Pubdate: Fri, 04 Jan 2002
Source: Otago Daily Times (New Zealand)
Copyright: Allied Press Limited, 2002
Contact:  http://www2.odt.co.nz
Details: http://www.mapinc.org/media/925

LEGAL CHALLENGES AVAILABLE TO POLICE USE OF STRIP SEARCHES

Drugs In Schools Bring Extreme Reaction, Report Says

Strip searches of students have occurred in some of our secondary schools, 
according to the Auckland District Law Society's public issues committee in 
a recent paper. They are among the most invasive practices that the State 
can apply to the civil liberties of its citizens, but are they legal?

The problem of illicit drugs in schools is one of the most pressing and 
challenging issues facing the pre-tertiary education system of late. This 
was reflected in the Ministry of Education's suspension statistics for the 
year ending July 2000, where the suspension of students for drugs comprised 
31% of all suspensions, the highest of all categories reported by the 
ministry. The issue was noted in the ministry's report as a specific area 
of concern.

Some schools, with the assistance of the police, have been taking firm 
measures to attempt to counter this problem. These measures have included 
the police conducting school-wide searches at the invitation of board of 
trustees. These searches usually involve the police entering the school 
(with a search warrant), under the school board's authority and conducting 
a bag search at a school assembly, often with the assistance of drug dogs.

However, until a publicised incident last June at an Auckland secondary 
school, the Auckland District Law Society's public issues committee 
understands there had been no reported cases of police strip-searching 
students on the school's premises following a drug related incident, 
despite the common intervention of police in schools, with regards to the 
drugs issue.

There are a number of rules that are relevant to strip searches in schools. 
Section 21 of the Bill of Rights Act provides protection against 
unreasonable search and seizure. In addition, section 23 of the Bill of 
Rights Act sets out the rights of people detained or arrested, including 
the right to be treated with respect for dignity and humanity.

However, section 18(3) of the Misuse of Drugs Act gives police the power to 
search without warrant or consent, if they have reasonable grounds to 
suspect the detainee has restricted drugs on his or her person.

Section 18(4) of the Act requires the police inform the detainee they are 
going to conduct the search under the above sub-sections of the Misuse of 
Drugs Act, before searching. Furthermore, section 18(6) of the Act requires 
a police officer, who undertakes a search through the exercise of his or 
her powers under section 18(3) of the Misuse of Drugs Act, to furnish the 
Commissioner of Police with a written report within three days of the date 
that the search occurred. The report must detail the exercise of the power 
under the Act and the circumstances in which it came to be exercised.

The Children, Young Persons and Their Families Act specifies the 
requirements for the conduct of police officers when questioning young 
people, aged 16 or under (section 215), and who a young person can choose 
to have present during police questioning (section 222).

This includes the right of the young person to have an independent adult of 
their choice present during this process. If this person is unavailable, 
then the police must organise someone from the young person's list of 
independent nominated people to be present.

The same protection is available for under 17-year-olds when questioned by 
police at a police station subsequent to arrest or in relation to the 
possible commission of an offence (section 229).

In addition, Article 16 of the United Nations Convention on the Rights of 
the Child (which applies to young people below the age of 18) provides that 
no child shall be subject to arbitrary or unlawful interference with his or 
her privacy, family, home or correspondence and shall have the right to the 
protection of the law against such interference or attacks.

The committee considers recent events highlight concerns about the manner 
in which schools and the police are presently dealing with drugs in schools 
and the processes (or lack thereof) that they have in place when dealing 
with these matters.

Procedures such as the strip search of students clearly degrade and 
humiliate. Case law has indicated a police search can be deemed 
unreasonable under the Bill of Rights, irrespective of the legitimacy of 
the legal grounds under which it was authorised. It is a matter of context.

As the Court of Appeal stated in R v Ririnui, "the intrusiveness and 
invasion of privacy involved in any search of the person is such that it 
ought to be conducted to no greater extent than the circumstances 
reasonably require".

The committee acknowledges that while drugs are causing undoubted problems 
for our schools, it is important policing is balanced with the due 
consideration for the legal rights of the students concerned. Strip 
searches are among the most invasive practices that the State can apply to 
the civil liberties of its citizens. The threshold for its use is, 
therefore, necessarily high.

This is particularly the case with young people, who are accorded 
additional legal rights in their dealings with the police in 
acknowledgement of their inherent powerlessness. Furthermore, unreasonable 
searches are likely to instill disrespect for the law and those who enforce 
it among people of an impressionable age.

For those reasons the committee hopes that the police and school 
administrators will act with respect for the legal rights of students when 
dealing with drug allegations in schools.
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MAP posted-by: Beth