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Searches & Confiscations

Searches & confiscations

In January 2014, new laws came into force that defined what schools can legally do when they wish to search and confiscate a student’s property while they’re at school.

This section explains the laws around search and confiscations allowed by the school.

Are teachers allowed to search me and what process must they follow?

Under the law, teachers and authorised staff have powers to search students personally (outer clothing only), AND their electronic devices and bags, if they reasonably believe that the student has:

  • a harmful item; or
  • an item likely to be dangerous; or
  • something that will negatively affect the learning environment.

Anyone is also allowed to search you if you agree.

The process involves:

1) Asking for the item or device on which the item is stored to be handed over;
2) If you don’t consent to handing it over, you may be searched;
3) If you don’t consent to the search, the school may call the police to conduct a search (e.g for dangerous or illegal items) or take disciplinary action.

Can teachers touch me when they’re searching me?

Teachers aren’t allowed to touch your body or ask you to remove clothing that would reveal your underwear or your bare skin, but can ask you to remove any outer clothing. They can’t use any physical force against you unless it is necessary to defend someone (including you or themselves) from immediate danger.

A teacher also can’t force you to give any kind of bodily sample, such as a blood test.

What rules do teachers need to follow when searching me?

  • The teacher (or staff) searching you must be the same gender as you (where possible);
  • Another teacher (or staff) of the same sex should be present (where possible) during the search;
  • You should be searched in a way that respects your dignity (i.e should not be in public view if possible);
  • The teacher should tell you what they’re looking for and why they think it’s dangerous or harmful;
  • The teacher can’t pat you down, or ask you to take off any clothing that would leave you in your underwear;
  • The teacher can’t force you to give bodily samples like urine, blood or saliva.

My parents have agreed with my school that I can be searched – is this allowed?

The law isn’t clear on this. On one hand, it says that your parents can make decisions for you until you turn 18 or you get married, are in a de facto relationship or have a civil union. On the other hand, the law says that the person being searched should be the one to give their consent and a young person who is older or mature enough to make their own decisions should be doing this themselves.

Most of the time it will depend on the situation and the urgency, give YouthLaw a call if you want more info.

Can teachers search my locker?

If the criteria for searching you have been met, teachers are allowed to search your locker. A locker provided to students for storage purposes within the school grounds is generally regarded as a school’s property, as is any desk or receptacle. However, for best practice purposes, the school should provide you with the terms and conditions of use for the locker. The terms and conditions should refer to the fact that the school can search the locker and any bag or container inside the locker.

I’ve signed a contract allowing the school to search me, can they search me at any time?

If you have signed a contract allowing the school to search you or your locker (usually as a discipline condition or as a condition of returning to school from a suspension), they may do so. The contract is not valid though if the school forced you to sign it.

If you go to an integrated school or a private school, it’s possible that they would have different rules, but those shouldn’t be illegal in terms of the right to be free from unreasonable search and seizure under the law (Bill of Rights Act).

Can I be searched before a school ball or school function?

If the function is not part of the normal curriculum (e.g. it’s optional for students to attend), then the school can set separate rules and conditions for the function. If the school says that you can only go to the school ball if you agree to be searched beforehand, this is legal as long as going to the school ball isn’t mandatory. Under best practice, the school should inform you of the terms and conditions of entry at the time you purchase your tickets.

If the function is mandatory, the normal rules of searches apply – the school generally needs your consent unless they meet the search criteria under the law.

Is my teacher allowed to search the whole class?

The school and your teacher can’t randomly search students, or search an entire class because they think one person in the class might have a dangerous or harmful item. They have to have good reason to search you specifically. “Good reason” can’t be just because of things that have happened in the past or based on stereotypes about you.

The only time a teacher is allowed to search a whole class is if the teacher reasonably believes that every person being searched has a dangerous or harmful item.

Is my school allowed to use a sniffer dog to search me?

The school is not allowed to use a sniffer dog to search you personally but they’re allowed to use sniffer dogs to search school property. If the school chooses to use dogs, they must hire a private company to bring in a dog to search through school property which can include lockers, desks and anything else provided by the school. They, however, can’t search you or your private property.

