Type: Guideline
Classification: Operational
Policy Number: HR201807
Version: 1.0
Updated: August 2018
The Weapons Prohibition Act 1998 (NSW) prohibits certain weapons, their possession and use without a permit. It is an offence to possess or use a prohibited or non-prohibited firearm or pistol without authorisation by permit. The underlying principles of this Act are to:
- improve public safety by imposing strict controls on the possession and use of prohibited weapons
- provide strict requirements that must be satisfied in relation to the possession and use of prohibited weapons.
National Safe Schools Framework (NSSF)
The NSSF (see Student Wellbeing And Pastoral Care Policy) identifies nine elements to assist Australian schools to continue to create teaching and learning communities where all members of a school community both feel and are safe from harassment, aggression, violence, and bullying. NSSF also responds to new and emerging challenges for school communities such as cybersafety, cyberbullying and community concerns about young people and weapons.
It is an offence to be in unauthorised possession of, or to use, a prohibited weapon. Prohibited weapon means anything set out in Schedule-1 to the Weapons Prohibition Act 1998 (NSW). Prohibited weapons include, but are not limited to, flick knives, a ballistic knife (that propels a knifelike blade of any material by any means other than an explosive), sheath knives, urban Skinner, trench knives, butterfly knives, star knives. Prohibited Weapons include any items that can be used as a weapon for example: military-style weapons and miscellaneous weapons such as: spear gun, crossbow, slingshot, Saunders hunting sling, blow-gun (or blow-pipe), Farallon Shark Dart, Kung Fu sticks (or “nunchaku”), side-handled baton, Taser gun, cartridge (or similar device), knuckle-dusters, sap glove, studded gloves, walking stick or cane that contains a sword, riding crop that contains a knife, Bowen knife belt (or any other similar article), body armour vests designed for anti-ballistic purposes (but not including helmets or anti-ballistic articles used to protect the eyes or ears), handcuffs, silencers, detachable firearm magazine, rim fire rifle magazine, shotgun magazine, pistol magazine, laser pointer, or any other similar article.
3.1
Summary Offences Act 1988 (NSW)
Sydney Catholic Schools (SCS) Principals should be aware of the following offences prescribed by the Summary Offences Act 1988, in respect of knives on school premises*
- A person must not, without reasonable excuse, have in his or her custody a knife in a public place or a school.
- It is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if the custody is reasonably necessary in the circumstances, for instance, the lawful pursuit of the person’s education or training, or participation in a lawful entertainment, recreation, wearing of an uniform, genuine religious purposes, or sport. However, it is not a reasonable excuse for a person to have custody of a knife solely for the purpose of self-defence, or the defence of another person.
- A person must not, without reasonable excuse use a knife, or carry a knife that is visible in the presence of any person in a public place or a school in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
- A person must not, without reasonable excuse, have in his or her custody an offensive implement in a school or public place (section 11B). An offensive implement is anything made or adapted for causing injury to a person, or intended to be used to menace a person or damage property.
- A person must not sell a knife blade to a child under the age of 16 years of age.
- A person who sells a knife to a child under the age of 16 years is guilty of an offence. The Regulations to this Act may provide that this section does not apply to or in relation to any specified class or description of the knife. The Regulations to this Act describe some exempted knives like plastic knives that are designed for eating purposes, or any blades (other than knife blades or a blade forming part of a machete, cleaver or sword).
A person must not possess or use a firearm unless the person is authorised to do so by a licence or permit. If a person who is the holder of a licence contravenes the licence, the person is guilty of an offence.
*School premises are defined in s60D to include parks and other community premises that are being used for the purposes of the school.
The Crimes Act 1900 states that any person who uses, attempts to use, or possesses an offensive weapon or instrument, or threatens injury to any person or property with intent to commit an indictable offence, or with intent to prevent or hinder the lawful apprehension or detention either of himself or herself or any other person, or to prevent or hinder a police officer from investigating any act or circumstance which reasonably calls for investigation by the officer is liable to imprisonment (s33B). This Act further states, that any person who possesses a loaded firearm or loaded spear gun in a public place or in any other place so as to endanger the life of any other person, or carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of himself or herself or any other person or property, or with disregard for the safety of himself or herself or any other person is liable to imprisonment (s93G).
