acquisition of private property?

NO

4.2. Does this Bill create or amend a power to impose a fee, levy or charge in the nature of a tax?

NO

4.3. Does this Bill affect rights, freedoms, or impose obligations, retrospectively?

NO

4.4. Does this Bill:

(a)   create or amend a strict or absolute liability offence?

NO

(b)   reverse or modify the usual burden of proof for an offence or a civil pecuniary penalty proceeding?

NO

4.5. Does this Bill create or amend a civil or criminal immunity for any person?

YES

The Bill grants civil immunity to the Commissioner of Police for anything they do or fail to do in good faith while considering an application for a preservation direction order. This aligns with similar protections for issuing officers and judges and ensures the decision is not influenced by concern about any possible liability.

The Bill also extends existing provisions in the Search and Surveillance Act which grant civil immunity to those executing a warrant or an order under that Act, ensuring civil immunity also applies to anyone executing a preservation direction.

4.6. Does this Bill create or amend a decision-making power to make a determination about a person’s rights, obligations, or interests protected or recognised by law, and that could have a significant impact on those rights, obligations, or interests?

YES

The Bill creates new decision-making powers in relation to new offences in the Search and Surveillance Act that create obligations to keep confidential matters relating to preservation directions and surveillance device warrants. These obligations create a limitation on the right to freedom of expression. The Bill grants the chief executive of the relevant law enforcement agency the power to make decisions about whether or not to lift the obligation. However, there are only limited circumstances in which the chief executive can decline to lift the obligation.

The Bill also creates new decision-making powers within the Search and Surveillance Act by giving the Commissioner of Police the ability to issue preservation directions. If a review of the decision to issue a direction is sought, the Bill also gives responsibility for conducting this review to the Commissioner. As a safeguard, the Bill contains delegation requirements to ensure the decision is not reviewed by the person who made it. However, given the nature of preservation directions, these powers are unlikely to involve decisions that have a significant impact on rights.

The Bill amends decision-making powers in the Mutual Assistance in Criminal Matters Act so that only a High Court Judge can issue search warrants under that Act. It also creates new decision-making powers to issue production orders and surveillance device warrants. These powers all have the potential to engage the right to be free from unreasonable search and seizure. However, limiting that decision-making power to the High Court creates a significant safeguard for the exercise of the power, and means ability to authorise search powers under MACMA is more constrained than similar search powers under the Search and Surveillance Act.

The Bill also creates a new decision-making power in MACMA by enabling a High Court Judge to lift the obligation (which is itself a provision of the Bill) to notify affected parties before evidentiary material collected can be sent offshore. As the obligation has been included within the Bill in response to a Supreme Court finding that notification is necessary to protect rights, dispensing with the requirement will naturally have an impact on rights. In addition to limiting the decision to the High Court, the Bill sets out the circumstances which must be met before the obligation can be lifted.

4.7. Does this Bill create or amend a power to make delegated legislation that could amend an Act, define the meaning of a term in an Act, or grant an exemption from an Act or delegated legislation?

NO

4.8. Does this Bill create or amend any other powers to make delegated legislation?

NO

4.9. Does this Bill contain any provisions (other than those noted above) that are unusual or call for special comment?

NO