Disciplinary measures

Introduction

10.57 The standard set by CROC requires that school discipline be administered in a manner consistent with children’s human dignity and other rights, such as children’s right to be heard on matters that affect them.^[110] These rights apply to all children whether in government or independent schools.^[111]

10.58 Disciplinary measures range from informal arrangements such as additional homework, withdrawal of privileges and detention after class to formal sanctions such as exclusion from school and corporal punishment. The Inquiry is concerned with this latter, formal end of the discipline spectrum as these processes can have a serious impact on children’s education and interact with criminal justice processes.

10.59 Different jurisdictions use a variety of terms to describe restrictions or prohibitions on school attendance. Traditionally, the term suspension has been used to refer to temporary exclusions from school for a finite period and expulsion to refer to the permanent exclusion of a student. The term ‘exclusion’ is now commonly used to refer to a long term suspension or an expulsion. For the purposes of this Report, it will be used in this way.

10.60 In most States and Territories, statutory provisions relating to discipline only apply to government schools.^[112] Independent schools are largely self regulating: a written or implied contract between the parents and the school defines the terms of the services provided by the school.^[113] However, much of the material in this section of the Report regarding due process and best practice applies equally to private institutions, particularly in light of CROC.

Consequences of exclusion

10.61 Excluding children from school, on a short or long term basis, can have a serious effect on their education and life chances.^[114]

A child disrupted from school suffers a number of detriments, including disruption to education and a blow to that child’s self-esteem. Expulsion is also likely to be felt as a rejection. The language used by students — ‘kicked out of school’ or ‘thrown out’ — is an indication that exclusion is seen and felt as a hostile and aggressive act, and many children give up on the education system after being excluded from school.^[115]

10.62 There is strong anecdotal evidence to suggest that a substantial proportion of youth offending starts with exclusion from school.

While no hard statistical data is available regarding the long-term effects of alienation and exclusion on the lives of young people who leave school before the legal leaving age, there is little doubt that there is a strong correlation between early leaving and criminal activity, poverty, unemployment and homelessness.^[116]

The full implications of exclusion from school may not be clear to the student affected until many years later. One young man who participated in the Brisbane Focus Group told the Inquiry that when he was expelled from all Queensland schools he ‘thought it was cool not to go to school. But I was only 13 then. Now I realise I needed school. It’s too late now.’^[117]

Importance of clear, consistent procedures

10.63 Schools need to discipline certain students to ensure the safety of the school environment or to ensure that the child’s behaviour does not jeopardise the learning opportunities of other students. It can be an important means of teaching children about their responsibilities to others and to the community. However, disciplinary processes must be consistent, clear and fair. Arbitrary punishment sends inappropriate messages to children about adult authority and the credibility of legal processes in general.

10.64 The Inquiry has heard evidence that discipline is imposed in an ad hoc manner in some schools. Young people regarded as difficult have been paid by teachers not to attend classes^[118] and others, not formally excluded, are sometimes simply told not to bother coming back to the school.^[119] This kind of informal discipline is inappropriate and unfair.^[120] The Inquiry considers that research should be conducted nationally to determine the extent to which young people are excluded from school by informal processes and the extent of the connection between school exclusion and criminal behaviour.^[121]

10.65 The serious consequences of exclusion make it essential that these decisions are made according to clearly laid out procedures. The grounds for and processes governing exclusion differ between jurisdictions. In some jurisdictions the process is set out in policy documents. In others it is contained in legislation.^[122] These policies and provisions are often interpreted differently from school to school.

Students, parents and even teachers are likely to find exclusion procedures very confusing. Even within States and Territories there may be variations in terminology.^[123]

10.66 The House of Representatives Standing Committee on Employment, Education and Training recently recommended that

Each State and Territory ensure that

a) school disciplinary legislation, policy and procedures include a precise and consistent statement of the grounds and procedures for each category of exclusion of students from school and

b) that clear and accurate information be developed for students and parents, and training materials for schools on procedures for school suspensions, exclusion and expulsion, including mechanisms of appeal.^[124]

The Inquiry supports this recommendation and made a similar proposal in DRP 3 for the development of national standards on school discipline.^[125] Governments need to ensure that there is an agreed procedure for teachers and principals to follow when making serious disciplinary decisions in government schools. The Inquiry’s proposal for nationally consistent grounds and processes for exclusion received support in submissions.^[126]

10.67 The national standards for school discipline should be incorporated into legislation in each jurisdiction, making them enforceable in government schools.^[127] The standards should be incorporated into independent schools’ discipline policies. They should be well publicised to students and their carers as well as to the teaching profession. In addition, each State or Territory department of education should establish a unit with responsibility for ensuring that appropriate arrangements are made for each child excluded from a government school, including counselling or other support and alternative schooling or education.^[128] The National Children’s and Youth Law Centre supported this proposal.^[129] These units may also be of use to students permanently excluded from an independent school who are entering the government school system.

