The Armed Forces Discipline Act 1971 (AFDA) governs the discipline and administration of justice within New Zealand’s Armed Forces. It applies to Members of the Armed Forces and certain civilians closely associated with them, either on active service or under specific conditions. An important power provided by the AFDA, and associated regulations, is the power to “search” a person. This article will discuss what a “search” is, when that power can be used, and what limits it is subject to in the context of the Armed Forces.
What constitutes a “search”?
There is a key difference between a ‘routine inspection’ (or ‘rounds’) and a “search”. Section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA) protects Members of the Armed Forces against “unreasonable search or seizure” of their person, property and information, but it does not protect against routine inspections. This is because routine inspections are not considered a “search” for the purposes of section 21 of NZBORA.
So, when is something a “search”? In the context of the AFDA, Defence Regulations 1990 (DR), and Defence Manual 69 (Vol 1) (DM69), a “search” is generally considered an ‘examination of a person or property to find something that is not readily at hand or available.1 The two main powers of search are the power to “search” or detain a person, and the inherent powers of search preserved by Service custom. These powers are described in sections 95 and 97 of the AFDA, respectively.
Section 95 of the AFDA permits a Commanding Officer (CO) to “search” or detain a person (who is subject to the AFDA) where there are reasonable grounds to suspect that the person possesses anything that was unlawfully obtained (that is, stolen), or which may relate to the commission of an offence. The CO may also search the premises occupied by the suspected person, such as a cabin or barracks, and seize the property in question. This power is normally exercised on behalf of the CO (that is, by one of his or her subordinates or a member of the Military Police).
Regulation 32 of the DR is very similar to section 95 of the AFDA. It provides officers in charge (OC) of defence areas with general powers to search and detain anyone entering or leaving a defence area. This power is also normally exercised on the OC’s behalf. The officer or authorised person must have written authorisation to search (evidence of the delegated power). This includes searching the person themselves, their property, and their vehicle.
Section 97 of AFDA preserves the inherent powers of search under “service custom”. Service customs vary amongst the Army, Navy and Air Force, but generally relate to the maintenance of discipline, cleanliness, readiness, and order within the Armed Forces.2
The difference between a customary search and search under s 95 is the purpose for which the power is exercised. When a routine inspection occurs, the purpose is (or should be) to maintain cleanliness, readiness and good order. Again, this is not a “search” for the purpose of section 21 of the NZBORA. If, however, a NCO on behalf of the CO (for example) began opening drawers and going through a Service Member’s belongings, this would be a “search” under Service custom.
In R v Jack [1999] 3 NZLR 331, the Courts Martial Appeal Court (CMAC) considered whether a visit to a cabin by an officer or NCO from the HMNZS Canterbury, during which “drug equipment” was found, constituted a “search” for the purposes of section 97 of the AFDA. The Appellant had been convicted of drug-related offending arising out of items found during an inspection. The regulators (so called in the CMAC decision), in this case NCOs, had spotted an apparently damaged top drawer where the lock and part of the drawer had been broken and were partially open. The NCOs further opened the top drawer and removed a plastic tube and a brass elbow. On reviewing the circumstances, the Court concluded that the entry into the cabin was no more than a routine inspection. Consequently, the Appellant could not rely on section 21 of NZBORA to challenge the further opening of the top drawer as unlawful.
The Court accepted that during an inspection, actions constituting a “search” may occur under the authority preserved by section 97 of the AFDA, though the NCOs actions were not a “search”. If those actions are not a demonstrably justifiable limit on the right to be free from unlawful search and seizure, the search will have been unlawful. The Court in R v Jack concluded by noting that exercises of the customary power to search can take place at any time, without the consent of the personnel involved.
What does this mean for you?
If you are concerned about whether a search of your belongings was justified or a breach of your rights, the first step in getting support is to talk with a lawyer from Frontline Law about your situation and see what options we can offer you. Contact Frontline Law for a free initial consultation.
*The information in this blog post is general in nature and is not legal advice. If you need advice, you should contact us about your specific situation.
