Case: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 , 124 FCR 384
Outcome: cited
As a matter of principle, the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104. Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ were there addressing s 679 of The Criminal Code (Qld) which authorised the issue of a search warrant and observed at 110 11: A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol 10 (1938), pp 668 672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money [(1765) 19 State Tr 1001] ; Entick v Carrington [(1765) 19 State Tr 1029]. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick [(1765) 19 State Tr, at p 1066]. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp 1 2. State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. ... The importance of the rights protected by the common law has likewise been repeatedly recognised by all courts, including this Court: eg, Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 at [36] [37], 159 FCR 441 at 448 per Branson and Lindgren JJ (Besanko J agreeing at [47]); Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 at [66] , [2002] FCAFC 392 ; 124 FCR 384 at 400 per French, Sackville and Nicholson JJ. See also: Rugs-a-Million (WA) Pty Ltd v Walker [2007] WASCA 23 at [35] [36] per Pullin JA (Wheeler and Buss JJA agreeing).