Disciplinary procedures

Disciplinary procedures in schools are employed to ensure the safety of both staff and pupils in schools. Withdrawal of privileges, suspension, expulsion and a range of other punishments are methods by which schools achieve this aim. Corporal punishment has been banned in Victoria.

Introduction

Schools have a legal responsibility to protect staff and students and to provide a safe learning environment for all students. Sometimes the actions of some students threaten the health and safety of staff and other students or creates violence, either by the destruction of school property or by possession of illegal weapons and substances, or their actions generally disrupt the good order and management of the school.

Schools have the power to suspend, expel or punish students for breaches of school rules and regulations.

Suspension occurs where a student is prevented from attending school for a specified period of time. The suspension period may be limited, or longer depending on the age of the child. Longer suspension can usually occur when the child is above the compulsory school age.

Expulsion occurs when a student is permanently prevented from attending school and usually occurs when the student is engaged in serious misconduct.

In government schools, the power to suspend or expel a student is granted by legislation and regulated by the Victorian Department of Education and Training. In Catholic and independent schools, the power to suspend, expel or punish a student arises from the agreement between the school and the parents that their child will obey the rules and regulations of the relevant school.

In Victoria, the authority to discipline students for breaches of school rules arises out of section 2.2.19(1) of the Education and Training Reform Act 2006 (Vic) (“E&TR Act”), which provides:

The principal of a government school may, in accordance with any ministerial order, suspend or expel a student from that school.

Pursuant to section 5.2.12 of the E&TR Act, the relevant government minister is empowered to “make any orders that are required, permitted or authorised to be made by the minister under this Act”.

Schedule 6 of the E&TR Act provides for ministerial orders. In respect of discipline in government schools, the minister can make orders about:

4.1 The suspension or expulsion of students from government schools.

4.2 The grounds on which a student may be suspended or expelled.

4.3 The procedures to be followed before a student may be suspended or expelled.

4.4 The period for which a student may be suspended.

4.5 The grounds on which a student may appeal to the secretary against their expulsion and the procedures to be followed on such an appeal.

4.6 The means by which a student is expelled from a government school is to be given an opportunity to continue their education while of compulsory school age.

4.7 The circumstances in which the secretary may prohibit a student expelled from a government school from attending any other government schools.

Pursuant to that power, in December 2013, the minister made Ministerial Order MO625: Procedures for Suspension and Expulsion (“MO625”), which came into operation on 1 March 2014. MO625 is available at www.education.vic.gov.au.

MO625 applies to all government schools in Victoria. It provides detailed procedures that must be followed when excluding a student from school.

Also from March 2014, government schools in Victoria have operated a student engagement policy that updated and replaced previous policies on student discipline and expulsion. The new procedures are contained in Student Engagement and Inclusion Guidance 2014.

It is desirable that parents receive a copy of the school’s disciplinary procedures. The parents agreed to abide by the rules and regulations of the school when admitting their children to these schools.

Disciplinary procedure

A “relevant person” (usually a parent or guardian) should be involved in the exclusion procedure under MO625 except where the student is 18 years of age and is not considered to be a “mature minor”.

Only the principal has the authority to exclude a student. That power cannot be delegated to anyone else.

A relevant person (usually a parent or guardian) should be involved in the exclusion procedure. A student who is 18 and living at home does not have to have parental involvement, but under MO625 students “should be encouraged to have a support person or independent person” involved.

A student under 18 and living at home must have a parent or adult to support them in the procedures, as does a “mature minor”.

If the student is over 18, but under a disability, the principal must make enquiries as to the ability of the student to represent themself. If the principal is not satisfied, that student is to be treated as a “mature minor” and must have adult representation.

Suspension from school

Grounds for suspension

A principal may suspend a student if – while attending school or engaged in a school activity away from school (such as camps) (including travelling to and from that activity) – the student:

a behaves in such a way as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person;

b causes significant damage to or destruction of property;

c commits or attempts to commit, or is knowingly involved in, the theft of property;

d possesses, uses or sells or deliberately assists another person to possess, use or sell illicit substances or weapons;

e fails to comply with any clear and reasonable instruction of a staff member so as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person;

f consistently engages in behaviour that vilifies, defames, degrades or humiliates another person based on age, breastfeeding, gender identity, disability, impairment, industrial activity, lawful sexual activity, marital status, parental status or status as a carer, physical features, political belief or activity, pregnancy, race, religious belief or activities, sex, sexual orientation, personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes; or

g consistently behaves in an unproductive manner that interferes with the wellbeing, safety or educational opportunities of any other student.

Procedures for suspension

In determining whether to suspend a student, the principal must ensure it is appropriate to:

a the offending behaviour;

b the educational needs of the student;

c any disability of the student (which includes a mental or psychological condition);

d the age of the student; and

e the residential circumstances of the student.

Before implementing a suspension

The principal must ensure that the student has had the opportunity to be heard and that any information provided by the student (or the relevant person) has been taken into account in the decision about suspension. Also, alternatives to a suspension must be considered.

