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Education Amendment Bill (Consistent) (Sections 14, 19(1), 21, 25(c)) [2012] NZBORARp 57 (28 September 2012)

Last Updated: 28 April 2019

Education Amendment Bill

28 September 2012 ATTORNEY-GENERAL

Legal Advice

Consistency with the New Zealand Bill of Rights Act 1990: Education Amendment Bill

1. We have considered whether the Education Amendment Bill (PCO 16622/4.1) (‘the Bill’) is consistent with the New Zealand Bill of Rights Act 1990 (‘Bill of Rights Act’). We understand that the Bill is likely to be considered by the Cabinet Business Committee at its meeting on Monday, 1 October 2012.
   
2. We have concluded that the Bill currently appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act. In reaching this conclusion, we have considered the consistency of the Bill with ss 14 (freedom of expression), 19 (1) (freedom from discrimination), 21 (unreasonable search and seizure) and 25(c) (presumption of innocence) of the Bill of Rights Act.
   

PURPOSE OF THE BILL

3. The Bill amends the Education Act 1989 to pilot a new type of school, which brings together the education, business and community sectors. The Bill also safeguards learners by establishing clear provisions for schools around the surrender and retention of property, and makes assorted amendments to a number of other provisions.
   

Consistency with Section 21 (Unreasonable Search and Seizure)

4. Section 21 of the Bill of Rights Act affirms the right of everyone to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise.
   
5. New ss 139AAA to 139AAF create a power for teachers to require students to produce and surrender items in their possession or control that the teacher has reasonable grounds to believe are likely to endanger the safety of any person or detrimentally affect the learning environment. An item includes information stored in an electronic form. Teachers may retain the item for a reasonable period and dispose of the item where appropriate. New s 139AAA also enables teachers to require students to reveal items that are stored on electronic devices, and to surrender the electronic device. We have considered these powers and whether they engage s 21 of the Bill of Rights Act.

6. The purpose of any search, surrender or confiscation is to ensure the physical or emotional safety, or to effectively manage the learning, of those under a teacher’s supervision.
   
7. Under the Bill, teachers will not be permitted to use physical force, search a student or his or her bag, require a bodily sample, or use a dog for the purpose of the search. Nor will teachers be permitted to carry out blanket searches of students, unless there are reasonable grounds to believe that each student has a relevant item in his or her possession.
   
8. The Bill also provides that any item, computer or other electronic device surrended and retained must be stored in an appropriate manner. Items that are not disposed of must be returned to the student or passed to another person or agency as appropriate.
   
9. The consequences for students as a result of items found, or failure to produce and surrender items, will fall under current disciplinary processes. Students will continue to be able to raise concerns with the Principal or Board of the school, or with the Office of the Ombudsman or the Human Rights Commission.
   
10. We note that under new s 139AAF of the Bill, the Secretary for Education may make rules regulating the practice and procedure to be followed in exercising the powers in ss 139AAA to 139AAD, including the keeping of records, requirements for storage, provisions for return and circumstances for the disposal of items. We consider that rules covering these matters would increase the consistency of the powers under new s 139AAA with s 21 of the Bill of Rights Act. In regard to record keeping, we also note that the Ministry of Education has indicated that it will consider whether there should be any mandatory requirements, including whether any such requirements should be in primary legislation or in rules.
    
11. Given the low level of intrusion into students’ privacy, the limited powers and the safeguards in place we consider the powers created by new s 139AAA to 139AAF are reasonable in terms of s 21 of the Bill of Rights Act.
    

Consistency with other Sections of the bill of rights act

12. The Bill’s reporting requirements could engage s 14 (freedom of expression) of

the Bill of Rights Act. However, these limits are clearly justified under s 5 of that Act.

13. The Bill gives priority for enrolment to applicants who are siblings of current of former students. This provision could engage s 19(1) of the Bill of Rights Act, which affirms that everyone has the right to be free from discrimination on the prohibited grounds of discrimination in the Human Rights Act 1993, including family status. We consider that maintaining a family connection with a school is an important objective and the provision is justified under s 5 of the Bill of Rights Act.
    
14. The Bill contains a strict liability offence. Such offences engage s 25(c) (presumption of innocence) of the Bill of Rights Act because the accused person is required to prove a defence or disprove a presumption to escape liability, instead of

merely raising a defence in an effort to create reasonable doubt. However, in this case, taking into account the nature and context of the conduct to be regulated and the low penalty level, we consider the restriction on the right in s 25(c) is justified.

Conclusion

15. We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed by the Bill of Rights Act.
    

Roger Howard

Acting Chief Legal Counsel Office of Legal Counsel

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Education Ammendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.