by Shopfront Youth Legal Centre
"Contraband" generally refers to items that are deemed unacceptable for young people to possess in youth services. Inevitably young people will bring these things onto the premises from time to time. This can raise some interesting legal issues:
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What items can be defined as contraband?
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Do you have power to confiscate stuff and if so, what do you do with it?
How much freedom does a youth residential service have in deciding what will be treated as contraband?
There are some items that it is illegal to possess no matter where you are. These include:
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prohibited weapons such as firearms, flick-knives and nunchakus
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prohibited drugs
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prescription drugs which have not been lawfully obtained on prescription
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child pornography
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goods which are obviously stolen.
Obviously you will have no trouble defining these items as contraband. But what about other items which are not downright illegal but which might be dangerous or inappropriate in a youth residential service? These may include:
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alcohol (while it's illegal for under 18s to possess or consume alcohol in a public place without adult supervision, it's not unlawful to have it in their own home)
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knives, scissors, etc (it's illegal to carry a knife around in a public place without a reasonable excuse, but - unless it's a prohibited weapon - it's not illegal to own one)
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pornography, racist propaganda, or other offensive material
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spray paint
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inhalants
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some types of over-the-counter medications.
So do you have a right to ban these sorts of things?
If you are running a semi-independent accommodation service, where residents sign a lease and there is no worker on site for most of the time, you are bound by the Residential Tenancies Act and you have to allow the tenant to have "quiet enjoyment" of the premises. This means that the tenant can basically do what they like as long as it is not illegal, interfering with neighbours or damaging the property. Therefore it would be OK to prohibit items that are illegal in themselves (drugs, prohibited weapons, etc). It may not be acceptable to ban other items - except perhaps alcohol, if your service is for under 18s or people who have had AOD problems.
If you are running a refuge with workers on shift around the clock, you are not bound by residential tenancy legislation and have a lot more control over what residents do on the premises, including what they bring in. Basically you would have the ultimate decision about what things you allow on the premises, but you should bear these things in mind:
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If your rules are too restrictive you might unreasonably compromise the level of service you are providing, might unreasonably interfere with residents' privacy or breach access and equity principles.
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It is always preferable to have residents involved in developing and reviewing rules and policies.
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Whatever rules you make - about contraband or anything else - it is important that residents are made aware of them, and give their informed consent to abide by the rules, before they start residing at your service.
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It is good practice to have a list of items which are not allowed on the premises, together with an explanation of what will happen to certain items if they are confiscated. You will also need to provide a verbal and written explanation of what else might happen if the young person brings contraband onto the premises (eg. do they get a warning, time out, etc). You will need to go through this with the young person and make sure they understand and agree to it. Although verbal consent is just as valid as written consent, written consent is a good idea because it leaves less room for argument later on about what was agreed to.
Does a youth residential service have a right to search residents or their rooms for contraband?
In premises which are covered by the Residential Tenancies Act, landlords may conduct regular inspections by arrangement with the tenant. However, this does not give the landlord the right to search the place or the tenant's belongings.
In a refuge, workers have more freedom to search residents' rooms and belongings. It's important to clearly set out the ground rules for searches, and to conduct them fairly and with minimal interference to privacy.
Does a youth residential service have the right to confiscate contraband found on the premises?
You have a right to confiscate prohibited items such as drugs and firearms.
You must be careful about confiscating other items such as pocket knives, spray cans, etc. It is not illegal to own these things and they are still the young person's lawful property - even if residents are not permitted to have them on the premises. If the rules clearly state that such items are not allowed and will be confiscated if found - and if the client has given their informed consent to these rules - then you probably have a right to confiscate them and keep them in a safe place while the client is residing at your service.
If you suspect that some of the items in a resident's possession may be stolen, this can be quite tricky. If the items are of high value (eg. brand new TV, laptop, etc) and you have strong suspicions, you should probably involve the police. It is then up to the police to investigate and to take legal action against the young person if appropriate. It is dangerous for you to confiscate items suspected to be "hot" without involving the police. What if it turns out that the items were legitimately owned by the young person? You could be guilty of stealing.
What should a youth residential service do with items of contraband that have been confiscated?
If the items are illegal, one option is to take them to the police station. Firearms or large quantities of drugs should probably be taken to the police. Very small amounts of cannabis or pills (for example) could probably be disposed of, preferably in the young person's presence. In many cases you can hand items into the police without disclosing who they "belonged" to. However, if you bring in large stashes of drugs, guns or stolen goods, the cops will obviously want to ask some questions about where you found them.
For other items, you could get into legal trouble if you destroyed them, gave them to the police or kept them. For example, even though it may be an offence to carry a pocket knife in a public place, or to sell one to someone under 16, it's not an offence for a young person to own one. What youth refuges usually do with items like this is keep them in a securely locked cabinet or safe for the duration of the young person's stay, and then give them back when the young person leaves.
If a youth residential service includes "offensive material" in its contraband definition, how is "offensive" best determined by staff?
Obviously it is very difficult to define what is offensive. Something that is offensive to one person can be perfectly acceptable to another. If you are going to ban "offensive" material, you should list the sort of things that will be considered offensive (eg. hardcore pornography, material that is racist, sexist or homophobic, material that is likely to incite people towards violence, etc). It is important that residents are allowed freedom of expression so you don't want to be too restrictive. However, you also need to consider the needs of other residents and occupational health and safety issues for staff. If a worker has to go into a client's room and see posters on the walls that they find deeply offensive, this could be described as a hostile work environment and you could be falling foul of OH & S or anti-discrimination laws. Probably the best way to deal with "offensive" material is to have a discussion with the young person about why you think it is offensive and to persuade the young person to hand it over for the duration of their stay.
More information
Please contact us at shopfront@freehills.com or (02) 9360 1847 or visit our website at www.theshopfront.org for further information. We are unable to provide youth workers and services with legal advice but we can provide you with information and guidance which we hope will point you in the right direction.
Disclaimer
Published: 2004
The Shopfront Youth Legal Centre is a service provided by Freehills, in association with Mission Australia's Sydney City Mission and the Salvation Army.
This article was last updated in December 2004 and to the best of our knowledge is an accurate summary of the law in New South Wales at that time. This article provides a summary only of the subject matter covered, without the assumption of a duty of care. The summary should not be relied on as a substitute for legal or other professional advice.
