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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
- 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.
- 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
- 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)
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
- 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.
- 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.
- 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
- 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.
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