Common law powers of entry, search, inspection and seizure
Georgia Lewer, CSO Senior Solicitor
Traditionally, the common law identified very limited powers of search and seizure by State agencies, particularly in relation to residential premises.
Over time however, Parliament has created an increasing number of statutory powers of search and seizure. These are often associated with regulatory regimes, especially in areas of public health and safety.
Statutory powers of entry, search, inspection and seizure
The principal legislative regime that affords powers of entry, search and seizure to police officers is the Law Enforcement (Powers and Responsibilities) Act 2002.
Parliament has also created numerous other powers for particular agencies to enter certain lands and to search for or inspect particular items. Usually, consequential seizure powers attach to these search powers.
Other powers may also be provided to agencies to require persons to produce documents and other items and/or to answer certain questions.
Different acts create these powers in different ways and impose different conditions on their lawful exercise. Such differences are congruent with the differing purposes of each enactment. Careful attention needs to be paid to legislative grant of any entry, search, seizure or inspection power, any conditions attaching to the grant of that power, and the legislative purpose for such power.
Many regulatory acts in NSW adopt a similar regime for enforcement of their provisions. Frequently, the Act:
- Creates an office of an "inspector", "investigator" or similar;
- Provides a power to such inspector to enter any land (usually except for residential premises) to search for such items as are relevant to the purposes of the act, or for evidence of the commission of an offence contrary to the act;
- If such items are located, empowers the inspector to seize such items.
Such acts usually grant an alternative power of entry, search and seizure by authorising an inspector to apply to an authorised officer for a search warrant to enter and search any land (including residential land).
An additional power may also be provided for an inspector to demand production of certain documents and/or to demand a person answer certain questions.
Some issues that can arise for agencies exercising search and seizure powers
Claims for LPP frequently morph into larger cases that challenge the lawfulness of the exercise of power to inspect, search or seize documents.
If an officer of an agency enters premises and searches and seizes items, such conduct is unlawful unless and until a power to engage in such conduct can be demonstrated.
Because of the historical denunciation of entry and search of the subject's property by the common law, the Courts have traditionally required strict compliance with the statutory conditions associated with the exercise of any such power: George v Rockett  HCA 26; (1990) 170 CLR 10.
Some matters to scrutinise where statutory powers are exercised include:
- Have all the conditions attaching to the exercise of the power been strictly observed?
- Has an inspector/investigator been appropriately appointed?
- Have all powers been appropriately delegated?
- Are the documents to be requested, searched for, or inspected properly related to the purpose for the grant of the power?
- Are the documents described in the warrant/notice to produce sufficiently described so as to enable the recipient to ascertain the scope of the authorised search?
- In relation to electronic devices, is what is sought to be inspected/seized the electronic data on the device or the device itself?
- Where required, does the relevant officer believe, rather than suspect, the items will be at the premises or are connected with an offence? On what bases?
- Where applicable, are the items to be inspected or seized sufficiently "connected with" or will they "afford evidence" of an offence?
- Have all notice requirements been complied with?
- Are all forms properly completed? Where a prescribed form is required, has it been correctly used?
- Has any application been supported by evidence on oath or affirmation (as required)?
- Are the persons assisting in the search properly described as "assistants" or are they delegates or agents of the person to whom the power to search or inspect is vested?
- Are other powers being exercised that are beyond the scope of the grant of power?
- Is the conduct of the search/inspection that which is authorised by the statute and/or the warrant? Is the search "reasonable"? Note: a "negative search" will rarely be lawful: Crowley v Murphy  FCA 31; (1981) 34 ALR 496.
Do these search and seizure powers abrogate legal professional privilege?
By exercising statutory powers to search and inspect documents, or to require the production of documents, an agency could face resistance to the inspection or seizure of such documents on the basis that they are protected from disclosure/inspection because of legal professional privilege ("LPP").
Legal professional privilege is a common law right. It is not necessarily abrogated by the creation of statutory powers to search and inspect or seize: Dawson J in Baker v Campbell  HCA 52; (1983) 153 CLR 52 at 132 ("Baker").
Accordingly, unless LPP is abrogated expressly or by necessary implication, an agency must respect LPP when exercising statutory powers including powers of search, inspection and seizure. The claim of LPP is not to be balanced against the public interest, unless it is waived, it is an absolute privilege: Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission  HCA 49; (2002) 213 CLR 543 ("Daniels v ACCC").
