22 June 2010

STARTER FOR 10: Breath-testing of spectators at Christ College rugby match


Where do the police get the legal authority from to breath-test spectators and refuse entry for those that have been drinking?!?


Anonymous said...

christ's ground is private property - so can presumably authorize the police to prevent entry... that's why that ground is used for visiting international sides - so the public can be excluded

Idiot/Savant said...

I'd agree with Anon, except that I don't understand why the police, rather than private security guards, are doing it. Did the school pay them for their time? or are the police the private security goons of the rich?

Andrew Geddis said...


Perhaps these news reports from previous years give some indication as to why the Police might have a role in stopping drunk people attending that particular match:

From 2008: "It is understood police made at least three arrests as old rivalries got out of hand."

From 2009: "Christchurch saw a brawl last month involving spectators at a match between Christ's College and Boys' High involving up to 250 people. Police drew batons and said many spectators were "very drunk"."

But I guess you COULD argue that the Police should take no proactive steps to stop crimes from occurring where those involved happen to be rich. Or that those who are rich should not be able to call upon the State to protect them from physical assault.

Just don't then go bitching about the rich setting up their own form of private policing, m'kay?

Idiot/Savant said...

Andrew: I have no problem with the police policing the match or protecting people from assault. But that's a seperate question from their acting as bouncers to control entry to a private function.

Andrew Geddis said...


Just like this provision of a private taxi service for students at Otago was wrong?

Or the provision of police to supply traffic control for a protest march is wrong?

I really can't see why the Police should have to wait until a drunken mob start beating each other up until they take steps to stop a breach of the law!

Dean Knight said...

Christ's property might be private in one respect, as a school (integrated?) the ability to exclude is subject to the BoR.

And, as a school, BoR search and seizure provisions also applies to it.

But it's police involvement which most troubles me. Are they simply acting a renta-bouncers? Is that a lawful activity for the Police to be involved in some sort of "private" capacity? And, if it's the exercise of some state coercive power, where is the authorisation to do so? Breath-testing is specifically authorised for driving purposes, but not generally.

I wonder, Andrew, whether it might fall in the Ngan / Entick category?

Andrew Geddis said...

Not sure what the possible legal problem could be ... .
(1) Does the BORA apply to an integrated school in its holding of a sports game - hardly a "public function, power or duty"?
(2) Even if it does somehow apply, is mandatory breath testing an "unreasonable search" given previous experiences at the event?
(3) While the police require affirmative power to stop and breath test people on the public road, there's no need for such authorisation here (no public right to enter the grounds; no penalty for refusing the test (apart from not getting into the game)).

As I asked I/S above - how could this be any more problematic in a legal sense than the Police proactively hiring buses to give students a lift to/from town?

Sometimes we can legal types can be a bit TOO precious about all this sort of thing...

Graeme Edgeler said...

First, we have the Policing Act 2008:

9 Functions of Police
The functions of the Police include—
(a) keeping the peace:
(b) maintaining public safety:
(c) law enforcement:
(d) crime prevention:
(e) community support and reassurance:
(f) national security:
(g) participation in policing activities outside New Zealand:
(h) emergency management.

Reasonable arguments can be made that this comes within at least half of these.

Second, Christ's College is not state-integrated. It's private. And I'm with Andrew in not being convinced that their holding a rugby match this is the exercise of a public power or duty. Are you saying that the mere fact it's a school means BORA applies (i.e. it's the nature of the body, not the power being exercised, that is important)?

Which isn't to say I don't find it odd that the cops might be acting as a private security force...

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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