Schools and discipline: latest case finds that suspensions might be a breach of human rights

Exclusionary discipline is under the spotlight as being too punitive an intervention, particularly for certain student cohorts. As well as exclusionary discipline being criticised by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royalty Commission), significant changes are occurring in Queensland.

In March 2024, parents and students in Queensland have recently ‘won’ the right to be able to successfully appeal against suspensions and have be reinstated to attend school, as the Queensland government is moved to introduce an appeal right for suspensions in public schools. The Bill to amend the Education (General Provisions) Act 2006 aims to:

  • improve the suspension and disciplinary process;
  • create supports to First Nations students, students with disability and prep students and their families; and
  • provide all parents and students with appeal rights for short-term suspensions.

Behaviour management frameworks are critical

School behaviour management frameworks are critical to how Schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities. Our recent work with clients underscores the ongoing fraught tension which Schools are grappling with. For example, often we are called to assist clients with student discipline matters, only to find behaviour management frameworks are inadequate. Sometimes the behaviour management frameworks have been updated but not implemented through fatal flaws in the process.

Many Schools continue to be challenged by balancing behaviour concerns that can put the school community at risk and ensuring its disciplinary process does not expose it to discriminatory practices or fall short of its duty of care obligation to students.

In this article, we explore the trends and tensions in a dynamic landscape and how Schools should be prepared to respond to the challenges of rethinking exclusionary disciplinary practices. 

Definition: Exclusionary discipline refers to the actions by an educational authority or institution that result in students’ withdrawal of education or training, including suspensions and expulsion.

The problem in context

The Organisation for Economic Co-operation and Development (OECD) has revealed that Australian “learning environments are comparatively less favourable in terms of disciplinary climate, intimidation or bullying, and student truancy” than other OECD countries.1 We also now know that extended social disruption such as the Melbourne lockdowns sowed the seeds for ongoing challenges schools are experiencing in today’s learning environment.

Research into the impacts of exclusionary discipline conducted by the Centre for Inclusive Education and the Queensland University of Technology advocates that exclusionary discipline “should only ever be used as a last resort” because it is:

  • an ineffective and contributing factor to a range of immediate and longer-term impacts, and
  • disproportionality used on vulnerable student groups.2

The Disability Royalty Commission also made findings that schools inappropriately use exclusionary discipline against students with disabilities, recommending a review of all regulations and other instruments regulating exclusionary discipline.3 We explore this in more detail in our article: ‘What schools should know about the recommendations of the Disability Royal Commission’, which lists a range of mechanisms schools can adopt without waiting for regulatory intervention in their state.

Trends in regulation

Queensland is the latest to introduce legislation that essentially provides for greater checks and balances on school practices and requires the use of supportive interventions. The Education (General Provisions) and Other Legislation Amendment Bill 2024 (Bill) introduces an appeal right for suspensions that are:

  • for a period of more than 10 school days;
  • based on a charge-related ground; or
  • in circumstances where the student has received one or more previous short suspensions where the total suspended period is at least 11 school days in the school year.

The Bill also formalises requirements for schools to implement student support plans for students that have been suspended or are at risk of being excluded. These student support plans must include:

  1. the behaviour that resulted in the student being suspended, or could result in the student being excluded, including a summary of relevant incidents;
  2. the needs of the student, and other circumstances, that may be contributing to the student’s behaviour; and
  3. strategies and support designed to:
    • improve the behaviour mentioned in paragraph (a); and
    • protect the safety and wellbeing of members of the school community. 

The Queensland Government is taking submissions regarding these proposed amendments until 25 March 2024. More information about the consultation process is here.

What about human rights, such as the right to education?

Assessing the use of exclusionary discipline through a human rights lens raises the bar on what appropriate use looks like. There is increasingly greater willingness, through research and the Disability Royal Commission, to point to human rights concerns related to the practice of exclusionary discipline.

Schools are often faced with needing to balance multiple obligations, such as ensuring exclusionary discipline is not unlawful or discriminatory, with obligations to address health and safety risks in the school community. We are noticing a trend whereby this balancing exercise alone may soon no longer be enough to justify exclusionary discipline as a type of behaviour management response. In fact, it is possible that exclusionary discipline as a type of behaviour management response may become discriminatory: the Disability Royal Commission proposed the exemption to unlawful discrimination (i.e., the allowance for lawful discrimination) on the grounds of health and safety under equal opportunity law in Victoria be repealed.

In an evolving landscape of policy making and legislative change, the misalignment between exclusionary discipline and human rights remains a question for policy makers. As stated in the Victorian Charter of Human Rights and Responsibilities Act 2006: “Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.”4. With the expansion of the school environment, how this looks in practice for schools is relevant.

What can schools do?

As mentioned earlier, we consider school behaviour management frameworks are critical to how schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities.

Schools should look at their behaviour management frameworks holistically and what is in their toolkit when it comes to disciplining students. Codes of conduct, disciplinary management and response policies and procedures, mechanisms for assessing reasonable adjustments, handling complaints and grievances all fall within the framework, complemented by the enrolment agreement and other tools available to Principals. There is no one size fits all approach to student behaviour management and, as we recently explored at our Moores Schools Legal Agenda on 27 February 2024, how to implement disciplinary responses that are acceptable within the school community and balance school’s legal requirements is an ongoing area of focus.

We recommend schools look at:

  • clearly defining the reach of the school environment when setting standards of behaviour in codes of conduct;
  • reviewing policies and processes for exclusionary discipline including mechanisms that enable procedural fairness (as required by the Minimums Standards) and rights of review;  
  • ensuring the use of longer suspensions do not fall short of duty of care and anti-discrimination obligations; and,
  • adopting behaviour management or support plans as standard practice.

How we can help

Get in touch with the Education Team to discuss how we can help you with your school’s behaviour management framework review needs, and support you to respond to challenging disciplinary matters. We support schools both proactively and reactively in this space: implementing procedures and training for staff to respond to serious breaches of student codes of conduct and navigating the disciplinary (and possible expulsion) process with families, students and schools.

Contact us

Please contact us for more detailed and tailored help.

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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.

1 Organisation for Economic Co-operation and Development, Education Policy Outlook In Australia (10 April 2023).

2 Queensland University of Technology, What does exclusionary discipline do and why should it only ever be used as a last resort? (12 March 2024)

3 Final Report – Volume 7: Inclusive education, employment and housing, p13

4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s17 (Protection of Children and Families).