Citizen child: Australian law and children's rights

Archived publication – December 1996

5. Children's rights in school education

by Robert Ludbrook

Education is something we have all experienced. Whether we remember our days in the old school yard as the happiest days of our lives or whether we were glad to escape from school into the adult world, nearly all Australians either as students or as parents of students have at some time had personal experience of the school education system.

Education is not easily fitted into a 'service provider' and 'service consumer' analysis. Who are the service providers: departments of education, school councils, school principals, teachers? The New South Wales Education Reform Act 1990 states that 'education is the primary responsibility of the child's parents', and one might even argue that parents are the primary service providers. Some States and Territories have devolved some responsibility to school councils with representatives from various sectors of the educational community.

Deciding who are the consumers of education is equally difficult. Students, whether willingly or unwillingly, spend most of their weekdays sitting in the classroom and could be said to be the primary consumers. Parents of school children in Australia have a real interest in the availability and quality of educational services and the legal responsibility for ensuring that children go to school. Parents make most of the choices about their child's education and, in the private system, have an added financial interest in the quality of the educational services they are paying for. The relationship between students, parents and educators can be complex and confusing, and the boundaries are often unclear. This lack of certainty frequently works to the disadvantage of students.

Consumer rights in education

Education is seldom seen as a social service and the notion of schools providing a service for students and their parents is not often expressed. Schools are often viewed as self-enclosed communities, part of a separate sphere governed by their own ideology, rules and priorities, and for which there are historical and pedagogical reasons. The school world is often resistant to interference from other disciplines such as the social services and the law. The notion of schools somehow being above the law has never received acceptance from the courts, but courts have traditionally shown a reluctance to intervene in internal school matters. The courts have generally accepted that school principals and teachers are the best suited to make such decisions.

The concept of 'consumer power' in education is not well developed in Australia's state education system, and an analysis of education in terms of the rights of children and their parents is strongly resisted by many educationists. The approach is often that schools have been entrusted with the difficult task of imparting knowledge and skills to children; that teachers are professionals with a specialist expertise and they should be free to get on with the task without outside interference.

This approach is enhanced by the traditional lack of community control and community accountability in Australian state schools. While there has been some move in the last decade to devolve the power of education departments and increase the input of parents, students and the community, the steps forward have been tentative and faltering. A comparison with educational developments in England and New Zealand shows how timid Australia's approach has been. There is an understandable fear that devolution is likely to be an excuse for reduction in resources, closure of schools, redundancies and worse employment conditions for teachers

A right to education

In Australia, government school education is the responsibility of State and Territory governments and education is paid for out of their state budgets. The Commonwealth has traditionally provided some targeted funding for both state and private education.

The United Nations Convention on the Rights of the Child (the Convention), ratified by the Australian government in 1990, requires Australia to recognise the right to education of everyone under the age of 18 years. In recognising this right, Australia is committed under the Conventio~ to making primary education 'compulsory and available free to all' (Article 28 (1) (a». With secondary education, the Federal Government is required only to 'encourage the development of different forms of secondary education including general and vocational education, and to make them available and accessible to every child' (Article 28 (1) (b». The Convention does not demand compulsory secondary education, although it does urge the introduction of a range of options for secondary education with financial assistance in the case of need.

It is one of the basic tenets of Australia's education system that school education should be compulsory and free. In all States and Territories there is a requirement that parents enrol their children at a state or approved private school and that they ensure their attendance between the ages of six and 15 years (16 years in Tasmania). State and Territory education laws include a statement that 'instruction' is free for all students at state schools. There is room for debate about whether 'instruction' is limited to the provision of teaching or whether it is wide enough to include basic teaching materials and other resources and facilities reasonably necessary for the child's instruction. The United Nations Convention and usual principles of interpretation suggest that a broad meaning should be given to the term 'instruction'. A later section deals with the rights of state schools to claim fees.

Australia's education laws

Education law is contained in education acts and regulations and in policy documents issued by State and Territory education departments. Education acts vary considerably in their vintage: Education Act 1928 (WA); Education Act 1937 (ACT); Education Act 1958 (Vic); Education Act 1964 (Qld)j Education Act 1972 (SA)j Education Act 1979 (NT)j Education RefonnAct 1990 (NSW)j Education Act 1994 (Tas).

Australia's education laws were adapted from Anglo-Celtic models and, in most States and Territories, set out a series of machinery matters to do with teachers, their conduct and their powers. In New South Wales, the Minister of Education is given the power to control and regulate student discipline in government schools and has prepared guidelines for schools to adopt as part of their discipline codes (Section 35 Education Reform Act 1990). In Victoria, school discipline policies are a matter for school councils and school principals are responsible for the nature and extent of punishment imposed (Regulations 5.4 and 5.3 (b) Education Regulations 1988). In Queensland, the principal of a state school is responsible for the progress and good behaviour of students (Regulation 32 Education Regulations 1988). It is teachers who, in Western Australia, have the authority to secure the good behaviour of students (Regulation 28 (2) Education Regulations 1960}. Where there are no express statutory or regulatory powers the school can rely upon the common law power to make reasonable rules for the good order and discipline of its students.

Seldom are students or parents granted explicit rights under education acts or regulations. Only the Education Reform Act 1990 of New South Wales states the purpose of education and gives an unequivocal right to every child to receive an education. Having given children a right to education, the New South Wales Act places primary responsibility on parents for providing that education, but then states that it is the 'duty of the state to ensure that every child receives an education of the highest quality'. What is hinted at, but not expressed, is that education is a partnership between parents and the State Government. But Section 6 (I) (m) makes it clear that the State Government is the senior partner. Educators must have regard to the 'provision of opportunities for parents to participate in the education of their children'.

