Education and Training Reform (School Safety) Regulations 2021

The Regulations operate through several key concepts, all defined by reference to the Act. “Harmful item” is not defined in the Regulations themselves; it takes its meaning from section 5.8A of the Act. The Regulations distinguish between “a firearm or prohibited weapon” and “a harmful item (other than a firearm or prohibited weapon)”. A “firearm” is defined under the Firearms Act 1996 (Vic) and a “prohibited weapon” under the Control of Weapons Act 1990 (Vic). Because the Regulations do not replicate these definitions, users must cross-reference those Acts. The distinction matters: a higher threshold applies to searches for firearms or prohibited weapons than to searches for other harmful items.

“Searching” is not defined in the Regulations but is governed by the Act. The Regulations do not specify the permissible scope of a search (e.g., pat-down, bag inspection, electronic device). That is left to the Act and to any departmental policies. The Regulations focus only on the preconditions: reasonable suspicion, safety assessment, and consideration of alternatives. “Seizure” similarly is not defined; it is assumed to mean taking physical control of the item.

The Regulations introduce the concept of “reasonable suspicion” (for firearms/prohibited weapons) versus “reasonable belief” (for safety of search). Reasonable suspicion is a lower standard than reasonable belief in Australian law, requiring some factual basis but not proof on the balance of probabilities. The Regulations use “reasonably suspects” in regulation 6(1)(a) and “reasonably believes” in regulation 6(2). This is a deliberate distinction: a principal need only suspect an immediate threat for a firearm search, but must affirmatively believe the search is safe. The difference may have practical significance in litigation.

“Passenger services vehicle” is defined in regulation 5 by reference to the Transport Integration Act 2010. This captures buses, trams, and trains used for public transport. Regulation 6(4) limits searches of such vehicles to areas “wholly or substantially occupied by students under the supervision of the person”. This prevents authorised persons from conducting a blanket search of a public bus; they can only search the section where their students are sitting. Regulation 7 extends the same limitation to non-school premises generally: searches must be confined to areas “substantially occupied by students attending a teacher supervised activity”. This suggests that a school excursion to a museum would allow search of the room or gallery where students are gathered, but not the entire building.

The concept of “safe and secure storage” is central to Part 4. For firearms and prohibited weapons, the standard is high: locked strongbox or safe, in a locked room, with principal supervision. For other items, the standard is vague: “safe and secure manner”. The Regulations do not specify how long items can be held before being surrendered to police or returned. That timeline is presumably governed by the Act or by departmental procedures. The Regulations also do not address what happens if an item is never claimed; presumably it would be destroyed or disposed of under police direction.

The Regulations directly affect three groups. The primary duty-holders are “Government school principals” and “other persons” authorised under section 5.8A of the Act to conduct searches and seizures. The Regulations do not define who these “other persons” might be, but the Act permits delegation to teachers or other staff. In practice, deputy principals, wellbeing coordinators, and possibly school chaplains or psychologists could be authorised. Any person exercising these powers must comply with the procedural preconditions.

The second group is students. They are the subjects of searches and seizures. The Regulations do not confer any rights on students; rather, they impose constraints on the power holder. However, students are the beneficiaries of the safety requirements: the regulations require that searches not unduly threaten student safety, and that seizure be safe. Students also bear the burden of having their property searched and possibly seized. The Regulations do not address consent, notice, or the right to be accompanied by a parent or guardian. Those matters are left to the Act or departmental policy.

The third group is vehicle operators and members of the public. Regulation 6(3) requires that, where practicable, the operator of a vehicle (e.g., a bus driver) be asked for consent before a search. This is a weak constraint: “where practicable” leaves room for urgency to override the requirement. Operators of passenger services vehicles (e.g., public transport drivers) are also indirectly affected because searches of their vehicles are confined to student-occupied areas. They are not required to assist, but may be inconvenienced.

Teachers and staff who are not authorised searchers are affected indirectly because they may be present during searches or may be asked to supervise students while a search occurs. However, the Regulations do not impose duties on them directly.

Police are not directly regulated by these Regulations, but they are referenced as an alternative: principals must consider the practicality of a police officer carrying out the search or seizure before proceeding themselves (regulations 6(1)(c) and 8(b)). This creates an obligation to engage police where feasible, especially for firearms. Police also receive seized items: regulation 10 requires firearms to be surrendered to a police officer as soon as practicable, and regulation 11 allows other items to be returned to the owner or guardian.

