Education and Training Reform
Amendment (School Safety) Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The Bill will authorise principals of Government schools to ban, search for
and seize harmful items that are on school grounds, or in the possession of
students at school or when engaged in teacher supervised student activities.
It will also permit assistant principals and authorised teachers to search for
and seize such items.
Harmful items are defined as those items covered by the Control of
Weapons Act 1990 and the Firearms Act 1996, those items declared by the
principal to be banned, or those items which the principal reasonably suspects
are being used, or are likely to be used in a threatening, violent or harmful
manner.
The measures introduced by the Bill address the uncertainty of the current
rights of principals in respect of the above matters. The current rights may be
implied in part from a teacher's obligation to protect students in his or her
charge from risks of injury which are reasonably foreseeable, and from the
Government's rights of ownership of school grounds. However the extent of
these implied rights is uncertain, and the Bill will provide principals and
school communities with a clear statement on these matters.
Clause Notes
PART 1—PRELIMINARY
Clause 1
571003
states the main purpose of the Bill, which is to amend the
Education and Training Reform Act 2006 so as to provide for
powers for Government school principals and others in relation to
weapons and other items in the possession of students, and to
make related amendments to that Act.
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BILL LA INTRODUCTION 20/12/2010
Clause 2
in subclause (1), provides that subject to subsection (2), the
provisions of the Bill come into operation on a day or days to be
proclaimed.
Subclause (2) contains a default commencement date of
1 January 2012, which is the date the Bill will commence unless
it is proclaimed to operate before that date.
PART 2—AMENDMENTS TO THE EDUCATION AND
TRAINING REFORM ACT 2006
Clause 3
inserts a new "Part 5.8A—Harmful Items" in the Education
and Training Reform Act 2006. The new Part will contain
seven new sections, 5.8A.1 to 5.8A.7.
Section 5.8A.1 will insert the definitions of authorised teacher,
harmful item, possession, prohibited item and teacher.
The term prohibited item is limited to firearms within the
meaning of the Firearms Act 1996, and controlled weapons and
prohibited weapons referred to in the Control of Weapons Act
1990. The latter Act contains the following definitions—

a controlled weapon in defined in section 3 as meaning
a knife or any article prescribed by the regulations to be
a controlled weapon. (Schedule 3 of the Control of
Weapons Regulations 2000 prescribes spear guns,
batons, bayonets, imitation firearms and a cattle prod as
controlled weapons);

a prohibited weapon is defined as an article that is
prescribed by the regulations to be a prohibited weapon.
(Schedule 2 of the Control of Weapons Regulations
2000 prescribes flick knives, daggers, knuckle knives,
articles designed to conceal knives, butterfly knives,
double end knives, push knives, crossbows, blow guns,
darts, slingshots, catapults, dart projectors, batons,
knuckle dusters, swords and various other instruments
as prohibited weapons).
The term harmful item in the Bill includes prohibited items, as
well as—

items declared by the principal under section 5.8A.2;
and
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
any item which a person conducting a search or seizing
items reasonably believes is being used or is likely to be
used in a threatening, violent or harmful manner.
Section 5.8A.2 will authorise the principal to declare that certain
items must not be brought onto school premises, or can only be
brought onto school premises at particular times or for particular
purposes. These declared items must be items which the
principal reasonably believes are likely to be used in a
threatening, violent or harmful manner. Any declaration must
be in writing and circulated to the school community.
The principal's capacity to declare items is intended to cover a
range of different circumstances, for example—

the use of a screwdriver during and for the purposes of a
vocational education class may be appropriate, but the
possession of it outside the class may not;

the use of a screwdriver in a threatening or aggressive
manner during a vocational education classes would be
inappropriate;

different schools may have different harmful scenarios
developing.
Section 5.8A.3 will authorise the principal, an assistant principal
or any authorised teacher to search for harmful items, if the
person conducting the search reasonably believes that the search
will uncover harmful items. The search can be conducted in
respect of any of the following—

the school premises;

premises occupied by students while engaged in a
teacher supervised student activity. This might include
overnight accommodation at a motel during an
excursion;

any vehicle used for the purpose of a teacher supervised
student activity. This might include a car driven by a
parent to an excursion destination;

