Otago Proctor’s conduct a naked abuse of power

It’s probably the most famous public law case in English common law history. John Entick was a writer for the anti-government publication, The Monitor, which caused much ire among the elite members of the English state. In an apparent act of retribution, three government officials, led by Nathan Carrington, entered Entick’s home and seized or destroyed some £2,000 worth of property (a significant amount in 1765). Carrington was acting under the direction and authority of the Secretary of State for the Northern Department, Lord Halifax, and so claimed the power of entry and seizure as a result of that official authority. Entick sued Carrington for trespass, seeking to recover monetary damages in respect of the losses he had suffered.

The court sided with Entick. Among various statements about the fundamental importance of respecting private property, the Court ruled that government officials cannot enter someone’s home without clear authorisation to do so in law. It is not enough that an official represents the state and its interests – that status confers no more legal authority than any ordinary citizen might have. And because an ordinary citizen cannot enter private property without lawful authority, an official cannot do so either.

The resulting case, Entick v Carrington, is burned into the mind of every law student throughout the Commonwealth, including New Zealand. It represents the important proposition that the powers or government and government officials are limited by law, and cannot do something that affects private citizens just because there is nothing to stop them. It’s such a fundamental point about the way our government works that we often take it for granted. We don’t live in a police state, and we don’t accept authoritarian government action. Government can only take action where it has lawfully authority to do so.

Which is why it is so surprising and concerning that the Proctor of Otago University, Dave Scott, entered a private student flat and seized property belonging to the occupants of that flat. The back door was unlocked, and there was nothing stopping him, so the Proctor simply walked in, took what he wanted, and left. Apparently, the seized property was later destroyed. The occupants of the flat only discovered what happened when the Proctor returned on another occasion to explain himself.
 

It’s probably the most famous public law case in English common law history. John Entick was a writer for the anti-government publication, The Monitor, which caused much ire among the elite members of the English state. In an apparent act of retribution, three government officials, led by Nathan Carrington, entered Entick’s home and seized or destroyed some £2,000 worth of property (a significant amount in 1765). Carrington was acting under the direction and authority of the Secretary of State for the Northern Department, Lord Halifax, and so claimed the power of entry and seizure as a result of that official authority. Entick sued Carrington for trespass, seeking to recover monetary damages in respect of the losses he had suffered.

The court sided with Entick. Among various statements about the fundamental importance of respecting private property, the Court ruled that government officials cannot enter someone’s home without clear authorisation to do so in law. It is not enough that an official represents the state and its interests – that status confers no more legal authority than any ordinary citizen might have. And because an ordinary citizen cannot enter private property without lawful authority, an official cannot do so either.

The resulting case, Entick v Carrington, is burned into the mind of every law student throughout the Commonwealth, including New Zealand. It represents the important proposition that the powers or government and government officials are limited by law, and cannot do something that affects private citizens just because there is nothing to stop them. It’s such a fundamental point about the way our government works that we often take it for granted. We don’t live in a police state, and we don’t accept authoritarian government action. Government can only take action where it has lawfully authority to do so.

Which is why it is so surprising and concerning that the Proctor of Otago University, Dave Scott, entered a private student flat and seized property belonging to the occupants of that flat. The back door was unlocked, and there was nothing stopping him, so the Proctor simply walked in, took what he wanted, and left. Apparently, the seized property was later destroyed. The occupants of the flat only discovered what happened when the Proctor returned on another occasion to explain himself.

Dr Edward Willis is a lecturer at the University of Auckland’s Faculty of Law. This article reflects the opinion of the author and not the views of
the University of Auckland.

Used with permission from Newsroom, Otago Proctor’s conduct a naked abuse of power published on 26 September 2018.