The Commission has provided a submission towards the consultation draft of the Education and Training Reform Regulations 2017 ('the Draft Regulations').
This submission is limited to comments about Regulation 25 which states:
A member of staff of a Government school may take any reasonable action that is immediately required to restrain a student of the school from acts or behaviour that is dangerous to the member of staff, the student or any other person.
A major issue with this regulation is that key terms have not been adequately defined and this undermines clarity about provisions designed to protect students and staff. Further, it is questionable as to whether existing provisions in the Education and Training Reform Act 2006 may be used to justify a regulation permitting restraint of students.
The Commission has serious concerns about Regulation 25 given that it authorises the use of restraint against children. This engages a number of rights under the Charter of Human Rights and Responsibilities (the Charter) including the right to equality before the law (section 8), protection from cruel, inhuman or degrading treatment (section 10(b)), protection of families and children (section 17), liberty and security of person (section 21(a)), and freedom of movement (section 12).
It is important to acknowledge that whether these rights are limited depends to some extent on the circumstances of particular cases. However, the Commission is concerned that Regulation 25 creates an environment in which Charter rights are more likely to be limited as this provision is ambiguous in scope and operation. This is particularly concerning given it relates to students with a disability.
The Commission acknowledges legitimate concerns about the rights, health and safety of educators and other students. However, these concerns must be carefully balanced to ensure adequate consideration and protection of human rights of children.
For the reasons outlined in this submission, the Commission is of the view that as currently formulated Regulation 25 fails to achieve this balance and should be reconsidered to strengthen compliance with human rights protected by the Charter and provide clarity to teachers and students.
Download a copy of the Commission's submission below.