No States or Territories give children an express right to free education. All place an obligation on parents to send their children to school, and announce that instruction in state schools is to be free. However, there is uncertainty whether it is only compulsory age students who qualify for free instruction. Tasmania's new Education Act 1994, launched under the banner 'Taking Tasmanian Education into the 21st Century', restricts free tuition to children 16 years and under, and permits a charge to be made to cover incidental costs and expenses in providing educational instruction. In the Northern Territory, the Minister is required to 'assist parents ... in fulfilling their responsibility to educate their children according to their individual needs and abilities'. Some Australian education acts show their age. Until last year, children in state schools in Victoria had to be given instruction in 'temperance' and be taught 'drill' and 'sewing and needlework'.

Educational quality

There are many theories about education: what it is, what it should be and how the quality of education should be measured. J udith Chapman, speaking in 1994 at an International Congress on School Effectiveness (AEU 1994) suggested there was widespread agreement as to the values and characteristics of a good school:

  • schools must be democratic, equitable and just;
  • schools should develop in students a sense of independence, a feeling of their own worth as human beings and confidence in their ability to contribute in social, political and moral ways to the health and stability of society and its members;
  • schools should give students access to knowledge, skills and attitudes needed in today's complex society;
  • schools should prepare our citizens to conduct their interpersonal relationships with one another in ways that contribute to the health and stability of society and the individuals who comprise it;
  • schools should engender a concern for the cultural as well as the economic enrichment of the community.

No attempt is made in Australian education law to define what is meant by education, nor is there any commitment as to the quality of education provided.

The one exception is in New South Wales law where the Education Reform Act 1990 acknowledges a duty of the state to ensure that every child receives education of the highest quality, and requires educationists to 'promote a high standard of education in government schools'. In New South Wales regular quality assurance reviews are carried out by a Quality Services Directorate.

In the United States, schools and education boards have been sued by parents and students who claimed that the schools had failed to provide education of a reasonable quality. In New South Wales, it might be open to a parent or student to bring a claim for damages for breach of a statutory duty if the quality of education provided fell significantly below that standard. In contrast, Victoria has recently passed amendments to its Education Act (Education Amendment Act 1994) which deny students and parents rights of access to the courts to challenge the closure of a state school.

Education from the child's point of view

Compulsory education means a loss of autonomy and personal freedom for the child and extends the child's dependency on adults beyond the time when such dependency is essential for the child's survival and development. Children of compulsory school age face significant restriction of their freedom of movement and assembly, their freedom of expression and their freedom of thought, conscience and religion. They are denied the right to work during school hours and thus to earn money. In Australia, as in most industrialised societies, this loss of freedom is seen as a necessary sacrifice for children's greater good and for that of society, which has an interest in its citizens attaining a high level of education.

Private or independent schools

All Australian States and Territories allow for private education in church schools or independent schools. Parents are usually required to pay fees, although there is likely to be some subsidy from State and Territory governments and from the Federal Government. In the private system there is a written or implied contract between the parents and the school which defines the terms of the services provided by the school. Children are not parties to this contract and as their situation is not covered by education laws and regulations they must look to the general law for any rights. Article 28 (2) of the United Nations Convention requires that the Australian government must ensure that school discipline be administered in a manner consistent with the child's human dignity, and in conformity with the Convention. There is a strong case for arguing that this requirement is applicable to private as well as government schools. Anti-discrimination laws (including laws relating to sexual harassment) in most States and Territories apply to students in private schools. If students are facing expulsion from school the principles of natural justice apply and the procedures must be fair.

School fees

State schools have no legal power to charge 'fees'. They can ask parents for a voluntary donation towards the cost of running the school or for a payment to meet the cost of additional services or materials provided for students. Yet many state schools persist in claiming 'school fees' and putting pressure on parents and students to pay the amount claimed. The National Children's and Youth Law Centre has received many reports of instances where students have been humiliated for their parents' failure to pay contributions to the school, where students have had their names written on the blackboard, and where students have been denied educational materials, end of year reports and even school prizes. In one case a teacher allegedly demanded that a student pay her lunch money to the school.

Choice of school

The responsibility of enrolling a child at school and ensuring that the child attends regularly lies with the parents or carers of the child. In every State and Territory it is a criminal offence for parents, guardians or other carers to fail to enrol the child in a state school or approved non-government school unless the necessary consents have been obtained for the parents to educate the child themselves. Failure to ensure attendance can result in a fine. Some States and Territories provide that students can be excused from attendance at the discretion of the principal if a parent or carer (but not the student} provides a satisfactory reason. Children clearly do not have the right not to go to school if they are of compulsory school age. But do they have a right to choose which school they attend? Students of compulsory school age cannot enrol themselves in a school and the choice of schools is deemed to be a parental decision. In all States and Territories there is a system of zoning for government schools so that children have a right to enrol at a designated school close to where they live. Some States and Territories have introduced more flexible rules which allow children to be enrolled in schools outside their designated zone.

Children's rights in education

In 1995, a senior officer of an education department commented in a personal communication with the author that: 'Education is no longer a right - it is a privilege.' Increasingly, education is being regarded as a privilege which can be withdrawn if the student does not behave appropriately. But in the last decade, changes in the common law and international law have highlighted children's rights in education. The Gillick case, a decision of the English House of Lords in 1985 (Gillick v. West Norfolk AHA [1986] AC 112), rejected the idea that children remain under the control and authority of their parents (or other adult carers) until they reach the age of majority (18 years in Australia). The judges determined that children were able to decide matters for themselves when they attained the intelligence and understanding necessary to weigh up the various possibilities and make an informed decision. Thus, while certain powers are given to parents and other adults to enable them to protect and promote a child's welfare and interests, parental powers are held in trust for the child and dwindle as the child grows and develops a greater capacity to take control of his or her own life.

