GENERAL INTRODUCTION
While fundamental to the detection of criminals, any power of search vested in a law enforcement or regulatory agency has far reaching effects. It affects such fundamental interests as privacy, the security of people in their homes and the right to quiet possession of real and personal property.
In many instances the power may be more intrusive than arrest and it may, of course, affect even those who, in the view of the enforcement officers, have nothing to do with the suspected offence. A balance must be struck between the competing public interests in detecting crime and the protection of key social interests (such as health and safety) on the one hand and the right of the individual to be free from State intrusion on the other.
In its interim report the Committee was primarily concerned with search for evidence of a particular offence. As its starting point the Committee took s198 of the Summary Proceedings Act 1957 and examined the adequacy of its provisions both as the central empowering provision for the police in exercising a power to search and, in any modified form, as a blueprint for all statutory powers of search.
A substantial redraft of s198, having regard to the comments received, relevant case law, the reports of overseas law reform agencies, and current legal and social considerations produced a number of important changes:
(a) What may be searched for is simplified to refer to evidence of an offence that has either been committed or which is going to be committed.
(b) The need for judicial intervention in the search process is reinforced. The application must be on oath and in writing. The judicial officer, in issuing the warrant (which will be valid for 14 days), may impose conditions on the execution of the warrant.
(c) The person seeking a warrant must disclose applications made for a warrant in respect of the place or thing specified within the preceding 28 days.
(d) If an occupier is not present the person executing the warrant must leave notice that there has been a search and in any case provide an inventory of things taken.
(e) The warrant must be shown initially on entry and on request thereafter.
(f) The warrant should permit the search, on reasonable grounds, of persons present when the warrant is executed.
(g) A person executing a warrant may seize evidence of any offence in respect of which that person has an enforcement duty and which is seen while on the premises pursuant to the warrant. This will allow the seizure both of evidence found in the course of the search and also evidence which is 'in plain view'.
(h) A statutory presumption excluding evidence obtained in contravention of the section is also created.
The Committee then considered the scope of search to ascertain whether the blueprint of the redrafted s198 might have universal application. It was apparent that the word 'search' is used in a variety of ways. Sometimes other words, like 'examine' and 'inspect', are used to denote the same concept as search. Sometimes they denote different concepts.
The various forms of authorised State intrusion, however labelled, must be measured against consistent protective principles in order to determine appropriate limitations on the scope of the power and the manner in which the power is to be exercised. In Part 5 of this Report we formulate these protective principles which we intend to be of general application.
Each of the principles should apply to restrict the power under consideration unless this is clearly inappropriate in the particular case.
We think that engaging in certain activities, or the presence of a person in certain situations, must raise the reasonable expectation of inspection. This may be distinguished from a search in its strict sense. Its primary purpose is not to seek evidence of an offence but rather to ensure compliance with restrictions imposed by statute on certain activities or presence in particular places.
The Committee recognised that a person may be in a place (for example, a wildlife reserve) where it must be accepted as a condition of entry that an authorised person will be empowered to ensure compliance with rules governing that place. Such a condition may result in any person in that place being subject to inspection without a warrant first having been obtained and without any belief that the inspection will disclose a breach of the relevant rules. Similarly, persons engaged in regulated activities (for example, the operation of a restaurant) must expect to have the activity monitored by periodic inspections.
Although inspections like these sometimes may involve an examination of the place, persons or possessions they do not, in our view, require the same restrictions which are applicable when a search is based on a belief that an offence has occurred.
The performance of the activity, or presence in the place, involves a necessary acceptance of the possibility of inspection to ensure compliance with the rules governing that activity or place.