The Crimes Act 1900 (NSW) has specific offences with significant penalties for the assault, harassment, stalking and intimidation of students and staff on school premises or while entering or leaving school premises. Principals should be aware of the following offences under the Act that relate to offensive behaviour/conduct on or near schools or public places:
- Assaulting, stalking, harassing or intimidating any school student or member of staff while the student or member of staff is attending school;
- Assaulting a school student or member of staff while the student or member of staff is attending school in circumstances where the assault causes actual bodily harm. “Actual bodily harm” is an injury that is more than merely transient and trifling, including a psychiatric injury, but not mere fear or panic;
- Wounding a school student or member of staff while the student or member of staff is attending school. “Wounding” means breaking or cutting the skin of a person with malice, indifference to the outcome, recklessly, wantonly, or with intent to injure the person;
- Inflicting grievous bodily harm to a school student or member of staff while the student or member of staff is attending school. “Inflict grievous bodily harm” means to cause an injury of a serious kind but not necessarily permanent which is also done maliciously.
4.1
Principals – Power to search
4.1.1
The Principal may make the power of search, both of student’s clothing and belongings, a condition of enrolment. An enrolment application, which makes this power a condition of enrolment, should be signed by both parents or caregivers and the student.
4.1.2
Principals have an obligation to ensure school and school premises remain safe and secure for students, staff and other visitors. This duty arises from both the common law and from the Work Health and Safety Act 2011 (NSW). The common law is the law not contained in legislation but determined by precedents set by courts. The Principal has a responsibility under common law to ensure that reasonable steps are taken to protect the student from risks that are reasonably foreseeable. The Principal’s duty to take steps to protect students extends to taking reasonable care to prevent students from injuring themselves, injuring others or damaging property. While it is not a duty to provide an absolute guarantee of safety, the duty requires that reasonable steps be taken to protect students.
4.1.3
The NSSF has been adopted by SCS in its Student Wellbeing and Pastoral Care Policy as the platform for the wellbeing of students enrolled in SCS schools, to equip them to act for their own and others’ wellbeing. Element-5 of the NSSF, for example, promotes and recognises positive behaviour whereas, Element-8 promotes early intervention and targeted support to students exhibiting anti-social behaviour.
4.1.4
To give effect to this obligation a student’s bag and possessions (which includes student lockers) can be searched if a member of staff has reasonable grounds to believe the student is in possession of:
- illegal drugs
- knives, prohibited or offensive weapons
- stolen property
- illegal material such as pornographic magazines or other publications
- mobile phones, iPads, laptop computers or other technological devices which may contain material or images which are illegal, offensive or otherwise inappropriate or which contains evidence of illegal, offensive or otherwise inappropriate conduct e.g. a film of students fighting.
4.1.5
Nature of a search
- Searches should only occur with the student’s permission unless the immediate safety or wellbeing of students or other persons is at risk.
- If the student does not give permission for search his or her locker, bag or desk, the police should be contacted and asked to conduct the search.
- Principals may contact parents if deemed appropriate.
- Any search of a student’s bag or possessions should be undertaken in a private setting away from other students and be dealt with in a sensitive manner.
- Where practicable, an independent observer such as a member of staff should be present.
- When searching a student’s bag, the student should be asked to hold the bag open and move the contents around so they can be more easily viewed by the staff member conducting the search.
- Students may be asked to empty their pockets. While Principals can ask a student to empty his or her pockets any physical search of a student suspected of possessing material or items giving rise to the need to search should be carried out by police.
- The Principal/teachers should not do a ‘hands on’ search of students’ clothing/body as they run the very real risk of allegations being made against them for ‘reportable conduct’.
- If the Police are requested to attend a school to conduct a search of a student or a student’s bag or possessions an attempt should be made to contact the student’s parents prior to that.