Although the Gillick case did not deal with students' rights in education, the principles are applicable to school situations. Teachers can no longer rely on their powers as teachers as giving them unqualified control and authority over students. Any exercise of power must be able to be justified in terms of the students' incapacity to make decisions for themselves and must be shown to be necessary to advance their welfare.

Article 12 of the Convention on the Rights of the Child contains the important requirement that children be given the right to express their views freely in all matters which affect them; that their views be given due consideration, taking into account their age and maturity; and that they may have a representative to help them put their views forward. The Convention in several places emphasises that authority and control of parents over their child must give way to the child's evolving capacity (see Articles 5 and 14).

Children can no longer be treated as passive objects about whom parents and teachers can make decisions. They are independent people with increasing powers of self-determination as they grow in maturity and understanding. With very young children the protectionist role of adults predominates, but as children move towards adulthood they are empowered to make more and more important decisions for themselves. Adults can advise and suggest, but children move to a situation where they are increasingly able to make their own choices and determine their own actions.

Is there a role for individual student rights?

Some would argue that in schools the individual rights of students must be subsumed in the collective rights of the school. Some teachers would identify their role as being the socialisation of young people so that they can be prepared for a full and useful life in Australian society. Schools are places of learning and learning, it could be argued, is best fostered in an orderly and disciplined school environment where students do as they are told so that those who are anxious to participate and learn are able to do so with the minimum distraction and disruption.

Students who insist on their individual rights, including the right to be different and to challenge the authority of the school, may be seen to be infringing the rights of those students who are happy to conform. There is also a resources argument that students who seek to be different attract a disproportionate amount of the time of teaching staff and school resources with the result that other 'obedient' students are disadvantaged.

There are some signs from the burgeoning of interest in human rights and the growing influence of the United Nations in promoting fundamental human rights, that the former protection from scrutiny enjoyed by schools may be in danger of erosion. In February 1995 the United Nations Committee on the Rights of the Child, in its observations on the report filed by the United Kingdom, made critical comments about perceived breaches by the United Kingdom in ensuring that government and independent school students were being accorded the rights assured to them in the United Nations Convention. Australia is likely to face similar criticisms when the Committee comes to file Australia's first report.

A rights culture in schools

There is a discernible resistance amongst educators to the idea of children having independent rights in education. Historically, school education has placed considerable emphasis on the teacher's authority and control. It is believed that effective education is most likely in a disciplined and firmly controlled environment and there remains considerable emphasis on conformity, respect and obedience. Educational philosophies which encourage informality, experimentation, selfmotivation and innovation have had some influence on educational approaches, but most Australian state and independent schools remain firmly rooted in the English pedagogical tradition.

A 'Know Your Rights at School Kit' distributed in 1994 by the National Children's and Youth Law Centre, which set out in plain language the rights of students in school, was greeted in some circles with howls of anger and derision. Typical comments were: The Kit should only be circulated under strict parental supervision'; 'The tone of the Kit is confrontationist'; 'The Kit could lead to United Statesstyle schools where weapons and drugs are common and the enforcing of school rules may turn into a lawyer's picnic'; 'Teachers could be forgiven for finally throwing in the towel if this outrageous publication is not immediately filed in the waste paper basket'.

While in the wider community the notion of children having independent rights is gaining greater acceptance, there seems to be a fear within the education system that allowing students independent rights {or telling them what those rights are} will lead to anarchy or insurrection. It is as if the lid needs to be kept tightly on schools lest students turn into uncontrollable barbarians.

The idea of children as untamed savages has its roots at least as far back as the Old Testament and re-emerged in the writings of Martin Luther and in William Golding's (1954) novel Lord of the Flies. Schools want students to be self-managing and responsible but sometimes severely restrict the opportunities for them to be involved in decision-making processes and to take responsibility for their own actions.

Attendance and truancy

Children do not commit a criminal offence by not attending school, but in the Australian Capital Territory the Court hearing the charge against the parents, if satisfied that the child is a truant, can place the child on probation or order the child's detention in an institution (Section 18 Education Act 1937 (ACT)). Similarly, care and protection laws in South Australia have non-attendance at school as a ground on which a finding may be made that a child is in need of care and protection. Thus, for children in South Australia or the Australian Capital Territory, truancy may be a route into the care system.

In the Northern Territory and Tasmania, the state Department of Community Services might intervene on the grounds that a child refusing school was not under effective control. Likewise, in New South Wales children of compulsory school age who are not at school can, if seen in a public place, be required to give their name and details to the police or an attendance officer and there are sometimes additional powers to take the child home or to school (see Section 122 Education Reform Act 1990 (NSW)).

Home schooling

Every Australian State and Territory allows for the possibility that children may be educated at home by their parents. In some States and Territories there are defined statutory procedures; in others there is a general discretionary power to exempt students from attendance. Parents who take up the home schooling option may be critical of aspects of education provided through the state system or may have a religious or conscientious objection to formal schooling or the official school curriculum. This can be seen as a parental right to choose alternative schooling rather than the child's right of choice. Even if a child could find a competent adult who was willing to educate them outside of the school system they would not be able to get the necessary exemption unless a parent supported their application.

The New South Wales provisions are typical of this situation. Parents may apply in writing to the Minister of Education in that State for registration of their child for home schooling, which can be granted for up to two years. The ability of the parents to provide instruction in accordance with education regulations and curriculum requirements is investigated by the Department. If registration is refused, rights of appeal exist (Part 7, Div. 6, Education Reform Act 1990).

