Digital Technology: Safe and responsible use in schools
The following guide is a companion to the Guidelines for the surrender and retention of property and searches.
Licensing Criteria Cover
The legislation and rules
The Education Act 1989 and digital technology
The Education Act 1989 contains provisions that are directly relevant to how schools should manage an incident involving digital technology when it is involved in an incident.
This advice is based on the Guidelines for the Surrender and Retention of Property and Searches and accompanying rules that the Secretary for Education released in January 2014.
The legislation provides teachers and authorised staff with certain powers when they have reasonable grounds to believe that:
- a student has digital information stored on their digital device or other digital technology that Is endangering the emotional or physical safety of other students, or detrimentally affecting the learning environment.
What does the term ‘item’ mean in the legislation in relation to digital technology?
- Digital information comprising one or more of the following elements:
- text e.g. social media post, web page, email
- image e.g. digital photo uploaded to the internet
- audio e.g. music track, voice recording
- video e.g. movie clip taken on a smartphone.
- A digital device such as a smartphone, laptop, camera that can be used to create, edit, communicate, copy or store digital information.
What teachers can and cannot do
Teachers and authorised staff can... Teachers and authorised staff cannot...
Ask a student to:
- reveal the item
- delete the item (if appropriate)
- surrender the digital device on which the item is stored
- retain the surrendered digital device for a reasonable period and while the item is in their possession, they must take all reasonable care of the item and if the device is to be retained for overnight or a longer period, it must be placed in secure storage.
Teachers must ensure that a record is made and kept of the digital device. They have up to two days to complete this record.
The record must show:
- the date on which the device was taken
- name of the student from whom the item was taken
- the name of the teacher or staff who took the device.
At the end of the retaining period, the teachers must return the digital device to either:
- the student, or
- the person the item belongs to, or
- pass it on to the student’s parents/caregivers.
If a criminal offence has been suspected the device should be passed directly to the Police. For example in case of drug involvement, threatening to kill or do grievous bodily harm or criminal harassment.
- Ask any student to reveal an item in his/her digital device, or surrender their digital device without forming a reasonable belief that the student’s device is storing an item which is likely to endanger the emotional safety or detrimentally affect the learning environment.
- Search through the content of students’ digital devices or online accounts.
- Ask for students’ passwords to access the digital devices on which the item is stored.
- Ask students to download and/ or reveal items that are stored on another digital device, on a social media or other online service.
- Use physical force against a student.
- Ask two or more students to reveal or surrender their digital devices together without forming a reasonable belief that each student has an item that is likely to endanger the emotional safety or detrimentally affect the learning environment.
Summary chart: Surrender and retention of students' digital devices
This chart outlines a summary of the steps and processes in the legislation that deal with the surrender and retention of students' digital devices.
Key aspects of the legislation
Teachers must be familiar with the following aspects of the legislation which apply to the management of incidents involving students’ inappropriate use of digital devices:
- establishing reasonable grounds
- revealing and surrendering
- retaining and disposing of digital devices
- refusal to reveal an item, produce or surrender digital devices
- restrictions and limitations of teachers’ powers
- the complaints process.
Criteria – reasonable grounds
Section 139AAA(1)(a)(b) of the Education Act 1989 states:
Steps 1 and 2 on the chart summarise the criteria for requiring a student to:
- produce an item i.e. a digital device such as a computer or mobile phone, or any other electronic device, or
- reveal any information stored in digital form in a computer and other electronic devices.
A belief on reasonable grounds
Before acting under the legislation a teacher or authorised staff member is required to have reasonable grounds to believe that a student has hidden or in clear view on or about the student’s person an item that is likely to detrimentally affect the learning environment or endanger safety.
The legislation defines an item in relation to the digital technology to be:
- any tangible item such as a computer or mobile phone, or
- any digital information stored on a computer and other electronic device.
A belief on reasonable grounds will depend on the circumstances and nature of the item and may also depend on other factors such as a student’s age and maturity.
It is up to the teachers’ professional judgement to decide if reasonable grounds exist for them to use their statutory powers to manage the incident at hand. For example, a smartphone is not in and of itself a danger to anyone or detrimentally affecting the learning environment. However, it could be used to send an inappropriate text or take a photo of students in the class without their consent. In this example the class teacher may have:
- observed the student texting or taking photos, or
- received that information from a reliable or credible source that a student misused an electronic device, or
- a student who saw the text being sent or the students, whose photos were taken, complained to the teacher.
Then, the teacher would have a belief on reasonable grounds that the action of that student may be likely to detrimentally affect the learning environment or endanger student emotional or physical safety, depending on the nature of the text or the photos the student took of the unsuspecting students.
