In Victoria, young people’s rights and duties are largely governed by the Education and Training Reform Act 2006 (Vic) (“E&TR Act”) and Education and Training Reform Regulations 2017 (Vic).
In Victorian government schools, the policies (e.g. for punishing students with detention or suspension) are dictated by the Victorian Government Department of Education and Training (www.education.vic.gov.au). For independent schools, policies are laid down by the peak body, Independent Schools Victoria (www.is.vic.edu.au).
Attending school is compulsory for children and young people aged from 6 to 17 years (s 2.1.1 E&TR Act). Parents have a legal duty to ensure their children attend school (penalty: one penalty unit for each day a child is not at school without a reasonable excuse) (s 2.1.2 E&TR Act) (see “A note about penalty units” at the start of this book).
Reasonable excuses for a child not attending school include:
1 the child is unwell;
2 the child is attending or observing a religious event or obligation.
The Victorian Government Minister for Education and Training may exempt a young person from attending school (s 2.1.5 E&TR Act).
When at school, a teacher’s relationship to a student is based on the teacher being in loco parentis (i.e. the teacher is acting in the position of a parent). Therefore, a teacher is entitled to use as much of the parents’ authority as will enable them to carry out their duty to their students. This is possible only while the child is at school or under control of the school.
As outlined in “Use of corporal punishment by teachers”, the E&TR Act bans corporal punishment in all schools in Victoria (i.e. in government, Catholic and independent schools). However, other forms of punishment remain (e.g. deprivation of privileges, suspension and expulsion).
“Duty of care” is an element of the tort of negligence. Negligence is an act or omission that breaches an obligation to take reasonable care and results in loss or damage to another person. Since 1 July 2017, an additional duty of care has existed for any organisation in Victoria that exercises care, supervision or authority over children. This reinforced duty of care established a presumption of liability.
A teacher may be liable for negligence where a student is injured in an accident while being supervised. The responsibility of a teacher to prevent accidents happening to students is similar to that of a careful parent, i.e. the likelihood of danger arising should be assessed and reasonable precautions taken.
For a student to successfully claim compensation in a case of negligence against a teacher, all these elements must be established:
• the teacher owed a duty of care to the student at the time of the injury;
• the risk of injury was reasonably foreseeable;
• the likelihood of the injury occurring was more than significant;
• the teacher had committed a breach of their duty of care or had failed to observe a reasonable standard of care by not acting in accordance with the standards of a reasonable person in the circumstances;
• the breach or failure of the teacher’s duty of care contributed to the injury, loss or damage suffered by the student.
A teacher’s responsibility is sometimes very great, especially where hazardous activities are involved (e.g. chemistry experiments, swimming, excursions). In general, a teacher is liable where there is adequate supervision, dangers are understood and anticipated, and reasonable precautions are 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. A court would look at the number of children in the area, the number of teachers assigned to those children, and the teachers’ diligence in patrolling the area.
For more information about students’ rights at school, see the Youth Law Australia website (www.yla.org.au).