Serious Fraud Office Amendment Bill

2 Interpretation In this Act, unless the context otherwise requires,- corporation means a body of persons, whether incorporated or not, and whether incorporated or established in New Zealand or elsewhere designated member means the Director and any other employee of the Serious Fraud Office who is designated by the Director as a person whose position in the Office enables him or her to exercise the powers conferred by this Act Director means the Director of the Serious Fraud Office document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes- (a) any writing on any material: (b) any information recorded or stored by means of any tape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored: (c) any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means: (d) any book, map, plan, graph, or drawing: (e) any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced employee, in relation to the Serious Fraud Office,- (a) means the Director and any other person employed by the Serious Fraud Office, whether paid by salary, wages, or otherwise: (b) includes, for the period of his or her secondment, any person seconded to the Serious Fraud Office from any other department or other employer: (c) does not include a person appointed under section 34 information includes data, documents, and forecasts inland revenue offence means- (a) any offence against any Act specified in Schedule 1 of the Tax Administration Act 1994; and (b) any offence against any Act in relation to any tax imposed or payable, or any refund made or claimed, under any of the Acts specified in Schedule 1 of the Tax Administration Act 1994 Judge means any Judge of the High Court or the District Court member, in relation to the Serious Fraud Office,- (a) means any employee of the Serious Fraud Office; and (b) includes, for the purposes of any particular investigation, any person who is deemed to be a member in accordance with section 34(2) person includes a body of persons whether incorporated or not place includes any premises, building, aircraft, ship, carriage, vehicle, box, or receptacle prescribed means prescribed by regulations made under this Act protected information means any information that is protected from disclosure- (a) under section 36; or (b) under the Tax Administration Act 1994; or (c) under any other Act,- but does not include- (d) information that has been lawfully released under any other Act in circumstances where the person to whom it has been released is under no obligation to maintain secrecy in respect of the information; or (e) information that has ceased to be protected information in accordance with section 43 serious or complex fraud includes a series of connected incidents of fraud which, if taken together, amount to serious or complex fraud. access, in relation to a computer system, means to instruct, communicate with, store data in, receive data from, or otherwise make use of any of the resources of the computer system access information includes codes, passwords, encryption keys, and any related information that enables access to a computer system or any other data storage device computer system- means- a computer; or 2 or more interconnected computers; or any communication links between computers or to remote terminals or another device; or 2 or more interconnected computers combined with any communication links between computers or to remote terminals or any other device; and includes any part of the items described in paragraph (a) and all related input, output, processing, storage, software, or communication facilities, and stored data evidential material has the same meaning as in section 3(1) of the Search and Surveillance Act 2012 issuing officer has the same meaning as in section 3(1) of the Search and Surveillance Act 2012 remote access search means a search of a thing such as an internet data storage facility that does not have a physical address that a person can enter and search thing includes an intangible thing (for example, an email address or access information to an internet data storage facility)

2 Interpretation In this Act, unless the context otherwise requires,- corporation means a body of persons, whether incorporated or not, and whether incorporated or established in New Zealand or elsewhere designated member means the Director and any other employee of the Serious Fraud Office who is designated by the Director as a person whose position in the Office enables him or her to exercise the powers conferred by this Act Director means the Director of the Serious Fraud Office document means a document in any form whether signed or initialled or otherwise authenticated by its maker or not; and includes- (a) any writing on any material: (b) any information recorded or stored by means of any tape recorder, computer, or other device; and any material subsequently derived from information so recorded or stored: (c) any label, marking, or other writing that identifies or describes any thing of which it forms part, or to which it is attached by any means: (d) any book, map, plan, graph, or drawing: (e) any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced employee, in relation to the Serious Fraud Office,- (a) means the Director and any other person employed by the Serious Fraud Office, whether paid by salary, wages, or otherwise: (b) includes, for the period of his or her secondment, any person seconded to the Serious Fraud Office from any other department or other employer: (c) does not include a person appointed under section 34 information includes data, documents, and forecasts inland revenue offence means- (a) any offence against any Act specified in Schedule 1 of the Tax Administration Act 1994; and (b) any offence against any Act in relation to any tax imposed or payable, or any refund made or claimed, under any of the Acts specified in Schedule 1 of the Tax Administration Act 1994 Judge means any Judge of the High Court or the District Court member, in relation to the Serious Fraud Office,- (a) means any employee of the Serious Fraud Office; and (b) includes, for the purposes of any particular investigation, any person who is deemed to be a member in accordance with section 34(2) person includes a body of persons whether incorporated or not place includes any premises, building, aircraft, ship, carriage, vehicle, box, or receptacle prescribed means prescribed by regulations made under this Act protected information means any information that is protected from disclosure- (a) under section 36; or (b) under the Tax Administration Act 1994; or (c) under any other Act,- but does not include- (d) information that has been lawfully released under any other Act in circumstances where the person to whom it has been released is under no obligation to maintain secrecy in respect of the information; or (e) information that has ceased to be protected information in accordance with section 43 serious or complex fraud includes a series of connected incidents of fraud which, if taken together, amount to serious or complex fraud. (2) For the purposes of the definition of computer system in subsection (1), a computer is interconnected with another computer if it can be lawfully used to provide access to that other computer- with or without access information; and whether or not either or both computers are currently turned on; and whether or not access is currently occurring.