Legal bases of schools' powers

Traditionally, the power of schools and teachers over students was said to derive from the common law principle of in loco parentis. Parents were seen as handing over their children to the school for the purpose of educating them, and it was assumed that the parents delegated to the school and its teachers their parental powers. This principle (which was part of English law but never part of Scottish law and has not been followed in the United States) has sensibly been abandoned in Australia's education law, certainly in relation to compulsory state schooling (Ramsay v. Larsen (1964) 111 CLR 16). In state education, one looks to education acts and regulations for the source of the proposition that teachers can impose and enforce rules for the good order of the school and the discipline of students. As an American judge once commented, a teacher without the power to discipline students is like a schoolroom without doors and windows.

Student involvement in school decision-making

Students can no longer be treated as passive receptors of education. The old-fashioned method where a teacher instructs and the students sit quietly and listen, is perhaps not the most effective method of training students to become knowledgeable and skilled adults. Student participation helps students to learn to be active participants in their society through experience in making or influencing decisions in the class, the school and the education system. Through their own special skills and insights, they can bring a consumer perspective to the classroom.

Student participation in school decision-making is not just good educational practice. It is a fundamentallegal right recognised in Article 12 of the United Nations Convention on the Rights of the Child: the right to express their views freely in all matters that affect them and the right to have those views taken into account when decisions are made. Unfortunately, the 'adults know best' approach seems to have become institutionalised in Australian schools and there has been disappointing progress in empowering students to play a significant role in school issues.

Most Australian States and Territories have, since the 1980s, moved some way towards greater student involvement in school decisionmaking, but progress has been disappointing. One commentator has argued (Holdsworth 1993) that the emphasis from the late 1980s on economic rationalism, cost-effectiveness and management strategies has led to a falling off in support for student participation. There is inevitably an ebb and flow in the enthusiasm of students having input into school policies: key students leave school; there are competing pressures of completing assignments and passing exams; support from the school and its staff may wax and wane; and students may lose interest if their recommendations and suggestions are ignored. The National Children's and Youth Law Centre receives regular complaints from students that Student Councils or Student Representative Committees have no real power and do little more than fundraise for the school, arrange social activities and make recommendations on fringe issues.

Responsibility for supervision and care of students

In Western Australia, education regulations (Education Act Regulations 1960 (WA)) require the principal of a school to 'make proper provision for the supervision of the children attending the school when they are at play during lunchtime and other school breaks' (Regulation 30), and teachers must be present at least 15 minutes before school commences to prepare materials for work and to secure good behaviour among the students (Regulation 31). Generally, in other States and Territories the responsibilities of the school for the care, supervision and safety of its students are left to be regulated by the common law.

The liability of schools and education authorities for injuries suffered by students was explained by the High Court of Australia in Geyer v. Downs (1977) 138 CLR 91 as follows: 'Children stand in need of care and supervision and this their parents cannot effectively provide when their children are attending school; instead it is those then in charge of them, their teachers, who must provide it.'

The standard expected of teachers is the degree of care and supervision that a reasonably prudent parent would exercise over his or her own child. Schools have a duty to take positive steps to ensure the safety of students and, as evident in the following, the courts have required a high degree of care and supervision.

Education authorities have been held liable for: injuries caused to a 15-year-old who was seriously injured when swinging on the school flag pole in the playground before school (Introvigne (1980) 48 FLR 161); a student rendered quadriplegic as a result of a neck injury suffered in a scrum at an inter-school football match (Watson v. Haines 1986); a 16- year-old injured during a school canoeing excursion while moving a trailer (Munro v. Anglican Church 1987); a student injured after being hit by a soft ball bat wielded by another student on school grounds before the commencement of the school day (Geyer v. Downs 1977); a 12-year-old injured in erecting a catwalk for a fashion parade to be held at the school (Haines v. Rytemeister 1986); a young child who suffered burns after straying from the classroom to a barbecue area (Mill v. South Australia 1980); a student hit by a missile thrown by another student (Evans v. Minister for Education 1984); students injured in an explosion resulting from their mixing of chemicals (Bartley v. Haines 1989); a student injured during physical education after tripping while jumping over a fixed bench (Smith v. A.G. Tasmania 1991); a student struck by a shot thrown by a fellow student on the athletic field (Thomas v. South Australia); a 5-year-old injured after being released early from class (Bames v. Hampshire (UK) 1969); a 13-year-old who fell off the back step of a schoo 1 bus (Shrimpton v. Hertfordshire (UK) 1911).

Schools and education authorities have been held not liable where the injury was caused by a breach of school rules and/or the school had taken reasonable steps to supervise the students. For example, a student who was injured after tripping over a school bag while running in a school corridor failed in a claim for damages, it being shown that the rules against running in school corridors and leaving bags in the corridor were well known and were enforced (Gaetani v. Christian Brothers [1988] Australian Torts Reports 67, 389). Similarly, schools were held not liable for: a student injured as a result of faulty equipment on an 'Outward Bound' course, where the Court found the school was entitled to rely on the care and competence of the instructor (Brown v. Nelson 1971); a student who fell while using the vault in the school gymnasium (Wright v. Cheshire 1952); a student injured after being pushed off a chair by another student (Barker v. South Australia (1978) 19 SASR 83); a student who, in disobedience to instructions, returned to a trampoline and was injured (Hills v. South Australia 1985); and a student injured while taking part in a game as part of physical education when the activities were adequately supervised (Kretshmar v. Queensland [1989] Australian Torts Reports 68, 888).

In Australia, education departments either insure against claims for personal injuries or they meet such claims out of their own funds. In other countries no-fault accident compensation schemes or insurance schemes have been developed which rely on contributions from both the school and parents.

