BY DANIELLE ILIFFE AND LINDSEY STEVENSON-GRAF

An increase in school suspensions and expulsions in Queensland has generated concern from those working with youth in the community legal sector. Such practices disproportionately impact vulnerable groups, such as Indigenous youth, and increase the risk of future incarceration. Until recently, once a child was excluded from state school, there was scant ability to ensure that they could continue to access education in a manner appropriate to their needs. The enactment of the Human Rights Act 2019 (Qld) (HRAQ), enshrining a right to education, provides an opportunity for recourse for students who have been unfairly restricted from accessing school. The HRAQ clearly requires that students’ rights be considered in school decisions to suspend or exclude. This post first introduces the right to education under s 36 of the HRAQ. It then unpacks issues raised by school suspensions and exclusions. Next it examines the particular impact on Indigenous youth. Finally, it further explores the potential scope of s 36. We examine what may comprise a successful human rights complaint and address possible limitations. If the HRAQ is effective in keeping vulnerable youth in school, many local communities will benefit from the flow-on effect of diverting young people from the criminal justice system.

Right to education in the HRAQ

Pursuant to s 36 of the HRAQ, in Queensland, ‘[e]very child has the right to have access to primary and secondary education appropriate to the child’s needs’. The HRAQ commenced in its entirety on 1 January 2020 and provides a mechanism for all Queenslanders to ensure that public entities, including state schools, act only in a way that is consistent with the protection of human rights. In schools, this will require a balancing of the rights of an individual child who is excluded or suspended from school, with the need of the school to provide a safe environment for all members of the school community. These rights must co-exist. HRAQ does not provide protection for students attending private schools. The ACT Human Rights Act (2004) contains a similar right to education under s 27A. However, unlike s 36 of the HRAQ, which gives recourse to the Queensland Human Rights Commission and potentially to the Courts, s 27A may be raised in the ACT Supreme Court or in another court if there is an existing avenue for litigation. To date, based on our research, no decisions have been made with respect to s 27A which are relevant to the topic of this post.

School suspensions and expulsions in Queensland

In 2014, the Queensland government expanded the disciplinary powers of schools and principals by bolstering the grounds for suspension and exclusion. The government claimed these changes were necessary to address the rising number of exclusions and would provide more flexible options, other than exclusion, for principals responding to ‘problem behaviours’.

Despite the 2014 changes, data show that the number of school exclusions has steadily increased since that time. Alarmingly, this rise in numbers has impacted even Queensland’s youngest students. In 2018, over 1188 Queensland students in their first year of primary school were subject to suspensions and one child was excluded from school. The total number of suspensions and exclusions for students in grades one to five in that year totalled nearly 21,000.

In Queensland, a young person may be suspended or excluded from school for certain conduct regardless of whether it occurs on school property or even in school hours. This is distinct from other jurisdictions. A young person can be suspended from school for disobedience, misbehaviour, or other conduct that adversely affects or is likely to affect other students or the ‘good order and management of the school’. Grounds for exclusion also extend to when a suspension is considered inadequate to address misbehaviour, conduct or risks. Most suspensions and exclusions in Australia involve matters concerning behavioural issues or physical violence.

Suspensions and exclusions can lead to academic failure and school dropout, poverty, and an increased likelihood of children being exposed to, or entering the youth justice system via the ‘school to prison pipeline’. Such findings suggest why the current system in Queensland is failing in spite of its regulatory aim to eradicate bad behaviour. Neither suspension nor exclusion promote behavioural change in young people. Instead, they erode a student’s trust in authorities and institutions and often leave them feeling segregated from their cohort, whilst reinforcing the poor behaviour that resulted in the suspension in the first place.

Addressing the rising number of school suspensions and exclusions in Queensland will have a significant benefit for young people and their communities by ensuring they have the right to complete their education. This will strengthen their attachment to their school community, reduce intergenerational poverty, and lower the number of young people either exposed to, or entering the youth justice system.