Most NSW legislation that grants powers of search and seizure is silent on the question of whether LPP is preserved or is abrogated. Following from Daniels v ACCC, it is highly unlikely that a court would consider the mere grant of powers to inspect or search documents necessarily abrogates LPP.
Claims for LPP made in response to the execution of search warrant or during the exercise of search and seizure powers are determined according to common law principles and not in accordance with Pt. 3.10 of the Evidence Act 1995.
LPP attaches to confidential communications made for the dominant purpose of giving or receiving advice or for use in existing or anticipated litigation: Baker.
What might LPP attach to:
- Documents that record confidential legal advice or confidential legal work;
- "Legal work" carried out by the legal adviser for the client;
- Notes, drafts, charts, diagrams, spreadsheets and the like prepared by the client as a way of organising information to be communicated to the legal adviser, whether or not they are actually communicated to the legal adviser;
- Documents from which the nature of advice sought or given might be inferred;
- Statements and other evidence obtained in preparation of existing or anticipated litigation;
- Copies of non-privileged documents may be privileged if those copies were made for the requisite purpose: Commissioner of Australian Federal Police and Anor v Propend Finance Pty Ltd  HCA 3; (1997) 188 CLR 501.
LPP does not attach to documents that merely evidence transactions (e.g. contracts, conveyances, declarations of trust, offers or receipts).
A person entitled to the benefit of the privilege can waive that privilege. This can be done expressly or impliedly. Implied waiver may arise when there is an inconsistency between the conduct of the claimant and the maintenance of confidentiality.
The failure of a claimant to make a claim when the search warrant is executed may not amount to loss of privilege: Saunders v Commissioner, AFP (1998) 160 ALR 469.
Fraud or improper purpose
Communications between a lawyer and client which facilitate a crime or fraud are not protected by legal professional privilege: Clements, Dunne & Bell Pty Ltd v Commissioner of Australian Federal Police  FCA 1858; (2001) 188 ALR 515 at , -.
Making a claim for LPP when search and seizure powers are utilised
Guidelines have been instituted to deal with claims for LPP that arise during the exercise of search and seizure powers, including Guidelines as to the execution of search warrants (3 May 1995) as agreed between the Council of the Law Society of New South Wales and the Commissioner of Police, NSW Police Force.
Remember, the privilege belongs to the client, not the legal adviser: Baker at 85.
The recipient of a search warrant or notice, or the lawful occupier must claim privilege over documents in their possession they reasonably believe are subject to LPP (including the privilege of another).
The agency exercising the seizure power must ensure that the occupier of the premises has, having regard to the circumstances surrounding the search, an adequate opportunity to make a claim of privilege.
The courts will expect an agency and a claimant to cooperate in a reasonable and responsible manner to preserve privilege until the claim determined.
The principles underpinning the guidelines should be applied irrespective of whether a search takes place at a solicitor's office or at a private residence.
Resolving a claim for LPP
The claimant bears the onus of establishing that a claimed document is protected by privilege. In court, evidence is required and the Court can examine relevant documents.
How might a claim for LPP be resolved?
- Court proceedings - By summons in Supreme Court seeking declaration that particular documents are privileged.
- Negotiation - The agency may choose to accept claim as bona fide, particularly in uncontroversial circumstances
- Alternative dispute resolution - The claimant and the agency agree to an independent appointee or arbiter determining the claims. Barristers are frequently used for this purpose.
Difficulties that may be encountered during the exercise of search and seizure powers
Problems can arise during the exercise of search and seizure power if no one is present to identify the document(s) over which a claim of privilege could be made
If the executing officers are on notice that some of the documents to be searched may be privileged, they should attempt to negotiate a reasonable agreement with the claimant about how the search will proceed. If that is not possible, the officers should consider instituting their own arrangements to reasonably protect privilege being infringed.
If a seizure is dependent on the executing officer reaching a requisite state of satisfaction, the executing officer may need to consider whether seizure is warranted if inspection of the document is precluded because of an LPP claim. In such cases:
- The executing officer may have other information (other than on the face of the document) that satisfies the officer that the document can be seized;
- The claimant or their legal representative may indicate whether the nature of the document falls within the ambit of the search and satisfies the officer that the document can be seized;
- Query: the possibility of a cursory examination being carried out: JMA Accounting Pty Ltd & Anor v Commissioner of Taxation & Ors  FCAFC 274; (2004) 139 FCR 537; 211 ALR 380?
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