Natural justice and procedural fairness

10.68 Due process is supposed to be followed in exclusion processes. This is often not the case.^[130] Students enrolled in public institutions may be able to invoke natural justice claims under statutory judicial review provisions and the common law.^[131] Students in independent schools are limited to common law remedies. Expulsion or suspension of a private school student without due cause may be an actionable breach of contract. The Victorian Supreme Court decision in Dage v Baptist Union of Victoria suggests that students may also have an administrative remedy if natural justice has been denied.^[132]

10.69 It is difficult for students to exercise rights to administrative review without family support and resources. It would be preferable if schools incorporated the principles of natural justice into their decision making processes to ensure best practice in this area.^[133] A national survey of 66 young people suspended or expelled from school, conducted by the National Children’s and Youth Law Centre, suggests that many students are not told their rights during the disciplinary process or made aware of ways to challenge the decision.^[134]

10.70 As a matter of best practice a person adversely affected by an administrative decision should be given an opportunity to challenge that decision.^[135] This presumption is no less appropriate for students and parents who should be given the opportunity to challenge any decision to exclude a child from a government school for more than 14 days or permanently.^[136]

10.71 To ensure that reviews of exclusion decisions are impartial, they should be conducted by a panel of school and community representatives at least one of whom is from outside the particular school community.^[137]

It is felt that exclusion has such a detrimental effect on the educational opportunities of young people that the process should be subject to independent review.^[138]

Some jurisdictions are moving towards this model. For example, the School Education Bill 1997 (WA) provides for the appointment of School Discipline Advisory Panels of not less than three members one of whom must be an independent person not employed by the Education Department.^[139] These Panels will be required to consider the case of any child for whom exclusion is recommended.

10.72 In addition, the Inquiry considers that students subject to exclusion should be entitled to an advocate during any interviews related to the disciplinary process and review proceedings. The advocate may be a parent, family friend or community or legal advocate.^[140]

Alternative dispute resolution in schools

10.73 Between April 1995 and April 1996 community accountability conferencing was trialled as a means of dealing with serious harm, such as bullying or possession of drugs, in two education regions of Queensland. The conferences were modelled on those used in the juvenile justice system and brought together the victim, the offender and their supporters to discuss the effects of the incident and agree on ways to repair the harm.^[141] The model is restorative rather than punitive.^[142]

10.74 An evaluation of the Queensland trial found that there was a high level of participant satisfaction, that relationships between participants improved, that recidivism was low and that nearly all schools in the trial had changed their thinking about behaviour management as a result of their involvement.^[143] The review recommended that community accountability conferencing continue to be used as a means of dealing with serious school disciplinary matters subject to the appropriate training and supervision of conference co-ordinators and school administrators.^[144]

10.75 A number of submissions raised the need for a neutral mediation process to resolve serious school disputes. Too often, problems are dealt with in the principal’s office. This is highly intimidating to the student and can be quite unjust.^[145] The Inquiry considers that community accountability conferencing has considerable potential as a means of dealing effectively with school disputes and of reducing exclusion rates. It promotes a contextual approach to problem solving and may help to stop behavioural difficulties from escalating.

Indigenous students

10.76 Indigenous children are significantly over-represented in exclusion statistics.^[146] This is particularly problematic given their already high school drop out rate.^[147] The National Children’s and Youth Law Centre is currently undertaking a project entitled ‘Keeping our Kids in School’ in conjunction with the National Aboriginal Youth Law Centre and the Australian Centre for Equity through Education.^[148] The project aims to determine why Indigenous children are more frequently excluded than non-Indigenous children and to provide educators with strategies to address the problem.^[149]

The National Aboriginal Youth Law Centre is…concerned about the direct link between early school leaving and participation in the juvenile justice system.^[150]

In light of this important project, the Inquiry is not making recommendations specific to the exclusion of Indigenous students.

Corporal punishment

10.77 Historically the law has permitted teachers to administer corporal punishment to students as ‘lawful correction’.^[151] Corporal punishment remains lawful in some Australian jurisdictions although most States and Territories have limited the practice by legislation, regulation or policy. For example, NSW and the ACT have a statutory ban on corporal punishment in all schools and Victoria has banned it in government schools.^[152] There are often no administrative processes available to children or their carers to challenge a decision to administer corporal punishment. There is limited legal redress unless the correction was excessive and can be characterised as unlawful assault for which the child may be awarded damages by a court.

10.78 Children deserve the same level of protection from assault as adults. Corporal punishment conveys unfortunate signals to children about the way legal processes work and fits poorly with the principle that school discipline should be administered in a manner consistent with the child’s dignity.^[153] The Australian College of Paediatrics’ policy statement on corporal punishment in schools states that

[t]here is increasing evidence from psychologic, psychiatric, human rights and educational literature that corporal punishment has adverse long term effects on some children, teaches some that problems are best resolved by violence and that it does not lead to improved discipline compared with alternative methods of implementing self-control and responsible behaviour.^[154]

The Inquiry considers that corporal punishment should be banned in all Australian schools. This proposal had broad support in submissions.^[155]