Definitions of parent and carer
For the purpose of this guidance:
The term parent, in relation to a child, refers to any person who has parental responsibility for ‘major long term issues’ as defined in the Family Law Act 1975 (Cth) or has been granted ‘guardianship’ for the child pursuant to the Children, Youth and Families Act 2005 or other state welfare legislation.
Carer is someone other than a parent and includes:
- informal care arrangement that may or may not be documented by an informal relative carer statutory declaration form
- formal care arrangement that is provided for under the Family Law Act 1975 (cth) and includes a parenting plan or a court order
- formal care arrangement that is provide for under the Children, Youth and Families Act 2005 or other state welfare legislation.
In determining whether and which discipline action will be taken in response to challenging behaviour, principals must ensure that the below legal obligations are met.
The Education and Training Reform Act 2006 establishes a Victorian government school system. Some of the elements of this education system include:
- It is compulsory for students between six and 17 years of age to be enrolled at a school and to attend at all times when the school is open for instruction unless they are registered for home schooling or there is a reasonable excuse for their failure to enrol or attend school.
- Every student of compulsory school age has the right to attend a designated neighbourhood Victorian government school (except specialist schools, selective entry schools, and schools solely providing distance education programs).
- Every student of compulsory school age may be enrolled at a Victorian government school that is not their designated neighbourhood school if there is sufficient accommodation for the child at that school.
- Instruction in the learning areas is provided free of charge to all students at Victorian government schools (except overseas students).
The act also provides that principals of Victorian government schools may, in accordance with any ministerial order, suspend or expel a student from that school.
The act provides a student who has been expelled with the following rights and opportunities:
- right to appeal the expulsion
- opportunity to continue his or her education while he or she is of compulsory school age.
Ministerial Order 1125 – Procedures for Suspension and Expulsion, currently defines the grounds for suspension and expulsion of students in Victorian government schools, and the procedures to be followed in relation to suspensions, expulsions, and appeals relating to expulsions. This ministerial order, and other laws must be interpreted and applied under the Charter of Human Rights and Responsibilities. This means that the ministerial order must be complied with in a manner which is consistent with the charter.
Duty of care obligations
Principals and teachers of Victorian government schools have a duty of care to take reasonable steps to prevent reasonably foreseeable injury to their students. This duty is a positive duty to take all reasonable steps to reduce the risk of injury. The duty includes:
- provision of suitable and safe school premises and equipment
- provision of an adequate system of supervision
- implementation of strategies to prevent bullying and other behaviours to ensure a safe, secure and supportive environment for all of its students.
The nature and extent of the duty will vary according to the particular circumstances in each case. This duty is an important consideration when determining an appropriate response to unacceptable or inappropriate behaviour that is displayed by students.
Occupational health and safety obligations
The Occupational Health and Safety Act 2004 makes the following obligations on principals of Victorian government schools:
- provide and maintain a working environment that is safe and without risks to health for his or her employees
- monitor the health of its employees
- monitor the working conditions at the school.
Provide an environment where students, parents and visitors to the school are not exposed to risks to their health and safety.
In order to discharge their obligations under this act, principals of Victorian government schools need to ensure that they have adequate safety policies and procedures in place to identify and manage risks.
One way of discharging their obligations under this act is for principals to identify students whose behaviour may expose school employees, students, parents or visitors to risk; and to effectively use the student engagement policies and disciplinary measures to manage those risks.
Human rights obligations
The Charter of Human Rights and Responsibilities Act 2006 sets outs a number of rights and freedoms. These include the following.
- enjoy your human rights without discrimination
- protection from cruel, inhumane or degrading treatment
- freedom of movement
- privacy and reputation
- freedom of thought, conscience, religion and belief - Right to freedom of expression
- peaceful assembly and freedom of association
- the protection of children and that the best interests of the child are taken into account in all decisions affecting the child. This right applies to all students under 18 years.
- protection of cultural rights
- a fair hearing.
This act requires Victorian government schools to consider and act in accordance with these human rights when they are making all decisions including those in relation to suspension and expulsion of students.
In order to meet this obligation principals must undertake a charter assessment when:
- determining a plan of action to respond to challenging behaviour
- reviewing such plans
- considering whether to suspend a student, and for how long, and for each suspension
- considering the activities for the student while on suspension
- considering whether to expel a student
- considering post-expulsion options for a student.
When making these decisions, all the relevant rights of the child must be considered. The best interests of the student are the primary consideration.
State and federal discrimination legislation provides that is unlawful to discriminate against a student in the area of education on the basis of:
- gender identity
- lawful sexual activity
- marital status
- parental status or status as a carer
- physical features
- political belief or activity
- religious belief or activity
- sexual orientation
- personal association with a person who is identified by reference to any of these attributes.
Direct discrimination is when you treat or propose to treat a student with an attribute unfavourably because of that attribute
Indirect discrimination can happen when you impose or propose to impose a requirement, condition or practice that is not reasonable and has or is likely to have the effect of disadvantaging a person with an attribute.
The Victorian Equal Opportunity Act also includes a positive duty to take reasonable and proportionate steps to eliminate discrimination.
Principals must take into account their obligations under state and federal discrimination legislation when considering suspension or expulsion of a student.
Disability discrimination obligations
When responding to behavioural concerns of students with a disability, principals and teachers must be aware of their obligations under disability discrimination legislation.
In broad terms, the Equal Opportunity Act 2010 (Vic) and the Disability Discrimination Act 1992 (Cth) and the Disability Standards for Education 2005 (Cth) provide that it is unlawful to discriminate against a student on the basis of their disability. This legislation also states that schools are required to provide students with disabilities with reasonable adjustments, so that they can participate in their education on the same basis as students without a disability.
In relation to suspension and expulsion, principals must consider the disability, age, behaviour, educational needs and social circumstances of the student, have implemented a comprehensive plan to meet these needs (this includes making reasonable adjustments for students with disabilities), and if despite these measures, the disabled student’s inappropriate behaviour has persisted, and suspension or expulsion is considered appropriate.
Accordingly, principals must take into account their obligations under discrimination legislation, Ministerial Order 1125, their duty of care to all students and staff and this guidance when considering suspension or expulsion of a student with a disability.
If a principal has any questions about these obligations, they should seek advice via (03) 9637 3146 or