The Department of Education is committed to a positive approach to student discipline in government schools. Practices that foster engagement in learning, set clear limits, recognise appropriate behaviour and apply consequences for inappropriate and/or violent behaviour are more likely to promote positive student behaviour than punishment alone. This is assumed in the Student Discipline in Government Schools policy and should be reflected in school discipline policies.

The legal basis for disciplining students

The NSW Education Act 1990 provides that the Minister may control and regulate student discipline in government schools (sub-section 35(1)); prepare guidelines for the adoption by government schools of fair discipline codes that provide for the control and regulation of student discipline in those schools (sub-section 35(2)); and on the recommendation of the Secretary, may expel a child of any age from a government school and additionally may suspend a child of any age from a government school (sub-section 35(3)).

Who can suspend or expel students?

Principals have been authorised to expel or suspend a child of any age from their own school consistent with the Student Behaviour Policy and Student Behaviour Procedures. Further information (including a link to an easy read version of the Procedures) is available at the Student Behaviour webpage

Additionally, the Secretary, Deputy Secretary (Schools), Executive Directors (Schools) and Directors (Schools) have the authority to expel or suspend a child of any age from any government school.

Further information about the authority to suspend or expel a school student can be found on the Business Services website in the Delegations of Authority under the Education Act 1990.

Legal issues arise regarding student discipline

Child Protection

An incident that results in student disciplinary action being considered or difficulty in resolving any suspension that has been imposed in a timely way may cause a staff member to have reasonable grounds to suspect that a student is at suspected risk of significant harm. On rare occasions, a parent’s response to an incident may also give rise to a suspicion of risk of significant harm to that student.

School staff should inform their principal of any concerns about a student who may be at risk of harm. For further information about this issue read the Protecting and Supporting Children and Young People policy and procedures and a fact sheet prepared by the department’s Child Wellbeing unit Reporting to DCJ What You Need to Know.

Principals are encouraged to use the Mandatory Reporter Guide to help in their decision making about whether a report to DCJ or contact with the department’s Child Wellbeing unit is required. If in doubt or assistance is required the Child Wellbeing unit can be contacted on telephone number (02) 9269 9400. Further information about the department’s Child Wellbeing unit can be found in their factsheet – Contacting the Child Wellbeing unit.

Interagency Cooperation and Information Exchange (Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998)

Where relevant, school staff should also consider the potential to exchange information with other organisations in the interests of a student or students when considering student disciplinary action. The opportunity may also arise for the school to work cooperatively with other organisations when responding to an incident that could give rise to disciplinary action. For further information about information exchange read Legal Issues Bulletin No. 50 – Exchanging Information with other organisations concerning the safety, welfare or wellbeing of children or young people..

Disability Discrimination

What factors should be taken into account when disciplinary action is contemplated against a student with a disability?

If a student has a disability that could have caused or contributed to an incident that has resulted in disciplinary action being contemplated, consideration must be given by the school to any impact of the:

• NSW Anti-Discrimination Act 1977
• Commonwealth Disability Discrimination Act 1992
• Commonwealth Disability Standards for Education 2005.

This includes obligations to consider reasonable adjustments to the student’s learning and support needs and consult with the student or their parent/carer about those adjustments. It is also necessary to consider whether it would be reasonable to make an adjustment to the way a policy applies to a particular student. For example, it would be reasonable to consider making an adjustment to a school discipline policy that imposes sanctions on students that swear in class if a student had Tourette’s Syndrome (though it is likely to also be necessary to implement strategies to lessen the potential disruption to other students caused by this behaviour).

The obligations under disability and other legislation related to discrimination operate concurrently with the obligation to ensure the safety of staff and students so far as is reasonably practicable. In terms of violent student behaviour, suspension or expulsion is not intended as a punishment but can allow the school and government school system to put measures in place to meet obligations under work, health and safety legislation.

More information about reasonable adjustments and the duty to consult are found in the Commonwealth Disability Standards for Education.

How is disability defined for the purpose of disability discrimination legislation?

The definition of disability in section 4 of the Commonwealth Disability Discrimination Act 1992 is very broad and includes ”a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment that results in disturbed behaviour”. Significantly, section 4 also includes within the definition of disability “behaviour that is a symptom or manifestation of that disability”. Section 4 of the NSW Anti-Discrimination Act 1977 has a similarly broad definition for disability.

Generally, the definition of disability will include children with expressive and receptive language disorders, mental health issues, learning difficulties and behaviour disorders as well as those with “confirmed disability”. Ordinarily, the school will already have been advised that the student has the disability by their carer or parent, though with learning difficulties the school may have identified that the student has this disability before the parent becomes aware of it.

