The requirements for school attendance and pupil punishment are governed by the Education and Training Reform Act 2006 (Vic). Education providers have a duty of care to prevent an accident happening to a child and adequate supervision is required at all times.
A person is required to attend school from the age of six until reaching the age of 16 (s 2.1.1 Education and Training Reform Act 2006 (Vic)).
Exceptions may arise where:
1 a child is ill or incapacitated; or
2 a child can be educated at home, and it is established that the child is under efficient and regular instruction.
The Minister for Education may exempt attendance at school (s 2.1.5 E&TR Act).
When at school, a teacher’s relationship to a pupil is based on the fact that the teacher stands in loco parentis and is therefore entitled to use as much of the parents’ authority as will enable them to carry out a duty to the pupils. This is possible only while the child is at school or under control of the school (see Education and the law).
There are two aspects of a teacher’s right to punish a pupil. The first relates to what is permitted by the E&TR Act and the Regulations made under that Act. The second relates to the teacher’s liability for assault under the criminal law.
The Victorian Government Department of Education has banned corporal punishment in its schools, but other forms of punishment such as deprivation of privileges or suspension remain.
Where corporal punishment is not banned in private schools, the common law requires that it be administered reasonably and moderately; it may be permissible for blatant acts of disobedience, but would not be permissible where a student makes mistakes at work or is slow to understand.
A series of leaflets explaining the legal situation with regard to school punishment, suspension and expulsion has been produced by the North Melbourne Legal Service. The leaflets are available through local community legal centres (see Legal services that can help, for addresses).
For more detail on this area, see Education and the law.
A teacher may also be liable for negligence where a pupil is injured in an accident while under supervision. The responsibility of a teacher to prevent accidents happening to pupils is similar to that of a careful parent, i.e. the likelihood of danger arising should be assessed and precautions taken.
For a case against a teacher to succeed, it would need to be proved that:
1 the teacher owed a duty of care to the student;
2 the teacher had committed a breach of that duty by not acting in accordance with the standards of a reasonable person in the circumstances;
3 the accident was caused by the teacher’s failure; and
4 as a consequence the pupil suffered injury.
For more detail, see Education and the law.
A teacher’s responsibility is sometimes very great, especially where hazardous activities such as chemistry experiments, swimming or excursions are involved. A teacher would not normally be liable where there is adequate supervision, dangers are understood and anticipated and reasonable precautions taken. Supervision must be adequate at all times when a child is under the control of a teacher. This includes not only classroom activities, but also those occurring during recess and lunchtime and during excursions.
It is obviously impossible for a teacher to personally supervise each child in a playground or classroom. What a court would look at would be the number of children in the area, the number of teachers assigned to those children and their diligence in patrolling the area. For more detail on this area, see Education and the law.
Further detailed information about students’ rights at school may be obtained from the National Children’s and Youth Law Centre website at www.ncylc.org.au.