一處人權一處例

紐西蘭在10月1日起創新猶, 應該是全球首創, 訂立了要求入境入士, 提供電子器材的開機密碼, 供海關查閱, 違例者可處罰款NZ$5,000, 不用坐監。這條例會否面對侵犯人權的爭議, 恐怕要拭目以待。香港慣於引用人權法來爭議的人就要小心了。紐西蘭也有人權法, 但在今年3月之前應用受很大限制, 該國的人權法對其他法例沒有凌駕性, 不會像香港那樣, 法庭可以廢除與人權法相悖的法例。但今年3月之後, 紐西蘭國會賦予法庭裁定法例違反人權法的權力, 雖然不能廢除有關條例, 但可以下令國會審視和修改。有趣的是, 在這種環境下, 紐西蘭卻訂立披露開啓電子儀器密碼、指模或樣貌(biometric)資料的法例。是否人權倒退呢? 正是一處人權一處例, 入境紐西蘭, 海關人員叫你開手機和電腦, 就不要聲大夾惡拒絕, 若不就範, 只可留下來上庭以人權法抗辯。我明年去紐西蘭, 一定會純如羔羊遵從命令的。


Customs and Excise Act 2018

228Data in electronic devices that are subject to control of Customs

(1)

This section applies to any electronic device—

(a)

that is subject to the control of Customs; or

(b)

that a Customs officer has reasonable cause to suspect is subject to the control of Customs.

(2)

Data in the device may be searched in accordance with the following powers:

Powers if threshold met

(a)

the power to make an initial search if a Customs officer has reasonable cause to suspect that—

(i)

a person in possession of the device has been, is, or is about to be involved in the commission of relevant offending:

(ii)

an importer or exporter of a device (other than a person to whom subparagraph (i) applies) has been, is, or is about to be involved in the commission of relevant offending:

(iii)

an unaccompanied device has been, is, or is about to be used in the commission of relevant offending and the importer or exporter cannot be reasonably identified or located:

(b)

the power to make a full search if a Customs officer has reasonable cause to believe that evidential material relating to relevant offending is in the device:

(c)

the power to require a user of the device to provide access information and other information or assistance that is reasonable and necessary to allow a person exercising a power under paragraph (a) or (b) to access the device:

Powers with no threshold

(d)

the power to make a full search of a stored value instrument (including power to require a user of the instrument to provide access information and other information or assistance that is reasonable and necessary to allow a person to access the instrument):

(e)

the power to make a full search of unaccompanied electronic storage media that is an optical disc imported other than for personal use for the purpose of determining whether it contains any pirated copy within the meaning ofPart 7 of the Copyright Act 1994.

(3)

However, there is no power under subsection (2) to search material (of any kind) that is accessible from the device but is not stored in the device (see section 225, which relates to search warrants).

(4)

The powers in subsection (2)(a) and (b) may be used for the purpose of determining whether evidential material relating to relevant offending is in the device.

(5)

In this section and section 227,—

access information includes codes, passwords, and encryption keys, and any related information that enables access to an electronic device

data means information in digital format and other intangible material in an electronic device

electronic device or device means anything that contains data (including an electronic communication device or any other data storage device)

full search means that—

(a)

the device may be accessed and searched using any technology aids; and

(b)

the device or data may be copied, reviewed, or evaluated (including by means of previewing, cloning, or other forensic methods); and

(c)

the device may be removed or detained for the time reasonably necessary to conduct the search; and

(d)

the search must not damage the device or damage or interfere with the operation of the device; and

(e)

any transmitting functions on the device must be disabled, wherever possible, before the search of data in the device; and

(f)

the device must be returned to the person entitled to its possession at the conclusion of the search (unless evidence of relevant offending is found)

initial search means that—

(a)

the device may be accessed, searched, reviewed, or evaluated either manually or by using a technology aid that has completed a privacy impact assessment in consultation with the Privacy Commissioner; and

(b)

any temporary files created by a technology aid must be immediately deleted when the search is complete (unless the device is detained for a full search); and

(c)

the search must not damage the device or damage or interfere with the operation of the device; and

(d)

any transmitting functions on the device must be disabled, wherever possible, before the search of data in the device; and

(e)

if the person in possession of the device is in a Customs-controlled area (or an unaccompanied device is in a Customs-controlled area), the device must not be removed from that area; and

(f)

the search must take no longer than reasonably necessary; and

(g)

the device must be returned to the person entitled to its possession at the conclusion of the search (unless the device is detained for a full search)

relevant offending means—

(a)

the importation or exportation of any prohibited goods; or

(b)

an offence under this Act; or

(c)

the unlawful importation or exportation of any goods

stored value instrument—

(a)

means a portable device (for example, a debit card) that contains monetary value that is not physical currency but that can be reloaded or redeemed for cash; and

(b)

includes an instrument that is prescribed as a bearer-negotiable instrument under section 153(b) of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009

user means a person who owns, leases, possesses, or controls a device (or an employee of such a person) and who has relevant knowledge of the device.

Duty to assist access to device

(6)

Section 130(2) and (3) of the Search and Surveillance Act 2012 (which relates to incrimination) applies, with any necessary modifications, to a requirement of a Customs officer under subsection (2)(c) or (d) (except that section 130(2) and (3) is subject to subpart 5 of Part 4 of that Act if that subpart applies under subsection (14)).

(7)

Subsections (8) to (11) apply if a person fails to comply with a requirement of a Customs officer under subsection (2)(c) or (d).

(8)

If the person has no reasonable excuse for failing to comply with the requirement, the person commits an offence and is liable on conviction to a fine not exceeding $5,000.

(9)

A Customs officer may retain the device for the purpose of arranging access to, and searching, the device.

(10)

After the prescribed period, a Customs officer who retains a device may treat it as forfeited, in which case subpart 9 of Part 3 applies.

(11)

If a person is convicted of an offence under subsection (8), a court may order the device to be condemned to the Crown, destroyed, or returned subject to any conditions that the court thinks fit.

Procedures applying to seized or produced material

(12)

Subpart 6 of Part 4 of the Search and Surveillance Act 2012 applies in respect of devices detained for a full search under this section.

Privilege and confidentiality

(13)

If any information or document on a device that is subject to an initial search under subsection (2)(a) is privileged from disclosure within the meaning of section 254, that section applies to the information or document but otherwise the search of the device may continue.

(14)

Subpart 5 of Part 4 of the Search and Surveillance Act 2012 (which relates to privilege and confidentiality) applies, with any necessary modifications, in respect of a power to make a full search under subsection (2)(b).

Other powers, protections, and safeguards apply

(15)

To avoid doubt, this section does not limit—

(a)

the provisions of subpart 4 of Part 4 of the Search and Surveillance Act 2012 that are otherwise applied by this Act:

(b)

the powers in section 201 if evidence of identity and entitlement to travel is on a device:

(c)

sections 257 and 258 (copying and retention of documents and goods), which apply, with any necessary modifications, to material and information under this section.