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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to - Search and confiscation in New Zealand schools
Is it legal for schools to search their students?
It is not entirely clear whether schools are legally entitled to search their students and confiscate items of their property. The relevant Act - the NZ EDUCATION ACT 1989 - does not explicitly give them this power and the question has not been settled by the New Zealand courts.
Advocates of youth rights argue that no such power exists because any power to search must be explicitly created by an Act of Parliament. However, it seems likely that the NZ courts would reject that view and hold that schools do have such a power, the power being implicit in the wide discretion that the Education Act gives to Boards of Trustees to manage their schools (for those powers, see How to: Control and discipline of students in schools).
This is the approach taken by the US and Canadian courts and it is also the view of the NZ law taken by the NZ Commissioner for Children. In practice it seems that parents and society in general take it for granted that teachers will regularly exercise at least a limited power to search and confiscate items - for example, when a teacher requires a student to turn out his or her pockets.
In any case, searches of school property - for example, student lockers â€“ would appear to be legal, especially if the school makes it clear to the students from the outset that they use the lockers subject to the condition that the school has a right of search.
Searches must be "reasonable"It is clear that, if there is a legal power to search, then this power must be exercised in a "reasonable" manner, as required by the NEW ZEALAND BILL OF RIGHTS ACT 1990.
The requirement that any search of a student be reasonable applies both to
- the decision to search in the first place, and
- the way in which the search is carried out
The decision to searchThe school must have a reasonable suspicion that the student has some item that he or she should not have.
The source of the suspicion will be relevant â€“ for example, on its own a mere rumour would not be sufficient basis for a search.
The suspicion must relate to each individual student who is searched. So in general it would not be reasonable to search an entire classroom full of students on the grounds that some property had gone missing.
The manner in which the search is carried outWhether a search is reasonable will often depend on how personally invasive it is. Searches of students' bags are less invasive than searches of the person and more likely to be seen by the courts as "reasonable".
But a search that is very invasive - for example, requiring students to strip down to their underwear - might be "reasonable" in extreme cases when the cause of the search is, say, a dangerous weapon.
Searches of desks and lockers, although they are school property, would still seem to be an invasion of students' privacy and therefore should still be subject to the need for a reasonable suspicion as the ground for the search.
What can I do if I'm not happy with the school's actions?If you are a student or parent who is unhappy with a search or confiscation by a school, your possible courses of action include:
- complaining to the school Board or Trustees
- complaining to the Privacy Commissioner that the search breached privacy rights protected under the PRIVACY ACT 1993 (see How to complain to the Privacy Commissioner)
- complaining to the Ombudsman (see How to lodge a complaint with the Ombudsman)
- complaining to the Commissioner for Children (see the Commissioner's website at www.occ.org.nz)
- taking action in the High Court - You could sue the school's Board of Trustees in a civil action for "trespass to goods" or "trespass to the person" or on the basis that there was an unreasonable search and seizure in terms of the NZ Bill of Rights. You could also apply for a declaration from the court that a particular school policy (for example, drug testing) is outside the school's powers and therefore illegal.
- If you wish to take legal action to challenge a school's policy on search and confiscation, or a particular exercise of its policy, you should obtain legal advice.
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