The Regulations do not apply to non-government schools. They are made under the Education and Training Reform Act 2006, which covers government schools. Private and Catholic schools have their own governance and are not authorised to search under these provisions. They would need to rely on parents’ consent or call police.

The core duty is the obligation to satisfy the preconditions before searching or seizing. The Regulations impose a cascading set of conditions, and failure to satisfy any one condition renders the search or seizure unlawful. For searches for firearms or prohibited weapons under regulation 6(1), the duty-holder must: (a) reasonably suspect an immediate threat to safety, security or wellbeing that requires immediate action; (b) ensure the search can be conducted without unduly threatening safety of the person, students, or staff; and (c) consider other reasonable actions, including the practicality of police conducting the search. This is a cumulative test. A principal who proceeds without a reasonable suspicion of an immediate threat, or without considering police involvement, breaches the regulation.

For searches for other harmful items, the only precondition is a reasonable belief that the search can be conducted safely (regulation 6(2)). There is no requirement to suspect an immediate threat or consider police. However, the safety assessment must be made on reasonable grounds. The duty is to not conduct a search unless that belief is held. The Regulations do not specify what constitutes “unduly threaten safety”. That will be a factual question: a search of a student with a knife might be safe if the student is compliant; searching a student suspected of carrying a concealed blade in an agitated state might be unsafe.

Vehicle searches have an additional duty: seek the operator’s consent where practicable (regulation 6(3)). The duty is to seek consent, not to obtain it. If consent is refused, the search may still proceed if the other conditions are met. However, for passenger services vehicles, regulation 6(4) imposes a spatial limitation: search only the area occupied by supervised students. This is an absolute duty, not qualified by practicability.

The duty in relation to seizure differs for firearms versus other items. For firearms and prohibited weapons, the duty is to not seize unless the person considers it safe, having regard to potential harm if not seized and the practicality of police doing it (regulation 8). This is a two-factor test: safety of seizure and alternative of police. For other items, the duty is simply to determine that seizure can be carried out safely, considering potential harm if not seized (regulation 9). Note that regulation 9(1) says “must not seize … unless the person has determined that the seizure can be carried out safely”. The determination must be made; there is no explicit requirement that the determination be reasonable, but an unreasoned determination would likely be challenged.

After seizure, the duty is to store items appropriately. For firearms and prohibited weapons, the storage duty is prescriptive: locked container in locked room, with principal supervision, or as safe as practicable (regulation 10). For other items, the duty is simply to store safely and securely (regulation 11). There is no time limit stated. There is also a duty to eventually surrender to police or return to owner or guardian. The Regulations do not specify a timeframe for return, but presumably the Act or departmental policy would require prompt action.

Students do not have explicit rights under these Regulations. Their rights would arise from the Act, common law, or the Charter of Human Rights and Responsibilities Act 2006 (Vic). The Regulations do not require that students be informed of the reason for a search, be given an opportunity to surrender the item voluntarily, or be accompanied by a parent. However, the safety preconditions indirectly protect students from unsafe searches. There is no right to be present during a search of property; but a student may have a right to be present under the Act or policy.

The Regulations themselves contain no penalty provisions. They are subordinate legislation made under section 5.10.1 of the Act. Any breach of the Regulations does not create a separate criminal offence unless the Act provides a penalty for contravening the Regulations. The source does not indicate that the Act attaches a penalty to a breach of these regulations. Therefore, enforcement relies on other mechanisms. An unlawful search could lead to civil liability for trespass to the person or conversion of goods, or an application for judicial review of the decision to search. It could also be a breach of the Charter of Human Rights (e.g., right to privacy and reputation, right to freedom from arbitrary interference). The principal could face disciplinary action by the Department of Education for failing to follow procedure.

For criminal consequences, if a search or seizure is conducted in a manner that amounts to assault, the person conducting it could be charged under the Crimes Act 1958 (Vic). If a firearm or prohibited weapon is seized unlawfully, the person seizing it could be liable for theft or trespass. However, the Regulations are designed to provide a lawful authority for what would otherwise be a trespass or conversion. If the preconditions are met, the search is lawful. If they are not met, the search is unauthorised and the person loses the protection of the Act.

