7.4 Example of FLPs - inspectoral powers

Fundamental legislative principles are particularly important when powers of inspectors and similar officials are prescribed in legislation, because these powers are very likely to interfere directly with the rights and liberties of individuals.

Rules currently established, by precedent, to achieve consistency with fundamental legislative principles include the following:

• An inspector must be issued with official identification documents and, when the inspector is exercising a power, the inspector must produce them to any person against whom the power is being exercised.
• Entry of any premises without consent is strictly controlled through limitations on the circumstances under which entry may be made and requirements for warrants.
• Entry without consent into anywhere a person lives requires the highest justification.
• The powers that may be exercised, particularly on entry of premises, must be specified as far as practical, and justifiable in proportion to the interference in rights and liberties involved.
• Powers of inspectors in particular legislation must be limited in ways that are appropriate to the objectives of the particular legislation and the persons against whom, and circumstances in which, the powers may be exercised.
• If it is an offence to obstruct or fail to obey, help, or provide information to an inspector, reasonable excuse must be provided as a defence.
• Property must not be interfered with or seized without particular justification.
• If property may be seized, the circumstances of its return must be specified and be fair, and the owner must be permitted reasonable access to it while it is seized.
• Provision must be made for notice to be given to the owner of property if it is damaged, and for payment of compensation unless there is particular justification for not providing compensation.
• There must be particular justification for the provision of power to force someone to provide information and documents, and care must be taken to define the circumstances and way in which the power is exercised.
• The privilege against selfincrimination must be specifically preserved, unless there is the highest justification for not doing so.
• If a person loses the privilege against selfincrimination under a provision, the person must be legally protected from the use against the person in criminal proceedings of evidence derived directly or indirectly from the loss of the privilege. The use of the evidence in other proceedings should also be prohibited unless there is a justification that is demonstrably proportionate to the impact of the loss of the privilege.

Last reviewed: 17 July, 2009

Last updated: 22 July, 2009

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