Gunning, Patrick --- "Cases & complaints" [1997] PrivLawPRpr 30; (1997) 4(2) Privacy Law & Policy Reporter 31

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• POLICE v CARBONE
  
  • Comment
    

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Cases & complaints

POLICE v CARBONE

Supreme Court of South Australia — Full Court (Doyle CJ, Bollen and Prior JJ), 26 March 1997

Constitutional law — whether implied right of privacy

Carbone was a private investigator. A general search warrant, issued under s 67 of the Summary Offences Act 1953 (SA), purported to authorise the entry onto premises and the search and seizure of things on those premises where the authorised officer had reasonable cause to suspect a connection between the premises and any offence. The authorised officer and several assistants entered Carbone’s home, office and the premises of various of his relatives and removed a large quantity of files.

Carbone applied for a declaration that the seizure was illegal. One ground of challenge was that general search warrants issued under s 67 are invalid because that section offends a right of privacy (more fully described as a freedom from interference with one’s property or possessions) implied into the Commonwealth Constitution and the Constitution of SA.

At first instance, Legoe AJ rejected this challenge on the ground that:

There is not a true analogy between the constitutional right of freedom of speech and communication, so extensively discussed in the Theophanus case [see (1994) 1 PLPR 170], on the one hand and the implied constitutional right which is relied upon in this case, namely, freedom from interference with one’s property and possessions... [T]here is no indication that a freedom from interference with property or possessions is logically or practically necessary for preservation of the integrity of the structure of the Constitution.

On appeal, this reasoning was unanimously adopted by the Full Court.

Comment

From a comparative constitutional law perspective, it is interesting to observe that this decision appears to be consistent with the position under US law. The US First Amendment can be likened to the implied right of freedom of communication (although the US freedom is clearly broader in its scope than the Australian equivalent). However, under US constitutional law territorial privacy (freedom from arbitrary search and seizure) is based on due process provisions in the Fifth and Fourteenth Amendments and not on the First Amendment (see, for example, Bowers v Hardwick 487 US 186 at 195–196 (1986)).

Patrick Gunning, Solicitor, Mallesons Stephen Jacques.