Last updated 23 November 2016
It should be remembered that a child has a right to an education under the United Nations Convention on the Rights of the Child and generally a specific legal right to 26 semesters of free state education in Queensland. Successfully completing school is key to being able to find and maintain employment as an adult. Disconnection from school is a significant risk factor for young people becoming involved with the criminal law. Therefore decisions that take away a person’s educational opportunities must not be taken lightly.
If children or parents need help to understand the processes and/or with writing responses or submissions, they should contact a community legal centre whose services are usually free. The Youth Advocacy Centre Inc., YFS Legal and South West Brisbane Community Legal Service have lawyers who specialise in assisting children 10 years and over for free.
Refusal of enrolment
Child under 18 years of age
A principal must enrol a prospective student if they are entitled under the Education (General Provisions) Act 2006 (Qld) (Education Act) to be enrolled at the school (s 156(1)).
However, if the principal reasonably believes that the prospective student ‘poses an unacceptable risk to the safety or wellbeing of members of the school community’, they must refer the application to the chief executive (s 156(2) Education Act) and if:
- the chief executive does not believe that enrolling the prospective student would pose an unacceptable risk, the application is referred back to the principal for approval (ss 156, 158(2) Education Act)
- the chief executive agrees that there is an unacceptable risk, it must give the applicant parent or child a ‘show cause notice’ that states:
- consideration is being given to enrolment being refused
- the grounds for such a refusal
- an outline of the facts and circumstances on which the grounds are based on (s 159 Education Act).
The applicant must then be given at least 14 days after receiving the notice to respond in writing.
If the applicant does not make any representations, the student’s enrolment will be refused automatically (s 162(2) Education Act).
If, after considering any representations, the chief executive:
- does not believe that enrolling the prospective student would pose an unacceptable risk, they must tell the applicant as soon as practicable, and the application is referred back to the principal for approval (s 161 Education Act)
- believes that enrolling the prospective student would pose an unacceptable risk, they must refuse the enrolment application and advise the applicant and the principle by an ‘information notice’. The refusal decision is binding on the principal.
If enrolment is refused, another application cannot be made until one year after receipt of the information notice.
There is no right of appeal or review from this decision.
Where the proposal to refuse enrolment, due to an unacceptable risk to safety or wellbeing, relates to a person with a disability within the Department of Education and Training’s criteria (ch 8 pt 1 div 3 Education Act), a different process applies. In this case, the chief executive decides:
- whether the person is a person with a disability within the criteria
- if the school is able to cater for their educational needs.
If the chief executive:
- is satisfied on both counts, the matter is referred back to the principal for approval
- is not satisfied on one or both counts, the enrolment must be refused.
The decision is binding on the principal. There is no provision in relation to making further applications.
A mature-age student has to agree to a criminal history check when applying for enrolment to a mature-age state school. A criminal history for this purpose includes any conviction or any charge in Queensland or elsewhere (s 175A Education Act).
In assessing whether an applicant is an unacceptable risk to the safety or wellbeing, the principal has to consider for each matter on the applicant’s criminal history:
- whether the offence is a serious offence
- when the offence was committed or is alleged to have been committed
- the nature of the offence and its relevance to the prospective student being a mature-age student of the school
- if there was a conviction—whether a penalty was imposed, and the nature of the penalty (s 156(2A) Education Act).
Aside from this, the process is the same as for any other student considered an unacceptable risk.
Chapter 12 pt 3 div 2 of the Education Act provides that a student cannot have a decision by a principal to suspend them for one to ten days reviewed. However, they can make a complaint to the Department of Education and Training about how the principal treated them or about how the decision was made if they think it was unfair.
If the student is suspended for 10 to 20 days, they can ask the chief executive to review the decision. This has to be in writing and must give as much information as possible about why the suspension is wrong or unfair.
The chief executive can decide to:
- confirm the suspension
- vary the length of the suspension
- cancel the suspension
- substitute another punishment.
Exclusion up to one year
An excluded student can write to the chief executive asking that the exclusion decision be reviewed (ch 12 pt 3 div 3, 4, 6, 7 Education Act). This has to be done within 30 days from when the student was given the written notice of exclusion and must give as much information as possible about why the exclusion is wrong or unfair.
The chief executive then has 40 days to consider the submission and decide whether to:
- confirm the exclusion
- exclude the student but make a different decision about for how long or where the student is excluded from
- cancel/set aside/substitute the decision.
The chief executive must:
- tell the student and the student’s principal the decision as soon as practicable after making it
- within seven days of telling them, provide them with a written notice of the decision with the reasons.
Where the chief executive was the decision maker and this was done through delegation to a member of the chief executive’s staff, the person reviewing the decision must be the chief executive or a delegate other than the one who made the original decision.
If the chief executive excludes a student from all state schools (whether permanently or not), the chief executive must also advise that the student has a right to have the decision reviewed by the Queensland Civil and Administrative Tribunal.
A person who is permanently excluded from a school, certain schools or all schools may write to the chief executive each year up until they turn 24 years of age, asking for the decision to be revoked. Only one application can be made per year.
The chief executive has 40 days to consider a submission and tell the person the decision. They must revoke the exclusion if they are reasonably satisfied that:
- the disobedience, misbehaviour or other conduct is unlikely to recur if the student were allowed to attend the school or schools
- the student’s attendance at the school or schools no longer poses an unacceptable risk to the safety or wellbeing of other students or of staff
- it would no longer be in the best interests of other students or of staff for the student not to be enrolled at the school or schools.
Cancellation of enrolment
If a student’s enrolment has been cancelled, the student can write to the chief executive and ask for a review of the principal’s decision (ch 12 pt 3 div 8 Education Act). They must give as much information as possible about why the cancellation is wrong or unfair. There is no time limit for seeking a review.
The chief executive can:
- agree with the original decision to cancel the enrolment
- vary the original decision
- make a different decision in place of the original decision.
In all matters that are not reviewable by the Queensland Civil and Administrative Tribunal, it is open to the student to complain to the Queensland Ombudsman or make an application to the Supreme Court for judicial review. However, both of these relate to complaints about procedural issues rather than the merit of the decision. Judicial review is expensive and it would be best to talk to a lawyer about this option.