Before the suspension takes effect (or on the day of implementing a suspension with immediate effect)

The principal must identify the relevant person and tell the student and notify the relevant person (by phone or in person) of the reasons for the suspension and the school day on which it will occur and where the suspension will occur. The suspension must be recorded and the student and the relevant person be provided with a Notice of Suspension including the above details, together with the information brochure Procedures for Suspension. The principal must provide contact details to the student and relevant person of support services available.

Meaningful work for the student must be provided if the suspension is for three days or less. If the suspension is for longer, the principal must give the student and relevant person a Student Absence Learning Plan and a Return to School Plan.

Period of suspension

The maximum continuous period of suspension is five school days. However, the regional director may approve a longer period in circumstances where the student is suspended with immediate effect and the principal is considering whether to expel the student.

A student cannot be suspended for more than 15 school days in a school year without the regional director’s written authority.

Expulsion from school

Grounds for expulsion

If the student does anything that would satisfy as a ground of suspension and the “behaviour is of such a magnitude” that after weighing the needs of the student against the need to maintain health, safety and wellbeing of other students and the staff, together with the need to maintain effective educational programs, the principal may expel the student.

Procedure for expulsion

The principal must notify the relevant person or, if the student is out of home care, the regional director (or in the case of an overseas student, the relevant business unit of the Victorian Department of Education and Training).

The principal must convene a behaviour review conference to advise the student and relevant person that expulsion is being considered, outlining the grounds as evidence. The principal must ensure that the student and relevant person have the opportunity to be heard and be given a copy of the brochure Procedure for Expulsion. Also involved must be a person from the regional director’s list of people with experience in student discipline. The relevant person and student may also have a support person of their choice attend the conference.

The behaviour review conference is directed to identifying educational, training or employment options in the event of expulsion.

The principal has to notify the participants of the details of the behaviour review conference. However, if the student and relevant person don’t attend, the conference can proceed in their absence, but key points should be recorded in writing and sent to the student and relevant person.

Decision regarding expulsion

The principal must “properly, fairly and without bias” consider all relevant matters to determine if expulsion is appropriate. Matters specified are the behaviour, age, residential, social and educational circumstances of the student. Any disability of the student must also be taken into account, along with any information or documentation provided by the student or relevant person.

Within 48 hours of the end of the conference, the student and relevant person must be notified of the decision. If the decision is to expel, they must be provided with a Notice of Expulsion, which sets out the grounds, reasons, commencement date and details of the right of appeal.

The principal must also prepare an Expulsion Report, which must be provided, together with the Notice of Expulsion, to the regional director.

After expulsion

MO625 outlines procedures following expulsion. These include providing support in relation to other options for education, training or employment.

The E&TR Act contemplates that a student of compulsory school age who has been expelled must be given the opportunity to continue in education while of compulsory school age. MO625 requires that in the case of a student of compulsory school age that the principal and the regional office must ensure that as soon as practicable after expulsion the student is enrolled in another school or training organisation or engaged in employment. Note, however, that section 2.1.5 of the E&TR Act authorises the minister to dispense with the requirement of a student to be enrolled or attend school.

MO625 requires that the principal must provide the student with meaningful work and monitoring from the start of the expulsion until the above options are realised.

Appeal

Section 2.2.19(2) of the E&TR Act provides that an expelled student may appeal to the secretary against the expulsion. MO625 outlines the procedures. The appeal must be received by the principal within 10 school days of the service of the Notice of Expulsion. The grounds of appeal are listed as:

a the expulsion process was not followed;

b the grounds of expulsion are unfair;

c where the student has had a history of behavioural issues, there was insufficient consideration of alternatives to expulsion; and

d other extenuating circumstances.

Should an appeal succeed, the student must be re-enrolled in the school and the record of expulsion be removed from the student’s permanent record. Regardless, the E&TR Act (s 2.2.19(5)) requires that all documents under the control of the secretary that relate to the expulsion be destroyed within 12 months after the student is expelled or ceases to be of compulsory school age, whichever is the latter.

Independent and Catholic schools have greater freedom in excluding students as they are not regulated by government rules and procedures. These schools may have their own disciplinary procedures and other internal procedures for challenging expulsion.

Information on suspension and expulsion processes can be found by searching “disciplinary measures” and “behaviour FAQs” at www.education.vic.gov.au. The Victorian Department of Education and Training’s website also includes brochures for parents, with step-by-step explanations of the required procedures for suspension and expulsion. Search “suspension processes” or “expulsion process” on the same website.

Corporal punishment

Corporal punishment” has been defined as any deliberate action taken by an adult with the intention of causing physical pain or discomfort to a child. It involves the use of physical force towards a child for the purpose of control and/or correction, and is used as a disciplinary tool inflicted on the body of the child with the intention of causing pain or discomfort. The desired outcome of the pain or discomfort is that the child complies with the adult’s directives. Most forms of corporal punishment involve, hitting, smacking, spanking with a hand or instrument, kicking, biting, shaking or forcing the child to stay in uncomfortable positions which cause enormous or mild pain.