3A Transitional, savings, and related provisions The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

10 Power to obtain search warrant (1) The Director may, on by application in writing made on oath, writing, apply for a warrant to search any place or other thing specified in the application. (2) Any Judge who, on such an application, is satisfied— (a) that there are (1A) An application for a warrant must contain, in reasonable detail, the following particulars: the grounds on which the application is made (including the reasons why the legal requirements for believing— issuing the warrant are believed by the Director to be satisfied): (i) that any information supplied pursuant the address or another description of the place or other thing proposed to section 9 is false be entered, or misleading in a material particular; entered and searched, inspected, or examined: (ii) that a person has failed to comply with any obligation imposed pursuant description of the item or items or other evidential material believed to section 9; be in or (iii) on the place or other thing that it is not practicable to serve a notice under section 9 are sought by reason of the fact that Director. (1B) The issuing officer— may require the person cannot be located or Director to supply further information concerning the grounds on which the search warrant is absent from New Zealand sought; but must not, in any circumstances, require the Director to disclose the name, address, or any other good cause; identifying detail of an informant unless, and only to the extent that, such information is necessary for the issuing officer to assess either or both of the following: (iv) that the service credibility of a notice under section 9 might seriously prejudice the investigation; and informant: (b) that whether there are reasonable grounds is a proper basis for believing that there may be, at issuing the place specified warrant. (1C) The Director must disclose in the application, application— details of any documents or other thing application for a search warrant that may be relevant the Director knows to an investigation have been made within the previous 3 months in respect of the place or may other thing proposed to be evidence searched; and the result of any offence involving serious that application or complex fraud,— those applications. (1D) However, an issuing officer may issue allow an application for a search warrant in to be made orally (for example, by telephone call) or by personal appearance and excuse the prescribed form. applicant from putting all or any part of the application (including any required material) in writing if— (3) Part 3 shall apply the issuing officer is satisfied that the delay that would be caused by requiring an applicant to put all or any such warrant. part of the application (including any required material) in writing would compromise the effectiveness of the search; and the issuing officer is satisfied that the question of whether the warrant should be issued can properly be determined on the basis of an oral communication or a personal appearance.

10 Power to obtain search warrant (1) The Director may, on application in writing made on oath, apply for a warrant to search any place specified in the application. (2) Any Judge issuing officer who, on such an application, is satisfied- (a) that there are reasonable grounds for believing- (i) that any information supplied pursuant to section 9 is false or misleading in a material particular; or (ii) that a person has failed to comply with any obligation imposed pursuant to section 9; or (iii) that it is not practicable to serve a notice under section 9 by reason of the fact that the person cannot be located or is absent from New Zealand or other good cause; or (iv) that the service of a notice under section 9 might seriously prejudice the investigation; and (b) that there are reasonable grounds for believing that there may be, at the place specified in the application, any documents or other thing that may be relevant to an investigation or may be evidence of any offence involving serious or complex fraud,- may issue a warrant in the prescribed form. (3) Part 3 shall apply to any such warrant.

10 Power (3) Part 3 applies to obtain search any warrant issued under this section. (1) The Director may, on application in writing made on oath, apply for a warrant to search any place specified in (4) If the application. (2) Any Judge who, on such an application, is satisfied— (a) that there are reasonable grounds for believing— (i) that any information supplied pursuant to section 9 is false or misleading in a material particular; or (ii) that a person has failed to comply with any obligation imposed pursuant to section 9; or (iii) that it warrant is not practicable intended to serve a notice under section 9 by reason of the fact that the person cannot be located or is absent from New Zealand or other good cause; or (iv) that the service of authorise a notice under section 9 might seriously prejudice remote access search, the investigation; and (b) that there are warrant must contain, in reasonable grounds for believing detail, any access information that there may be, at the place specified in identifies the application, any documents or other thing that may be relevant to an investigation or may be evidence of any offence involving serious or complex fraud,— may issue a warrant in the prescribed form. (3) Part 3 shall apply to any such warrant. searched remotely.