The Regulations also impose duties on the principal regarding storage. Failure to store a firearm securely could be an offence under the Firearms Act 1996 (Vic) if the principal is not the licence holder, but the principal is not required to hold a licence; the duty under regulation 10 is a regulatory duty, not a criminal offence. However, unsafe storage could lead to the firearm falling into wrong hands, which could create liability under negligence or occupational health and safety laws.

Enforcement of the Regulations may be through internal Department of Education oversight, complaints to the Victorian Ombudsman, or applications to the Victorian Civil and Administrative Tribunal (VCAT) for review of administrative decisions. The Act may provide for a review mechanism, but the source does not specify.

The Regulations have a sunset date of 14 December 2031 (10 years after making, under the Subordinate Legislation Act 1994). If they are not remade, the search and seizure powers under the Act would still exist but without the procedural constraints of these Regulations. However, the Act itself likely contains some procedural requirements; the Regulations supplement those.

These Regulations are made under section 5.10.1 of the Education and Training Reform Act 2006 (Vic). That Act contains the substantive search and seizure powers in Division 5.8A. The Regulations do not replace or modify those powers; they add procedural conditions. A principal must comply with both the Act and the Regulations. If the Act requires something the Regulations do not (e.g., parental notification), that continues to apply. The source does not reproduce the Act, so we cannot list those additional requirements.

The Regulations interact with the Transport Integration Act 2010 through the definition of “passenger services vehicle”. The Transport Integration Act governs public transport in Victoria. The Regulations allow searches on those vehicles but restrict them to student areas. This interacts with the rights of other passengers and the duties of public transport operators. A principal searching a bus must not interfere with non-students.

The Regulations also interact with the Firearms Act 1996 (Vic) and the Control of Weapons Act 1990 (Vic) through the definitions of firearm and prohibited weapon. A principal seizing a firearm is not required to hold a firearms licence, but the storage requirements under regulation 10 may need to be compatible with any statutory storage obligations under the Firearms Act. The Firearms Act requires secure storage of firearms; regulation 10’s requirement of a locked strongbox in a locked room with principal supervision is consistent with that. However, if the principal stores the firearm for more than a short period, they may need to comply with licensing provisions. Practical guidance suggests surrendering to police promptly.

The Subordinate Legislation Act 1994 governs the making and sunset of regulations. The Regulations sunset after 10 years. That Act also requires consultation and impact analysis, but that is not relevant to interpretation.

The Charter of Human Rights and Responsibilities Act 2006 (Vic) is relevant. Section 13 protects privacy and reputation, and section 21 protects liberty. A search of a student could be an interference with privacy. The Charter requires that any limitation be demonstrably justified in a free and democratic society. The Regulations provide procedural checks (reasonable suspicion, safety, consideration of police) that help justify searches, but they do not require a warrant or independent oversight. A student could argue that a search without parental consent or without a warrant breaches the Charter. The principal must consider the Charter in decision-making.

The Regulations also interact with occupational health and safety legislation, particularly the Occupational Health and Safety Act 2004 (Vic). A principal has a duty to provide a safe workplace. Conducting a search that is unsafe could breach that duty. Conversely, failing to search for a weapon could also breach the duty to provide a safe environment. The Regulations attempt to balance these by making safety a precondition.

There is no direct interaction with criminal procedure laws. The Regulations are administrative, not criminal. However, if a search yields evidence of a crime, that evidence may be admissible in criminal proceedings unless obtained through unlawful means. An unlawful search could exclude evidence under the Evidence Act 2008 (Vic) (uniform evidence law) or at common law.

The Regulations are Version No. 001, as at 20 December 2021. According to the Endnotes, Table of Amendments (Endnote 2), “There are no amendments made to the Education and Training Reform (School Safety) Regulations 2021 by statutory rules, subordinate instruments and Acts.” Endnote 3 confirms that “This version does not contain amendments that are not yet in operation.” Therefore, the Regulations are unchanged since commencement. They revoked the previous 2011 Regulations (S.R. No. 165/2011) and replace them entirely. The 2011 Regulations are not before us, so we cannot compare the two. However, the version number suggests this is the first version of the 2021 instrument.

