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 create 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 or behaviour.
In government schools the power to suspend or expel a student is granted by legislation and regulated by Department of Education and Early Childhood Development guidelines. 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 25 of the Education Act 1958 (Vic). This section authorises the principal or head teacher of a government school to "exclude" (suspend or expel) a pupil from school in accordance with an Order made by the Minister under section 25(7). The section states:
The Minister may make an Order for or with respect to any matter that relates to the expulsion of pupils from State schools including but not limited to:
- the grounds on which a pupil may be excluded;
- the procedure to be followed before a pupil may be excluded;
- the period for which a pupil may be suspended;
- the grounds on which a pupil may appeal to the Secretary against his or her expulsion and the procedures to be followed on such an appeal;
- the means by which a pupil expelled from a State school is to be afforded an opportunity of continuing his or her education while of school age.
Student discipline procedures are covered under the Education Department's Guidelines for Developing Student Code of Conduct 1994 and Ministerial Order No. 2 Discipline of Pupils. The legislation provides detailed procedures that must be followed when excluding a student from school. The grounds for suspension and expulsion are to be consistent in all government schools in Victoria and should be included in the school's code of conduct for students. The legislation requires that accurate records be kept of significant disciplinary actions. Principals must keep a register of all suspensions and expulsions of pupils in their school.
Parents or guardians should be involved in the expulsion procedures stated under the legislation, except where:
- the student is 18 years of age;
- the student is over 16 years of age, living independently of his or her parents and without any disability of impairment; or
- for any other reason the parents or guardians cannot be contacted.
The principal may assume the role of a parent or guardian under these circumstances.
A student can be suspended by order of the principal from a government school while attending school or travelling to and from school, or taking part in any school-organised activity away from school including camps, if the student:
- creates a danger to the health and safety of staff, students or any other person assisting the conduct of school activities (such as parent volunteers);
- commits serious violence or causes significant damage to school property;
- steals school property or helps others to steal or damage school property;
- brings or sells drugs or other prohibited substances in school;
- disobeys clear and reasonable instructions from teachers or from the principal;
- disturbs others in the school or prevent others from learning or taking part in school life or otherwise consistently interferes with educational opportunities for other students; or
- discriminates against or harasses other people or otherwise behaves in a way that endangers the peace and good order of the school's program or facility.
The government school principal may suspend a student of 15 years or above if he or she consistently and deliberately skips classes or does not complete school work or otherwise fails to take advantage of the educational opportunities provided by the school.
In determining whether or not to suspend a student, the school principal must take into account the special needs of a student who has any special impairment or disability, and the age of the student.
Since suspension is a serious disciplinary measure, it is used when other measures have not produced a satisfactory outcome. A student cannot be suspended for more than 10 school days at a time and more than 20 school days in a school year. School days do not include weekends, public holidays or school holidays.
If the principal believes that the student's behaviour is serious enough to warrant immediate suspension, he or she can suspend a student immediately from school. The principal must provide the parents or guardians of the student with a written notice of suspension within 24 hours of the day when the suspension commences. The notice must state:
- the reasons for suspension;
- the school day when the suspension shall occur; and
- the opportunity for parents and guardians to participate in a suspension conference.
When a student is suspended for 10 continuous school days or 20 school days in one year, the principal must convene a suspension conference. Generally, the meeting involves the student, the parents or guardians, the student's teacher and the principal. The suspension conference considers educational, welfare and disciplinary strategies in relation to the student and discusses options for meeting their special educational needs. Parents may bring another person to the meeting provided he or she is not acting for a fee and only if the principal allows it.
The principal must make sure that the parents receive a copy of Student Discipline Procedures 1994 and that the president of the school council gets a copy of the suspension notice issued to the parents or guardians of the student.
Independent and Catholic schools have greater powers to exclude students from schools, as they are not regulated by the legislation or Ministerial Orders applying to government schools. Principals in these schools have a legally binding agreement with parents whereby breaches of school rules may entitle them to suspend or exclude a student from their school.
In March 2009, state schools in Victoria developed and adopted a student engagement policy which updated and replaced previous policies on student discipline and expulsion. The new procedures are contained in 'Engaging Schools: Student Engagement Policy Guidelines'. The key component of the guidelines is the Ministerial Order 184 'Procedure for Suspension and Expulsion'. The Ministerial Order came into effect on 1 July 2009 and was distributed to all state schools in term 2, 2009. The Ministerial Order reduced the length of suspension from 10 to five school days and the number of days a student could be suspended in one school year has been reduced from 20 to 15 school days.