Revealing and surrendering
Section 139AAA(3)(a)(b) of the Education Act 1989 states:
Steps 3, 4, 5 and 6 on the chart deal with the surrendering, retaining and/or disposing of digital device.
If reasonable grounds have been established a teacher can require a student to:
- reveal digital items such as text or photos, or
- surrender the smartphone on which the item is stored i.e. confiscating the phone from the student.
The student must follow the teacher’s instructions and reveal the text or photos to the teacher while still in possession of the device or other technology. A teacher cannot search the digital device.
As part of investigating the incident, the teacher may need to find out from the student whether they have shared the text or photos with anyone else (in the class or outside of the class), or have stored them in any other digital device including servers in ‘the Cloud’.
The teacher’s decision-making process about whether to request that item to be revealed will be guided by factors that are relevant to the case. These may include:
- the nature of the text or photos
- whether the student has shared the photos by sending them to other students
- the attitude and the emotional impact on the affected students
- the student’s age and maturity, and
- any other relevant factors.
Viewing the item requested could also indicate that there are other items of concern on the phone. Teachers can ask the student to reveal such items. Also teachers may form a reasonable belief about the existence of other devices in the control of other students and this may lead them to separately ask each of these students to reveal items on their phones.
Teachers cannot request that a student use one digital device to access information stored another digital device, such as website content stored on internet servers, to which the phone may be linked and which may be accessible from that phone. This means that teachers cannot ask a student to download or reveal information that is stored in any of their online accounts, such as for a social media site or online Cloud storage service.
Teachers must be satisfied that there is a reasonable belief that the student has the item stored on the computer or device under his/her control before they act under the legislation. The item must be on the device in order to be requested. It cannot be requested for an item to be added to a device from elsewhere for viewing, for example, asking for it to be downloaded from the internet.
After the teacher has had an opportunity to view the text or the photos he/she may be able to establish the scope and nature of the issue. This will inform the subsequent action required.
One option is to request the surrender of the digital technology. This action should be reserved for situations where there are reasonable concerns that the data on the digital device is harmful and the device needs to be retained for further investigation or preventing harm to occur. Teachers should avoid using the surrender of electronic devices as a punishment.
Note that it is not possible to surrender digital information independently of the device it is stored on. This would create more copies of the information. If the digital information is stored on the internet it also isn’t technically possible to request its surrender. In this case, a surrendered device will, at best, contain a copy of the information that has been revealed.
Retaining and disposing
Section 139AAA(4)(a)(b) of the Education Act 1989 states:
In this example, the teacher may retain the surrendered smartphone for a reasonable period.
Rules 6 and 10 of the Education (Surrender, Retention, and Search) Rules 2013 state:
Section 139AAA(5)(6)(7) of the Education Act 1989 states:
Under this section, it becomes the teacher’s responsibility to appropriately store and look after any digital devices that students have surrendered to them.
Rule 7 of the Education (Surrender, Retention, and Search) Rules 2013 states:
A device that has been surrendered because of criminal activity should be retained only until it is practicable to pass it onto the Police.
At the end of the retention period, teachers may return the digital device to the student or pass it on to parents. Teachers should avoid using the retention or destruction (disposal) of electronic devices as a punishment.
Teachers are permitted to request the deletion (disposal) of digital information. Before doing so they should be satisfied that this request will achieve the desired outcome. For example, there may be multiple copies of the information, or it may be required as part of an investigation.
Refusal to reveal items, produce or surrender digital devices
Section 139AAF(1) of the Education Act 1989 states:
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.
If a student refuses to follow teachers’ instructions to either reveal an item on a digital device or surrender the digital device itself, then, the student can be disciplined in the usual manner for any breach of school rules.
Restrictions and limitations placed on teachers’ powers
Section 139AAD of the Education Act 1989 states:
The following restrictions apply to teachers when managing an incident involving students’ digital devices. Teachers are not allowed to:
- ask any student to reveal an item in his/her digital device, or surrender their digital device without forming a reasonable belief that the student’s device is storing an item which is likely to endanger the physical or emotional safety or detrimentally affecting the learning environment
- search through the content of student’s digital devices
- ask for students’ passwords to access the digital devices on which the item is stored
- ask students to download or reveal what is on other digital device for example, from student’s social media or online account or in the Cloud
- use physical force against a student
- ask two or more students together to reveal or surrender their digital devices without forming a reasonable belief that each student has an item that is likely to endanger physical or emotional safety or detrimentally affecting the learning environment.
The management of an incident involving student’s digital technology should be carried out:
- in a manner that gives the student the greatest degree of privacy and dignity
- away from the view of other students.
Parents’/caregivers’ complaints about the way a school managed an incident involving digital devices in relation to its policy on the surrender and retention of student property should be dealt with through the normal school complaints procedure.