- Where a student refuses to wait for police, that issue would be dealt with according to the school discipline policy including, where relevant, the SCS policy, on Student Management: Suspension, Transfer and Exclusion Policy and the Student Wellbeing And Pastoral Care Policy.
4.2
Police – Power to search
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
4.2.1
A police officer may request a person who is in a public place or school to submit to a frisk search if the police officer suspects on reasonable grounds that the person has a dangerous implement in his or her custody. If the person is in a school and is a student at the school, the police officer may also request the person to submit to a search of any bag or another personal effect that is on or with the person, or to submit to a search of the person’s locker at the school and an examination of any bag or another personal effect that is inside the locker. For the purposes of this, the fact that a person is present in a location with a high incidence of violent crime may be taken into account in determining whether there are reasonable grounds to suspect that the person has a dangerous implement in his or her custody.
4.2.2
In conducting a search of a person a police officer must, in the case of a search of a student in a school and if reasonably possible to do so, allow the student to nominate an adult who is on the school premises to be present during the search.
It is a requirement of any student investigation that the student is afforded the right to know what is alleged, the right to respond and the right to have their explanation considered.
5.2
The following principles underpin the basic rights of all individuals when dealing with authorities:
5.2.1
the right to respond (the hearing rule)
5.2.2
the right to an unbiased hearing (the bias rule)
5.3
SCS identifies a serious offence as an activity or behaviour by a student which:
5.3.1
seriously undermines the ethos of the Catholic school; or
5.3.2
consistently and deliberately fails to comply with any lawful order of a Principal or teacher; or is offensive or dangerous to the physical or emotional health of any staff member, visitor or any student; or
5.3.3
consistently and deliberately interferes with the educational opportunities and endeavours of other students.
6.1
clarify the purpose of the interview i.e. counselling or disciplinary.
6.2
if there is only a suspicion and there is no hard evidence, it may be preferable to avoid seeking evidence, and instead counsel the student. Professional judgment and knowledge of the student needs to be used here.
6.3
if there is hard evidence, the police must be called. In this case, the initial interview becomes disciplinary rather than counselling.
6.4
it is important to preserve the integrity of the interview process. If students are to be interviewed, whether because they are under suspicion or because they may have useful information, they should be isolated, under the supervision of a teacher if this appears necessary, until they can be interviewed.
6.5
a second person should be present at the interview and should take notes.
6.6
it is advisable to adopt a standard approach to interviews, both with students and with parents or guardians. It may be helpful to prepare and use an ‘interview script’ for each set of interviews.
6.7
it is important to allow plenty of time for each interview, about 45 minutes is suggested.
6.8
after student interviews have taken place, students should be given time to talk to their parents or guardians about what has happened before the parents or guardians are interviewed.
6.9
a student will not be sent out of the school before the end of the school day without notification being made to their parents or guardians and, if necessary, agreement reached about arrangements for the collection of the child from school.
6.10
even when the police are involved, it may be possible to request that they simply caution the students rather than laying charges. This depends on the seriousness of the offence, and also on the quality of the relationship between the school and the local police.
Principals and members of the staff should be aware, that there are laws which deal with parental responsibilities.
New South Wales is the only state to make parents or guardians responsible for weapons offences committed by children.
7.1
Summary Offences Act 1988 (NSW)
Parents or guardians who allow children to carry knives:
- The parent or guardian of a child (being a child who is under the age of 18 years) who commits an offence with prohibited weapons, is guilty of an offence if the parent or guardian knowingly authorised or permitted the child to commit the offence. This does not affect the liability of the parents/guardians’ child for an offence committed by the child against section 11C (custody of knife in a public place or school- Summary Offences Act 1988 (NSW)).
- If an act or omission constitutes an offence, under both the Summary Offences Act 1988 (NSW), and under the Children (Protection and Parental Responsibility) Act 1997 (NSW), the offender, is not liable to be punished twice in respect of that act or omission.
