I remember as a primary school student ‘receiving the cane’ a few times. Thankfully (or not depending on who you talk to) those practices are over.

Under the Education Act 1990 (NSW), the Education Minister has the authority to control and regulate student discipline in government schools and to prepare guidelines for the discipline codes to be adopted by schools. The current policy statement of the Department of Education (previously called the Deartment of Education & Communities as well as the Department of Education and Training) is the 2006 ‘Student Discipline in Government Schools Policy’. Speaking to the importance of maintaining good discipline in schools and the DET’s commitment to adopting a ‘positive approach’, the associated ‘Support Materials’ document explains, ‘Practices that foster engagement in learning, set clear limits, recognise appropriate behaviour and apply consequences for inappropriate behaviour are more likely to promote positive student behaviour than punishment alone’ (page 4). To accomplish this, the DET policy emphasises the importance of schools collaborating with school community members in the process of drafting their respective discipline policies, which must include 4 essential components:

  1. The actual discipline code or school rules;

  2. Strategies and practices to promote positive student behaviour, including specific strategies to maintain a climate of respect;

  3. Strategies and practices to recognise and reinforce student achievement; and

  4. Strategies and practices to manage inappropriate student behaviour.

Further, the school’s policy must:

  • Be consistent with legislation and reflect government and departmental policy;

  • Incorporate principles of procedural fairness;

  • Be developed within a strong student welfare context;

  • Reflect the identified needs of the community;

  • Grow from existing policies and practices;

  • Outline expected standards of behaviour; and

  • Define the responsibilities of teachers, students and parents.

With these objectives in mind, the DET’s policy explains that high standards of discipline are required to ensure that the rights of each student and teacher to be treated with dignity and respect are maintained via the creation of a learning environment that is inclusive, safe and free from bullying, harassment, victimisation and discrimination. Accordingly, the overall picture painted by the DET’s policy is one of collaboration and transparency between schools, families and other members of the school community.

Corporal Punishment – ‘To Smack or Not to Smack’

As mentioned, not everyone supports the idea that teachers should not be able to physically discipline children. In an interview with 2UE on Tuesday 15 July 2014, Dr Kevin Donnelly, co-chairman of the federal government’s national curriculum review, expressed approval of the use of corporal punishment in schools if that same approval was held by the local community. In support of this position, Dr Donnelly referred to his own experience at school where the threat of physical punishment had been ‘very effective’.

These comments were met with backlash from educators and health experts.

Corporal punishment is a form of punishment that involves the infliction of physical force as retribution for wrongdoing or to deter undesired behaviour. There is currently a lack of uniformity in the law in Australia in relation to the use of corporal punishment in schools, largely because educational matters come under the scope of the legislative powers of the States and Territories. Importantly, the Education Act 1990 (NSW) prohibits corporal punishment from being included in the discipline guidelines and codes of both government (s 35(2A)) and non-government (s 47(h)) schools. This is consistent with the UN Convention on the Rights of the Child (CRC). Specifically, Article 19 of CRC requires that nation states ‘take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse’. Furthermore, Article 37 requires that nation states are to ensure that no child is ‘subjected to torture or cruel, inhuman or degrading treatment or punishment’.

Smacking or using physical force against a student at school, college or university is not lawful and, if this occurs, you may wish to speak to a lawyer about your rights and obligations.

By Sebastian De Brennan, Barrister, s.debrennan@humanrightslaw.com.au

© 2017 Sebastian De Brennan. Barrister at Law