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Education

Attending school is compulsory for all compulsory school age children - that is, children aged between 6 and 16 years [Education and Children’s Services Act 2019 (SA) s 68]. 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 5 school days, advise the principal of the school the reason for the absence [Education and Children’s Services Act 2019 (SA) s 60, 68(3)].

There are now provisions requiring children to remain in full time education until they turn 17. Under the Education and Children’s Services Act 2019 (SA) 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 unavoidable circumstances to establish sufficient cause) [see s 68(3) of the Act and reg 22 of the Education and Children's Services Regulations 2020 (SA)]. Where a child fails to attend without reasonable excuse each person responsible for the child is guilty of an offence [ Education and Children’s Services Act (SA) s 68(2)]. The maximum penalty for this offence is $5000. A defence exists where it can be proven that the defendant took reasonably practicable steps to ensure the student attended school or participated in an approved learning program.

The Chief Executive may choose to convene a family conference (after consulting with the principal of the school or head of the approved learning program) where they are of the opinion that a student of compulsory school or education age is regularly absent, and arrangements should be made to attempt to improve their attendance or participation. The procedures for a family conference are outlined in sections 70-73 of the Act.

Under the Education and Children’s Services Act 2019 (SA) 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). The principal of a school, or head of an approved learning program must notify the Chief Executive if a student of the school or approved learning program is persistently failing to attend school, or participate in the approved learning program. The legislation defines persistent failure as being absent for more than 10 days in a particular school term without reasonable excuse [s 75].

Any authorised officer (for example, a police officer or an authorised employee of the Department) 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 or an approved learning program [s 127]. A police officer can, without a warrant, take a child who is reasonably suspected of being a truant to their home or school [s 127(3)].

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 $10 000 [s 74].

Drugs

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.

School Fees

The principal 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 and Children's Services Act 2019 (SA) s 129].

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.

School Discipline

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.

In government schools a teacher's right to discipline a pupil is governed by the Education and Children's Services Act 2019 (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 principal 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 and Children's Services Act 2019 (SA) ss 76-81]. Physical punishment was phased out of government schools in 1991 and can no longer be administered. This now applies to all schools (including non-government schools) and if physical punishment occurs, the perpetrator could be charged with assault under the Criminal Law Consolidation Act 1935 (SA) [see s 32(3)]. However, teachers can detain students during their lunch break and after school hours [Education and Children's Services Regulations 2020 (SA) reg 28(4)].

Religious and cultural activities

Under section 82 of the Education and Children's Services Act 2019 (SA) the principal of a government school may set aside time for the conduct of religious or cultural activities (or both) by a prescribed person or a class of persons.

The principal of a government schoolmust give notice in writing to a person who is responsible for a student enrolled at the school who is a child, of the intended conduct of a specified religious or cultural activity involving the student.

Neither religious or cultural activities form part of the curriculum determined by the Chief Executive for the purposes of the Act.

Can a caregiver object to the student participating in such activities?

Yes. If a person responsible for a student gives written notice to the principal of the school that the student is to be exempted from participating in a specified religious or cultural activity (or both), or from all such activities, then the student will be taken to be exempt from participating in the activity or activities [Education and Children's Services Regulations 2020 (SA) r 32].

Who can conduct religious or cultural activities?

In the case of a person seeking to conduct religious activities—a person who is recognised (whether by ordination, commissioning, endorsement or otherwise) by a generally recognised or accepted religious organisation [r 31(a)].

In the case of a person seeking to conduct cultural activities—a person who represents, and is acting with the approval of, a generally recognised or accepted cultural organisation [r 31(b)].

The operation of the Child Safety (Prohibited Persons) Act 2016, and any other Act that imposes requirements or limitations on working with children, will apply to persons conducting religious or cultural activities to students.

Where can the religious or cultural activity occur?

Religious and cultural activities may be conducted on school premises or elsewhere [s 82(5)].

Will alternative work be offered instead?

A student who does not participate in a religious or cultural activity cannot be made to suffer any detriment for not participating in the activity. Detriment is defined as intimidation or harassment, discrimination, disadvantage or adverse treatment.

The student must be offered an alternative activity related to the curriculum (determined by the Chief Executive) during the period in which the activity is conducted [s 82(4)].