7.2
Weapons Prohibition Act 1998
Liability of parents* and guardians:
If a person under the age of 18 years contravenes any provision of this Act or the regulations, each parent of the person is taken to have contravened the same provision if the parent knowingly authorised or permitted the contravention. A parent may be proceeded against and convicted under a provision pursuant to the aforesaid whether or not the parent’s child has been proceeded against or convicted under that provision. Nothing here affects any liability imposed on the child for an offence committed by the child under this Act or the regulations.
*Here, parent includes a guardian.
When considering the response to students bringing weapons into the school environment or to school events/activities, the following distinction should be made:
- possession of a weapon/s
- threatening with a weapon/s
- inflicting injury with a weapon/s.
| Behaviour | Actions may include | Responsibility/Involvement |
|---|---|---|
| Possession of weapon |
|
|
| Threatening with weapon |
|
|
| Inflicting injury with weapon |
|
|
*Refer to the Student Management: Suspension, Transfer and Exclusion Policy and the Student Wellbeing and Pastoral Care Policy
The Consultant can be a useful ‘sounding board’ and source of support.
9.2
The Consultant must be informed of the situation if the issue is likely to impact outside of the school, or result in the suspension, transfer or exclusion of students.
Before contacting parents or guardians, it is important to get the facts clear.
10.2
If a student is involved in an incident involving a prohibited weapon the parents or guardians need to be informed.
11.1
If the Principal possesses evidence of a serious offence it is necessary to report that offence to the police.
11.2
When police interview a student, the evidence obtained is admissible in court ONLY if an appropriate witness is present.
11.3
For the police to obtain evidence which is admissible in court:
- for students under 16, a parent/guardian or adult appointed by a parent/guardian must be present
- for students aged 16 or 17 an adult of the young person’s choosing or a legal adviser may be present instead
11.4
If the police arrest a student, they may take him/her out of the school; the Principal cannot prevent this, but may try to negotiate with them, to wait for the arrival of parents or guardians.
11.5
The decision whether to charge a student is up to the police.
11.6
Students under the age of 16 cannot have a conviction recorded against them, although they can be found guilty and have serious penalties imposed. This prevents a student under 16 from the ‘lasting stain’ of a conviction or criminal record which could affect employment later in life (entry into certain professions), or visas for certain countries.
11.7
With students aged 16 or 17, the magistrate has the option not to record a conviction.
12.1
The SCS Communications team can assist in managing the media in a situation involving prohibited weapons at a SCS school.
12.2
Responding to the media in a professional and timely manner gives the media a good impression of the school, and particularly during a crisis, usually results in a more sympathetic response.
12.3
Ignoring the media or delaying a response can be interpreted as having something to hide. The story will more than likely be published anyway, so it is important to have some input. It is also an opportunity to present the school’s version of events.
12.4
Working with the Communications team:
- In the first instance, in the event of a prohibited weapons incident, the Principal should contact Legal, Staff Wellbeing and Professional Services and the Consultant who may alert the Communications team.
- The Principal, school support staff, and the Consultant will generally refer any media enquiries to the Communications team.
- The Communications team will determine the nature of the media enquiry. If an interview is requested the Communications team will find out how long it will take and will negotiate where and when the interview is to be held.
- The Communications team will keep in regular contact with the Principal and Consultant regarding media enquiries.
- The Communications team will help the Principal to prepare for media interviews. If necessary, a member of the Communications team will go to the school to support the Principal and liaise with the media, particularly when television reporters and film crews are involved.
- In most instances, the Principal should be the only spokesperson for the school. Staff and students should be advised to not talk to the media.
Appendix 1: Summary of Appropriate Responses to an Incident with a Prohibited Weapon (internal access only)
13.2
Appendix 2: Response to an Incident with a Prohibited Weapon: Suggested Checklist (internal access only)
Reference: HR201807-1.0G
14.2
Mandating Policy:
Knives and other Prohibited Weapons Policy
14.3
Version: 1.0
Last modified: August 2018
14.4
Audience: Public