Strip searches of students have occurred in some of our secondary schools, according to the Auckland District Law Society's public issues committee in a recent paper. They are among the most invasive practices that the State can apply to the civil liberties of its citizens, but are they legal?

The problem of illicit drugs in schools is one of the most pressing and challenging issues facing the pre-tertiary education system of late. This was reflected in the Ministry of Education's suspension statistics for the year ending July 2000, where the suspension of students for drugs comprised 31% of all suspensions, the highest of all categories reported by the ministry. The issue was noted in the ministry's report as a specific area of concern.

Some schools, with the assistance of the police, have been taking firm measures to attempt to counter this problem. These measures have included the police conducting school-wide searches at the invitation of board of trustees. These searches usually involve the police entering the school (with a search warrant), under the school board's authority and conducting a bag search at a school assembly, often with the assistance of drug dogs.

However, until a publicised incident last June at an Auckland secondary school, the Auckland District Law Society's public issues committee understands there had been no reported cases of police strip-searching students on the school's premises following a drug related incident, despite the common intervention of police in schools, with regards to the drugs issue.

There are a number of rules that are relevant to strip searches in schools. Section 21 of the Bill of Rights Act provides protection against unreasonable search and seizure. In addition, section 23 of the Bill of Rights Act sets out the rights of people detained or arrested, including the right to be treated with respect for dignity and humanity.

However, section 18(3) of the Misuse of Drugs Act gives police the power to search without warrant or consent, if they have reasonable grounds to suspect the detainee has restricted drugs on his or her person.

Section 18(4) of the Act requires the police inform the detainee they are going to conduct the search under the above sub-sections of the Misuse of Drugs Act, before searching. Furthermore, section 18(6) of the Act requires a police officer, who undertakes a search through the exercise of his or her powers under section 18(3) of the Misuse of Drugs Act, to furnish the Commissioner of Police with a written report within three days of the date that the search occurred. The report must detail the exercise of the power under the Act and the circumstances in which it came to be exercised.

The Children, Young Persons and Their Families Act specifies the requirements for the conduct of police officers when questioning young people, aged 16 or under (section 215), and who a young person can choose to have present during police questioning (section 222).

This includes the right of the young person to have an independent adult of their choice present during this process. If this person is unavailable, then the police must organise someone from the young person's list of independent nominated people to be present.

The same protection is available for under 17-year-olds when questioned by police at a police station subsequent to arrest or in relation to the possible commission of an offence (section 229).

In addition, Article 16 of the United Nations Convention on the Rights of the Child (which applies to young people below the age of 18) provides that no child shall be subject to arbitrary or unlawful interference with his or her privacy, family, home or correspondence and shall have the right to the protection of the law against such interference or attacks.

The committee considers recent events highlight concerns about the manner in which schools and the police are presently dealing with drugs in schools and the processes (or lack thereof) that they have in place when dealing with these matters.

Procedures such as the strip search of students clearly degrade and humiliate. Case law has indicated a police search can be deemed unreasonable under the Bill of Rights, irrespective of the legitimacy of the legal grounds under which it was authorised. It is a matter of context.

As the Court of Appeal stated in R v Ririnui, "the intrusiveness and invasion of privacy involved in any search of the person is such that it ought to be conducted to no greater extent than the circumstances reasonably require".

The committee acknowledges that while drugs are causing undoubted problems for our schools, it is important policing is balanced with the due consideration for the legal rights of the students concerned. Strip searches are among the most invasive practices that the State can apply to the civil liberties of its citizens. The threshold for its use is, therefore, necessarily high.

This is particularly the case with young people, who are accorded additional legal rights in their dealings with the police in acknowledgement of their inherent powerlessness. Furthermore, unreasonable searches are likely to instill disrespect for the law and those who enforce it among people of an impressionable age.

For those reasons the committee hopes that the police and school administrators will act with respect for the legal rights of students when dealing with drug allegations in schools.