A Framework for Analysing Consent Searches by Public Authorities in New Zealand

Abstract

Consideration of the circumstances in which public authorities in New Zealand can conduct consent searches raises some challenging conceptual issues. Any analysis requires a principled conceptual framework. The first step is to ask whether there is any law prohibiting the consent search – and if not, whether that is sufficient to make it lawful for a public authority to undertake it. The second step is to apply s 21 of the New Zealand Bill of Rights Act 1990, which provides that everyone has the right to be secure against unreasonable search or seizure. Currently, following the decision of the Supreme Court in Cropp v Judicial Committee, consent can make a search “not unreasonable”. However, this author argues that where there is good consent there should be no search at all. This is because “search” should be defined by reference to intrusions upon reasonable expectations of privacy. Many commentators have advocated the adoption of a privacy-based definition of search, but they have not always taken the next step and applied their arguments in the consent search area. The advantage of such an approach is that it encourages the courts to clearly enunciate their reasoning, and avoids the risk of s 21 “misfiring”. In theory it should not significantly alter the requirements of a valid consent, although the adoption of the more structured approach may prompt a reconsideration of some of the hitherto less well-explained approaches to certain consent search issues.