What Is Freedom From Arbitrary Search and Entry Under Section 44?

Section 44 of the Constitution is drafted differently from most of the qualified rights. Rather than a general right subject to section 38, it states a prohibition and then lists the categories of law that may authorise a search or entry.

The six situations in paragraph (a)

1. (i) Under an order made by a court.
2. (ii) Under a warrant for a search issued by a court or judicial officer on reasonable grounds, supported by oath or affirmation, particularly describing the purpose of the search.
3. (iii) A law authorising a public officer, government agent, or officer of a body corporate established by law for a public purpose to enter premises where necessary, to inspect them or anything in or on them in relation to a rate or tax, or to carry out work connected with government property lawfully on the premises.
4. (iv) A law authorising inspection of goods, premises, vehicles, ships or aircraft to ensure compliance with requirements as to entry of persons or importation and exportation of goods, or as to standards of safe construction, public safety, public health, permitted use or similar matters, or to secure compliance with a manufacture or trade licence.
5. (v) A law for inspecting or copying documents relating to the conduct of a business, trade, profession or industry under a law regulating it, or to the affairs of a company under companies law.
6. (vi) A law for inspecting goods, or inspecting or copying documents, in connection with the collection or enforcement of taxes, or under a law prohibiting or restricting importation or exportation of goods.

The warrant requirement is specific

Paragraph (a)(ii) sets out four elements, and each one is a checkable requirement:

• issued by a court or judicial officer — not by a police officer or an agency head;
• on reasonable grounds;
• supported by oath or affirmation; and
• particularly describing the purpose of the search.

A general warrant — one that does not particularly describe its purpose — does not meet the section. Nor does one issued without sworn material. The operative statutory framework is the Search Act (Chapter 341); see the site’s search series, beginning with what is a lawful search?

Why the inspection categories exist

Paragraphs (a)(iii) to (vi) recognise a practical reality: rates and taxes, customs, building and public health standards, trade licensing and company regulation cannot function without powers of inspection. The Constitution permits them, but on terms — each must be created by a law that makes reasonable provision for that specific purpose. An inspection power exercised for an unrelated purpose — a health inspector used to gather evidence for a criminal investigation, for instance — is outside the paragraph relied on.

Paragraph (b) — the section 38 route

A law that does not fall within any of the six categories may still authorise search or entry if it complies with section 38 — meaning it must be expressed to be made for that purpose, specify the right it restricts, be certified as passed by an absolute majority, restrict only so far as necessary for one of the listed public interests, and be reasonably justifiable in a democratic society. Under section 38(3), the burden of showing compliance lies on the party relying on the law’s validity.

Section 44 and the right to privacy

Section 44 protects against physical intrusion — person, property, premises. Section 49 protects a broader interest: reasonable privacy in respect of private and family life, communications with other persons, and personal papers and effects. Interception of communications and access to data engage section 49 as much as, or more than, section 44; see also the Protection of Private Communications Act (Chapter 272).

If a search was unlawful

Three separate consequences may follow:

1. Constitutional relief under section 57, and damages under section 58 — including exemplary damages if the court thinks it proper.
2. Section 41 — even a search under a valid warrant is an unlawful act if, in the particular case, it was harsh, oppressive or disproportionate.
3. Exclusion of evidence — a matter for the trial court’s discretion, argued as part of the section 37 right to the full protection of the law.