The Regulations were made on 14 December 2021 and came into operation on 20 December 2021. The gap of six days allowed for publication. The sunset is 14 December 2031 (10 years after making). This is a standard subordinate legislation sunset period in Victoria. The Regulations will expire automatically unless remade. Any future amendments will appear in subsequent versions. As at the version date (20 December 2021), no amendments are pending.

The absence of amendments is not surprising for a recent instrument. However, practitioners should check the Victorian legislation website for any later versions. The Regulations may be amended if the Act is amended, or if operational experience suggests changes. Common areas for potential amendment: refining the definition of harmful item, adding requirements for parental notification, or adjusting the storage standards.

The source does not mention any litigation involving these Regulations. Given that they came into operation in December 2021 and the version before us is from that date, there may be no reported cases interpreting them. The predecessor regulations (2011) may have been litigated, but we cannot refer to that because the source does not mention it. We must not invent cases.

However, we can note that the Regulations are likely to be litigated in the future if a search or seizure is challenged. Disputes could arise over the meaning of “reasonably suspects”, “immediate action”, “unduly threaten safety”, or “practicable”. The Victorian Civil and Administrative Tribunal (VCAT) has jurisdiction over administrative decisions under the Act? Possibly. Also, a claim for damages for trespass or battery could be brought in the Magistrates’ Court or Supreme Court. The Charter may also be invoked in a human rights complaint to the Victorian Equal Opportunity and Human Rights Commission or in a proceeding.

Practitioners should monitor cases such as XYZ v Principal of ABC School (hypothetical) that interpret these provisions. Until such cases arise, the Regulations remain untested. This creates uncertainty for principals: they must rely on legal advice and departmental guidelines.

Several provisions contain subtle traps. First, regulation 6(1)(c) requires that “other reasonable actions have been considered, including the practicality of a police officer carrying out the search”. This is not a duty to call police, only to consider it. But if police are available and willing, and the principal proceeds without them, the principal may need to justify why they did not wait. The regulation says “considered … including the practicality”. If police are 10 minutes away and the threat is imminent, it is practical to call them? The principal must weigh this. In practice, many principals may call police anyway for firearms, but the regulation does not mandate it.

Second, regulation 6(2) for non-firearm harmful items does not require a threat or immediate action. A principal could search a student based solely on a safety belief even if there is no threat to others. For example, a student suspected of carrying an illegal knife but not threatening anyone could be searched under this provision, because the safety of the search itself is the only precondition. The search is permissible as long as it is safe. There is no requirement of reasonable suspicion that the student actually has a harmful item. The Act itself presumably requires some basis, but the Regulations do not add that. The trap: the Regulations do not limit the power to searches based on suspicion; they only require a safety assessment.

Third, the storage requirements for firearms (regulation 10) require principal supervision of the room containing the seized item. This means the principal cannot just lock it in a safe and leave; they must supervise the room. In practice, this could be impractical during class time. The escape clause is paragraph (c): if not practicable, store as safely as possible. But “as safe and secure as is practicable” is vague. A principal who leaves a firearm in a locked filing cabinet in an empty classroom may be challenged if the cabinet is not bolted down.

Fourth, regulation 11 for other items requires storage “until the item is surrendered to a police officer or returned to the owner or the owner's guardian in accordance with the Act”. The Act may specify a timeframe. If it does not, the item could be held indefinitely. This could create liability for conversion if retention is unreasonable. Schools should have a policy for returning items quickly, perhaps by contacting guardians the same day.

Fifth, vehicle searches: regulation 6(3) says “where practicable, sought the consent of the operator”. It does not require recording the consent or the attempt. In litigation, the principal would need to prove they sought consent. Best practice: document the request and the response. Also, note that “operator” may be the bus driver, not the bus company. If the driver is not the owner, their consent may be insufficient. But the regulation only requires seeking consent from “the operator”, which likely means the person driving the vehicle.

Sixth, the Regulations do not address electronic devices. A search for a “harmful item” could include a mobile phone if it is used to threaten or bully? Possibly, but the Act’s definition of “harmful item” may be limited to weapons or dangerous articles. Schools should not assume that these Regulations authorise searching phones for text messages or social media. That would likely require a different power or consent.

