Omission by school board to consider behavioural support prior to exclusion of student
In term three, a School Board (the Board) excluded a student for ‘continual disobedience’ under the Education and Training Act 2020 (the Act).  The Chief Ombudsman found the Board failed to properly examine the level of support offered to the student before excluding them. However, on the facts of the case, this omission was not enough for the Ombudsman to conclude that the suspension and exclusion itself was unreasonable.
The Ombudsman recommended the Board improve the School’s suspension and exclusion policy and practice, to ensure that it specifically examines the support offered to students before making a decision.
The student’s behaviour had been an issue at the School since the start of the school year. The student’s pastoral records contained multiple entries each month regrading behavioural concerns, including not doing homework, acting up in class, disrespecting teachers, being involved in vaping, and not bringing required gear to school. The student had received multiple detentions for these behaviours, and there had also been a number of unexplained absences.
Senior staff called and spoke to the student’s parent several times about the behaviour. The School also sent several letters home about the behaviour. After one particular incident, the School gave the student and his parent a ‘Final Warning’ letter stating:
In relation to matters such as smoking and truancy and repeated disobedience or non-adherence to school rules the policy of the [School] is, on the first occasion, for a senior staff member to interview the student concerned and provide a final warning. If there is a further breach of the school rules following the final warning it is likely that the [Principal] would consider suspension as a disciplinary option.
Several weeks after receiving the Final Warning, the student was caught vaping by a school staff member. The Principal suspended the student on the grounds of ‘continual disobedience’ after meeting with the student and their parents. As required by the Act, the Board met to consider the suspension (the suspension hearing). The Board then decided to exclude the student from the School.
Education and Training Act 2020
The Education and Training Act 2020 came into effect on 1 August 2020. It incorporates and replaces the Education Acts 1964 and 1989. It also incorporates the Education (Pastoral Care) Amendment Act 2019, the Education (Vocational Education and Training Reform) Amendment Act 2020, and parts 7, 7A and 7B of the State Sector Act 1988. The Act retains large parts of existing education legislation, subject to various updates, including those that relate to school discipline.
Sections 78-88 of the Act cover stand-downs, suspensions, exclusions and expulsions. The Education (Stand-Down, Suspension, Exclusion and Expulsion) Rules 1999 (updated on
1 December 2020) regulate the practice and process to be followed by boards, principals, students, and parents (and other persons) concerning school discipline.
Section 80(1)(a) of the Act states that a principal can suspend a student if they are satisfied on reasonable grounds that the student’s continual disobedience is a harmful or dangerous example to other students at the school. The board must then meet within a seven day period to consider the suspension (section 81(5) of the Act). Under section 81(1)(c) of the Act, if the circumstances of the case ‘justify the most serious response’, then the board may exclude the student from the school, thus requiring the student to enrol at another school.
The Ombudsman investigated whether the Board followed a reasonable process in relation to the suspension hearing and whether the decision to exclude the student was sound. This included the level of support provided by the School to the student in the months leading up to the suspension and exclusion.
The Ombudsman formed the final opinion that:
- The Board’s decision to exclude the student was not unreasonable; but
- The Board’s omission to examine whether the student had been provided with adequate support in relation to the behavioural concerns was unreasonable.
The Ombudsman recommended that the Board amend the School’s practices, policies, and guidelines, to ensure that the Principal and the Board expressly examine the support provided to a student by the School when considering suspensions and exclusions.
The Board accepted the opinion and made the changes the Ombudsman recommended. The Board also reviewed its processes in relation to the provision of a written suspension report by the Principal. Board advised that in a recent suspension the Principal explicitly examined the support offered to the student when suspending them for ‘continual disobedience’, and noted this information in the report for the Board.
This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.
 Sections 80 and 81 of the Education and Training Act 2020. The authority to suspend then exclude a student under 16 years of age was previously found in sections 14 and 15 of the Education Act 1989. Return to text