Responsibility to report neglect or abuse of students

Mandatory reporting is an obligation imposed by law on designated professionals to report to state authorities a suspicion or belief that a child is or has been at risk of abuse. Failure to report can attract criminal sanctions. Children spend more time with teachers than other professionals, and school staff subsequently have greater opportunities to see signs of abuse or neglect or hear from students of abusive situations. Reporting obligations vary according to the State or Territory in which the school is situated. In all States and Territories, other than Tasmania, Queensland and Western Australia, teachers and school counsellors have a legal obligation to report suspected abuse of students. In Tasmania, a person who reports abuse is given statutory protection from defamation or disciplinary proceedings.

There is a tension between a child's need for protection and the child's right to confidentiality and self-determination should they turn to a professional for help. In the words of Justice Fogarty of the Family Court of Australia:

'Adolescents who consult with professionals need to have their own feelings and confidences respected. Although the obligation to report remains, the process by which that occurs and the manner in which it is handled needs to take account of these concerns, especially teenage girls reporting incidents of, for example, sexual abuse. Unless handled sensitively there is a risk that the adolescent will be reluctant to make a disclosure where it is clearly in the interests of that person that he or she does so.' (Sandor & Bondy 1995, pp.l8-19)

Where there is no mandatory reporting requirement, it is important that issues of confidentiality and voluntary reporting be covered by teachers and school counsellors in their professional code of ethics. Students should be made aware of any mandatory requirements or professional codes as to confidentiality and reporting.

Confidentiality and school counsellors

Children often talk to teachers and school counsellors about what is happening in the family home, and this information is capable of being used by the school in a way which may breach the privacy of the family. The responsibilities of teachers and counsellors in respect to students and their parents is a difficult and complex area which embraces such issues as: Can a teacher assist a student to obtain contraception or an abortion without informing the parents? Can and should a school counsellor breach a child's confidentiality where he or she believes this will promote the child's welfare or protect the child (or other children) from abuse? Can a school principal require that a teacher or counsellor divulge information volunteered by a student about drug involvement?

It is difficult to answer these questions because there are uncertainties as to whether the prime responsibility of teachers is to the students they teach, the parents who are obliged to send their children to school, to the school principal as the person in charge of the school, or to the Department of Education which pays their wages. Teachers have a bewildering range of responsibilities to other members of the school community and it is unrealistic to look to the law to find answers to these complex questions. The teaching and counselling professions need to develop a clear code of ethics and statements of policy so that students who seek counselling or advice can be assured that their confidentiality will be respected.

Access to school records

Students are entitled to have access to school records containing personal information about them and their progress in school under Freedom of Information (FOI) laws, which exist in all States and Territories except the Northern Territory. This right is backed up by Article 13 (1) of the United Nations Convention, which gives children a right to receive information of all kinds. Some education departments are willing to provide information without a formal FOI request. Where a formal request is required, a letter of request referring to Freedom of Information rights should first be made to the school concerned. If this is unsuccessful a written request should then be made to the FOI officer of the relevant Department of Education.

School uniforms

School uniforms and dress codes are a common source of friction in schools throughout Australia. In a society which places great emphasis on appearance, fashion and style, and where there are strong advertising and peer pressures for young people to be part of the current youth culture, it is not surprising that some students claim the right to express their own personal preferences in their dress and appearance.

Dress and appearance are far more than matters of taste and fashion; they have powerful social meaning. Dress may represent a desire to be different; it may be a challenge to adult authority or values; or it may be a means of gaining peer attention or approval. Schools and school communities have the difficult task of balancing the views of a diverse group of students against those of parents, teachers and community members. Some see the way young people dress as a matter of personal taste and preference and not part of their education. Others believe that the school has a role in setting standards and an interest in students dressing in a way that is neat and unobtrusive. Schools can also argue that they are better able to ensure the safety of students if they can easily distinguish them from outsiders.

Schools are not required to have a school uniform. Some Australian schools allow their students to choose the clothes they wear to school and others have relaxed uniform requirements. But unlike state schools in the United States and Canada, which do not have uniforms, school uniforms have become an institution in Australia. The Convention on the Rights of the Child and the earlier International Covenant on Civil and Political Rights (1966), both of which have been ratified by the Australian government, give all Australians a right to freedom of expression. The way in which a person dresses - the choice of clothing, hairstyle, items of adornment and accessories - reflect an individual's preferences for colour and style. Yet most state and private schools (other than state schools in the Northern Territory) take it for granted that it is within the power of the school to lay down strict rules as to what clothing, footwear, make-up and jewellery can and cannot be worn to school.

At a time when children are more fashion conscious than ever before, they are denied the opportunity to express their taste and their preferences. One is entitled to ask what the educational imperative is that requires schools to dictate the way children dress. Certainly there are arguments in support of school uniforms: that they are cheaper; they avoid competitiveness or embarrassment for students who cannot afford fashion gear; they encourage orderliness and discipline; and they give'students a greater sense of pride and loyalty towards the school. But, from a children's rights viewpoint, compulsory uniforms represent a restriction of their freedom of expression and discourage individual choice.

Compulsory uniform codes tend to enforce monocultural and gender-specific rules about dress and personal appearance which might be challenged under anti-discrimination legislation. In New Zealand, the Human Rights Commission upheld a complaint from two primary school girls who were unhappy that the boys at their school could wear shorts but they were required to wear skirts (Youth Law Project, Auckland 1992). The Commission found they suffered practical disadvantages and the school was ordered to allow them to wear culottes or shorts. Similarly, in 1993 an African student attending a school in New Zealand also succeeded under racial discrimination legislation in changing a school rule which denied her the right to wear her hair braided.

