Attending school is compulsory for all compulsory school age children - that is, children aged between 6 and 16 years [Education Act 1972 (SA) s 5]. Each child of compulsory school age is required to be enrolled at a primary or secondary school and if absent from school the parent must, within a reasonable time, give a written explanation for the absence [Education Act 1972 (SA) s 76(2)(c)].
There are now provisions requiring children to remain in full time education until they turn 17. Under the Education Act 1972 children of compulsory education age (i.e. 16) must remain in full time education or training until they turn 17 or gain a qualification.
It is an offence for a child not to attend school without good reason (e.g. illness or other reasons that have been officially approved, see Education Regulations 2012 reg 68). Where a child fails to attend without good reason each parent is guilty of an offence [Education Act 1972 (SA) s 76(3)]. The maximum penalty for this offence is $500.
Under the Education Act 1972 (SA) a child of compulsory school or education age who is habitually or frequently absent from school or an approved learning program without a valid excuse is guilty of truancy [s 79]. A child or young person of compulsory school age who is persistently absent from school without a satisfactory explanation is also regarded as being 'at risk' for the purposes of the Children and Young People (Safety) Act 2017 (SA) s 18(1)(e).
Any authorised officer (for example, a police officer or a school attendance officer) who sees a child of compulsory school or education age in a public place during normal school hours has the authority to stop and ask the child’s name, age and address and why they are absent from school [s 80]. A police officer can, without a warrant, take a child who is reasonably suspected of being a truant to their home or school [Education Act 1972 (SA) s 80].
Under section 78 of the Education Act 1972 (SA) it is an offence to employ a child of compulsory school or education age during school hours or during hours at which participation in an approved learning program is required. The maximum penalty for this offence is $5000.
According to the Department for Education, in the event of a suspected drug-related incident:
- The safety and wellbeing of students will be considered paramount
- Parents will be contacted in instances of possession, use or distribution of illicit drugs or the illegal distribution of unsanctioned drugs
- Police will be informed in instances of possession, use or distribution of illicit drugs or the illicit drugs and/or the illegal distribution of unsanctioned drugs
Schools are not authorised to conduct drug tests or to insist they can be conducted as a condition of re-entry following a suspension or exclusion. Where principals believe there is a need to conduct a search to investigate a suspected drug related incident, police should be contacted to do so.
This policy applies to all Government schools though independent and Catholic schools have been encouraged to adopt the same approach.
See further our Drugs and the Law factsheet.
The head teacher of a Government school may set fees for materials and services provided to students. These fees are recoverable as a debt due to the school council, however a student cannot be refused materials or services if these fees are not paid [Education Act 1972 (SA) s 106A(8)].
If the student is under 18, his or her parents are liable for the debt. If the student is an independent adult he or she is liable. An adult student dependent on his or her parents is liable together with his or her parents.
A teacher's relationship with a student is based on the fact that, while the child is at school, the teacher is in loco parentis (that is, the teacher takes over the role of the parents) and is entitled to use the parents' authority to carry out his or her duties in relation to the child.
A teacher who inflicts physical punishment on a child when not properly authorised to do so, or who uses excessive force in doing so, may be committing assault.
In government schools a teacher's right to punish a pupil is governed by the Education Act 1972 (SA) and the regulations made under the Act, which give school principals the authority to impose controls on the behaviour of students and to apply penalties for breaches of school rules.
The head teacher of a government school has broad powers to suspend, exclude or expel a student who has, for example, threatened or perpetrated violence; or has acted in a manner that threatens the safety or well being of other persons at the school or has acted illegally, or has acted in a manner that threatens the good order of the school [Education Regulations 2012 (SA) r 44-46]. Physical punishment was phased out of government schools in 1991 and can no longer be administered. However, teachers can detain students during their lunch break and after school hours [Education Regulations 2012 (SA) r 43 ].
In non-government schools it is the governing body of the school that makes the rules for discipline and the type and manner of punishment for the breaking of those rules.
Unfair or discriminatory punishment might be unlawful - for example, where a group of children are punished when not all could be guilty. However, this has not been tested by the courts. In one case it was held to be enough that the punishment was a reasonable response to what the teacher thought the child had done.
Students can be suspended, excluded or expelled if they threaten or are violent at school or represent a threat to the safety of students or staff. This includes:
- bullying and racially vilification
- doing something illegal
- causing serious trouble in class that affects other students
- not performing school work and not participating in class
- repeated breaches of school rules
The decision to suspend, exclude or expel will depend on the severity and frequency of the misbehaviour, past behaviour and a student’s response to previous requests [Education Regulations 2012 (SA) r 48].
Suspension requires a student to be absent from normal classes and activities for a specific period of time. Suspension means that the student is not permitted to be on school grounds for a particular period of time (up to five consecutive school days) [Education Regulations 2012 (SA) r 44].
The head teacher of a school can exclude a student from attendance at the school (up to 20 weeks in a calender year). Before excluding the student, the student must first have been suspended. A student must obey reasonable written directions in relation to undertaking education, work or other relevant activity during the period of an exclusion, and it is an offence to fail to follow these directions, maximum penalty $200 [see generally Education Regulations 2012 (SA) r 45].
A student can be expelled for behaviour for which they have previously been suspended. Their parents must be informed about such a step [Education Regulations 2012 (SA) r 46].
There are two types of expulsion:
1. From a particular school by the head teacher [Education Regulations 2012 (SA) r 46].
2. From all schools and other educational facilities by the Director General of the Education Department, on the recommendation of the head teacher [Education Regulations 2012 (SA) r 47].
During the period of expulsion, suspension or exclusion the student must not enter the school grounds except with the written approval or at the written request of the head teacher of the school, maximum penalty, $200. [Education Regulations 2012 (SA) r 49].
An expulsion can be appealed by the student, the student’s parents, or another adult acting on behalf of the parent or student. The rules about when and how an application for an appeal should be made are found in the Education Regulations [Education Regulations 2012 (SA) r 50]. Note that there are very short time frames in which an appeal must be made.
The Department for Education has an information pamphlet explaining procedures for suspension and exclusion for state schools. For independent schools (i.e. non-government schools), information on policies for suspension, exclusion and expulsion can be obtained directly from the individual school.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.