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Part I The scope of the inquiry

1  The general rule of law is that the person who, without permission, enters another's land or any building thereon, or touches or takes away goods in the possession of that other, or exerts force (even the slightest) against that other's body is a trespasser who may be ordered not to perform such acts in the future, and to furnish compensation by paying damages for such acts as have been committed in the past. But, in a society of any sophistication, such general rules must in a myriad of particular cases be modified. The passer-by who sees through a kitchen window that the stove is alight must not be penalised for smashing his way in to fight the fire, the health inspector must be able to enter the restaurant kitchen to check for cockroaches, there are occasions when it is appropriate to search the body cavities of a drug courier, and sometimes goods may be held by law enforcement officers for production in evidence at a trial.

2  There is a useful statement of the justification for licences to do acts that would otherwise be trespasses by Justice Estey speaking for a majority of the Supreme Court of Canada.

The inviolable nature of the private dwelling is a basic part of our free society. This concept has long been a bulwark against tyranny of the State be it organized as an absolute monarchy or as a democratic State under a constitutional monarch. Indeed, for 300 years the concept that a person's home is his castle has been the defence of the citizen in an endless variety of challenges brought against him in the name of the State. ... The concept recognizes an internal security but also an external dependence. The home is not a castle in isolation; it is a castle in the community and draws its support and security of existence from the community. The law has long recognized many compromises and outright intrusions on the literal sense of this concept: for example, the right of the community to search on proper authorization; the right of pursuit; the right of eminent domain; the right of the community in applying zoning restrictions and safety standards; the compulsory participation in community-established health facilities, including sewer and water systems, and many more. Most of these intrusions carry inspection rights of varying modes and degrees. ... The community interest in crime detection and suppression also inevitably entails intrusion on the castle concept.¹

Although the Judge is talking here about the home, the philosophy underlying the sentiments that he expresses extends beyond the home to all trespasses.

3  Some of the rules permitting entry, search and seizure are expressly laid down in Acts of Parliament. Others have been made by judges in deciding specific cases. Some decisions by judges are reasoned on the basis of an "implied licence". In defining the general rule in the paragraph 1, we made it clear that the act complained of must have been committed "without permission". There are circumstances in which, even in the absence of express permission, such permission may be implied. This approach, of allowing a defence to a claim of trespass by implying permission, fits well enough the case of the fire-fighter breaking in to quell a blaze, or the stranger who administers first aid to someone found unconscious on the highway, or the more common situation of the uninvited caller making his way along the garden path from the street to the front door of a house set back from the road in order to knock and seek entry. But this approach does not readily fit the law enforcement situation. It is artificial to imply a licence where the person claimed to have granted the licence is a suspected wrongdoer and the trespasser is a law enforcement officer investigating such wrongdoing. Moreover, a licence, express or implied, can be revoked by the licensor at will. The licensee must then depart within a reasonable time. So, for the law to be workable trespass, for law enforcement purposes, is likely in practice to need for its justification a basis other than the affected party's consent, express or implied.²

4  There are numerous statutes or regulations conferring on government agents powers of entry, search and seizure. Outside our Terms of Reference are statutory provisions that confer powers of entry for purposes other than search or seizure (to cope with emergencies, for example). The way in which in this paper we tackle the substantial body of material that remains, though workable as a matter of practice, is probably less than elegant conceptually. In Part II we deal with the statutes and regulations other than those of which the primary purpose is to confer powers on the police. In Part III we deal with police powers both statutory and implied by law. Most of the specific issues highlighted in the bullet points of the Terms of Reference are addressed in this part. In Part IV we deal with problems under the New Zealand Bill of Rights Act 1990 that, although in practice they most commonly arise in the context of police powers, can arise in respect of any of the powers with which this paper is concerned. Part V is a summary of issues designed to assist (but not in any way to restrict) those minded to make submissions on this discussion paper.