Issue 5 | 12 November 2008 |
Editor Gaby Grammeno
The 17th annual conference of the Australia and New Zealand Education Law Association was held in Christchurch, New Zealand, on 8–10 October 2008. The conference provides opportunities for lawyers and educators to discuss issues of concern and work towards good educational outcomes. The program covered a broad array of subjects, from managing conflict resolution, guns and drugs, to cyberbullying, the teaching of religion in schools and interface between school and family law. Some of the highlights are summarised here by Schools Alert Editor, Gaby Grammeno, who attended the conference.
This theme was addressed by Dr M David Alexander of Virginia Tech, USA, in a paper co-authored by Dr Mark Lineburg of Radford High School and Dr Jennier Sughrue from Florida Atlantic University.
Dr Alexander’s presentation focused on whether drug testing of school students is an effective way of reducing the demand for illegal drugs.
He cited figures from the (US) Department of Education stating that 4,000 US schools have implemented random drug testing programs. In 2008, 50 educational entities, both private and public, received US$5.8m in grants for random student drug testing.
Many schools test only those students involved in extra-curricular activities such as sports programs or school clubs. Testing is used to look for evidence of the use of illegal drugs and also those substances used to enhance sporting performance.
According to Dr Alexander, random drug testing has tended to find few positive results. For example, a school district in Texas with 9,000 students conducted 3,183 random drug tests and found 25 positive results, less than two-tenths of one per cent of the student body.
Steroid testing in Texas between February and May 2008 involved the testing of 10,117 students at a cost of up to US$40,000 and found only two clear positives.
A study published in the Journal of School Health found no differences in drug use rates between students who attended schools with drug testing policies and those who did not. The study looked at 76,000 students across the USA.
Dr Alexander quoted the Australian National Council on Drugs’ 2008 report — Drug Testing in Schools, Evidence, Impacts and Alternatives — to point out that the evidence base pertaining to the effectiveness of drug testing programs in schools is scarce and available research is generally limited in scope and poor in quality.
Levels of illegal drug use appear to be falling among young people. According to the latest survey in the Monitoring the Future series, the proportion of students who use illicit drugs has been falling since 1999.
Dr Alexander included in his presentation a consideration of the rights of individuals to be protected against unreasonable searches and seizures.
He also reflected, in the light of a number of relevant court cases, on the legal foundation for drug testing under both (US) federal and state constitutions, and the need to balance the rights of students with the needs of the school.
Drug testing of teachers was also reviewed in Dr Alexander’s presentation.
For further details, contact Dr Alexander at Virginia Tech, USA.
Searches of students suspected of carrying drugs or weapons was the focus of presentations by Professor Joy Cumming of Griffith University, Brisbane and Professor Ralph Mawdsley of Cleveland State University, Ohio.
Professor Mawdsley noted that in the US, school principals and staff have professional responsibility to search students’ persons for suspected drug or weapon possession. Students sometimes challenge such decisions as a violation of the Fourth Amendment of the Constitution, which provides individual rights and protections regarding search of property and person. The role of the courts is to consider the extent to which school staff can undertake such searches, and the reliability of student informants as a basis for such searches.
In Australia, the Constitution provides no such right of personal protection, according to Professor Cumming. However, if the policies of Queensland and New South Wales are representative of all states and territories, she said, school staff in government schools may not search students’ persons for suspected drug or weapon possession unless there is a perception of imminent risk to other students. Schools must seek police assistance to undertake such searches. Further, schools should have student permission to search their outer clothing and bags or lockers, unless agreement was signed on entry to the school.
This presentation considered the Australian way of dealing with the issue in the light of recent US case history in student strip searches and reflected on which policy approach may be more in the interests of the students. It considered the practicality of the requirement to involve police in all cases of suspected drug or weapon possession and whether policy should be changed to extend the professional roles of school principals and teachers to allow searches by staff. It also considered necessary guidelines for such a policy change to protect both school staff and students.
Professor Cumming also referred to one of the major issues to be confronted in this context in Australia, namely the current anxiety school staff have with respect to touching students. She noted that teachers have become reticent regarding physical touching of students for fear of allegations of sexual abuse. However, advice in the past by teacher unions in Queensland to teachers that they should not touch students at all does not match the current case law status.
Reasonable discipline is allowable in Queensland under s 280 of the Queensland Criminal Code Act 1899 which allows teachers to use reasonable physical discipline to manage student behaviour, and such discipline has been upheld in the courts as legal. While teachers are fearful, policy and case law indicate that unsubstantiated allegations of inappropriate touching will not be upheld.
Professor Cumming expressed the view that close examination of the policies and legislation indicate that the Australian system for dealing with student searches is unwieldy. She raised the following questions:
• Do schools currently contact police for every case of suspected drug possession? Would contact for weapon possession be more likely?
• Do schools currently contact police if the suspected student has a strongly positive reputation in the school?
• Are schools more likely to contact police if a suspected student has a “bad” reputation? Does this constitute discrimination?
• On what grounds do schools really call police? How much evidence do they need? How reliable does the witness need to be?
• Is it realistic that student searches can be undertaken off school grounds?
• What advice is available to guide principals in these decisions?
• What are the consequences for innocent students if the police have been called? Is their reputation tarnished without grounds? Are they traumatised by the experience?
• How much capacity do the police have to respond to calls from schools, and is this a useful diversion from other activities?