Generally, the school will use dogs to sniff for drugs or other illegal substances. Police can also be called to do a search. The search is legal if the police have a reasonable suspicion that an individual has drugs or have a search warrant signed by a judge. If the police have neither, the search will be illegal.

What is a confiscation?

A confiscation is when the teacher or the school takes something belonging to you for a temporary or permanent period of time. There are certain circumstances where the school can confiscate your property.

The law says that everyone is protected from having their possessions unreasonably taken from them by the government, including schools and teachers. Remember if you attend a private school, the rules about searching and confiscating may be different.

Is my teacher allowed to take my possessions?

Your teacher is only allowed to take items which are likely to be dangerous, or likely negatively impact the learning environment of you or other students, or is harmful (and pose an immediate threat to the physical or emotional safety of anyone).

However, they can’t use physical force to take items off you unless there was an immediate threat to someone’s safety.

If you refuse to hand over the items, the school could take disciplinary action against you.

What responsibilities does the school have when they confiscate my property?

After confiscating an item, the school should consider the health and safety of people, the apparent value of the item, and the person believed to be entitled to the possession of the item.

If the teacher or school decides to retain the item, they must take reasonable care of the item. If the item is retained overnight or longer, it must be held in secure storage.

Can I get my confiscated item back?

If you have something illegal (like drugs or weapons), you probably won’t get them back (they will likely end up with the police). If the item is illegal for you to have because of your age, but wouldn’t be illegal for an adult to have (such as alcohol), then the school should return these to your parents or caregiver. If the item belonged to someone else, they may return it to the item’s owner.

In all other cases, your school has to return your confiscated items back as soon a practicable, which will usually be no later than the end of the school day. Keeping an item should not be used as a form of punishment.

Sometimes schools may have policies which for example requires a parent/caregiver to pick up the item for repeat offences, this is allowed.

Are teachers allowed to take my jewellery?

Many schools have a no jewellery rule. Some schools will ask you to remove the item, and others to hand it over. However, under the new law, confiscation can only occur when it meets the criteria. If it’s not likely to be dangerous or negatively impacting the learning environment, it could be difficult for your teacher to justify confiscation. However, the school may take other disciplinary measures.

If your jewellery has a religious/cultural meaning to you, the school isn’t allowed to interfere with your right to wear that item (unless it could affect your or other’s safety, such as wearing a large taonga in P.E.). You must have a genuine religious/cultural connection to the item e.g. you are Maori and wearing a taonga or you are a Christian and wearing a crucifix. For your own convenience, it may make things easier if you talked with the school about this item prior to wearing it at school, if jewellery is banned at school.

Other rules may apply to private schools.

A teacher has taken something belonging to me and doesn’t give it back, what can I do?

Having an item confiscated does not change the fact that you still own the item (if you did own it), and you are entitled to have it returned.

There are times where the items may be returned to your parents or caregivers instead. If it’s illegal, the item may be handed over to the police.

If a teacher confiscates and keeps something of yours, that teacher has to take reasonable care of it until it is given back to you or your caregiver unless it is illegal for you to have it. If the teacher loses or damages it, the teacher or the school is normally required to pay for the cost of replacing or repairing it.

Are teachers allowed to take my phone or electronic device? Are they allowed to go through my messages or emails?

Yes, your school has the power to confiscate your electronic devices from you if the phone or device is disruptive or negatively impacts the learning environment. However, they shouldn’t be searching through your device just because it was disruptive or negatively impacting the learning environment. They need good reasons to search through your phone or device. Some reasons to search could be:

  • If the school genuinely suspected something illegal was going on;
  • If the school was acting to prevent a crime;
  • If the school was acting to protect the safety of others (e.g bullying);
  • If the item within the device is harmful (posing an immediate threat to the physical or emotional safety of anyone).

If you’re uncertain whether the school has followed the right process, contact us at YouthLaw.

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