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. These rights apply to all children whether in government or independent schools.
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. 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. 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.
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.
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.
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.’
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 and others, not formally excluded, are sometimes simply told not to bother coming back to the school. This kind of informal discipline is inappropriate and unfair. 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.
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. 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.
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.
The Inquiry supports this recommendation and made a similar proposal in DRP 3 for the development of national standards on school discipline. 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.
10.67 The national standards for school discipline should be incorporated into legislation in each jurisdiction, making them enforceable in government schools. 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. The National Children’s and Youth Law Centre supported this proposal. These units may also be of use to students permanently excluded from an independent school who are entering the government school system.
Recommendation 46 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.
Implementation. This research should be co-ordinated by OFC in consultation with the Australian Council for Education Research and the AIC.
Recommendation 47 National standards for school discipline should be developed setting out the permissible grounds for exclusion and the processes to be followed when a government school proposes to exclude a student. The standards should require that
the legislative provisions regarding discipline be widely publicised to students and their carers in readily understandable language, including community languages where appropriate
each State and Territory collect and publish annual statistics on truancy and on excluded students including age, sex, race, length of exclusion, reasons for exclusion and the support provided to excluded children
each State or Territory department of education establish a unit with responsibility for ensuring appropriate arrangements are made for each excluded child, including counselling or other support and alternative schooling or education.
Implementation. In consultation with OFC, DEETYA should convene a working group comprising representatives of State and Territory education departments, peak bodies in the independent schools sector and relevant community groups to develop the national standards mechanisms for obtaining national education statistics. Each State and Territory government should incorporate the standards into legislation and strongly encourage independent schools to incorporate the standards into their discipline policies.
Natural justice and procedural fairness
10.68 Due process is supposed to be followed in exclusion processes. This is often not the case. Students enrolled in public institutions may be able to invoke natural justice claims under statutory judicial review provisions and the common law. 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.
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. 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.
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. 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.
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.
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.
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. 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.
Recommendation 48 The national standards for school discipline should provide that
students facing exclusion and their carers should be informed in writing of the reasons why exclusion is being considered and be given sufficient time and opportunity to respond to the allegations
reviews of serious exclusions, being exclusions for longer than 14 days, repeat exclusions totalling more than 14 days in a year and permanent exclusions, should be heard by a panel of school and community representatives at least one of whom is from outside the particular school community
an advocate for the child should be permitted and encouraged to be involved in the disciplinary process where a serious exclusion is proposed.
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. The model is restorative rather than punitive.
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. 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.
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. 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.
Recommendation 49 The national standards for school discipline should provide conferencing models appropriate for use in schools.
10.76 Indigenous children are significantly over-represented in exclusion statistics. This is particularly problematic given their already high school drop out rate. 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. 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.
The National Aboriginal Youth Law Centre is…concerned about the direct link between early school leaving and participation in the juvenile justice system.
In light of this important project, the Inquiry is not making recommendations specific to the exclusion of Indigenous students.
10.77 Historically the law has permitted teachers to administer corporal punishment to students as ‘lawful correction’. 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. 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. 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.
The Inquiry considers that corporal punishment should be banned in all Australian schools. This proposal had broad support in submissions.
Recommendation 50 Corporal punishment should be banned in all Australian schools (including independent schools).
Implementation. Through MCEETYA the Minister for Employment, Education, Training and Youth Affairs should seek agreement to the passage of uniform legislation to that effect. In the meantime, the Minister should take all available measures, including attaching conditions to financial grants, to eliminate corporal punishment in Australian schools.
 arts 28(2), 12.
 R Ludbrook ‘Children’s rights in school education’ in K Funder (ed) Citizen Child: Australian Law and Children’s Rights AIFS Melbourne 1996, 90.
 NSW and the ACT are the only jurisdictions that regulate discipline in the private sector by legislation to some extent: see para 10.77.