Professor Cumming posed the question as to whether the professional responsibilities of teachers and school administrators should be extended to allow primary searches of students’ persons to be conducted by such staff when illicit drug or weapon possession is suspected and where the risk of danger to a staff member or other student can be managed. She suggested that despite some of the alarming practices that have been reported in the US, this would seem to be a practical step to address basic student behaviour problems.
Professor Cumming listed some of the issues that need to be addressed:
• What will constitute reasonable suspicion and risk, and in what context?
• Who should take the responsibility for determining a search will occur? Only the principal? A school teacher or other staff available at the time?
• Who should be authorised to conduct a search? Always a member of the same sex, with at least one other person present? Should parents always be contacted and present or should the student be able to exercise discretion on this?
• Who can be searched? Any student of any age or any intellectual capacity?
• Should student permission or cooperation be required? Parental or carer permission?
• For what suspicions could a search be undertaken — suspected drug or weapon possession? Stolen property?
• What information will constitute sufficient information for a search to occur? How many informants, how reliable should they be?
• What venues of complaint or appeal would be available to a student who felt that they had been inappropriately treated, or victimised, without creating multiple pathways for increased litigation against schools and staff enacting policy?
Professor Cumming concluded that Australia is very effective at making policies to govern schools and students in areas that are the domain of law in the US. A new behaviour policy could address these matters, be developed in conjunction with the police and legislative guidelines, and make management of such issues much smoother.
For more details, see “Professional responsibilities of school staff beyond the realms of the classroom: the role of principals and teachers in student searches in Australia and the USA” by Professor Joy Cumming and Professor Ralph Mawdsley, in the proceedings of the 2008 ANZELA (Australia and New Zealand Education Law Association) Conference.
Protection from cyberbullying and other student misuse of technology was the theme of two presentations at ANZELA. Dr Kathleen Conn, from the Education Department, Neumann College, Pennsylvania, presented a paper on “Cyberbullying and other student technology misuses in K-12 American schools: the legal landmines”; and Michael Winram of Emil Ford & Co, Lawyers, Sydney, spoke on “Lawyers and educators working together to protect schools, teachers and students from YouTube and other websites that malign them”.
Dr Conn noted by way of background that America’s children have never known a world without computers and the World Wide Web. By 2000, virtually all American public schools had computers with internet access. Use of computers in US schools begins early, with 60% of children in nursery school using computers and 80% of kingergarten students using them.
Nearly half of all American preteens have cell phones, and schools have been stymied in their efforts to curtail students’ cell phone possession and use in schools. Significant numbers of teenagers have personal cell phones with picture, music and mobile computing capabilities. Text messaging between and among students is rampant, occurring even during classroom instruction.
Twenty-eight per cent of online teens have blogs, with blogs replacing instant messaging as communication tools among a subset of teens known as “supercommunicators”. Over half of all American teenagers aged 12–17 use online social networking sites, where they can post “profiles” accessible only to their friends or admitted guests, or post messages on a user’s “wall”, a public bulletin board accessible to all users. Others use YouTube or Flicker to upload photos and videos.
While educators generally support most student uses of this pervasive technology, the reality is that technology use among American K-12 students has its dark side, and student technology abuses are rampant. Such abuses range from adolescent nonsense and pranks, like taking cell phone pictures of themselves nude or pictures of their breasts or genitals and posting them online, to offences that have a more serious impact on classmates and school personnel, like cyberbullying, cyberharassment or cyberstalking, and cyberthreats.
Several student victims of cyberbullying have committed suicide, leaving behind messages expressing desperation because of the unremitting cruelty. Cyberharassment and cyberthreatening of teachers and administrators have reached worrisome proportions. Female students, once not as technology savvy as their male counterparts, have become among the most vicious perpetrators of technological bullying and harassment.
However, while school administrators recognise the need to regulate cyberbullying and related cyber offences, many are uncertain about their legal authority to discipline students for their online postings because such postings usually originate outside the school, mostly from home computers.
Many school districts have simplistic and outdated computer use policies that provide no grounds for disciplining students for online abuses. In addition, neither federal nor state statutes give school administrators sure grounds for reporting students’ improprieties to law enforcement officials.
Dr Conn’s paper provided an overview of relevant case history and discussed the legal landmines that face school officials who seek to regulate students’ technological bullying, harassment and threats. The presentation offered some suggestions for avoiding them, to give hope and support to their victims.
Michael Winram’s paper highlighted the types of problems confronting many school principals in recent times. For example, a principal may discover a website that has maligned the school, its students and the principal; or a video on YouTube showing a segment of the final leaving assembly for Year 12 students linked with other videos of students at a party after the school formal, where some of the students on the video can be heard saying “I’m too drunk to stand up” or “Take your pants off”.
Mr Winram commented that many teachers will be aware of websites such as http://au.ratemyteachers.com where students can rate teachers in easiness, helpfulness, clarity and coolness. He observed that some teachers would be offended at the thought that they are referred to on websites, and posed the question as to what can be done about it.
The paper outlined legal perspectives on a range of relevant issues, such as the presumption of a right to control personal information, privacy, the regulation of online content, the legality or otherwise of material and whether crimes can be committed by posting material on the Internet.
Also covered were avenues of redress if the material is defamatory but not illegal, and the school’s position if its own students are uploading the material.
Mr Winram proposed a number of measures schools should take to protect their reputation and keep a check on information that is being posted on the Internet. His key recommendations are set out below.
Mr Winram cited a case in which students had created a profile of a teacher on Facebook and had assumed his identify and communicated with parents. Students at the school used to tell him he was a “cool” teacher because he had a Facebook page. The hoax was ultimately discovered after some months when the teacher inquired of another staff member as to what Facebook was.