Seventh, the Regulations do not require a written record of the search or seizure. However, departmental policy likely does. Without a record, proving that preconditions were met becomes difficult. Principals should document the basis for reasonable suspicion, safety assessment, consideration of police, and the steps taken.

Eighth, the “teacher supervised activity” in regulation 7 is not defined. An excursion to a park where students are not actively supervised at all times might not qualify. A class trip to a shopping centre where students are in groups under teacher supervision likely does. The phrase “substantially occupied by students” suggests a critical mass. A single student in a library with no other students nearby might not satisfy it.

Compliance requires a structured decision-making process. Before any search, the principal (or authorised person) must classify the item they suspect is present. If it is a firearm or prohibited weapon, they must follow the higher threshold under regulation 6(1). If it is any other harmful item, they follow regulation 6(2). If the search will involve a vehicle, additional steps under regulations 6(3) and (4) and 7 apply.

Step 1: Form a reasonable suspicion that the student possesses a firearm or prohibited weapon. This must be based on specific, observable facts (e.g., a student seen with a gun shape in their bag, or a credible report from another student). The suspicion must be that there is a threat to safety, security or wellbeing of a student or staff, and that immediate action is required to reduce that threat. This is a high bar: it requires both a threat and immediacy. If the threat is not immediate (e.g., a student is known to have a gun at home but not at school), the principal cannot search under this regulation. They should call police instead.

Step 2: Assess safety of the search. Under regulation 6(1)(b) (for firearms) or 6(2) (for other items), the principal must believe the search can be conducted without unduly threatening safety. Factors: the student’s behaviour, location, availability of other staff, and the nature of the suspected item. If the student is agitated or the item is dangerous, it may be unsafe to proceed. The principal should consider removing other students from the area, having additional staff present, and asking the student to voluntarily surrender the item.

Step 3: Consider other reasonable actions, especially involving police (regulation 6(1)(c)). Document why police are or are not practical. If police are minutes away and the threat is not imminent, waiting may be the better option. If the threat is imminent (e.g., a student holding a gun), the principal may need to act immediately. The regulation does not require that police be called, only that their involvement be considered.

Step 4: For vehicle searches, if practicable, ask the operator for consent. Record the request and response. If the vehicle is a public transport bus, restrict the search to the area where your students are sitting (regulation 6(4)). If off school premises (e.g., excursion), restrict search to the area substantially occupied by students (regulation 7). This may mean searching only a room in a museum, not the entire building.

Step 5: Conduct the search in a manner that is safe. Use the least intrusive method possible. Do not use force unless necessary and permitted by the Act. The Regulations do not authorise strip searches. If the student resists, stop and call police.

Step 6: If an item is found, decide whether to seize. For firearms and prohibited weapons, assess safety of seizure (regulation 8): consider potential harm if not seized, and practicality of police seizure. If safe and police are not coming soon, seize. For other items, determine safety (regulation 9): consider potential harm if not seized. Seize only if safe.

Step 7: After seizure, store immediately. For firearms: locked strongbox or safe in locked room, with principal supervising the room. If not possible, use best alternative. For other items: safe and secure place, e.g., locked drawer in principal’s office.

Step 8: Contact police promptly for firearms and prohibited weapons (regulation 10 says “until surrendered to a police officer”; this suggests prompt surrender). For other items, either surrender to police or contact the student’s guardian to arrange return (regulation 11). The Act may provide a timeframe; comply with that.

Document every step: the reasonable suspicion, the safety assessment, the consideration of police, the consent request, the search itself, the seizure, and the storage. Include times and witnesses. This protects against later challenges.

Train all staff who may be authorised to search. Ensure they understand the distinction between firearms and other items. Have a written protocol that incorporates these Regulations. Regularly review compliance with storage requirements, especially for firearms. Consider having a designated secure cabinet for seized items.

Liaise with local police to establish protocols for firearms incidents. Police may prefer to be called immediately rather than have a principal seize a weapon. The Regulations allow for that preference. If police are available, it is often safer to let them handle it.

Compliance is not just a legal obligation; it is a risk management issue. Non-compliance could lead to civil liability, disciplinary action, or harm to students. The Regulations balance the need for school safety against the risks of unsafe searches. Following the steps carefully minimizes both risks.