 R Ludbrook ‘Children’s rights in school education’ in K Funder (ed) Citizen Child: Australian Law and Children’s Rights AIFS Melbourne 1996, 89.
 id 109; House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 41–46; Brisbane Practitioners’ Forum 29 July 1996.
 R Ludbrook ‘Children’s rights in school education’ in K Funder (ed) Citizen Child: Australian Law and Children’s Rights AIFS Melbourne 1996, 109.
 House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 41. See also Brisbane Practitioners’ Forum 29 July 1996.
 29 July 1996.
 Wagga Wagga Focus Group 9 May 1996.
 Perth Focus Group 1 July 1996; NSW Youth Justice Coalition IP Submission 4. These allegations are supported by the findings of House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 21.
 National Children’s and Youth Law Centre IP Submission 12; Federation of Parents and Teachers Associations of NSW IP Submission 15.
 This proposal was supported by Kreative Kids DRP Submission 35; Autistic Association of NSW DRP Submission 40; Townsville Community Legal Service DRP Submission 46; NSW Ombudsman DRP Submission 80.
 For a relatively recent summary of the legislation and policies governing school exclusion in each Australian State and Territory see House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996 appendices 5, 6.
 J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre Sydney 1995, 20. See also S Britton, Youth Affairs Council of WA Public Hearing Submission Perth 2 July 1996.
 Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996 rec 3.
 Draft rec 2.8.
 eg G Vimpani Public Hearing Submission Newcastle 14 May 1996; Women’s Advisory Council DRP Submission 26; P Eastaugh DRP Submission 29; Autistic Association of NSW DRP Submission 40; Townsville Community Legal Service DRP Submission 46; Australian Secondary Principals’ Association DRP Submission 89. cf NT Government DRP Submission 71 which considered discipline standards a matter for each jurisdiction.
 J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre Sydney 1995 rec 1.
 See NSW Legislative Council Standing Committee on Social Issues Report 8 A Report into Youth Violence in NSW NSW Government Sydney 1995 rec 82.
 DRP Submission 59. See also J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre Sydney 1995 rec 7.
 In this regard, evidence to this Inquiry, particularly at the Wagga Wagga Focus Group 9 May 1996 and the Perth Focus Group 1 July 1996, supported evidence to the House of Representatives Standing Committee on Employment, Education and Training Report of the Inquiry into Truancy and Exclusion of Children and Young People from School AGPS Canberra 1996, 20.
 eg a student in Vic who felt he or she had been unfairly excluded may be able to apply for judicial review under the Administrative Law Act 1978 (Vic).
  VR 270. In this case, Starke J granted an interlocutory injunction to restrain the expulsion of a student six weeks before his final exams. cf Seymour v Swift (1976) 10 ACTR 1.
 This proposition was supported in submissions, eg, G Vimpani Public Hearing Submission Newcastle 14 May 1996.
 J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre Sydney 1995, 15.
 This is the natural justice principle of audi alteram partem, also known as the hearing rule, that provides that no one shall be condemned unheard: see R Douglas & M Jones Administrative Law: Commentary & Materials 2nd ed Federation Press Sydney 1996, 522–536; Townsville Community Legal Service DRP Submission 46.
 The proposal that decisions to exclude should be reviewable was supported in evidence received during consultations: eg M Hogan, Catholic Education Office Public Hearing Submission Canberra 7 May 1996; Hobart Focus Group 30 May 1996; Brisbane Focus Group 29 July 1996; Brisbane Practitioners’ Forum 29 July 1996; C Press Public Hearing Submission Rockhampton 1 August 1996; NSW Federation of School Community Organisations IP Submission 97; National Children’s and Youth Law Centre DRP Submission 59. See also J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre 1995 rec 2. Federation of Community Legal Centres (Vic) DRP Submission 72 considered that a right of review should exist for any exclusion longer than 5 days.
 See also J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre 1995 rec 4. This will implement the natural justice principle of nemo debet esse judex in propria causa, or the rule against bias, that no-one can be judge in his or her own cause: see R Douglas & M Jones Administrative Law: Commentary & Materials 2nd ed Federation Press Sydney 1996, 537–557; Townsville Community Legal Service DRP Submission 46.