Australian school uniform codes could likewise be challenged by Indian students who wish to wear a sari, or Pacific Island students who seek to wear their traditional dress of a sarong, pareu or lava lava. In a Victorian case, two male students of independent schools made complaints to the Equal Opportunity Board about school rules that required male students to have short hair while allowing female students to wear their hair long. The schools excluded the students from attending classes until such time that they had their hair cut; however, an interim hearing ruled that the students had to be returned to school. The Education Department successfully appealed this decision, only to have it overturned by a higher court. The relevant legislation has since been amended, and the Equal Opportunity Act 1994 (Vic) now gives schools the power to breach age and sex discrimination laws in respect of school dress codes and school discipline policies.

It is generally assumed that schools have the power to regulate matters of dress and personal adornment as part of their powers to lay down reasonable rules for the good order and discipline within the school. Western Australian education regulations (Regulation 189a) allow the Minister to give instructions as to dress codes to be adopted by schools and as to ways in which students and parents are to be consulted in determining these dress codes. The personal, social and cultural background of students must be considered and all members of the school community given a chance to express a view before deciding on a school uniform.

The debate is not whether schools should or should not have official uniforms; it is whether the wearing of a school uniform and compliance with school rules concerning a child's personal appearance should be compulsory. With some schools seeking commercial sponsorships, this issue is taking on a new slant. Are we approaching a time when students will be required to wear the logo of their commercial sponsor?

Right to political expression

In this area, too, Australia has fallen behind the United States and other industrialised countries in the recognition of the rights of students to express their opinions in a non-violent and nonthreatening way. The Convention on the Rights of the Child gives children the right to freedom of expression and of thought, conscience and religion, but these rights are made subject to the need for public order and the right of parents to provide direction in the case of children who lack the capacity to make their own decisions. In some Australian States and Territories the right to freedom of expression is backed up by anti-discrimination laws.

The right of black students in the United States to wear arm bands as a protest against their country's involvement in the Vietnam war has been upheld in superior courts (Tinker v. Des Moines Independent Community School District (1969)) as has the right of students to support two teachers who were on strike by wearing badges and stickers with slogans such as, 'We want our real teachers back' (Chandler and Depweg v. McMinnville School District (1992)). In each case, the Court relied on the constitutional right to freedom of speech, the fact that the protests were not accompanied by any disturbance and that there was no evidence of interference with the school's work or with the rights of other students.

Australian schools regularly ban lapel badges, buttons, stickers or Tshirts expressing a view on an issue seen as political, such as 'Save the Whale' or 'Gay Rights'. Teachers have also been known to ban petitions or posters prepared or circulated by students seeking to change a school policy or support a particular cause. Such bans might be challenged as a denial of the students' right to freedom of expression and their right to receive and impart information and ideas of all kinds under Article 13 of the Convention. In New South Wales, students could additionally rely on Section 6(1)(c) of the Education Reform Act 1990 which requires educators to 'encourage innovation and diversity within schools'.

Religion and religious instruction

Australia allows religious diversity and freedom of religious belief. Our education system is sometimes described as 'secular' without any clear understanding of what this means. In New South Wales, education in government schools is to be 'non-sectarian and secular'. General religious education, as distinct from dogmatic or polemical theology, is permitted. Education acts in other States and Territories provide for 'religious instruction' during school hours. Section 23 of the Education Act 1958 (Vie) is typical. Religious instruction must be given by approved religiOUS instructors and is not compulsory for any student whose parents object. There is no statutory right for a student to object to participation in religious instruction but in most States or Territories anti-discrimination laws would empower students to refuse to participate.

Limits of schools' powers over students

Children attend school for the purpose of education and one would expect that the powers of the school were limited to education and related matters. By analogy with the Gillick case, teachers' powers are given to them to enable them to carry out their responsibility to educate students. But schools often seek to extend their powers beyond the school into their students' private, family or cultural lives.

Responsibility for children travelling to and from school

One might assume that it is the responsibility of parents to get their children to and from school and to supervise their behaviour during the journey - unless, of course, the school undertakes to provide transport or supervision for students on their journey to and from school before the commencement of classes or at the end of the school day. A number of legal decisions suggest otherwise.

There are two colourful old English cases that are often referred to and relied on to support the proposition that the hand of the school can follow students outside the school yard. In Craig v. Frost 1936, the galloping horse case, it was held that a teacher could punish a student for galloping his horse to school contrary to teachers' orders but with parental permission. It seems that other students on the way to school were endangered or thought to be at risk and the decision might be justified on the basis that a school had a duty to other students. In R v. Newport Justices 1929 it was held that a child had been lawfully punished for smoking on his way home from school even though his father had given him permission to smoke.

It is doubtful, however, that these decisions support a general principle that schools can regulate the dress and behaviour of students on their way to and from school. Yet many schools seem to act on this assumption. Students have been suspended or expelled from school for smoking or drinking well away from the school and outside school hours, or for misbehaving on public transport on the homeward journey. Others have been disciplined for eating in the street while in school uniform, smoking in a park en route to school, failing to wear correct uniform, or for acting in a noisy or boisterous manner on the journey home.

Often the fact that the student is in school uniform is treated as conclusive of the question as to whether the student remains under the school's jurisdiction. Yet students, if required to wear a uniform to the school gate, have very little choice but to wear it home. The real issue is: under whose care and supervision is the child at the relevant time? Schools do not usually undertake to supervise students on the journey to and from school unless they provide special transport in the form of a school bus or provide supervision for students crossing busy roads or getting onto public transport.

The 'walking advertisement' argument is also sometimes made. It is argued that even away from the school students are representing, or are seen as representing, the school. Thus students who in a public domain are not in uniform or are untidy, noisy, or bad mannered may bring the school into disrepute within the wider community. A counter argument is that if students are not in uniform they cannot be associated with a particular school, and that by disciplining them for behaviour outside the school, schools are taking on a responsibility which is not properly theirs. There are two separate issues here: Can a school require students to wear uniforms in their own private time and when away from the school campus? If they can, can they discipline students who are in school uniform for behaviour that has nothing to do with their education?

