raises the question of whether a police officer can knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so. In order to resolve that question, the High Court will need to develop, or at least refine, the common law relating to trespass and implied licences. This column explores two issues relevant to the development of the common law in this area, namely: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia.
Murphy argues
The questions raised by Roy v O’Neill, currently before the High Court of Australia, are so fundamental that it is surprising they have not previously been definitively answered. Can a police officer knock on a person’s front door to investigate them for potential criminal offending, in circumstances where the police officer has no explicit common law or statutory power to do so? In this situation, can the police officer claim the cover of the same implied licence extended to the door-to-door salesperson or the Jehovah’s Witness? Or is the police officer’s attendance so different that they are a trespasser? Unsurprisingly, the parties’ written submissions on these questions focus on the Australian case law of trespass and implied licences. The parties join issue on the principles to be extracted from the authorities relating to dual purposes for attendance and multiple occupancy residences. The authorities on these issues are not entirely in agreement, and thus it appears likely that the Court will be required to develop the common law in order to resolve the dispute in Roy. This column raises two considerations — neither considered in detail by the parties — that ought to inform the Court’s development of the common law in this area: the approach taken to implied licences in other common law jurisdictions; and the influence, if any, that divergent state and territory legislative positions in this area should have on the development of the single common law of Australia. Ultimately, it is suggested that the High Court should develop the common law cognisant of the scope for reasonable disagreement as to the balance to be struck between public safety, personal privacy and individual property rights. Such an approach has constitutional considerations to recommend it where, as in the present case, the universalising force of the single common law has the capacity to render obsolete the balances struck by different state and territory legislatures within the Federation.
