Law Commission Report
CHAPTER 3: Common Issues
3.91
Even with regard to state agencies that do have a power of search, their officers
may conduct certain activities that should fall outside the ambit of the above
requirements. Those activities include:
searches conducted as a condition of entry to designated areas where
administration of a facility or personal safety issues are at s
54
searches conducted as a condition of carriage on public transport, where
public safety issues arise;55
searches conducted as a condition of a contractual arrangement under
a ticket, such as entry to a sports ground;
statutory powers of inspection.
i
n these situations no reason for the search need be given; the fact that a person
wants to enter a particular place or vehicle in itself justifies seeking consent.
a
nd while it is common to advise them by way of notice that they do not have
to give their consent (the consequence, if they refuse, being that they will be
unable to gain entry), we see no need for a statutory requirement to give such
advice. an inspection with consent, where there is a statutory power of
inspection without it, should obviously be exempt.
Recommendations
3.5 Subject
to
recommendation
3.7,
no
search
by
consent
should
be
undertaken
unless:
the
search
is:
- for
the
purpose
of
- for
the
purpose
of
- for
the
purpose
of
- for any other purpose for which a statutory power of search would exist
if
the
appropriate
the officer advises the person whose permission is sought the reason for
the
request
and
that
3.6 A consent search that does not comply with these requirements should
be
unlawful.
3.7 Nothing in recommendations 3.5 or 3.6 applies to members of the public or
the range of activities conducted by government agencies specified in
paragraph
3.91.
3.92
in general, a person who enters a property relying on consent given by someone
else with no actual authority is a trespasser, even if he or she is acting in good faith
and not knowing of the otherfs lack of authority.56 There is a suggestion in some
cases that a person may rely upon consent given by others with apparent
authority,57 but in New Zealand, that suggestion has arisen when the court has
54
For example, under the
c
ourts
55
For example, under the
a
56
Blenheim Borough and Wairau River Board v British Pavements (Canterbury) Ltd, above n 42.
57
R v Bradley, above n 45, 370. in Robson v Hallett [1967] 2 all ER 407, 414, diplock lJ expressed the view
that a person who is inside the dwelling house has an implied authority to invite visitors to enter.
who may giVe
Consent?
