Today the Education Amendment Bill was reported back to the House. While much of the debate on the Bill will focus on the establishment of charter schools, there are some very important changes to the powers of schools around search and surrender of student property.
As a committee we spent a lot of time debating these issues, and I think the position we reached is sensible. Schools have a very difficult job balancing the rights of individual students with the rights of all students and staff to work in a safe environment. The clearer the rules and guidelines are, the easier it will be for schools to tread that fine line appropriately.
Here is a quick summary of some of the key provisions of the Bill (paraphrased):
- 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 that student’s person, or in any bag or 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, they may require the student to produce and surrender that item. If the item is contained on a computer or electronic device they may require them to reveal the item or surrender the device on which it is stored.
- Where there are reasonable grounds to suspect a student has a harmful item (one that poses an immediate threat to the physical or emotional safety of any person) in their possession and the student has refused to produce or surrender it, the teacher or authorised person may ask a student to remove a jacket or outer clothing so that it can be searched (but this would not be allowed if they had no clothing underneath it); require the removal of a head covering, gloves, footwear or socks (but this specifically excludes tights and stockings); require a student to hand over a bag or other container and allow it to be searched.
- Such actions need to be done with sensitivity and so as to afford the student maximum privacy and decency; and that where possible the search be carried out by a teacher of the same sex as the student, in the presence of another teacher or authorised staff member of the same sex.
- A school may allow a contractor to bring a suitably trained dog onto their premises to search school property such as desks or lockers (but not to search students).
- The legislation also requires the Secretary of Education to issue rules regarding the surrender and retention of property and searches by schools. These rules will need to spell out requirements for written records to be kept, how any property confiscated is to be dealt with, the procedure for authorising staff members, and so forth. These rules are treated as regulations and can therefore be disallowed by the Regulations Review committee.
The Bill makes it very clear that students are not allowed to be strip searched, nor is any property they possess allowed to be forcefully confiscated. If a student refuses to comply, the school may take appropriate disciplinary action, for example stand down / suspension from school. While the legislation authorises a teacher or authorised person to ‘require’ a student to do the things above, they cannot be ‘forced’ to do it.
If a student refuses to show a teacher an item on an electronic device (eg. a cellphone, laptop or tablet), the teacher can ask them to hand the device over, but they couldn’t then search it without the students consent.
It’s also important to note that there need to be reasonable grounds for suspicion, and that the power to require students to surrender items is limited to items that present a risk to safety or to the learning environment. The very limited powers around search are even further limited to only cases where there is an immediate risk to safety.
Schools should be safe places, free of drugs and weapons. Teachers shouldn’t be required to act as ‘police’ but they should have the ability to deal appropriately with the very real challenges they face on a daily basis. I think the new provisions, as amended by the select committee, get the balance about right.