Chisholm (1987) sees the schools as having power where there is a sufficiently close connection between the student's behaviour and the child's schooling. But this is not always helpful. Take the situation of a student who attends a Saturday 'away' game played by a school team and is given a detention for not being in correct uniform, or the student who is abusive to a teacher on a Saturday in the local shopping centre or deliberately damages a teacher's car at the weekend. A student who slashes the seats on a school bus or behaves violently towards the driver or other students could clearly be disciplined by the school, but what of the student who sprays graffiti on a public bus or commercial building, or assaults other passengers on public transport? The child in all these cases is under the supervision of the parents, not the school. In the latter cases, the behaviour clearly constitutes a criminal act for which police, not the school, have powers to prosecute or issue a caution. Thus, the 'close connection' test here does not readily provide answers.

There is a need for greater clarification of these issues through legislation or policy guidelines. Under education regulations in Western Australia, a school principal is given a specific power to discipline students for behaviour on the journey to and from school (Regulation 28(2)) but, in all other jurisdictions, there is no clear statement.

Transport and parking

Older children tend to find their own way home whether by bicycle, on foot, by public transport or (increasingly) by car or motor cycle. While schools must surely be entitled to make rules as to the driving and parking of vehicles in school grounds and in close proximity to the school where the safety of other students may be at risk, it is hard to see any legal basis on which they could refuse to allow students to drive to school or require them after school to go straight home. With younger children, the responsibility for their care and supervision lies with the parents; competent older children are able to take responsibility for the journey themselves.

Homework

It is surprising that on such a common and important issue as the power of schools to insist that students complete homework assignments, the law is unclear. Again, the only pointer is an old English decision. In Hunter v. Johnson 1884 it was held that a school was not entitled to punish a student for failure to complete homework. Indeed, the term 'homework' is itself a misnomer; it is in fact school work done at home. Why should schools be able to require students to spend part of their private time doing school work? A school which attempts to do so is intruding into the student's personal, family and cultural life. While students and parents can be set work and encouraged to undertake extra work at home, it is an unwarranted intrusion into the child's private home life to require the completion of homework and to punish non-completion. In the absence of a specific statutory power (and there is none in any Australian State or Territory) it seems that schools are overreaching their legal.powers. A recent attempt has been made in New South Wales to institute a fixed number of hours of homework required from students of different years.

Corporal punishment

In its 1994 Report The Progress of Nations, UNICEF pointed out that all countries that have ratified the Convention on the Rights of the Child are obliged to protect children from 'all forms of physical or mental violence', and that the United Nations Committee on the Rights of the Child has taken the view that smacking children is a violation of the Convention. This reinforces the view expressed in 1992 by the United Nations Human Rights Committee that governments have a responsibility to afford protection to everyone from 'cruel, inhuman or degrading treatment or punishment' under Article 7 of the International Covenant on Civil and Political Rights, and that laws should prohibit the hitting of children by people, whether they are acting in an official or a private capacity. A Table in the UNICEF Report headed 'Is physical punishment illegal?' ranked Australia with the United States at the bottom of the list of 27 industrialised nations.

Many Australians believe that corporal punishment has been abolished in schools in this country. This is not the case. It is permitted in all private schools, and in Tasmania and the Northern Territory it is allowed in state schools. At the time of writing, corporal punishment may be used in state schools in New South Wales unless there is a parental veto. In Victoria, South Australia, Western Australia and the Australian Capital Territory it is banned by education regulations or departmental policy but, in these States and Territories, a teacher could still rely on the reasonable chastisement exception to the law of assault to defend a prosecution or a civil claim for damages.

Australia is in breach of its international law obligations in not banning the physical punishment of children as part of school discipline. The Federal Government has the power to pass national legislation banning corporal punishment in schools under the foreign affairs powers in the Australian constitution. It has shown no interest in doing so.

Detention

Detention of students after the official school day is a further area in which the powers of the school to impose discipline and punishment on students comes into conflict with the rights of students and parents to choose how to spend their time outside school hours. A student who is held back in detention for half an hour after school may miss a bus or usual ride home or may have to ride a bicycle along a busy road in the rush hour. What case law there is does not support the right of schools to hold students back after school unless there is specific statutory or regulatory authority. Regulations allow Queensland students to be held back for up to half an hour after school (Regulation 35 (b) Education Regulations 1988 (Qld)), and in Western Australia there is a general power to hold students back by way of punishment (Regulation 26 (1)). In Tasmania's Education Act 1994, a principal may impose a detention on a student for unacceptable behaviour (Section 37 (b)). With younger children, parents may consent to their child being held back, and the school would then have the power by delegation from the parent. Older children might consent to do detention after school in preference to some other punishment, but it is doubtful that there is a general power to detain students against their will.

A school which seeks to extend its control over students outside school hours may find itself saddled with legal responsibility if the student suffers injury, on the basis that the actions of the school have led to increased danger. It is also an invasion of the privacy of the family in that their regular arrangements for the child's care and supervision on the home journey may be disrupted, with inconvenience and dislocation of the parents' lives.

Leaving school

Students who reach the end of compulsory schooling can decide whether to stay on at school or to leave, and this decision cannot be overruled by parents or the school. At 15 or 16 years-of-age the young person is likely to have the intelligence and understanding necessary to satisfy the Gillick test referred to previously.