There has been considerable uniformity across all the states and territories in Australia to ban the use of corporal punishment in schools. Most Educations Acts of the state and territories have removed or amended the defence of “reasonable chastisement” to discipline the child.

In Victoria, the Education and Training Reform Amendment (School Age) Act 2009 (Vic) bans corporal punishment in both government and non-government schools. The regulations are contained in the Education and Training Reform Regulations 2007 (Vic).

Even where corporal punishment is allowed, teachers may administer it only if parents are aware that it is part of the schools’ discipline policy and they do not object to its use. Due to statutory regulations, corporal punishment is banned in all schools in the ACT, Victoria, New South Wales, South Australia, Western Australia and Tasmania. In jurisdictions where corporal punishment is allowed, it should be noted that any punishment administered by a teacher must not be unreasonable, excessive or for a bad motive.

The traditional view on discipline indicates that a teacher has the authority to discipline an unruly or misbehaving child if it is necessary to maintain order in school. In Ramsay v Larsen [1964] HCA 40, the High Court of Australia held that in a teacher–pupil relationship the teacher has the power of reasonable chastisement to maintain order in and out of school. In doing so, the teacher can override the authority of the parent.

Similarly, a reasonable physical restraint of a student for disciplinary purposes (i.e. to protect the student or others from harm) is not legally actionable, as it would constitute part of the teacher’s duty to implement the Education Department’s policy on discipline. In Victoria, a failure by a teacher to restrain a student from harming another student may constitute professional misconduct. See regs 14, 15 Education and Training Reform Regulations 2007 (Vic), and the Victorian Institute of Teaching Annual Report, 2012–2013, p. 12.

Although teachers in non-government schools have the right to discipline unruly, misbehaving or violent students, and a reasonable form of corporal punishment has been accepted in the teacher–student relationship, such punishment cannot be without a just cause or excuse. In determining what is reasonable, consideration must be given to the age, physique, and mentality of the student. The means of administration and the instrument used must also be considered. The punishment must be in accordance with the gravity of the offence and pupils should be capable of understanding the punishment. Legal action can be taken against a teacher who uses excessive violence or exceeds the limits of moderation.

Schools in Victoria have a process for dealing with complaints about the administration of punishment to children. Generally, the first step is to make a written complaint to the school principal.

In Victoria, all schools have to follow and maintain minimum standards for registration. The Guide to the Minimum Standards and Other Requirements for School Registration sets out schools’ responsibilities under the Education and Training Reform Act 2006 (Vic) and Education and Training Reform Regulations 2007 (Vic.). The guide is available at www.vrqa.vic.gov.au/registration/Pages/schminsdards.aspx.

http://www.vrqa.vic.gov.au/registration/Pages/schminsdards.aspx

If you are in a government school, and are not satisfied with the outcome of your complaint or the school’s internal processes, you can complain to the regional office of the Victorian Department of Education and Early Childhood Development, and subsequently (if you are still unsatisfied) to the central office.

If your complaint remains unresolved, you can complain to the Victorian Ombudsman. Complaints should be in writing, including all relevant facts and the procedures used by the school, and should be addressed to:

Victorian Ombudsman

Level 1, North Tower, 459 Collins Street, Melbourne Vic 3000

Tel: 9613 6222; 1800 806 314

Email: ombudvic@ombudsman.vic.gov.au

Web: www.ombudsman.vic.gov.au

Advocacy support is available for parents and carers of students with a disability from the Association for Children with a Disability.

Association for Children with a Disability (ACD)

Suite 2, 98 Morang Road, Hawthorn Vic 3122

Tel: 9818 2000; 1800 654 013

Email: mail@acd.org.au

Web: www.acd.org.au

In some cases, an action in a more formal court process may be appropriate. Seek legal advice if you are considering this option (for sources of legal advice, see Legal services that can help).


NOTE

In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) (“Charter Act”) came into operation from 1 January 2007. The Charter Act protects persons from torture and cruel, inhumane or degrading treatment. It applies to public authorities defined under section 4, including public schools and employees of public service. It appears that public schools that administer corporal punishment to pupils may also be in breach of the Charter Act.


For detailed information about students’ rights at school, read Know Your Rights at School, published by the National Children’s and Youth Law Centre (tel: (02) 9385 9588 or go to the website at www.ncylc.org.au). See also the Your Rights at School series of pamphlets, covering expulsions, suspension and school rules, discipline and punishment, published by the Young Peoples Legal Rights Centre. These pamphlets are available from:

Youthlaw, Young People’s Legal Rights Centre

At Frontyard, 19 King Street, Melbourne Vic 3000

Tel: 9611 2411

Email: info@youthlaw.asn.au

Web: www.youthlaw.asn.au