 Federation of Community Legal Centres (Vic) DRP Submission 72.
 cl 89.
 National Children’s and Youth Law Centre DRP Submission 59 considered that an advocate should be appointed for the child wherever an exclusion is proposed. The proposal for advocates was supported by Taxi Employees’ League DRP Submission 21. See also J Taylor School Exclusions: Student Perspectives on the Process National Children’s and Youth Law Centre Sydney 1995 rec 3.
 Dept of Education Qld Community Accountability Conferencing: Trial Report unpublished 1996, 1–2. See also F McElrea ‘Student discipline and restorative justice’ Paper Legal Research Foundation Seminar Auckland 19 March 1996; paras 18.45-50.
 See para 18.34.
 Dept of Education Qld Community Accountability Conferencing: Trial Report unpublished 1996, 8–13.
 id v–vii.
 eg S Harris, Youth and Community Combined Action Public Hearing Submission Rockhampton 1 August 1996; C Press Public Hearing Submission Rockhampton 1 August 1996.
 See para 2.47.
 Unpublished figures from the 1996 Census provided to HREOC by the ABS indicate that 60.6% of Indigenous children currently leave school when they are aged 16 or younger. The significance of this rate is not so much in its comparison with the rate for non-Indigenous children but in the fact that this represents a large proportion of all Indigenous children, 40.06% of whom are under 14 years of age (cf 21.33% of non-Indigenous children). See also paras 2.35-36.
 The National Children’s and Youth Law Centre will take on the duties of the National Aboriginal Youth Law Centre if its predicted de-funding goes ahead.
 (1997) 5(1) Rights Now! 14.
 National Children’s and Youth Law Centre DRP Submission 59 annexure 1. This link is confirmed by the recent report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children From Their Families — ‘Early entry into the juvenile justice system is nearly always associated with the alienation of the children from the education system’: Bringing Them Home HREOC Sydney 1997, 555 citing Submission 362.
 Cleary v Booth  1 QB 465; Mansell v Griffin  1 KB 160. The Model Criminal Code Officers Committee has recommended that teachers or other persons standing in the place of parents must have explicit parental authority to impose corporal punishment: Model Criminal Code Discussion Paper Chapter 5 — Non Fatal Offences Against the Person Attorney-General’s Dept Canberra 1996, 106.
 Education Reform Act 1988 (NSW) s 47(f); Education Act 1937 (ACT) s 36. A non-government school can only be registered in NSW if its official policy relating to student discipline does not permit corporal punishment of students. The ACT legislation provides that in civil or criminal proceedings against a member of school staff arising out of physical force applied to a student it is not a defence that the force was applied to administer corporal punishment and was reasonable.
 See para 10.57.
 Australian College of Paediatrics IP Submission 30.
 eg B Burt IP Submission 92; Youth Advocacy Centre IP Submission 120; Child Health Council IP Submission 146; Adelaide Central Mission IP Submission 168; Defence for Children International IP Submission 204; Australian Association of Social Workers IP Submission 207; Law Society of NSW IP Submission 209; Women’s Advisory Council DRP Submission 26; Kreative Kids DRP Submission 35; Education Centre Against Violence DRP Submission 43; Townsville Community Legal Service DRP Submission 46; National Children’s and Youth Law Centre DRP Submission 59; J Owen & G Crowter AAYPIC Public Hearing Submission Brisbane 31 July 1996. NT Territory Government DRP Submission 71 supported the issue of corporal punishment being discussed at MCEETYA. The proposal was opposed by Australian Family Association (NSW) DRP Submission 11 and MG Hains DRP Submission 24. The Association of Heads of Independent Schools of Australia DRP Submission 15 supported the proposed ban on corporal punishment but did not support the suggestion that the Cth enforce the ban through conditions on financial grants.