Education Amendment Act 2013

Surrender and retention of property and searches

28 New sections 139AAA to 139AAI inserted
  • After section 139A, insert:

    139AAA Surrender and retention of property
    • (1) This section applies if a teacher or an authorised staff member has reasonable grounds to believe that a student has hidden or in clear view on or about the student's person, or in any bag or other container under the student's control, an item that is likely to—

      • (a) endanger the safety of any person; or

      • (b) detrimentally affect the learning environment.

      (2) If this section applies, the teacher or authorised staff member may require the student to produce and surrender the item.

      (3) If the item is stored on a computer or other electronic device, the teacher or authorised staff member may require the student—

      • (a) to reveal the item:

      • (b) to surrender the computer or other electronic device on which the item is stored.

      (4) A teacher or an authorised staff member may do either or both of the following to an item surrendered under this section:

      • (a) retain the item for a reasonable period:

      • (b) dispose of the item (if appropriate).

      (5) A teacher or an authorised staff member may retain a computer or other electronic device surrendered under subsection (3)(b) for a reasonable period.

      (6) If an item or a computer or other electronic device is retained under this section, it must be stored in an appropriate manner.

      (7) At the end of any period of retention, any computer or other electronic device, or any item that is not disposed of under subsection (4)(b), must be—

      • (a) returned to the student; or

      • (b) passed to another person or agency, as appropriate.

      (8) A teacher or an authorised staff member who exercises a power under this section must comply with any rules made under section 139AAH.

      (9) In this section and sections 139AAB to 139AAI, unless the context otherwise requires,—

      authorised staff member means an employee of a board who is authorised by that board,—

      • (a) when used in this section, to exercise powers under this section; and

      • (b) when used in section 139AAB, to exercise powers under that section

      item includes information stored in electronic form

      student includes a person under the supervision of a teacher, whether or not the person is enrolled at the school at which the teacher is employed

      teacher means a person employed at a State school in a teaching position (within the meaning of section 120).

      (10) An authorisation referred to in the definition of authorised staff member in subsection (9) must be in writing and may be subject to conditions.

    139AAB Searches of clothing and bags or other containers
    • (1) This section applies if—

      • (a) a teacher or an authorised staff member has reasonable grounds to believe that a student has on or about the student's person, or in any bag or other container under the student's control, a harmful item; and

      • (b) the teacher or authorised staff member has required the student to produce and surrender the harmful item under section 139AAA and the student has refused to produce and surrender it.

      (2) If this section applies, the teacher or authorised staff member may do any of the following:

      • (a) require the student to remove any outer clothing, except where the student has no other clothing, or only underclothing, under that outer clothing:

      • (b) require the student to remove any head covering, gloves, footwear, or socks:

      • (c) require the student to surrender the bag or other container.

      (3) The teacher or authorised staff member may search any clothing or footwear removed, and any bag or other container surrendered, under subsection (2).

      (4) If, during a search under this section, the teacher or authorised staff member finds a harmful item or an item that is likely to detrimentally affect the learning environment, the item may be seized by the teacher or authorised staff member and section 139AAA(4) to (7) apply with any necessary modifications.

      (5) A teacher or an authorised staff member who exercises a power under this section must comply with any rules made under section 139AAH.

      (6) In this section, section 139AAD, and section 139AAF,—

      harmful item means an item that a teacher or an authorised staff member has reasonable grounds to believe poses an immediate threat to the physical or emotional safety of any person

      outer clothing includes, without limitation, any coat, jacket, jumper, or cardigan

      socks does not include tights or stockings.

    139AAC Restrictions on searches under section 139AAB
    • (1) A teacher or an authorised staff member who carries out a search under section 139AAB must carry out the search with decency and sensitivity and in a manner that affords the student the greatest degree of privacy and dignity consistent with the purpose of the search.

      (2) Unless impracticable, a search under section 139AAB must be carried out—

      • (a) by a teacher or an authorised staff member who is of the same sex as the student; and

      • (b) in the presence of the student and another teacher or authorised staff member who is of the same sex as the student.

      (3) Unless impracticable, a search under section 139AAB must not be carried out in the view of any person other than the person carrying out the search, the student, and another teacher or authorised staff member.