Another case was mentioned in which a principal decided that, rather than banning access to Facebook on school computers, he would join Facebook and students and teachers were only allowed to access Facebook on school computers if they included him as a friend. That way, he was able to monitor the content on the Facebook pages of teachers and students, and even monitor communication between teachers and students.
Mr Winram noted that one of the alarming aspects of the report on privacy released in August 2008 by the Australian Law Reform Commission (ALRC) was the reports of discussion with young people. ALRC president David Weisbrot said:
“While young people clearly understand technology, and in particular the internet, it was clear that they did not have a good understanding of what happens to their information once it is posted. For example, many thought that deleting the profile, or even a particular item, meant that the information is completely removed from the online environment — which is often not the case at all … for these reasons, the ALRC recommend that the Privacy Commissioner, industry associations and educational authorities provide children and young people with more information on privacy issues, so that they can better protect their own privacy and respect the privacy of others.”
A starting point for educating students is the Australian government’s site www.netalert.gov.au. It contains information on how to educate students on safe and appropriate use of websites and contains links to a range of other useful websites.
Schools must have internet and email policies that state how students and staff may use computers owned by the school. The policies should also address consequences for maligning the school, staff or other students regardless of whether the school’s computers are used. For example, is it the school’s policy that a student will be expelled for misrepresenting the school or a teacher on the Internet? Are there consequences for students uploading videos that malign the school onto sites such as YouTube?
Mr Winram concluded by noting that the biggest issue for lawmakers is trying to get the balance right between the general human right of free speech and the need to protect individuals and organisations such as schools or students from internet content that maligns them. Schools do not have an automatic right to request the removal of information about the school or students.
If, however, it is believed that a serious breach of privacy has occurred or the content is defamatory, the first step is to write to the internet service providers (ISP) and the internet content hosts (ICH) to request it be removed. Mr Winram stressed that ISPs and ICHs will not be liable under any head of damage under any state or territory legislation or under the common law, until they have been made aware of the content. If you suspect the internet content is prohibited content then you should make a complaint to the Australian Communications and Media Authority, he said.
Mr Winram observed that most of the law in this area is yet to be developed. He noted that there may well be a new legal landscape in a very short time if the federal government introduces a tort of invasion of privacy and if the Victorian Supreme Court finds Google liable in defamation after it became aware of defamatory material. The law will always be slower than the pace at which internet technology develops, however, so schools should ensure they keep up to date with the development of internet technology and respond appropriately.
The situation with regard to indigenous education was the subject of a presentation by Molly Townes O’Brien of the Australian National University. Ms O’Brien took as her starting point recent apologies by the Prime Ministers of Australia and Canada for the impact of policies that may have been well-intentioned at the time, but effectively isolated indigenous children in Australia, Canada and the United States from their families and cultures, and educated them for menial labour.
The focus of her paper was on the very substantial educational disadvantages of indigenous children and how these might best be addressed.
She noted that one of the targets announced by the Australian Prime Minister is to halve the gap in literacy, numeracy and employment outcomes and opportunities for indigenous Australians within a decade.
After presenting data on this gap in reading, writing and numeracy skills — showing, among other things, that almost 60% of indigenous Australian students drop out at or before Year 10 while the corresponding figure for non-indigenous children is around 30% — Ms O’Brien listed the reasons that are often cited for the gaps in achievement and suggested that discrimination and institutional racism are involved in many of them:
• socioeconomic status (poverty)
• poor health
• family structure
• neighbourhood characteristics
• quality of schools
• quality of teaching
• lack of employment opportunity leading to lower educational aspirations
• school culture inconsistent with attitudes at home
• transience
• language
• cultural resistance.
While the interaction between these factors is complex, a number of individual considerations are clearly very important in explaining educational disadvantage, for example, the level of assistance given to children by their parents with assignments, projects and the like; and whether other family members aspire to a “good education” for their children.
Ms O’Brien raised the question: What exactly is a proper education for indigenous children?
The question is central to the Australian Prime Minister’s promise to “begin with the little children”, and “over the next five years to have every indigenous four-year-old in a remote Aboriginal community enrolled in and attending a proper early childhood education centre or opportunity and engaged in proper pre-literacy and pre-numeracy programs”.
Ms O’Brien considered the evidence for early childhood interventions, commenting that education is — at its core — a method of transmitting not only knowledge but culture, and a policy designed to “begin with the little children” and endeavouring to “close the gaps” sidesteps the important issues of indigenous identity and cultural assimilation and fails to recognise the educational rights of indigenous children.
She then reviewed two studies that shed light on how educational disadvantage might best be addressed — the Perry Preschool Project and the Cambridge Somerville Youth Study.
The Perry Preschool Project involved African American children born into poverty who, at ages three and four, were randomly divided into a program group that received a high-quality preschool program based on High/Scope’s participatory learning approach and a comparison group who received no pre-school program. The program group appeared to receive long-term benefits from this intervention.
The Cambridge Somerville Youth Study involved “at risk” children aged 5–13 who were assigned a counsellor and made eligible for special programs including tutoring, medical treatment, psychiatric treatment, summer camps, Boy Scouts, YMCA, or other community programs.
Long-term follow-ups found that the program did not reduce delinquency and no positive long-term health effects. In fact, those in the program were more likely to be re-arrested for crimes as youth and adults. Some negative impacts on physical and psychological health were also found.
