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Education (Pastoral Care) Amendment Bill (Consistent) (Section 21) [2019] NZBORARp 54 (10 October 2019)
Last Updated: 28 March 2020
![2019_5400.jpg](2019_5400.jpg)
10 October 2019
LEGAL ADVICE
LPA 01 01 24
Hon Andrew Little, Acting Attorney-General
Consistency with the New Zealand Bill of Rights Act 1990: Education (Pastoral
Care) Amendment Bill
Purpose
![2019_5401.jpg](2019_5401.jpg)
- We
have considered whether the Education (Pastoral Care) Amendment Bill (‘the
Bill’) is consistent with the rights and
freedoms affirmed in the New
Zealand Bill of Rights Act 1990 (‘the Bill of Rights Act’).
- We
have not received a final version of the Bill. This advice has been prepared in
relation to the latest version of the Bill (PCO
22442/12.0). We will provide you
with further advice if the final version includes amendments that affect the
conclusions in this
advice.
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act. In reaching
that conclusion, we
have considered the consistency of the Bill with s 21 (unreasonable search and
seizure). Our analysis is set
out below.
The Bill
![2019_5401.jpg](2019_5401.jpg)
- The
Bill amends the Education Act 1989 (“the principal Act”) to enable
the Minister for Education to issue a mandatory
pastoral care code binding
tertiary education providers that enrol domestic students. The Bill also enables
the Minister to issue
a pastoral care code covering tertiary education providers
that enrol international students. This code would be binding on all providers
who are signatories to the code.
- The
codes will provide a framework for the pastoral care of students. The purpose of
the domestic and international codes is to support
the Government’s
objectives for the education of students by requiring providers to take all
reasonable steps to protect students,
and to ensure, so far as is possible, that
students have a positive experience that supports their educational achievement.
The codes
will prescribe the outcomes sought from provider for their students
and the key processes required of providers to support the wellbeing,
achievement, and rights of students.
- The
codes will be enforced by code administrators. Code administrators may monitor
and investigate providers’ compliance with
the code, issue quality
improvement notices, issue compliance notices, and impose sanctions on providers
where they breach the code
or fail to comply with notices.
- The
Bill also introduces new offence and pecuniary penalty provisions for breaches
of the codes.
Consistency of the Bill with the Bill of Rights Act
![2019_5401.jpg](2019_5401.jpg)
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. The right protects a number of values including personal privacy,
dignity, and
property.1 A request for information or
documents constitutes a search for the purposes of s 21 of the Bill of Rights
Act.2
- Clause
238H(5) amends the principal Act to allow code administrators, in accordance
with the requirements of the applicable code,
to:
- enter
any student accommodation and inspect the premises and facilities:
- inspect,
and make and remove copies of, any information relating to the management of the
student accommodation:
...
- Clause
238H(6) provides that a code administrator may exercise the powers in clause
238H(5) only for the purposes of monitoring or
investigating compliance with the
relevant code. Clause 238H(5) is also subject to the requirement that a code
administrator may
not enter or inspect the room or sleeping area of a student
accommodated at any student accommodation unless—
- the
code administrator believes on reasonable grounds that entry or inspection is
necessary for the purpose of monitoring or investigating
compliance with the
relevant pastoral care code; and
- prior
notice of the inspection is given to the student, and the purpose of the
inspection is explained; and
- the
student is present during the inspection.
- Clause
238H(5) constitutes search and seizure powers for the purposes of s 21 of the
Bill of Rights Act. Ordinarily, a provision found
to limit a particular right or
freedom may nevertheless be consistent with the Bill of Rights Act if it can be
considered reasonably
justified in terms of s 5 of the Bill of Rights Act.
However, the Supreme Court has held that, logically, unreasonable search or
seizure cannot be demonstrably justified with reference to s 5 of the Bill of
Rights Act.3
- In
assessing whether the search and seizure powers in the Bill are reasonable, we
have considered the importance of the objective
sought to be achieved and
whether the provisions are rationally connected and proportionate to that
objective. Overall, we consider
clause 238H(5) does not authorise unreasonable
searches and seizures as per s 21 of the Bill of Rights Act. This is
because—
- the
search is in respect of an important objective – the purpose of the codes
is to protect students and support the well-being,
achievement and rights of
students,
1 See, for example, Hamed v R
[2011] NZSC 101; [2012] 2 NZLR 305 at [161] per Blanchard J.
2 New Zealand Stock Exchange v Comissioner of
Inland Revenue [1992] 3 NZLR 1 (PCP).
3 Cropp v Judicial Committee [2008] 3 NZLR
744 at [33]; Hamed v R [2011] NZSC 101; [2012] 2 NZLR 305 at [162].
and the Bill recognises that breaches of the codes of pastoral care could
potentially result in serious harm to or the death of students
(cl 238S);
- the
code administrator may need statutory authority to enter and inspect student
accommodation for the purpose of carrying out its
monitoring and enforcement
function (e.g. where a provider otherwise refuses to allow reasonable access).
It is likely that information
relevant to a complaint or possible breach of a
code will be located at student accommodation;
- express
statutory protections exist to ensure that highly private and sensitive areas of
student accommodation (namely, students’
rooms) can only be entered and
searched where the code administrator believes on reasonable grounds that this
is necessary for a
purpose of monitoring or investigating compliance with the
relevant pastoral care code, the student has been given prior notice of
the
inspection, and the student is able to be present during the inspection;
and
- the
Bill recognises that the power to enter and inspect student accommodation will
need to be in accordance with the relevant pastoral
care code and the powers may
be exercised only for the purposes of monitoring or investigating compliance
with the code. The codes
will be publicly available and are disallowable
instruments that must be presented to the House of Representatives. This
provides
legislative oversight of the provisions of the codes. The codes will
also have to be drafted in a manner that is consistent with
the Bill of Rights,
otherwise they may be open to challenge for being ultra
vires.4
- It
is notable that similar powers already exist within s 144D of the principal Act
in relation to school hostels.
Conclusion
![2019_5401.jpg](2019_5401.jpg)
- We
have concluded that the Bill appears to be consistent with the rights and
freedoms affirmed in the Bill of Rights Act.
Edrick Child
Deputy Chief Legal Counsel Office of Legal Counsel
4 Drew v Attorney-General
[2001] NZCA 207; [2002] 1 NZLR 58 (CA).
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