The Education Amendment Bill is currently open for public submissions. Busy though the end of year is in schools, this is a piece of legislation schools should be aware of. If concerned, schools need to have their say, as one of the key provisions in the Bill is the introduction of powers of surrender and retention.
Surrender and retention powers
Currently, schools do not have any express legal powers relating to the search of students and the seizure of property. The proposed amendments will give teachers limited surrender and retention powers in schools, while restricting methods of search and seizure that the drafters of the legislation have deemed intrusive. The new powers will apply to all school students, whether enrolled at the school or under the supervision of a teacher employed by the school.
Key provisions of proposed amendments:
- Where a teacher has reasonable grounds to believe that a student has an item that is likely to endanger the safety of any person or detrimentally affect the learning environment, they may require the student to produce and surrender that item.
- The teacher may retain the item for a reasonable period and then either return it to the student (or to another person or agency as appropriate) or dispose of it.
- The proposed surrender and retention powers also apply to information stored on computers and other electronic devices. A teacher may require a student to reveal the information and to surrender the electronic device.
- The electronic device may then be retained for a reasonable period, provided it is stored in an appropriate manner.
- Teachers may not search a student or their personal schoolbag.
- However, schools retain the power to search lockers and desks.
- The proposed provisions do not require the consent of parents or students prior to a search taking place.
- Students are subject to disciplinary procedures if they refuse to comply with a request but they retain the right to complain through the usual channels if they feel there has been an abuse of power.
- There is nothing in the wording of the proposed amendments to restrict parents from being involved in a surrender and retention process. This decision will lie with individual schools.
Of note is the prohibition of certain surrender and retention methods that have been deemed intrusive and invasive:
- random or blanket searches
- the use of physical force
- use of drug dogs for tracking
The Bill clarifies that teachers are unable to require bodily samples from students. However, a Board will still have the ability to request drug testing as part of the reasonable conditions following a suspension meeting.
It is important to note that nothing in the Bill prohibits the Police from exercising search and seizure powers authorised under other statutes such as the Search and Surveillance Act 2012 and the Misuse of Drugs Act 1975.
Issues with Bill
In reviewing this proposed legislation it is worthwhile to ask - isn't random searching by drug dogs a low level invasion of privacy? Should that be balanced against the need to ensure a school is safe and drug free? Should a search be allowed, to ensure that there is an effective mechanism to stop a student bringing in drugs to a school?
Should there be a process to search a student and/or their bag, if a teacher has reasonable grounds to suspect a weapon has been brought to school? What if a student's bag could be searched discretely (say with the contents only being viewed by teacher and student for example).
Is reasonable force acceptable if a teacher must, in an emergency situation, defend themselves, or others, or prevent a student from harming themselves?
Will this legislation apply to private schools?
No. The proposed surrender and retention provisions only apply specifically to State, integrated and partnership schools. They do not cover private schools.
If the Bill is introduced, private schools would be wise to draft their own policies to ensure their student and parent population know what is reasonable in their school. Private school boards must ensure such policies abide by New Zealand law, including contract law, the Privacy Act 1993, the Human Rights Act 1993 and the New Zealand Bill of Rights Act 1990. We suggest that boards refer to the Ministry of Education 2011 guidelines, Searching students and confiscation, to assist in developing an appropriate approach to search and retention.
Public submissions on the Bill close on Thursday 24 January 2013.