What is disability discrimination in the education context?

The Disability Discrimination Act provides at section 22 that it is unlawful to discriminate against a student at enrolment, by denying the student access to a benefit, expelling the student or subjecting them to any detriment or developing curricula that limit the student’s access to the curriculum on the grounds of his or her disability. Section 49L of the NSW Anti-Discrimination Act 1977 has a similarly broad definition.

To be unlawful discrimination the conduct alleged must fit within the definition of direct or indirect discrimination. Further information about direct and indirect discrimination can be found on the Legal Services intranet site .

A disability discrimination complaint under the Commonwealth Act is made to the Australian Human Rights Commission and under the NSW Act to the Anti-Discrimination Board. If it is not resolved legal proceedings can be commenced in the Federal Court or the Federal Magistrates Court (Commonwealth complaints) or the Administrative Decisions Tribunal (NSW Act).

Does this mean that no disciplinary action can ever be taken against a student with a disability?

No. Disciplinary action can be taken against a student with a disability but the above factors need to be taken into account before a decision is made. Further information about students with a disability is found on the Disability Programs website.

Duty of Care and Work Health and Safety

The department has a duty of care at common law to take reasonable steps to protect students from foreseeable risk of harm. The department meets this duty of care through the actions of its employees. Where a failure to discharge this duty has caused a student to be injured it can result in a civil liability claim being made against the department.

In the event that a staff member is sued for negligence arising from the discharge of the duty of care, the department will defend the claim at no expense to the staff member and pay any damages, unless the staff member has committed an act of serious or willful misconduct. For an act to be considered “serious and wilful misconduct” there would need to be some degree of intent to harm the student or an act of extreme recklessness. More information about the rights of staff in this situation can be found in Legal Issues Bulletin No. 19 - Legal liability and rights of staff in relation to serious incidents which involve potential risk of injury to persons on departmental premises (PDF 62.29KB).

A duty of care is also owed by the department to its’ students, staff and visitors to school sites to ensure, as far as is reasonably practicable, their health and safety under the Work Health and Safety Act 2011. A failure to comply with this duty can result in a WorkCover prosecution. Employees are required under the Act to comply with reasonable instructions given by the department to allow it to comply with the Act and to cooperate with any reasonable policy relating to health and safety at the workplace.

Meeting the department’s duty under the Act requires a proactive approach to implement safe systems and processes. It may also require a range of actions being taken after an incident has occurred including, the assessment of any risk that may be posed by the student’s behaviour to the student, other students and staff, together with identifying and implementing strategies designed to eliminate or control the identified risk(s). The student behaviour management intervention process that is located on the Work Health and Safety website should be implemented in such circumstances.

Is there any conflict between the Duty of Care and Work Health and Safety duties and duties under discrimination law?

All three laws require consideration of what is reasonable in the circumstances. For example, the department must consider making reasonable adjustments for a student under discrimination law and must as far as is reasonably practicable ensure the safety of students, staff and visitors to its site (work health and safety law) and protect students from the foreseeable risk of harm (duty of care).

It is arguable that an adjustment that required, for example, the department to place staff and students at risk of significant harm by enrolling a student with a history of violent behaviour could be a breach of its duty of care and work health and safety obligations and that such an action would not be a reasonable adjustment within the meaning of the Disability Discrimination Act (DDA) and the Standards.

It is also arguable that in view of the duties under the DDA and the Standards it would not be reasonably practicable to refuse to enrol a student because he or she posed a low risk of harm to another student or staff member.

What is reasonably practicable in any given case will be dependent on the individual circumstances of each student.

Procedural fairness

All students are entitled to be accorded procedural fairness when disciplinary action is being contemplated. To the extent the student is able to participate in the process, this includes a right to be told what is being alleged, a right to be heard and a right to an unbiased decision maker. A failure to accord procedural fairness has previously resulted in legal action being taken against the department in the Supreme Court.

Information about procedural fairness in the disciplinary context can be found in the Suspension and Expulsion of School Students Procedures (PDF 1734.18KB) and in legal issues bulletin 3 – Procedural fairness in the Department of Education .

Privacy

The collection, storage, use and disclosure of a student’s personal and health information is subject to the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 as modified by the department’s Privacy Code of Practice (PDF 147.28KB).

The privacy legislation does not prevent the collection, use and disclosure of information if it is necessary to ensure so far as it is reasonably practicable, the health and safety of staff and students. Under work, health and safety legislation a worker must also be provided with information about the nature of the risks associated with their work.