To answer the question as to what made the difference, Ms O’Brien noted that the Cambridge Somerville subjects were singled out for counselling and tutoring, and while they appreciated it at the time, the process of singling them out for special attention and programs aimed at diminishing delinquency made them begin to see themselves as potential delinquents.
Ms O’Brien suggested that indigenous education has come to be seen as peripheral rather than integral to core business. In addition, the funding of indigenous education through special programs has led to dependence on short-term solutions. In other words, indigenous education has been “bolted on” rather than “built in” to mainstream effort, becoming the province of specialists and committed individuals instead of systems as a whole.
She asked if it is possible to improve indigenous education without “singling out” indigenous children or communities for the kind of government “help” that cripples rather than empowers indigenous peoples, and if it is possible to integrate but not assimilate.
By way of answering these questions, Ms O’Brien invoked the Convention on the Rights of the Child and proposed that an appropriate educational approach must emphasise cultural conservation and empowerment, which in turn implies:
• a focus on language and language training
• a program that is individualised to various indigenous groups
• two-way education that is neither assimilationist nor “culturalist” but humanist in a way that values the students, indigenous knowledge, and each child’s potential
• integrated rather than segregated.
As an example, Ms O’Brien described the approach practiced at the Briarlake Elementary School in the US, which helped pioneer the concept and practice of mainstreaming hearing impaired students more than a decade ago, and serves as a model that, in Ms O’Brien’s view, other schools might do well to emulate.
Dealing with children with social, emotional and behavioural difficulties (SEBD) was the focus of a presentation at ANZELA by Frederic Fovet, Headmaster, College Northside, Quebec.
In his paper, Mr Fovet explored the impact of the UK’s Every Child Matters legislation on the effective inclusion of children with SEBD, and contrasted the approach with previous efforts in this area of teaching. In the UK, legislation relating to education has been focused since World War II on establishing standards in terms of curriculum content and on addressing school behaviour along the lines of behaviourist principles, often against research findings or the results of parliamentary committees.
Mr Fovet’s presentation attempted to establish that the Every Child Matters legislation breaks a long-held precedent in this respect, embracing systemic principles that form an important part of the post-war discourse on behaviour but had been shunned by legislators. His study analysed the impact of the Act and sought to compare its implications with current practices in the SEBD field.
He complemented the statutory interpretation with a textual analysis of a random sample of school behaviour policies and with qualitative data collected from practitioners in the field.
To provide historical context, Mr Fovet reviewed the pre-existing statutory framework relating to the education of children with behavioural difficulties, which generally dealt with the matter from a perspective of exclusion. The creation of special schools for “maladjusted” children came early, and from 1899–1914 the focus was on the “three Rs”, with literacy as a priority.
From 1914 there was a shift from the acquisition of academic skills towards socialisation, hygiene and moral standards as well as manual vocational skills. This was followed by an approach which established various types of schools (grammar schools, secondary modern, technical schools), consolidating the concept of exclusion and of special and specific education.
The 2003 Green Paper, Every Child Matters (ECM), introduced a series of reforms aimed at improving children’s care, inter-agency collaboration, the sharing of information, the setting up of a common framework for assessment and multi-agency interventions. These principles underpinned the Children Act 2004 which aims to protect children and to maximise the opportunities young people are offered to improve their life and potential.
It lays down five areas which must be investigated each time a teacher considers the welfare and education of a child, namely:
• be healthy
• stay safe
• enjoy and achieve
• make a positive contribution
• achieve economic well-being.
Mr Fovet argued that these principles differed radically from previous approaches based on behaviourist theories or “within child” interpretations of the difficulties and their causes. Behaviourist theories tend to see difficult behaviour as something that has been learnt and can therefore be unlearnt, while the “within child” perspective is heavily based on the medical model that sees behaviour as latent and caused by biological factors and hence something to be managed by medication and treatment.
There has been a sharp increase in the popularity of this concept, Mr Fovet asserted, since the formalisation of the ADHD (attention deficit hyperactivity disorder) diagnosis and the medicalisation of school behaviour issues.
Mr Fovet’s study viewed SEBD as occurring in a spectrum ranging from unacceptable behaviour to mental illness, with serious mental illness excluded from the definition. The theoretical approach under ECM legislation prefers to explain behaviour as the interaction between the systems in which the child is present and plays a part: friends, classroom, school, family and society.
Children with SEBD are therefore not the sole focus and the systems must be considered as a whole, including non-disruptive children, adults and institutions. In this view, individuals are perceived as “normal” when they and their ecosystems function in unison, but when they do not achieve a good balance, the systems as a whole are malfunctioning, though it is the individual who is often labelled as “maladjusted”.
Mr Fovet’s presentation discussed a number of reservations and practical teething difficulties experienced in response to the new approach, but despite these, drew positive conclusions about the value of the new legislation. In his assessment, the new approach is a rare example of educational theory moulding statutory provision, rather than a case of need or resource-based issues leading to socio-economic measures. He expressed the view that it will be considered ground-breaking legislation by SEBD practitioners as well as lawyers and administrators and as the dawn of a new era in institutional approaches to SEBD.
This paper, presented by Suzanne Christie, Barrister, Sydney and Peter Christie, Director of Resources, St Andrew’s Cathedral School, Sydney, explored through case studies some practical problems and the related legal issues encountered by teachers and school administrators when dealing with the children of parents who have separated (or never married/cohabited).
Family law is a Commonwealth responsibility in Australia so the information contained in the presentation is broadly relevant in all Australian states and territories. Family law intersects with other areas of law including privacy, child welfare and educational laws.