It is desirable that parents receive a copy of the school's disciplinary procedures. The parents agree to abide by the rules and regulations of the school when admitting their children to these schools.
Ministerial Order 184 and Student Engagement Policy Guidelines are available at www.education.vic.gov.au/healthwellbeing/wellbeing/engagement
'Procedures for suspension and expulsion' in Victorian state schools are also available in 13 different languages.
The term "expulsion" denotes permanent exclusion from school or "permanent withdrawal of the right to attend a particular school". Expulsion is the most serious form of sanction and is used after other forms of behaviour management fail. The authority to expel pupils in government schools in Victoria lies with the school principal, in accordance with any order made by the Education Minister (s.25 E&TR Act).
This authority cannot be delegated to any other person at the school level.
The expelled student may appeal to the Secretary of the Department of Education and Early Childhood Development and must be given an opportunity to continue their education. However, the Secretary may prohibit an expelled student from attending any other state school.
The grounds for expulsion are similar to the grounds for suspension. If the behaviour of a pupil is repeated or persistent or so serious that suspension is not the appropriate sanction, the principal can expel a pupil from school. To warrant expulsion, a pupil's behaviour should be of such magnitude that his or her need to receive education is outweighed by the welfare and safety of other students and the need to maintain discipline and order within the school.
In determining to expel a pupil, the principal must take into account the special needs of a pupil who has impairment, and the age of the pupil.
The seriousness of expulsion as an extreme form of sanction requires that the school principal comply with the rules of natural justice (procedural fairness). The principal must give the pupil and the parents or guardians an opportunity to be heard; this may include a meeting with the parents or guardians prior to expelling a pupil.
The principal must provide the pupil's parents or guardians with a written notice of the expulsion on the day on which the expulsion commences, or within 24 hours of the expulsion.
The notice must:
- state reasons for the expulsion;
- contain the date of commencement of the expulsion; and
- include details of the review and appeal process.
It is important that the principal also provides the president of the school council with a copy of the notice of expulsion.
The parents have the right to request that the president of the school council organise a review of the decision by establishing an expulsion review panel. If the expulsion review panel affirms the principal's decision to expel the pupil, the parent or guardian may appeal to the General Manager (Schools) of the Department of Education and Early Childhood Development.
The principal must also notify the General Manager (Schools) of the expulsion, and forward details of the case explaining the seriousness of the situation and recommending that further action may be required at the school, regional or state level.
The expulsion commences from the date stated in the notice, irrespective of any review initiated by the parents or guardians.
There are detailed procedures for expulsion of students in government schools in Victoria; see: 'Engaging Schools: Student Engagement Policy Guidelines' available at www.education.vic.gov.au/healthwellbeing/wellbeing/engagement. The information on Expulsion and Suspension is also available in 13 different languages.
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 expulsions.
The Education and Training Reform Amendment (School Age) Act 2009 (Vic), which came into operation on 1 January 2010, changes the compulsory school leaving age for children from 16 to 17 years.
"Corporal punishment" is defined as any deliberate action taken with the intention of causing physical pain or discomfort. In Victoria, the Education and Training Reform Act 2006 (Vic) bans corporal punishment in both government and non-government schools.
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  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: Education and Training Reform Regulations 2007 (Vic), regs.14 & 15; and the Victorian Institute of Teaching Annual Report, 2005–06, p.23.
Although teachers in non-government schools have the right to discipline unruly, misbehaving or violent children, 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 child. 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 various kinds of punishment to children. Generally, the first step is to make a written complaint to the school principal.
In Victoria, all state schools have to follow and maintain minimum standards for registration. The Guide for Registered Schools - Minimum Standards and other requirements for School Registration set out schools' responsibilities under the Education and Training Reform Act 2006 (Vic). The Guide is available at: www.education.vic.gov.au/edulibrary/public/vrga/registration-school.guide
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 Victorian Ombudsman. Complaints should be in writing, including all relevant facts and the procedures used by the school, and should be addressed to:
In some cases an action in a more formal court process may be appropriate. You should seek legal advice if you are considering this option (for sources of legal advice, see: Chapter 2*4 Advice Directory).
In Victoria, the Charter of Human Rights and Responsibilities Act 2006 (Vic) came into operation from 1 January, 2007. The Charter 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.
For detailed information about students' rights at school, you may obtain a copy of the kit 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:
DISCIPLINARY PROCEDURES :: Last updated: Sun Jul 8th 2012