10 Power to obtain Application for search warrant (1) The Director may, on by application in writing made on oath, writing, apply for a warrant to search any place or other thing specified in the application. (2) Any Judge who, An application for a warrant must contain, in reasonable detail, the following particulars: the grounds on which the application is made (including the reasons why the Director believes that the legal requirements for issuing the warrant have been satisfied): the address or another description of the place or other thing proposed to be entered, entered and searched, inspected, or examined: a description of the item or items or other evidential material believed to be in or on the place or other thing that are sought by the Director: the period for which the warrant is sought. (3) The issuing officer— may require the Director to supply further information concerning the grounds on which the search warrant is sought; but must not, in any circumstances, require the Director to disclose the name, address, or any other identifying detail of an informant unless, and only to the extent that, such information is necessary for the issuing officer to assess either or both of the following: the credibility of the informant: whether there is a proper basis for issuing the warrant. (4) The Director must disclose in the application— details of any other application for a search warrant that the Director knows to have been made within the previous 3 months in respect of the place or other thing proposed to be searched; and the result of that application or those applications. (5) However, an application, issuing officer may allow an application for a search warrant to be made orally (for example, by telephone call) or by personal appearance and excuse the applicant from putting all or any part of the application (including any required material) in writing if— the issuing officer is satisfied— satisfied that the delay that would be caused by requiring an applicant to put all or any part of the application (including any required material) in writing would compromise the effectiveness of the search; and (a) the issuing officer is satisfied that the question of whether the warrant should be issued can properly be determined on the basis of an oral communication or a personal appearance; and the information required by subsections (2) to (4) is supplied (whether orally, or partly orally and partly in writing) to the issuing officer. (6) An issuing officer who allows an application for a search warrant to be made under subsection (5) must record the grounds for the application as soon as practicable. 10A Issuing of search warrant (1) An issuing officer may issue a warrant in the prescribed form if satisfied that— there are reasonable grounds for believing— (i) that any information supplied pursuant to section 9 is false or misleading in a material particular; or (ii) that a person has failed to comply with any obligation imposed pursuant to section 9; or (iii) that it is not practicable to serve a notice under section 9 by reason of the fact that the person cannot be located or located, is absent from New Zealand Zealand, or any other good cause; or (iv) that the service of a notice under section 9 might seriously prejudice the investigation; and (b) that there are reasonable grounds for believing that there may be, at the place or in or on the other thing specified in the application, any documents or other thing that may be relevant to an investigation or may be evidence of any offence involving serious or complex fraud,— fraud. (2) The issuing officer may issue a authorise the search warrant to be executed on more than 1 occasion during the period in which the prescribed form. warrant is in force if satisfied that this is required for the purposes for which the warrant is being issued. (3) Part 3 shall Every warrant must contain, in reasonable detail, the following particulars: the period during which the warrant may be executed, being— a period specified by the issuing officer not exceeding 14 days from the date of issue; or if the issuing officer is satisfied that a period of longer than 14 days is necessary for execution, a period specified by the issuing officer not exceeding 30 days from the date of issue: if the warrant may be executed on more than 1 occasion, the number of times that the warrant may be executed: if the warrant is intended to authorise a remote access search, any access information that identifies the thing to be searched remotely. (4) However, the issuing officer may not issue a search warrant authorising the remote access search of a thing unless the issuing officer is satisfied that the thing is not located at a physical address that a person can enter and search. (5) Sections 12A to 28 apply to any such warrant. warrant issued under this section. 10B Retention of documents A copy (whether in electronic form or otherwise) of every written application for a search warrant made under section 10(1), or (in the case of an oral application) the record of the application made by the issuing officer under section 10(6), must be retained under the control of the Registrar of the office of the District Court at which, or under the control of the Registrar of the office of the District Court that is closest to the place at which, the application was made until,— in a case where a search warrant is issued, the completion of any proceedings in respect of which the validity of the warrant may be in issue; or in any other case, the expiry of 2 years after the records were first retained under the control of the Registrar of the District Court.