The types of issues that arise include:
• what do court orders mean?
• do they bind the school?
• should the school have a copy?
• consent to enrolment
• consent to excursions, medical treatment, contact sport, religious instruction, educational assessment, school counselling or academic subject choice
• should staff (teaching or non-teaching) swear affidavits?
• what obligations are imposed by a subpoena?
• who is liable to meet independent school fees?
Ms Christie went on to set out the main factual information of which schools should be aware in relation to court orders, the effect of no orders, the making of orders, the language used in orders and the requirements of parental responsibility.
She also explored the concept of equal shared parental responsibility, which was introduced on 1 July 2006 by an amendment to the Family Law Act 1975, and pointed out some of the practical consequences of the way in which parental responsibility is approached in the legislation, namely that a school should be aware not of where a child lives (although this may be important) but rather which person or persons have parental responsibility for the child.
Where a child’s parents are separated (or have never lived together) it is only desirable to rely on the consent of one parent if the school can be satisfied that that parent has sole parental responsibility for educational issues.
The presentation was punctuated by hypothetical case studies that neatly illustrated the dilemmas faced by school staff. For example:
| Are you bound by the orders? | |
| When Mark was enrolled his mother informed you that she and Mark’s father did not live together and there were Court Orders from the Federal Magistrates Court which provided that Mark lived with her and spent time with his father on alternate weekends and alternate Monday nights. She gave you a copy of the Court Order. | |
| Mark’s father arrives to collect Mark on a Thursday. What do you do? | |
| Does it make any difference if the Order says that Mark lives with his mother and has no contact (or supervised contact only) with his father? |
The paper then fleshes out the principles on which school staff should base their decisions, supporting the recommendations with findings and observations from relevant court proceedings.
Similar hypothetical cases were presented to illustrate the difficult decisions that may be faced by school staff in relation to enrolment, consent to medication, domestic violence and swearing an affidavit. For example:
| Swearing an affidavit | |
| You are the English teacher and Year 7 coordinator responsible for two students: twin girls Emma and Charlotte. | |
| In 2008 you are aware that the children’s parents separated. You first became aware because of Emma’s creative writing, which sufficiently concerned you that you telephoned her mother and requested an interview. At the interview the mother told you that both girls were anxious, depressed, tearful and sometimes aggressive and she was concerned that this behaviour was a consequence of the recent acrimonious separation between her and her husband. You have not met the children’s father. | |
| The children’s behaviour has remained poor and their writing continues to be disturbing, containing themes of violence, desertion and death. | |
| The children’s mother asks you to be a witness in the upcoming proceedings before the Family Court. |
The paper also contains commentary on the practical implications of subpoenas and child support, from the point of view of what a school needs to know.
The paper’s concluding recommendations are for schools to:
• focus on parental responsibility (as opposed to living arrangements)
• seek copies of Court Orders to be consulted if required
• recognise that schools are not bound by Court Orders and not required to enforce them
• act in accordance with court orders if they have been provided to the school
• seek advice if one or both parents raises an educational issue about which agreement cannot be reached between them.
The death of a boy during a Victorian school cadet camp has prompted Comcare to take the Australian Defence Force to court, alleging breaches of the Occupational Health and Safety Act 1991. The boy died from anaphylactic shock after eating a mouthful of beef satay from his Army ration pack, according to reports on the ABC and in a number of newspapers.
The incident occurred in March 2007, when 300 cadets from Melbourne’s Scotch College were enjoying a bivouac in the Wombat State forest near Gisborne in central Victoria. The 13-year-old, Nathan Francis, collapsed after eating a mouthful of satay. Despite efforts to revive him with CPR and four EpiPens, he was declared dead on arrival at the Royal Children’s Hospital three hours later.
As a result of Nathan’s death, a writ was lodged in the federal court by Comcare, the Commonwealth health and safety body, on 6 June 2008. It stated that the Chief of the Army was the employing authority of the Australian Army Cadets (AAC).
According to an article in the Herald Sun, the writ contains a statement by Nathan’s mother, Jessica Francis, alleging that she had informed the organisers of Bivouac 2007 of her son’s peanut allergy, also that he was asthmatic and carried an emergency adrenalin EpiPen.
The writ also alleged that the AAC put the lives of six other Scotch College boys at risk by failing to record their peanut allergies. According to the article, when the Scotch cadets left for the camp they were given one of five combat ration packs at random, one of which had the beef satay.
The rations were distributed by the school’s quartermaster, who was reported to have been unaware that the parents of seven boys had notified the unit’s secretary about their children’s peanut allergies. Two other peanut-allergic cadets were allegedly given the beef satay but suffered no ill-effects.
Comcare claimed in its writ that no action was taken to ensure that the information provided by the boys’ parents was taken into account. Comcare also alleged that during the same Wombat Forest bivouac, six AAC cadets became lost for 18 hours because of poor equipment, supervision and information.
In its statement of claim, Comcare says the Australian Defence Force breached its duty of care to the cadets over the incidents and exposed them to unnecessary risk of death or injury. It is seeking penalties of up to $242,000 against the ADF for each breach of health and safety laws on the camp.
The ABC reported that Comcare is also investigating another incident in South Australia where a cadet was exposed to peanuts on a camp in June this year, more than 12 months after the ADF banned the use of combat ration packs for cadets.
