What would you imagine a "safe" school environment to be like?
This question might conjure up a fantasy world where no child falls
off the monkey bars and breaks their arm, eats a peanut-ridden cake
resulting in anaphylactic shock, tries some marijuana brought to
school by one of the "cool" kids in class or becomes the target of
a teacher's fetish for indecent photos of children. A safe school
environment would be bliss, but is it an unattainable fantasy?
The law recognises that school authorities and school teachers
have a duty of care to ensure their students are not placed in
risky situations that could cause them harm while at school. This
article explores some of the unlawful behaviours that students and
teachers might engage in which can place the school community at
risk. Addressing these issues can bring our schools that little bit
closer to being "safe".
The rights of a child
The United Nations General Assembly in 1959 adopted the
Declaration of the Rights of the Child, which states: "the
child by reason of his physical and mental immaturity, needs
special safeguards and care, including appropriate legal
protection, before as well as after birth". Australia has signed
the United Nations Convention on the Rights of the Child
(Convention) and although the Convention has not been incorporated
in state or commonwealth law at present, Australia supports the
rights of children stated within it.
In recognition of these fundamental rights and the obligation to
exercise a duty of care, schools must avoid foreseeable risks and
take practical measures to avoid any risks or dangers to staff,
students and third parties.
A duty of care arises where two parties are in a relationship of
"proximity" where the negligent acts or omissions of one party can
have a detrimental effect on the other.
There are particular situations in which certain relationships
give rise to higher levels of responsibility. The relationship
between students and school authorities and teachers falls into
this category of special relationship.
The duty is for teachers and school authorities to take
reasonable care to ensure that students are not placed at an
unnecessary risk of injury. School authorities and teachers are
characterised as being in a position of control and students as
being in a position of vulnerability. The High Court in
Commonwealth v Introvigne (1982) 150 CLR 258 held that
this responsibility included a positive duty to act to ensure
against risk of injury. Justice Winneke in Richards v State of
Victoria (1969) VR 136 at 138-139 characterised the duty as
follows:
[It is] the need of a child of
immature age for protection against the conduct of others, or
indeed himself, which may cause injury, coupled with the fact that,
during school hours, the child is beyond the control and protection
of his parent and is placed under the control of the schoolmaster
who is in a position to exercise authority over him and afford him,
in the exercise of reasonable care, protection from
injury.
A school is liable for breaches of duty of care by any of its
teachers and employees (including independent contractors) that
result in injury to students.
Further, a school cannot delegate its duty of care to its
employees. So if a school is responsible for the student's
anaphylactic shock, the school cannot exonerate itself by passing
blame to the individual teacher.
What should students be protected from?
A school can be negligent where it fails to guard against
foreseeable risks that can cause harm to students. Exposure to
alcohol, drugs and pornographic material can cause physical and
psychological harm. It is imperative that schools have strategies
in place to prevent risks, and be able to deal with them whenever
they arise.
Schools must ensure that where any student is suspected of
involvement with illicit drugs or pornographic material, they are
treated legally, fairly and in a manner that is not degrading.
Drug abuse
The use of illicit drugs is illegal in all jurisdictions in
Australia and schools should have rules and policies in place
against the possession or use of drugs on school grounds.
Article 33 of the Convention requires governments to take
appropriate measures to protect children from illicit drugs. School
authorities and teachers have a duty of care to protect their
students from foreseeable risks. Accordingly, where they become
aware of students using drugs on school premises, they are
obligated to address the issue.
Where a school suspects a student of using or being in
possession of drugs, teachers must be careful in the action they
take. Teachers are able to search school property such as students'
desks, draws and lockers, and are able to confiscate any drugs
found. Teachers must be mindful that they do not have the rights of
police and cannot search a student, their school bag or clothing
without the student's consent. Teachers cannot detain a student or
keep them in a locked room for any length of time nor test them for
drugs. Unless a student's consent is freely given, teachers are not
able to force a student to provide a sample of hair, blood, urine
or saliva to be analysed.
The police, on the other hand, have broader powers to search for
drugs if the school has a belief that a student is in possession of
illegal substances. Reporting a student can have serious
repercussions on the student's psychological state and the
reputation of the school community, and a thorough internal
investigation should be conducted before involving the authorities.
In circumstances where the decision is made to call the police, the
school should notify the student's parents to attend the school and
provide support for their child.
Although schools are not obliged to report students to the
police, where a school chooses to involve the authorities it must
be aware that the student can be charged and brought before the
Children's Court. Alternatively, schools may choose to handle the
matter internally and discipline the student accordingly. Whatever
action the school decides to take, it must ensure its duty of care
to other students is maintained.
Regardless of the method schools choose for handling any
drug-using students, it is advisable for schools to have in place a
drug related incident plan. This is a plan of action to follow if
there is an incident of drugs on school grounds. This could include
an immediate response plan, a follow up response plan, and a plan
for how to deal with groups involved such as students, parents and
staff. An example of such a plan can be found on the website of the
Department of Education and Early Childhood Development Victoria at
www.education.vic.gov.au
under "drug education".
