Search and Seizure in Schools
Except to the extent that any enactment or the general law of New Zealand provides otherwise, the Board of Trustees of a state school has complete discretion to control the management of the school as it thinks fit. However, school principals and teachers have no inherent legal right to search either a student's person or his or her property. Similarly, teachers have no right to use physical force to carry out a search, and a criminal assault may be committed if that search is forcible.
If a member of the Police has reasonable grounds for believing that a student is in possession of controlled drugs or precursor substances and that an offence against the Misuse of Drugs Act 1975 has been committed, or is suspected of having been committed, the student may be detained for the purpose of being searched. The member of the Police may also take possession of any controlled drug or precursor substance found.
There are no provisions in legislation expressly giving boards of trustees or principals the power to search students or their possessions. It has been argued that there is no power to search, on the basis that the general law as to trespass prevents touching students or their property without consent and that in the absence of express power such as those given to the Police, the general law prevails. The Commissioner for Children has taken the view that there is a lawful power of search based on the Education Act 1989 and on the school charter. However, the search must be reasonable in terms of the New Zealand Bill of Rights Act 1990, which may depend on the degree of risk.
The Education Act 1989 authorises boards of trustees to control and manage the school as they think fit, and the school principal, who is the board's chief executive in relation to the school's control and management, can manage the school's day-to-day administration as he or she thinks fit, subject to the provisions of any enactment or the general law of New Zealand. It has been held, however, that control and management of the school includes control and management of pupils and the maintenance of control and discipline in the school generally; this may extend to appropriate reasonable searching of students and their property in order to maintain discipline and avoid harm to other students. A student may also consent to such searches.
The doctrine of loco parentis may provide authority for a seizure if such action would be taken by a reasonable and responsible parent. In some cases, for example where drugs are involved, it may be more appropriate to request that the police use their powers. Searches of school property, for example lockers used by students, would seem to be legal especially if it is made clear that a right of search is a condition of the right to use the property.
A student has a right under the New Zealand Bill of Rights Act 1990 to be free of unreasonable search and seizure. Any search must therefore be reasonable both as to the decision to search in the first place and also as to the manner and the time of the search.
Any search that is not allowed by law may give rise to an action for damages.