By Dr Grahame Wagener, English teacher, Cheongju, South Korea
Schools Alert board member Grahame Wagener, normally principal at Oak Flats High School, New South Wales, is currently on an extended visit to South Korea, teaching English at a teaching college in between visits to North Korea and China. He has provided this report to highlight the striking differences between Korean and Australian schools — especially with regards to discipline.
The Korean school year (“Korean” will be used to denote “South Korean” throughout this paper) is divided into two semesters. The first begins in early March and ends in mid-July. The second begins in late August and ends in mid-February. There is a summer vacation from mid-July to late August, and winter vacation from late December to early February. Additionally, there is a short vacation from mid-February to the end of February.
Elementary school consists of grades one to six (for children aged six to 12 according to the Western convention of calculating age by starting at zero on the day of birth — Korean children are considered to be aged one on the day of their birth, so are considered to be seven when in their seventh year). Subjects include Korean, mathematics, science, social science, art, music, PE and English.
Middle schools in Korea consist of three grades. Most students enter at age 12 and finish at 15 (Western years). This is the equivalent of years 8–10 in the Australian system. Education in Korea is seen as the most important key to success and competition is very fierce. At most middle schools regulation uniforms and haircuts are enforced. It is not unusual to see students punished for failure to comply. Punishment can vary from a cane to the back of the legs, to the teacher hitting the student with knuckles to the top of the head, school service duty, or sitting in the corridor on their knees with arms outstretched.
Like elementary school, students spend most of the day in the same classroom with the same class. Teachers move around from class to class with a few teachers (special subjects) having their own rooms. Homeroom teachers play a very important role in students’ lives and have considerable authority and responsibility over the students. This responsibility extends to activities outside of the school, at night and on weekends. In any decision involving a major breach of school culture, the homeroom teacher will be part of the decision-making process.
Most middle school students take six lessons a day and usually have an extra early morning lesson and an extra lesson in the afternoon. Students are expected to participate in after-school programs. The core subjects are mathematics, English, Korean and science; additional subjects are art, PE, history, Chinese characters, ethics, home economics and computers. Every first, third, and fifth (calendar permitting) Saturday students attend school for half a day. In the final year of middle school examination scores become important for the top students wanting to gain entrance into the top high schools, and for those in the middle hoping to get into an academic rather than a technical or vocational high school.
High schools in Korea teach students from first grade (age 16–17) to third grade (age 18–19). High schools can be divided into special, public, private and vocational. Specialist high schools teach science, foreign language and art. These high schools are highly competitive and many students graduate straight from second grade. In 2005 it was reported in an OECD study that 97% of Korea’s young adults complete high school.
Core subjects include Korean, English and mathematics. The type and level of intensity of subject offering may differ from school to school, depending on the degree of selectivity and specialisation of the school. Examinations are generally multiple choice including listening skills tests.
English is compulsory from the third year of elementary school up to graduation from high school, with the goal of performing well on the TOEIC (Test of English for International Communication) and TOEFL (Test of English as a Foreign Language), which are tests of reading, listening and grammar-based English. There is also an English speaking evaluation.
Korea is now placing a greater emphasis on English verbal abilities rather than grammatical skills. Universities require all first year students to take an English conversation class in their first year and some universities require students to take an English conversation class for the duration of their study. Many universities require high school students to “pass” an English conversation interview to gain entry to the university. Again, there is intense pressure to do well in University Entrance English presentations.
Native English speakers are increasingly being employed to conduct English conversation classes. Seoul Office of Education recruits English teachers directly while major programs like EPIK (English Program in Korea) employ native English speakers across the country. Chungcheongbuk-do is one province that employs additional teachers over and above those contracted through government agencies. There is also a concerted push to have more native English speakers working in rural areas.
Homeroom teachers have a great amount of authority and responsibility for their students; they operate like year advisors and take on the pastoral care role. The head teacher role is different to the role of a head teacher in New South Wales. It is more like the role of a team leader and is given to experienced teachers with no application or interview process and no appeal system.
Depending on the size of the school, a head teacher could be appointed for each of the following areas:
• grade 1
• grade 2
• grade 3
• administration
• schedules
• moral education
• welfare (discipline), and
• subject heads.
There are no learning support teams for students with learning difficulties in the mainstream but there are special needs units, where necessary. Librarians and career advisors are only made available in some larger schools.
Generally, there are one or two groundsmen in each school (depending on size) and there are no cleaners. The students clean the school after lessons have finished. Students are allocated an area that they are responsible for keeping clean. This includes dusting, sweeping and mopping. The grounds outside the school are also kept clean by the students.
To become a deputy principal (commonly called vice principal) a teacher will need to have completed 24 years of service and successfully completed a 180-hour training program (which involves passing an exam at each stage of the program).
To become a principal one needs to have completed (on average) five years as a deputy principal and successfully completed a 360-hour training program. Again, there are exams at various stages of training.
Although over 50% of Korean schools have banned the use of corporal punishment, it is still used. Students can be hit with a small cane for having their hair too long, for wearing outdoor shoes inside or inside sandals outside, along with a wide variety of other reasons. Most Korean teachers have a pointing stick which is used as part of teaching practice, and the stick is often employed for disciplinary reasons. Some parents have given the teacher the so-called “rod of love” and requested that they use it for their sons and/or daughters.
An orientation course for foreign teachers teaching in Korea usually has reference to Korean disciplinary processes with the observation that while one might not agree with it, this is the way it is. There are other forms of discipline which would not be tolerated in Australia, but are not frowned upon in some Korean schools.