Internet abuse - pornographic material
Cyberspace poses serious threats to children. Between sexual
predators roaming the World Wide Web on the one hand and the
ability to access pornographic material on the other, the internet
is hazardous for children unaware of the potential dangers. At
school, students use computers owned by their school and although
generally accessing pornographic material of adults is not illegal,
the ability for children to seek out or come across pornographic
material could have negative effects on their development.
According to a government paper released by the Australian
Institute of Criminology titled Adolescence, Pornography and
Harm by Colleen Bryant, pornographic material can potentially
interfere with children's sexual development, undermine physical,
emotional and psychological wellbeing, undermine relationships and
foster sexual violence and 'open' sexual lifestyles.
The risks to children are serious and as such school authorities
have a duty of care to take precautions to filter out any
pornographic sites and other offensive material that students could
access while at school. Schools can install software such as Net
Nanny for the purpose of blocking offensive material or use a
specialist internet service provider that limits access to
particular sites. Although it is not possible at this stage to
filter out all offensive material from the internet (because new
sites are created every day which are not yet blocked by protection
software), it is nevertheless imperative to have measures in place
to block as many sites as possible with the technology
available.
There have been some recent developments on the issue of
internet censorship by the Commonwealth. The Rudd Government has
announced its plans to filter the internet at the Internet Service
Provider level to block violent and/or pornographic sites that have
been refused classification. However, until this scheme is put in
place, schools should endeavour to block sites and install
filtering programs to protect their students.
The same risks apply to students of some schools who are
required to purchase laptops for their studies. Students may try to
circumvent the school's filter system by downloading pornographic
material onto their laptops from their internet service providers
at home and bring the images to school. Falling short of conducting
scans of students' personal laptops, which is not permitted without
the permission of the student, schools should have firm policies in
place about the access of pornography at school on all computers
including personal laptops. These safe internet access policies
should be communicated to the whole school community - students,
teachers and parents.
Disciplining students
Schools can discipline a student for drug use or accessing
pornographic material at schools by suspension and/or expulsion.
State schools have the power to suspend students for a limited
period of time, but they do not have the power to expel. The
decision to expel a student can only be made by the Department of
School Education. Private schools have more authority and can
suspend and expel students at their own discretion.
If a student is reported to the police for drug use, schools
must keep in mind that the student can be charged and brought
before the Children's Court for their offences. When schools punish
children, they should note that Article 28.2 of the Convention
states that school discipline must be administered in a manner
consistent with the child's human dignity and in accordance with
the rights detailed in the Convention.
Unlawful behaviour of school staff
School authorities and their teachers and employees have a duty
of care to ensure that their students are protected from
foreseeable risks, which may well be other teachers within the
school.
Anybody suspected of being involved in unlawful behaviour should
be reported to the school authority. The school authority should in
turn inform the staff member of the allegations made against them
and allow the staff member the opportunity to convey their version
of events and/or, where appropriate, discuss a program for their
personal development and the improvement of their work performance.
Where a school fails to inform a staff member of the allegations
against them or does not allow them the opportunity to undertake an
improvement program, this could lead to potential claims against
the school.
In circumstances where the school authority or another employee
of the school becomes aware that a teacher is abusing drugs, the
teacher should be removed from the school for the risk they pose to
the wellbeing of their students. Involving the police can be left
to the school's discretion. It is important to ensure the school
authority has conducted itself appropriately upon becoming aware of
the staff member's drug abuse, which could involve providing
referrals to support groups, medical groups and sick leave.
Repercussions should be in place, which can be tailored to the
particular school's policies, for situations where staff access
pornographic material on school computers. Further and more
importantly, where teachers or staff are suspected of being in the
possession of or producing child pornography, the police should be
notified immediately and action must be taken to remove the teacher
from access to students.
2009 has seen a variety of offences committed by teachers and
these offences attract unwanted publicity for schools. For example,
a male teacher in Victoria was charged with accessing and
possessing child pornography, a 34-year-old female teacher from
Broome was charged with seven sex offences against a student, and a
49-year-old high school teacher was charged with possessing child
pornography on his computer. It is undeniable that schools must
ensure their students are protected from the harm of such
individuals.
Conclusion
Without a doubt, the unlawful behaviours of students and staff
within a school can result in an unhealthy school environment.
School authorities and teachers owe a duty of care to ensure that
reasonable care is taken so that students are not exposed to
unnecessary risk of injury. Schools should have action/risk
management plans in place to deal with drug use and the access or
possession of pornographic material by students and staff to make
certain that our school environments are as safe as we want them to
be. It is unlikely that unlawful behaviours can ever be eradicated
but their early detection, as well as establishing preventative
measures, will assist in improving the school environment.
For more information, please contact:
Leneen Forde, Partner
Ph (direct): +61 3 9608 2243
Email:
l.forde@cornwalls.com.au
or
Rena Solomonidis, Lawyer
Ph (direct): +61 3 9608 2258
Email:
r.solomonidis@cornwalls.com.au