Students cannot be required to leave school on reaching the end of their compulsory schooling. Age discrimination laws in the Australian Capital Territory, Northern Territory, New South Wales, Queensland, South Australia and Western Australia ensure their right to remain at school. In other States, Article 28 (b) of the Convention on the Rights of the Child could be relied upon to establish a right of education until the age of 18 years.

Suspensions and expulsions

All Australian state schools have the power to suspend or expel students from the school for misbehaviour. A child excluded from a 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 their school. While Australia has clear-cut procedures and effective remedies for workers wrongfully dismissed from their jobs, the procedures and remedies for students facing expulsion from school are often confusing and unfair. Many young people who have experienced expulsion report feeling a deep sense of grievance (National Children's and Youth Law Centre 1995).

Different criteria and legal and administrative procedures exist in regard to the suspension or expulsion of students in Australia. These will be dealt with only briefly here. In some States and Territories only the Minister of Education has the power to expel; in others the Director of Education has that power; and in yet others a school principal can do so. Even the terminology varies. Short suspensions, long suspensions, exclusions, expulsions, compulsory transfers, declarations of place vacant or removal from the school roll are all variations on a theme, the finale being that the student is banned from the school.

Some States or Territories draw a distinction between exclusions which terminate the student's right to be educated at a particular school and expulsions which terminate the student's right to education at any state school. In Tasmania, the grounds are not specifically defined, making the interpretation of unacceptable behaviour subjective (Sections 37 (a) and 38 (1) Education Act 1994). In contrast, Victoria now has carefully defined objective criteria (Ministerial Order No.l 1994). In some cases departmental guidelines seem to be in conflict with education acts and regulations; in others, the guidelines are inconsistent and hard to follow. In many cases the statutory provisions and the official guidelines are not followed; students may be 'asked to leave' the school, or parents may be asked or persuaded to 'withdraw' their son or daughter. Voluntary withdrawals are not classified as expulsions and are unregulated.

It is well established by case law that, because the consequences of expulsion are serious, students are entitled to a fair hearing. The principles of natural justice apply to school expulsions and require that the student and his or her parents or guardians should be given reasonable notice of the alleged misbehaviour for which exclusion is being considered; should have an opportunity to dispute, explain or comment; and should be able to put forward for consideration relevant evidence and submissions. The decision-maker must act in good faith and on the basis of material put forward and any explanations given. The person pressing for the student's expulsion should not be the person who decides whether the student is to be expelled and there must be some independent appraisal of the situation. The principles of natural justice apply to independent as well as to government schools.

However, case law suggests that an expulsion will be upheld, even if based on a mistake, if the school bases its decision on an honest and reasonable belief in the facts (McMahon v. Buggy 1972). If this is the law, then students can be expelled for things they have not done; this is a travesty of justice.

Schools cannot make inflexible rules with automatic penalties for infringement. They must look at the individual student's behaviour in Children's Rights in School Education 111 a wider context and consider the student's personal and family circumstances, his or her previous behaviour at school, and the effect of expulsion on the child's education. Students should not be expelled as an example to other students, and should not be expelled for trivial breaches of school rules, lack of academic ability or behaviour which the student is unable to control (M & R v. Palmerston North Boys High School 1990 (NZ)).

Article 12 of the Convention on the Rights of the Child entitles children to have a representative present when administrative decisions are made which affect them. This means that any student facing school expulsion may have someone present to help them put their views forward and to advocate for them. Advocacy in school matters has been slow to develop in Australia but today there are youth workers, legal centres and some private lawyers who are prepared to represent children in such situations.

In no Australian State or Territory is there a right of appeal to an independent body against a school expulsion, but a complaint may be made to the State or Territory Ombudsman on the basis that the procedure was not fair or the principles of natural justice were breached. Overseas, and occasionally in Australia, expulsions have been challenged through the courts. Such challenges have been so rare that there are few pointers as to the standards required of educators in deciding whether a student should lose his or her right to education.

Conclusion

The idea of children having independent rights in education is gradually gaining acceptance in Australia, but there remains considerable resistance from educators and the community generally. Education is often viewed as a privilege enjoyed by students which may_ be withdrawn if they do not behave appropriately. School students are given few rights in education law and, despite some positive moves, generally have few opportunities to participate in school decision-making, and little influence on curriculum or school policy and discipline.

Rights must, of course, be balanced by responsibilities. If students feel they are treated as individuals of worth and dignity with a part to play both within the school and in the education system, they are more likely to take responsibility for their own behaviour. Education, in the end, must be a partnership between students, parents and educators. There are signs of a dawning consciousness that children, as the primary consumers of education, should have rights and that educators, as service providers, should recognise these rights.

References

  • AEU (1994), The Structure of Australian Schooling, Australian Education Union.
  • Chisholm, R. (ed.) (1987), Teachers, Schools and the Law in New South Wales, University of NSW Press, Sydney.
  • Golding, William (1954), Lord of the Flies, Faber and Faber, London.
  • Holdsworth R. (1993), 'Student participation: A decade of unfinished business', in D.L. Smith (ed.), Australian Curriculum Reforms: Action and Reaction, Australian Curriculum Studies, pp.86-95.
  • National Children's and Youth Law Centre (1995), School Exclusions: Student Perspectives on the Process, NCYLC, Sydney, NSW, August.
  • National Children's and Youth Law Centre (1994), 'Know Your Rights at School', education kit, NCYLC, Sydney, NSW.
  • Sandor, D. & Bondy, J. (1995), Family violence: Young people and youth sector workers informing government about the implementation of mandatory reporting in Victoria, report of a research project funded by the Criminology Research Council Project Grant, October, unpub.
  • United Nations General Assembly (1989), The Convention on the Rights of the Child, adopted by the General Assembly of the United Nations, 20 November 1989. UNICEF (1994), The Progress of Nations, UNICEF.