The need to comply with privacy legislation can limit the extent and type of information that may be given to other students and/or their parents about school disciplinary action taken in relation to a student. Complaints about alleged breaches of privacy can result in an internal review being undertaken of an incident and in certain cases this may become the subject of litigation in the Administrative Decisions Tribunal. Further information about the impact of privacy legislation on decisions made by departmental officers can be found on the Legal Services intranet site .

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The importance of a student discipline policy

All students and staff have the right to be safe, to be treated fairly and with dignity in an environment free from violence, disruption, intimidation, harassment, victimisation and discrimination. An effective student discipline policy plays an important role in the achievement of this outcome.

State-wide policy on student discipline

The Student Discipline in Government Schools policy provides a framework for a school-based discipline policy.

Supporting materials on student discipline policy

A range of state-wide supporting documents have been developed including:

Developing your own discipline policy

Schools must have a school discipline policy which is developed in consultation with school community members. The policy must contain the following four components:

• The discipline code or school rules
• Strategies and practices to promote positive student behaviour, including specific measures to maintain a climate of respect
• Strategies and practices to recognise and reinforce student achievement
• Strategies and practices to manage inappropriate student behaviour

Further guidance about the kinds of issues that a school discipline policy should address can be found in the Student Discipline in Government Schools policy.

Involvement in developing a discipline policy

When parents enrol their children at a government school they enter into a partnership with the school. Collaboration between school staff, students and parents when developing and implementing a school-based discipline policy will enhance the policy’s effectiveness.

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Incidents which occur outside of school

Yes. School discipline processes can be applied to the behaviour of students at school, on the way to and from school and while away from the school site on school endorsed activities.

School discipline processes can also be applied in response to an incident that has taken place outside of school hours and off school premises provided there is a clear and close connection between the school and the conduct of students. This includes a student’s use of social networking sites, mobile phones and/or other technology to threaten, bully or harass another student or staff member in relation to school-related issues.

Information about the management of social networking issues can be found in the Safety and Security directorate’s Social Networking Update newsletter.

Is there a duty of care outside of school?

No. The taking of disciplinary action against a student after such an incident does not necessarily mean that the school owed a duty of care to the victim immediately before and/or during the incident. The action taken by the school in these circumstances is designed to address the potential ongoing impact of the earlier behaviour on the affected student while they are at school.

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Reporting requirements for an incident

The department’s Incident Reporting Policy and Incident Reporting Procedures set out the requirements to report incidents. Sometimes an incident that occurs at a school may need to be reported to the Health and Safety directorate, and/or the Incident Support Hotline (1800 811 523) and/or the police. Information about when an incident should be reported to the police can be found in Memorandum to Principals DN/10/00225 - Reporting Incidents Involving Assaults, Threats, Intimidation or Harassment. If there is any doubt about whether an incident should be reported to the police advice can be sought from the SSRU.

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Anti-social or extremist behaviour

If the risk is imminent the principal (or senior staff member at the school) must immediately call Triple Zero (000). In all other circumstances, the principal (or senior staff member at the school) must notify the Safety and Security directorate.

Further information about students who exhibit anti-social and extremist behaviour, including the definition of those terms, can be found ion the Safety & Security and Work Health and Safety websites.

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Disciplinary action involving the police

The taking of disciplinary action against a student does not preclude the police taking criminal proceedings against him or her. Nor does it prevent another student commencing civil proceedings against the student, or seeking an apprehended personal violence order, in appropriate circumstances.

Similarly, the commencement of criminal or civil action in respect of an incident does not prevent a school from taking disciplinary action where appropriate. In such cases, careful liaison is needed with police to determine how, or if the school should investigate an incident where criminal conduct is suspected. Advice is available from the Incident Support Hotline in relation to this issue.

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Required record keeping

Schools should keep records of how the school discipline policy was developed and implemented including the consultation process that was undertaken during policy development. Records should also be kept of the incident that has occurred and any processes followed in response to an incident including:

• any reports made in relation to the incident and where relevant the reference number of those reports
• any information that was requested and/or obtained in relation to the student or his or her family (for example information obtained under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998)
• details of interagency cooperation that was undertaken in an effort to facilitate the student’s learning and support including who was involved and what the outcome was
• decisions made and the reasons for those decisions
• any investigation of the incident undertaken including the process that was followed, the outcomes of the investigation and what action was taken as a result
• any risk assessment or change to a risk assessment arising from the incident including any strategies implemented to eliminate or control risk
• any consideration that was given to the implementation of reasonable adjustments
• any consultation, or attempts at consultation, with students and parents
• the student discipline policy or procedure that applied at a particular time.

A checklist of the legal requirements that potentially arise when student disciplinary action is contemplated is attached to this bulletin.