Suspension, Exclusion and Expulsion

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

In determining whether to suspend, exclude or expel a student, a principal of a school or the Chief Executive must have regard to:

  • the severity and frequency of the misbehaviour of the student;
  • the student's prior record of behaviour and response to previous sanctions;
  • if relevant, the extent to which adjustments have been made to support the participation of that student, or students with a disability generally, at the school; AND
  • any other relevant matter

(Education and Children’s Services Regulations 2020 (SA) r 26)

Suspension

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 and Children’s Services Act 2019 (SA) s 76].

Exclusion

The principal of a school can exclude a student from attendance at the school (up to 20 weeks in a calendar year) [s 77 (5)]. A principal cannot exclude a student from attendance at a school unless the student has first been suspended from attendance at the school for a period not exceeding 5 consecutive school days [s 77(6)]. 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 $1250 [see Education and Children’s Services Act 2019 (SA) s 77(8)].

Expulsion

A student can be expelled for behaviour for which they have previously been suspended.

There are two types of expulsion:

  • From a particular school by the principal [Education and Children's Services Act 2019 (SA) s 78].

A principal cannot expel a student from a school unless the student has first been suspended from attendance at the school for a period not exceeding 20 consecutive school days [s 78(4)].

  • From all schools and other educational facilities by the Chief Executive of the Education Department, on the recommendation of the principal [Education and Children's Services Act 2019 (SA) s 79] .

A principal cannot make a recommendation unless the student has first been suspended from attendance at the school for a period not exceeding 30 consecutive school days [s 79(4)].

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 principal of the school, maximum penalty, $200. [Education and Children's Services Regulations 2020 (SA) r 27(1)].

An expulsion can be appealed by the student, a person responsible for the student (i.e. a parent), or another adult acting on behalf of the student or person responsible for the student. The rules about when and how an application for an appeal should be made are found in section 80 of the Education and Children's Services Act 2019 (SA). 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.

Complaints about schools

If a child or parent has a complaint in relation to how a school has handled a matter, this should be raised with the relevant teacher and/or principal of the school in the first instance.

All schools should have policies in place setting out how various matters ought to be handled and how complaints may be raised and responded to. This is required for Child Safe Environments.

If unsatisfied with the school’s response, a child or parent could raise their concerns with the Department of Education’s Complaint Unit(for government schools) or the governing body of the school (for non-government schools).

If still unsatisfied with the Education Department’s response in relation to government schools, a complaint may be made to the Ombudsman SA. For more information see also South Australian Ombudsman.

For non-government schools, if still unsatisfied with the governing body’s response, the peak body for the school may take complaints, such as the Association of Independent Schools of South Australiaor Catholic Education South Australia.

Complaints may also be raised with the Education Standards Board. The Board will, however, refer the complaint back to the school unless it raises proper cause for disciplinary action or inquiry.

Accidents and Injuries

See Children and negligence - Accidents and injuries at school

Protection of staff and students

Offensive or Threatening Behaviour

A person who behaves in an offensive or threatening manner on prescribed premises is guilty of an offence. Maximum penalty: $2 500.

Prescribed premises include:

  • government or non government schools;
  • a preschool (whether a Government preschool or otherwise);
  • a children's services centre;
  • an approved education and care service under the Education and Care Services National Law (South Australia); or
  • any other premises prescribed by the Education and Children's Services Regulations 2020 (SA)

A person who either:

  • uses abusive, threatening or insulting language to a prescribed person acting in the course of their duties; or
  • behaves in an offensive or threatening manner towards a prescribed person acting in the course of their duties, (whether or not the behaviour occurs on premises)

is guilty of an offence.

Maximum penalty: $2 500.

Students and employees of prescribed premises are exempt. It is a defence for the defendant to prove that they did not know, and could not reasonably have been expected to have known, that a specified person was a prescribed person.

A prescribed person includes:

  • a principal of a school or head of an approved learning program;
  • a director of a stand-alone preschool or children's services centre; or
  • an officer of the teaching service; or
  • an employee of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act; or
  • any other person employed at a school, preschool, children's services centre or approved education and care service.

Trespassing

A person who, without reasonable excuse, trespasses on prescribed premises is guilty of an offence. Maximum penalty: $2 500.

Barring Orders

Individuals barred from the premises of government and non-government schools, preschools, and children’s services centre (for up to 3 months) must be served a written barring notice.

A person who contravenes or fails to comply with a barring notice is guilty of an offence. Maximum penalty: $2 500.

    Education  :  Last Revised: Thu Jul 9th 2020
    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.