The impact on Indigenous youth

School suspensions and exclusions have a particularly significant impact on Indigenous students. The link between educational attainment and social wellbeing is well recognised and was a focus of the ‘Closing the Gap’ report. Despite this focus, there has been no meaningful improvement to school attendance for Indigenous students in Queensland, and Indigenous children remain over-represented in school suspension statistics. Education Queensland statistics show that in 2018, of the 55,752 Indigenous students enrolled in school, 38 percent of them were either suspended, excluded or had their enrolments cancelled that same year. This may be related to an established disconnect between mainstream schooling and Indigenous culture, driven by policy and the fact that the decision-makers responsible for enacting strategies for change lack understanding about the historical disparities that Indigenous people have faced.

This is particularly evident with regard to language. In most Indigenous communities, language is seen as a bridge between personal, social, cultural, and spiritual realms. It is essential for the transmission of knowledge and is the primary means of transmitting culture. For many Indigenous students who attend mainstream schools, standard English is not their native language. This disconnect between language and school has a direct impact on achievements and overall outcomes for these students.

Indigenous students would be more likely to successfully engage in mainstream education if the curriculum included greater recognition of and respect for Indigenous culture, including connection to language, country and communities. Suggested changes include adapting teaching materials to reflect the cohort, employing more Indigenous teachers and staff, ensuring that staff and teachers are culturally competent, and bridging the divide between languages, the home environment, and the classroom.

In addition, historical policies of segregation and exclusion of Indigenous children from mainstream western education have culminated in intergenerational disadvantage and trauma that continues to negatively influence educational outcomes of today’s Indigenous youth. Indigenous youth are particularly susceptible to the school to prison pipeline because they are overrepresented in suspension and exclusion statistics. Alarmingly, in 2018-2019, the Queensland Youth Justice statistics confirmed that on any given day, of the approximately 250 young people in custody, 71% were Indigenous, and that Indigenous children are 28 times more likely to be held in custody than their non-Indigenous counterparts. We propose that if more links between the classroom and Indigenous culture are generated, there would be a reduction in the number of Indigenous students being suspended or expelled, which would begin addressing the overrepresentation of Indigenous youth in the justice system.

Enforcing the Right to Education

Complaints regarding a violation of rights under HRAQ may be made to the Queensland Human Rights Commission (Commission) or addressed through the courts by being piggy backed onto another cause of action (such as a judicial review). In order to better understand the application of HRAQ to the right to education, it is useful to consider a case study.

Case Study

Bobby, an Aboriginal student in grade 10, goes to Central State High School. Partway through term one, Bobby is charged with an offence that is unrelated to school, did not occur on school property, and did not happen during school hours.

The school finds out about the charge and decides to exclude Bobby from Central SHS even though Bobby has not been convicted (note that the regulations provide that Bobby may be excluded upon conviction).

Further, Bobby’s principal contacts other schools in the local area and informs them that Bobby has been charged with an offence. As a result, all of the local schools deny Bobby enrolment on the basis that his enrolment would be detrimental to their school community. In order to continue his education, Bobby is forced to enrol at a school that is located over an hour away from where he lives.

Bobby has always found it hard to engage with the education system, largely due to language and cultural differences. English is not his first language. Bobby’s attendance at school has been far from perfect. It will be difficult for him to commute to a school that is an hour away from his home. Additionally, he and his family have found the process to appeal the exclusion overwhelming and difficult to navigate on their own.

Bobby may make a complaint to the Commission under s 36 that he has been denied his right to access to education ‘appropriate to his needs’. He may argue that the principal has erred in his decision to exclude Bobby as, although charged, he had not been convicted of an offence. In the complaint, he may also include breaches of other rights enshrined in the HRAQ such as his right to culture or his right to privacy and reputation.

Before filing a complaint with the Commission, Bobby must first submit a complaint with the relevant public entity, Education Queensland. If unsatisfied with the response Bobby may make a complaint to the Commission, which will investigate and, if appropriate, invite both parties to a Conciliation Conference. The Commission is not a court; its purpose is to determine if the allegations of the complaint are covered by the relevant legislation and then work with the parties to find a resolution.

Alternatively, the complaint may be piggy-backed to court on another cause of action. For example, Bobby may seek judicial review in the Supreme Court on any questions of law involved in the decision to exclude him, including the principal’s decision to rely on his being charged with an offence as the basis of his exclusion, even though he was not convicted. Bobby may then attach the rights complaint to this judicial review for the Court’s consideration. 