A great deal of respect is shown to the teachers by both parents and students alike. Students bow to each teacher they pass as a sign of respect. Parents give gifts to the teachers on Teacher’s Day. Teacher’s Day is celebrated by students visiting their “old” teachers and paying them their respects.
After school Hagwons are best described as privately operated cram schools. In Korea, there are tens of thousands of them with about 4% of GDP being spent on them.
The status of the Hagwon that one attends can reflect the status of that child in school and the status of the family in society. That being said, Hagwons are becoming a real problem.
Here is an example of an after school Hagwon timetable:
• 13/14-year-olds start at 5.50 pm, have two one-hour classes and one 70-minute class and go home at around 9.30 pm. When they arrive home they commence doing their school and Hagwon homework.
• 15-year-olds start at 7.05 pm, have one 60-minute class and two 70-minute ones, finish at 10.55 pm, and then commence homework.
• 16-year-olds, now at high school, start at 9.45 pm, have two 70-minute classes and finish at 12:20 am. The same for 17 and 18-year-olds.
One of the biggest Hagwons in Busan has about 120 staff, 80 teachers, 15 drivers of mini-buses, and so many thousands of students that it employs its own traffic control people to help the students get across the busy road.
Hagwons have a vested interest in maintaining the belief that only with their help will the child get a good score on the crucial University Entrance exam.
One of the hardest jobs teachers have in the morning classroom is to keep most of the students awake and hope they will learn something.
The impact on the children’s socialisation and growth outside school is another fascinating aspect of the education system in Korea, but that is an issue to be discussed at another time.
The recommendation by the Royal Australasian College of Physicians (RACP) to involve teachers in diagnosing Attention Deficit Hyperactivity Disorder (ADHD) has drawn criticism from a number of professionals working in the field.
The notion that teachers should have a role in recognising the signs of ADHD and being consulted in the diagnosis was put forward in a set of guidelines for the management of people considered to have ADHD.
The National Health and Medical Research Council commissioned the RACP to undertake a review of the guidelines and update them. The RACP review team assessed the scientific evidence available regarding best practice for diagnosis, treatment and management of ADHD, then organised consultations with community groups and clinicians, beginning in October 2007.
The draft guidelines stated that they were developed to improve the assessment, treatment and care of people with ADHD, which is described in the guidelines as a common condition that begins in childhood and often persists through adolescence and into adult life. The core symptoms are poor impulse control and lack of sustained attention. Many people with ADHD also have associated problems such as learning difficulties, anxiety, autism spectrum disorders or tics. People with ADHD may find it hard to enjoy life to the fullest and achieve their potential. The flow-on effects of the condition can have a significant impact on families, schools, workplaces and the community.
The draft guidelines included many recommendations that relate to teachers and educators generally.
For example, with regard to the assessment and diagnosis of ADHD in school-aged children and adolescents, the recommendations included the following:
• Information from and discussion with multiple informants, including the child/adolescent, parents/caregivers, and educational and health professionals, needs to inform a diagnosis of ADHD in school-aged children.
• Diagnosis requires evidence of impairment across settings, including home and school.
• Assessment should cover the presence and functional significance of other problems, including learning disabilities, anxiety/depression, and disruptive behaviour disorders.
• Information from and discussion with multiple informants, including the child, parents/caregivers, kindergarten and preschool teachers, child care staff, preschool staff, and health professionals, needs to inform a diagnosis of ADHD in preschool-aged children.
Under the heading of psychoeducational assessment, the guidelines stated that:
• Most children with ADHD have intellectual development within the normal range. A significant proportion, however, present with cognitive deficits, learning difficulties and social adaptive difficulties, and in these individuals a comprehensive psychoeducational assessment is particularly necessary.
• Educational difficulties are common in people with ADHD. Where these problems are suspected (eg via parent/caregiver or teacher report, or national/state/territory literacy and numeracy assessments), psychoeducational assessment should be conducted.
• Assessment of educational difficulties is important in people of all ages with suspected ADHD and/or suspected educational difficulties, to inform diagnosis and identify learning difficulties that should be targeted for intervention. Such assessments are not diagnostic of ADHD.
Regarding information from third parties, the guidelines stated that:
• For diagnosis of ADHD in children and adolescents, input from multiple informants (eg parents/caregivers, teachers) should be considered in evaluating the chronicity and pervasiveness of impairment.
• Diagnosis of ADHD should not rely solely on the use of parent or teacher information, as this may lead to over-diagnosis.
The guidelines also referred to information on cognitive strengths and weaknesses (provided through neuropsychological assessments) that can be used by teachers or others to develop compensatory approaches to learning and daily functions.
Another recommendation was that education programs for teachers should include instruction on the features of ADHD and the education strategies that are likely to benefit individuals given this diagnosis.
The draft guidelines also covered educational management of ADHD, covering “inclusion” as a legal requirement, teacher knowledge required, funding and resources, and school-based interventions.
The recommendations were that:
• All professionals supporting students with ADHD should be familiar with their legal responsibilities under the 1992 Disability Discrimination Act (DDA) and Disability Standards for Education (2005). ADHD is recognised as a disability under the DDA. As such, schools are responsible for explicit planning and review of support strategies and services for students with ADHD.
• Pre-service and in-service courses should be designed to prepare all teachers with the specific knowledge and skills to accommodate and manage students in need of additional support for their learning, behaviour, organisation and concentration.
• Federal, state and territory funding allocations to schools:– need to be revised to enable schools to access funding for students diagnosed with ADHD– should be accessible to teachers and school-based personnel for professional development on ADHD and coexisting conditions, with an emphasis on practical teacher interventions.