12 Effect of warrant issued under Part 1 (1) Every warrant issued under this Act shall authorise Part 1 authorises the person executing exercising the warrant— (a) to enter and search the place specified in the warrant on 1 occasion within 14 days of the date of issue of the warrant at any time which that is reasonable in the circumstances: (b) to use such any assistance as that is reasonable in the circumstances: (c) to use such any force both for gaining entry and for breaking open anything in or on the place searched as that is reasonable in the circumstances: (d) to search for and remove any documents or other thing that the person executing the warrant believes on reasonable grounds may be relevant to the investigation or may be evidence of any offence involving serious or complex fraud: (e) where necessary, to take copies of any documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant to the investigation: (f) where necessary, to require any person to reproduce, or to assist any person executing the warrant to reproduce, in usable form, any information recorded or stored in any such documents. (2) Every person called upon to assist the person or persons executing the warrant shall have has the powers contained in paragraphs (c) and (d) of subsection (1). (1)(c) and (d). (3) Any warrant shall issued under Part 1 is subject to any reasonable conditions that the issuer specifies in the warrant. 12AA Disclosure of previous applications Any person applying for a warrant under Part 1 must, having made reasonable enquiries, disclose on the application— details of any other applications for a warrant that that person knows to have been made within the previous 28 days by a member of the Serious Fraud Office in respect of the place specified; and the result of that application or those applications. 12A Effect of warrant issued under Part 2 (1) Every warrant issued under Part 2 authorises the person (other than a constable) exercising the warrant— to enter and search the place or other thing specified in the warrant on 1 occasion within 14 days of the issue of the warrant at any time that is reasonable in the circumstances on the number of occasions and within the period set out in the warrant: to request any person to assist with the entry and search (including, without limitation, a member of a hapū or an iwi if the place to be entered is of cultural or spiritual significance to that hapū or iwi): to use any force both for gaining entry and for breaking open anything in or on the place or other thing searched that is reasonable in the circumstances: to use any force in respect of any property that is reasonable for the purposes of carrying out the entry and search and any lawful seizure: to search for and remove any documents or other thing that the person executing the warrant believes on reasonable grounds may be relevant to the investigation or may be evidence of any offence involving serious or complex fraud: to bring and use in or on the place or other thing searched any equipment, to use any equipment found in or on the place or other thing, and to extract any electricity from the place or other thing to operate the equipment that it is reasonable to use in the circumstances, for the purpose of carrying out the entry and search: to use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at the place or other thing if any intangible material that is the subject of the search may be in that computer system or other device: if any intangible material accessed under paragraph (f) is the subject of the search or may otherwise be lawfully seized, to copy that material (including by means of previewing, cloning, or other forensic methods either before or after removal for examination): where necessary, to take copies of any documents, or extracts from documents, that the person executing the warrant believes on reasonable grounds may be relevant to the investigation: where necessary, to require any person to reproduce, or to assist any person executing the warrant to reproduce, in usable form, any information recorded or stored in any such documents. (2) Any warrant issued under Part 2 is subject to any reasonable conditions as that the issuer specifies in the warrant. 12B Remote access search of thing authorised by warrant issued under Part 2 Every person (other than a constable) executing a warrant issued under Part 2 authorising a remote access search may— use reasonable measures to gain access to the thing to be searched; and if any intangible material in the thing is the subject of the search or may specify otherwise be lawfully seized, copy that material (including by means of previewing, cloning, or other forensic methods). 12BA Identifications and notice requirements for remote access search (1) Every person (other than a constable) who executes a warrant issued under Part 2 authorising a remote access search must, on completion of the search, send an electronic message to the email address of the thing searched— attaching a copy of the search warrant; and setting out the following particulars: the date and time of the commencement and completion of the search: the name and unique identifier of the person who had overall responsibility for that search: the address of the office to which inquiries should be made. (2) If the person conducting the search is unable to deliver the electronic message required by subsection (1) (or it is returned undelivered), the person must take all reasonable steps to identify the user of the thing searched and to send the information referred to in subsection (1)(a) and (b) to that person. 12C Powers of person called to assist (1) Every person (other than a constable) called on to assist a person (other than a constable) exercising a warrant issued under Part 2 is subject to the control of the person with overall responsibility for exercising that warrant. (2) Every person (other than a constable) called on to assist a person exercising a warrant issued under Part 2 may— enter and search the place or other thing specified in the warrant: while under the direction of the person exercising the warrant, use reasonable force in respect of any property for the purpose of carrying out the entry and search and any lawful seizure: search for and remove any documents or other things that the person executing the warrant believes on reasonable grounds may be relevant to the investigation or may be evidence of any offence involving serious or complex fraud: use any reasonable measures to access a computer system or other data storage device located (in whole or in part) at the place or other thing if any intangible material that is the subject of the search may be in that computer system or other device: if any intangible material accessed under paragraph (d) is the subject of the search or may otherwise be lawfully seized, copy that material (including by means of previewing, cloning, or other forensic methods either before or after removal for examination). (3) Every person (other than a constable) called on to assist a person (other than a constable) executing a warrant issued under Part 2 authorising a remote access search may— use reasonable measures to gain access to the thing to be searched; and if any intangible material in the thing is the subject of the search or may otherwise be lawfully seized, copy that material (including by means of previewing, cloning, or other forensic methods). 12D Securing place or other thing to be searched (1) Every person (other than a constable) executing a warrant issued under Part 2 may, in a manner and for a duration that is reasonable for the purpose of executing the warrant,— secure the place or other thing searched, any area in or on that place or other thing, or any thing found in or on that place or other thing: exclude any person from the place or other thing searched, or from any area within the place or other thing, or give any other reasonable direction to such a person, if the person executing the warrant has reasonable grounds to believe that the person will obstruct or hinder the exercise of any power under this subsection. (2) A person (other than a constable) who exercises any power under subsection (1) must, on the request of any person affected by the exercise of the power,— identify themselves either by name or by unique identifier; and identify this Act and state the reason for the search unless it is impracticable to do so in the circumstances; and if not in Police uniform, produce evidence of his or her their identity. 12E Powers of constable executing, or assisting in execution of, warrant issued under Part 2 The provisions of Part 4 of the Search and Surveillance Act 2012 apply to a constable who is executing a warrant issued under Part 2, or assisting in the execution of a warrant issued under Part 2, with any references to the exercise of a search power deemed to refer to the execution of a warrant issued under Part 2. 12F Limitation on exercise of powers To avoid doubt, the powers conferred by sections 12A(1)(c) and 12C(2)(b) do not authorise the application of force to any person.