Interpreting the Right to Education

In determining whether a complaint falls under HRAQ, the Act provides that the Commission and courts may consider international law, including jurisprudence from other jurisdictions. There is very little jurisprudence from international, regional or domestic courts regarding the scope of the right to education with respect to suspensions and exclusions, and what there is largely addresses the right to inclusive education of children with disabilities.

In Ali v the United Kingdom, the European Court of Human Rights held that the exclusion of a student from school during the investigation of a criminal offence, and subsequent removal of the student from the school’s roll, did not constitute a violation of the right to education under the European Convention on Human Rights. The Court found that disciplinary measures are inherent in any organised schooling system and allow schools to achieve their purpose, being to educate their students. However, the Court emphasised that rules regarding exclusions and the way in which they are imposed must be foreseeable and proportionate to the aim being pursued.

We propose that a similar approach be considered in Queensland. In Ali, the Court focused on behaviour within the school setting; the student was initially suspended when charged, although not convicted, of a crime relating to lighting a fire on school grounds. In Queensland, students have been suspended for crimes that have taken place outside of the school grounds and are unrelated to school activities. It is imperative to find a balance that takes into account both the rights of the student to education and the obligation of the school to provide a safe environment for all members of the school community.

The incorporation of a right to education in the HRAQ provides an opportunity for schools to adopt new policies that will not only ensure children’s unfettered access to education but will also help to break the cycle of school suspensions, exclusions, academic failure and subsequent interaction with the youth justice system. We maintain that there must be a fairer balance between the rights of the child and those of the community, and that the discipline must be proportionate to the aim being pursued.

In accordance with the HRAQ, schools should also take a child’s rights based approach and consider the child’s perspective in making decisions regarding suspension and exclusion. Section 36 of the HRAQ was modelled on Article 13 of the International Covenant on Economic, Social and Cultural Rights. This right is further enshrined in Article 28 of the Convention on the Rights of the Child (CRC). Australia is a signatory to, and has ratified, both of these treaties. According to the CRC, Nation States must give due weight to the child’s view (Art 12) in making decisions, with the best interests of the child as a primary consideration (Art 3) . The right to education is interpreted by UNICEF to require providing the option for the child to participate in all decisions that affect them.

When acting in accordance with the HRAQ, schools should consider the rights of each child prior to the decision to suspend or exclude. The child’s perspective should be considered when determining whether the suspension or exclusion is proportionate to the aim being pursued.

The process for appealing a decision to suspend or exclude a young person can be quite lengthy, and will only be extended if matters are required to be referred to the Commission and/or the courts. Often by the time an appeal is completed the young person has moved on and either settled into another school or been absent for so long that they struggle to return to the school environment. Such delays can be eliminated if the child’s rights are considered during the initial stages of decision-making as prescribed in the HRAQ.

Vulnerable youth who misbehave often face a number of different challenges, including complex life circumstances. Some students may have claims beyond s 36. Under the HRAQ, the right to education may be coupled with other potential breaches, such as of rights to privacy and reputation, and/or the rights of Aboriginal and Torres Strait Islander peoples to culture. Conciliation provides an opportunity to advocate for education that will engage the child and is appropriate to their needs. For example, if a child is misbehaving because of language or cultural differences, parties may advocate for an interpreter or a culturally appropriate learning environment.

We recognise that the main impact of the HRAQ may result less from a flurry of complaints before the Commission than from a change in human rights culture. The HRAQ may assist in combatting the rising numbers of suspensions and exclusions because it mandates that a public entity must operate in a way that is consistent with human rights. Due to the obligations outlined in the HRAQ, Education Queensland is required to consider if a decision is contrary to the Act, and schools must consider a child’s right to education when making decisions regarding suspension and exclusion. This will result in a shift in culture. Even if we do not see a large number of complaints run through the Commission or through the courts, the HRAQ may still assist in reducing the numbers of suspensions and exclusions.

Danielle Iliffe is a Solicitor at the Youth Advocacy Centre in Brisbane, Queensland. Lindsey Stevenson-Graf is a Senior Teaching Fellow at Bond University in the Faculty of Law

Suggested citation:  Danielle Iliffe and Lindsey Stevenson-Graf, ‘Can the new Queensland Human Rights Act combat the rising number of school exclusions?’ on AUSPUBLAW (01 July 2020) <https://auspublaw.org/2020/07/can-the-new-queensland-human-rights-act-combat-the-rising-number-of-school-exclusions?>