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

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 (now known as the Australian Human Rights Commission) 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


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.


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

  • a requirement

    that students and carers be informed in writing of the reasons for exclusion

    and be given an opportunity to respond

  • to ensure impartiality,

    reviews of serious exclusions (i.e. 14 days or more) should be conducted

    by a panel of school and community representatives at least one of whom

    is from outside the particular school community

  • in the case of

    serious exclusions the child should be entitled to an advocate in the

    disciplinary process and review proceedings.

Alternative dispute


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).


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.


updated 24 February 2006.