13 Return of documents and things Any A person who, in executing any warrant issued under this Act, removes any document from the place specified in or thing pursuant to the warrant, shall warrant must return the document or document, a copy of that document document, or the thing as soon as practicable to the person who previously had the document in his or her thing in their possession or under his or her their control. 13A Disposal of forensic copies (1) A person who makes a forensic copy of any data held in a computer system or other data storage device must, if the person determines that the data does not contain any evidential material, ensure that the forensic copy and any copies made from that copy are deleted, erased, or otherwise destroyed in a way that prevents retrieval of the copy or copies by any method. (2) However, if an examination of the data shows that it contains a mixture of data that is evidential material and data that is not evidential material,— the forensic copy of the data and any copies made of that copy may be retained in their entirety; and the forensic copy and any copies made of that copy may continue to be searched, if such a search was authorised by the search power under which the data was seized and copied.

14 Disclosure of previous applications Any person applying for a warrant under this Act shall, having made reasonable enquiries, disclose on the application— (a) details of any other applications for a warrant which that person knows to have been made within the previous 28 days by a member of the Serious Fraud Office in respect of the place specified; and (b) the result of that application or those applications.

22 Effect of final decision that exercise of powers unlawful (1) In any case where it is declared, in a final decision given in any proceedings in respect of the exercise of any powers conferred by this Act, that the exercise of any powers conferred by this Act is unlawful, to the extent to which the exercise of those powers is declared unlawful the Director shall ensure that forthwith after the decision of the court is given— (a) any information obtained pursuant to the exercise of powers declared to be unlawful, and any record of such information, is destroyed: (b) any documents, or extracts from documents, or other things removed pursuant to the exercise of powers declared to be unlawful are returned to the person previously having possession of them, or previously having them under his or her control, and any copies of such documents or extracts are destroyed: (c) any information derived from or based upon such information, documents, extracts, or things is destroyed. (2) Notwithstanding subsection (1), the court may, in the court’s discretion, order that any information, record, or copy of any document or extract may, instead of being destroyed,— (a) be returned to the person from whom it was obtained; or (b) be retained by the Serious Fraud Office subject to such terms and conditions as the court may impose. (3) No information obtained, information, and no documents or extracts from documents documents, or other things removed, pursuant to things, obtained as a consequence of the exercise of any powers conferred by this Act that have been declared to be unlawful, and no record of any such information or documents, shall be— document,— (a) are admissible as evidence in any proceedings unless the court hearing the criminal proceedings in which if the evidence is sought to be adduced is satisfied that there was no unfairness in obtaining excluded under section 30 of the evidence: Evidence Act 2006: (b) may otherwise be used in connection with the exercise of any power conferred by this Act unless the court that declared the exercise of the powers to be unlawful is satisfied that there was no unfairness in obtaining the evidence. Compare: 1989 No 11 ss 27, 28