      (4) A teacher or an authorised staff member who carries out a search under section 139AAB must—

      • (a) return any clothing or footwear removed and any bag or other container surrendered as soon as the search is completed; and

      • (b) keep a written record of any items seized under section 139AAB(4).

    139AAD Limitations on sections 139AAA and 139AAB
    • (1) Nothing in section 139AAA or 139AAB permits a teacher or staff member—

      • (a) to search any student; or

      • (b) to use physical force against a student; or

      • (c) to require a student to provide a bodily sample (but a teacher or staff member may encourage a student to participate in a voluntary drug treatment programme that involves testing of bodily samples).

      (2) Nothing in section 139AAA or 139AAB permits a teacher or an authorised staff member to have a dog with him or her for the purpose of exercising a power under that section.

      (3) The powers set out in sections 139AAA and 139AAB may not be exercised in relation to 2 or more students together unless the teacher or authorised staff member has reasonable grounds to believe that each student has an item specified in section 139AAA(1) or a harmful item on or about his or her person, or in any bag or other container under his or her control.

      (4) Nothing in subsection (1) limits or affects sections 15 and 17 of this Act or sections 41, 48, and 59 of the Crimes Act 1961.

      (5) In this section,—

      rub-down search means a search in which the person conducting the search—

      • (a) runs or pats his or her hand over the body of the person being searched, whether outside or inside the clothing of the person being searched:

      • (b) inserts his or her hand inside any pocket or pouch in the clothing of the person being searched

      search, in relation to a student, includes—

      • (a) a strip search; and

      • (b) a rub-down search

      strip search means a search where the person conducting the search requires the person being searched to—

      • (a) remove any of the latter person's clothing other than outer clothing, head covering, gloves, footwear, or socks; or

      • (b) raise, lower, or open all or any part of the latter person's clothing.

    139AAE Prohibitions on searches by contractors
    • (1) A contractor may not—

      • (a) exercise any power in section 139AAA or 139AAB; or

      • (b) search a student.

      (2) However, a contractor may bring a dog that is trained for the purpose of searching to a school and use the dog for the purpose of searching school property (including lockers, desks, or other receptacles provided to students for storage purposes).

      (3) In this section, contractor has the meaning given by section 78CA(2).

    139AAF Refusal to reveal, produce, or surrender item
    • (1) If a student refuses to reveal, produce, or surrender an item or computer or other electronic device under section 139AAA(2) or (3), a teacher or an authorised staff member may take any disciplinary steps, or steps to manage the student's behaviour, that the teacher or authorised staff member considers reasonable.

      (2) If a student refuses to remove any outer clothing, head covering, gloves, footwear, or socks or to surrender a bag or other container under section 139AAB(2), a teacher or an authorised staff member may take any disciplinary steps, or steps to manage the student's behaviour, that the teacher or authorised staff member considers reasonable.

    139AAG Power to search storage containers not affected
    • Nothing in section 139AAA or 139AAB limits or affects any power to search any locker, desk, or other receptacle provided to students for storage purposes.

    139AAH Rules about surrender and retention of property and searches
    • (1) The Secretary must make rules (which must be consistent with this Act) regulating the practice and procedure to be followed by boards, principals, teachers, and authorised staff members under sections 139AAA to 139AAF, including, without limitation, rules—

      • (a) providing for the keeping of written records relating to the use of the powers under section 139AAA; and

      • (b) prescribing requirements relating to the keeping of written records under section 139AAB; and

      • (c) prescribing the procedure for authorising staff members to exercise powers or carry out functions under sections 139AAA to 139AAI; and

      • (d) specifying the circumstances in which items may be disposed of under section 139AAA(4)(b); and

      • (e) setting out requirements for the storage of items and computers and other electronic devices under section 139AAA(6); and

      • (f) making provision for the return of items and computers and other electronic devices under section 139AAA(7)(a).

      (2) Rules made under this section are a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

    139AAI Guidelines about surrender and retention of property and searches
    • (1) The Secretary must issue guidelines for the exercise of powers and carrying out of functions under sections 139AAA to 139AAH.

      (2) Boards, principals, teachers, and authorised staff members must have regard to guidelines issued under subsection (1).