any bag or other article used by the student for storage
that has been brought onto school premises. This might
include school bags, lunchboxes, backpacks and other
items used to store matters; or that is being used by the
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student for storage that is being used by the student
while engaged in a teacher supervised student activity.
This section authorises the person conducting a search to require
locked rooms or cupboards or other items to be unlocked, require
students to open any bag or other articles used for storage,
require students to turn out their pockets, and to ask a student
whether or not the student is concealing a harmful item.
This section does not refer to or authorise a search of the
student's person, or touching or patting down a student. Nor does
it cover students travelling to and from school, or outside the
school premises, except when engaged in a teacher supervised
student activity.
Subsection (4) provides that the powers under this section
must be exercised in accordance with any regulations.
Those regulations will need to comply with the provisions of
the Subordinate Legislation Act 1994.
Section 5.8A.4 will authorise the principal, an assistant principal
and authorised teachers to seize harmful items. This right can be
exercised independently to the right under the previous section to
undertake a search. Irrespective of whether a search is first
undertaken, harmful items can be seized if they are found on
school premises, on premises occupied by students on a teacher
supervised student activity, on any vehicle used for a teacher
supervised student activity, or in the possession of a student at
school or while engaged in a teacher supervised student activity.
Subsection (3) provides that an item must not be seized if the
person having possession of the item has an exemption or lawful
excuse under the Control of Weapons Act 1990 or the Firearms
Act 1996. This is required because all knives fall within the
meaning of controlled weapon under the Control of Weapons
Act 1990, however the offence provision in section 6 of that Act
only prohibits a person from possessing, carrying or using a knife
without a lawful excuse. For example, a student would appear to
have a lawful excuse for being in possession of a knife for the
purpose of peeling an orange. Also section 8B and 8C of the
Control of Weapons Act 1990 enable the Governor in Council
and Chief Commissioner of Police to grant exemptions and
approvals.
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Subsection (4) provides that the powers under section 5.8A.4
must be exercised in accordance with any regulations.
An explanation of the regulation making process and their
disallowance is contained in the notes to section 5.8A.3.
Section 5.8A.5 is one of three provisions which deal with how
the principal is to deal with seized items. The other two
provisions are in clause 6 (which covers the seizure of prohibited
weapons, controlled weapons and dangerous articles under the
Control of Weapons Act 1990), and clause 7 (which covers the
seizure of firearms).
Clauses 6 and 7 require seized firearms within the meaning of the
Firearms Act 1996, and prohibited weapons within the meaning
of the Control of Weapons Act 1990, to be notified by the
principal to a member of the police force as soon as possible after
the seizure, and if requested by the member of the police force,
surrendered to the police.
Section 5.8A.5 deals with items not surrendered to the police
under clauses 6 and 7. It requires the principal to deal with
seized items in the following manner—

firearms and prohibited weapons that are not
surrendered to the police, may be retained by the
principal in accordance with any regulation, until the
principal is reasonably satisfied that there is no
imminent threat to the safety, security or wellbeing of
any person or property;

items which are not firearms or prohibited weapons may
in accordance with any regulations—

be notified to the police;

if so requested by the police, surrendered to a
member of the police force;

if not surrendered to a member of the police
force, may be retained until the principal is
reasonably satisfied that there is no imminent
threat to the safety, security or wellbeing of any
person or property;
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
if in the circumstances described in paragraphs (a)
and (b) above, the principal is satisfied that there is no
imminent threat to the safety, security or wellbeing of
any person or property, the principal may in accordance
with any regulations return the item—

to the parent or guardian of a student if the item
is owned by the student; or

to the owner of the item if the owner is aged
18 years or over, or otherwise to the parent or
guardian of the owner.
Section 5.8A.6 enables a principal or assistant principal to
authorise a teacher to conduct a search or seizure in the following
circumstances—

a teacher supervised student activity is taking place; and

the principal or assistant principal is not or will not be
present at to carry out a search or seizure.
Both the requirements in paragraphs (a) and (b) must be satisfied
for an authorised teacher to undertake a search or seizure.
For example, where the requirement of paragraph (b) is not
satisfied, namely that the principal or assistant principal is
present on the teacher supervised student activity, the authorised
teacher will not be permitted to conduct a search or seizure. In
that instance, the principal or assistant principal will be
responsible for undertaking any search or seizure.
Section 5.8A.7 states that the provisions of the new Part 5.8A are
not in derogation of any other powers that a principal, assistant
principal or teacher has. These other powers include the power
to suspend or expel students under section 2.2.19 of the
Education and Training Reform Act 2006, the principal's
obligation under regulation 16 of the Education and Training
Reform Regulations 2007 to implement the student behaviour
policy developed by the school council under regulation 13 of
those regulations, and the rights arising out of a teacher's
obligation to protect students from risks of injury that are
reasonably foreseeable.
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Clause 4
amends Schedule 6 of the Education and Training Reform Act
2006. That Schedule contains the list of items on which the
Minister for Education may make Ministerial Orders.
The amendment will enable the Minister to make Orders dealing
with—

the manner in which search and seizure powers may be
exercised under Part 5.8A;

matters relating to actions to be taken after an item is
seized under the new Part 5.8A; and

the type of items that may be declared by a principal
under Part 5.8A.
The regulations referred to in the new sections 5.8A.3 to 5.8A.5
will be the main form of subordinate legislation under the Bill.
The Ministerial Orders will supplement those regulations but
neither are intended to widen or enlarge the powers given to
principals and teachers in the Bill. The matters covered by
Ministerial Orders under paragraph (b) could cover matters such
as the storage of items after a seizure. Ministerial Orders under
paragraph (c) may be necessary having regard to the different
scenarios that may develop in various schools.
PART 3—AMENDMENT TO THE CONTROL OF WEAPONS
ACT 1990
Clause 5
contains a statute law revision to section 7A(4) of the Control of
Weapons Act 1990 which replaces the reference to "firearm"
with the words "prohibited weapon, controlled weapon or
dangerous article".
Clause 6
amends the Control of Weapons Act 1990 so as to exempt a
principal, assistant principal, or authorized teacher from
committing an offence under that Act for being in possession of
items seized under the provisions of the Bill.
The clause also requires the person who seized a prohibited
weapon to advise the police of the item as soon as possible, and if
requested by the police, to surrender it to the police.
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PART 4—AMENDMENT TO THE FIREARMS ACT 1996
Clause 7
amends the Firearms Act 1996 so as to exempt a principal,
assistant principal, or authorized teacher from committing an
offence under that Act for being in possession of items seized
under the provisions of the Bill.
The clause also requires the person who seized the item to advise
the police of the item as soon as possible, and if requested by the
police, to surrender it to the police.
PART 5—REPEAL OF AMENDING ACT
Clause 8
provides that this amending Bill will be repealed on 1 January
2013. This repeal will not affect the continuing operation of the
amendments made by the Bill.
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