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Teachers, students and the United Nations Convention on the Rights of the Child

The National Inquiry into Children and the Legal Process

In August 1995 the then federal Attorney-General asked the Human Rights and Equal Opportunity Commission (HREOC) and the Australian Law Reform Commission (ALRC) to conduct a national inquiry into children and the legal process. The inquiry was conducted over a period of two years and involved an extensive process of nationwide consultations, including contact with teachers, students and others involved with the education system. The Inquiry included public hearings, written submissions, focus groups meetings and a survey distributed to children in schools and detention centres. The final report, Seen and heard: priority for children in the legal process, was tabled in federal Parliament in November 1997. It contains 286 recommendations aimed at making legal processes more sensitive and responsive to children.

The recommendations in Seen and heard were based on the Convention on the Rights of the Child, ratified by Australia in December 1990. The Convention contains internationally accepted standards for the treatment of children. It provides a common standard for federal, State and Territory governments in fulfilling their obligations to all children while giving particular support to disadvantaged or marginalised children. The Convention is an important reference point for individuals and organisations working with children, including teachers.

Article 28 of the Convention deals with the child's right to an education. It requires that education be free and compulsory for all children and it also requires that school discipline be administered in a manner consistent with the child's rights and dignity. Article 29 specifies that the aims of education should include to develop a child's personality, talents and mental and physical abilities to the fullest extent. The Convention expressly commits parties to make its provisions widely known to children in language which they, as well as adults, can understand. Article 12 enshrines the child's right to participate in decisions affecting him or her, in a manner appropriate to the child's age and maturity. This requirement applies in all contexts, including schools. Other articles in the Convention also have relevance to teachers and schools.

Civics education and participation

The inquiry recommended that the Department of Employment, Education, Training and Youth Affairs (now DETYA) develop guidelines on national best practice for student participation in school decision making. The guidelines should assist students to understand their rights and responsibilities in the context of school decisions affecting them. DETYA should also prepare a handbook explaining the guidelines and distribute it to all schools in Australia.

Violence in schools

School violence between students or involving teachers was an issue of concern in the inquiry. Students who are the target of violence often leave school altogether. This seriously compromises their employment prospects and life chances. Submissions to the inquiry confirmed the need for more programs within schools to foster tolerance and acceptance, eliminate bullying and encourage the development of socially acceptable problem solving skills.

The inquiry recommended that the National Campaign Against Violence and Crime (NCAVAC) conduct a specific project aimed at reducing school violence. The Campaign should evaluate the benefits for youth crime prevention of anti-bullying policies, anti-harassment policies, peer mediation and peer support schemes and establish benchmarks in these areas.

Children at risk in the education system

Particular attention needs to be given to children with behavioural or learning difficulties, those in difficult family situations and homeless children. These children are often at risk of dropping out of education and consequently becoming enmeshed in the care and protection and/or juvenile justice systems. Teachers are best placed to identify and provide initial support to these students. However, the demands of the contemporary classroom may make it difficult for them to identify all students at risk without specialised training.

The inquiry recommended that all teachers and counsellors should receive professional development training in identifying children at risk of dropping out of school and referring them to appropriate government and non-government support services and programs. Particular attention should be given to recognising this risk at the end of primary school and the beginning of secondary school. The inquiry also recommended that national standards for student support services be developed by DEETYA in conjunction with State and Territory education departments.

Children with disabilities

The Convention provides that children with disabilities must have effective access to education in a manner conducive to achieving the fullest possible social integration and individual development (article 23). However, discrimination sometimes makes the enjoyment of this right problematic for children with disabilities. Discrimination in education is the third most common ground of complaint to the federal Disability Discrimination Commissioner. To address this, the inquiry recommended that each State and Territory education department should ensure that all teaching staff and school administrators are trained in disability discrimination laws and obligations and how to meet the educational and social development needs of students with a disability.

Truancy

Evidence received from young people during focus groups suggested that some students are absent from school more often than they attend. Reasons for truancy include boredom at school, embarrassment and frustration at poor performance, fear of bullying or harassment, drug dependency, family stress or conflict, homelessness and defiance of authority. Some children are chronically absent from school. Indigenous students are particularly at risk of truancy and dropping out of the school system altogether. They have a significantly lower retention rate than non-Indigenous students. In light of the link between chronic truancy and exposure to the juvenile justice system, the inquiry recommended the federal government co-ordinate the development and implementation of a national strategy to reduce truancy.

Disciplinary measures

The Convention requires that school discipline be administered in a manner consistent with children's human dignity and other rights, such as children's right to be heard on matters that affect them. The inquiry acknowledged that schools need to discipline students to ensure the safety of the school environment and to ensure that children's behaviour does not jeopardise the learning opportunities of other students. It can be an important means of teaching children about their responsibilities to others and to the community. However, disciplinary processes must be consistent, clear and fair. Arbitrary punishment sends inappropriate messages to children about adult authority and the credibility of legal processes in general.

Exclusion processes

The serious consequences of exclusion make it essential that these decisions are made according to impartial and clear procedures. The inquiry recommended the development of national standards for school discipline setting out the permissible grounds for exclusion and the processes to be followed when a government school proposes to exclude a student. They include

Alternative dispute resolution

A number of submissions to the inquiry raised the need for neutral mediation processes to resolve disputes in schools, as opposed to traditional processes that can be quite intimidating for students. The inquiry considered that community accountability conferencing has considerable potential as a means of dealing effectively with school disputes and of reducing exclusion rates. It promotes a contextual approach to problem solving and may help to stop behavioural difficulties from escalating. It was recommended that the national standards for school discipline should provide conferencing models appropriate for use in schools.

Corporal punishment

Historically the law has permitted teachers to administer corporal punishment to students as 'lawful correction'. Corporal punishment remains lawful in some Australian jurisdictions although most States and Territories have limited the practice by legislation, regulation or policy. Children deserve the same level of protection from assaults as adults. Corporal punishment conveys unfortunate signals to children about the way legal processes work and fits poorly with the principle that school discipline should be administered in a manner with the child's dignity. The Australian College of Paediatrics policy statement on corporal punishment highlighted the long-term adverse effects on some children as a result of this practice as well as its general ineffectiveness in encouraging more responsible behaviour. Submissions to the inquiry indicated broad support for the prohibition of corporal punishment in schools. The inquiry recommended that corporal punishment should be banned in all Australian schools (including independent schools).

Implementing the recommendations

The recommendations in Seen and heard, if taken seriously, will enhance the quality of education for many students, will make the legal processes in education fairer and more participative and will help children and young people gain a better understanding of their rights and responsibilities as citizens. Teachers have a very important role to play in implementing these reforms. They can do this by lobbying the federal government through their peak professional organisations. They can also encourage action by government agencies and at the school level where appropriate.

However, most important is the role teachers play in relation to the children. Teachers interact with children every day and are in a position to identify the children at risk of dropping out of the education system. The importance of early intervention cannot be emphasised enough.

For further information

This article is intended only as a brief guide to the education aspects of Seen and heard: priority for children in the legal process. If you would like more detailed information, please refer to the full report.

Last updated 24 February 2006.