• Schools must have policies and procedures in place to support students with ADHD; for example, pre-referral processes, Wraparound and Positive Behavioural Intervention Support teams.
• Effective school-based interventions, including peer tutoring, mentoring and peer support (eg buddy systems), should be considered for children and adolescents with ADHD to enhance their learning, social and behavioural outcomes.
• Well designed research into behavioural and school-based academic interventions that teachers can effectively and easily implement for the benefit of students with ADHD should be conducted within Australian classrooms.
The draft guidelines devote an entire section to the educational challenges for students with ADHD, spelling out the implications for people characterised as having ADHD in terms of their limitations and difficulties during the early years, primary and secondary school years.
Sections of the draft guidelines were also devoted to collaborative approaches, school-based interventions and resources for teachers.
Interested readers are referred to the text of the guidelines available from the RACP’s website at www.racp.edu.au/index.cfm?objectid=7EAD34AF-F338-8AA2-60E889D93F5A70EA.
Public comment on the draft guidelines closed on 28 July 2008, and some media commentary since then has highlighted criticism of the idea that teachers should be involved in the diagnosis and treatment of ADHD.
Objections raised have focused on the fact that teachers already have so many responsibilities that it would be unfair to load them with any more; the worry that there would be a big increase in the number of students who are diagnosed and then medicated; and also on the view held by many that ADHD has been “over-medicalised”.
The ABC’s The World Today program reported in August that the RACP’s draft report recommends teachers be involved in evaluating children and be trained in how to deal with students who have the disorder.
The chairman of the Working Group in charge of drawing up the guidelines, David Forbes, told the ABC that teachers can be on the lookout for signs of ADHD such as hyperactivity, poor impulsivity or poor attention, and that information can be passed onto paediatricians or psychologists.
The program reported that the RACP’s recommendations have upset 14 experts including researchers from several universities, who have written to the federal government in protest, believing the involvement of teachers will make an existing problem worse.
A key concern was reported to be the risk that by singling out ADHD for the teacher’s attention, other learning difficulties may be ignored, or a false diagnosis made for a lifelong psychiatric disorder.
The Safe Work Australia Bill 2008 that will establish a new statutory body called Safe Work Australia was introduced in federal parliament on 4 September 2008. The new organisation will replace the Australian Safety and Compensation Council.
The functions of the new body will include preparing model legislation and codes of practice for approval by the Workplace Relations Ministers’ Council, developing national policy on OHS and workers compensation, collecting data and conducting research.
The Workplace Health and Safety Regulation 2008 commenced on 1 September 2008 and replaced the Workplace Health and Safety Regulation 1997. The Regulation supports the Workplace Health and Safety Act 1995.
The explanatory notes accompanying the new Regulation state that it is essentially a remake of the 1997 Regulation without significant change in order to ensure the continuity of current workplace health and safety standards. While certain changes have been made, they are unlikely to concern schools.
The Work Safety Act 2008 was notified on 16 September 2008 and is expected to take effect on 1 July 2009, unless proclaimed to commence sooner. It will replace the Occupational Health and Safety Act 1989.
In the Northern Territory, the new Workplace Health and Safety Act 2007 commenced on 1 July 2008, as did the Workers Rehabilitation and Compensation Act 2007.
The Workplace Health and Safety Act provides for new industry advisory arrangements to the minister in the form of a 10- member Workplace Health and Safety Advisory Council. It also brings in significant new fines and penalties for regulatory breaches.
Another prominent feature of the new Act is that it was designed to strengthen consultative arrangements by providing for direct worker input into better managing health and safety performance in workplaces. This is achieved by the introduction and training of health and safety representatives for workplaces and the provision of training and right-of-entry for occupational health and safety-related purposes for authorised union representatives.
Did you know that CCH are now running seminars? All seminars are delivered over breakfast, in a practical, engaging forum and eligible for Continuing Professional Development (CPD) points.
For more information go to www.cch.com.au/seminars.
Highlights in update 37 of the School Health and Safety Guide include:
• A new section on “Cyber Hazards” has been added, covering issues such as cyberbullying and victimisation, online grooming of children for purposes of sexual solicitation, internet “addiction”, access to undesirable material, and dealing with websites that malign the school, the principal or the teachers.
• “The Common Law” has been updated with reference to a school’s liability for activities outside school grounds.
• New commentary has been added to the section on “Bullying” regarding an anger management program for young boys.
• Reference to the growing phenomenon of “glassing” has been added to “Violence and Harassment”.
• Commentary on the call to ban six substances used as food colourings has been added to the section on “Canteens and Tuckshops”.
• “Health and Safety Representatives and Committees” has been updated to reflect recent changes in Northern Territory legislation.
• “Medical Conditions and Infestations” has been updated with reference to recent concerns about the effects of a widely used medication on younger children.
Mr David Ford, senior partner, Emil Ford & Co, Solicitors, Sydney
Mr Drew Hopkins, lecturer in law, Australian Catholic University, Melbourne
Ms Gaby Grammeno, OHS consultant and writer
Mr Andrew Knott, partner, Macrossans Lawyers, Brisbane
Dr Joan Squelch, lecturer in law, Curtin University, WA
Ms Reeta Verma, lecturer in law, La Trobe University, Bendigo
Dr Grahame Wagener, principal, Oak Flats High School, NSW
Ms Vernita Zigouras, principal, Westall Secondary College, Vic.
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