Enrolling students with a history of violence

DET has issued a memorandum and a Legal Issues Bulletin on information about students with a history of violence. JOAN LEMAIRE reports.

The Department of Education and Training (DET) has been criticised by judges during occupational health and safety (OH&S) prosecution proceedings where staff were not provided with information related to risks posed by the behaviours of certain students.

In her judgment in relation to an incident in a juvenile justice centre where a teacher's aide was stabbed and died, Justice Staunton said: "School staff should not be excluded from information relevant to risk on safety considerations on the basis that it might prejudice their attitude to the detainee." She pointed out that there should have been a proper risk assessment using relevant information and input from school staff so that the student would have been placed in a learning environment that did not "expose school staff to unnecessary and foreseen risk of harm".

The DET memorandum places responsibility on principals, college directors and senior officers of the DET to ensure "that each student, who moves between government schools is issued with a transfer certificate". Perhaps even more importantly, it states: "Student records are to be provided to the 'new' school before enrolment procedures are completed."

It has been common practice particularly at the commencement of the school year that many students are enrolled prior to the receipt of student records. Many principals have reported difficulty in obtaining records from students from other states or from transitory students.

"Principals should not complete enrolment without student records."

The memorandum states that it "clarifies the responsibilities" of principals and others. This means that in the DET's view, this is now the responsibility of the principal and the other designated officers.

If a student or staff member were injured as a result of the violent actions of a student enrolled without student records, the principal may be held accountable. For this reason Federation advises principals that they should not complete enrolment without student records. They should request that a risk assessment be completed by DET on any student who does not have student records.

DET has also "clarified" the responsibility of principals and college directors to "provide staff who may be affected with all relevant information available to DET to enable the school to assess the application for enrolment and to prepare for the arrival of the student". This should follow the process of a risk assessment where the risks are identified and appropriate measures are put in place to control or eliminate the risks. Principals as employees are entitled to be consulted in terms of a risk assessment prior to the placement of a student in the school. Staff must also be consulted. If principals believe they have insufficient information to be involved in this consultation process, they should indicate that it is not possible to enrol the student until the DET provides the relevant information and training for a risk assessment of the enrolment of the student at the school.

Principals and staff should also have a say in terms of what resources and other support may be necessary to accompany the enrolment. The memorandum also 'clarifies' that regional staff who "propose the enrolment of a student in a school or TAFE college... must ensure that the principal or college director is provided with all relevant and accurate information about the student's background".

Federation is aware of a number of occasions where relevant information may not have been provided and teachers have been injured. Principals and college directors may decide that it is appropriate for regional staff to conduct a risk assessment in consultation with all staff before proposing enrolment.

The memorandum refers to the need to ensure the use of this information meets privacy guidelines. This has sometimes been used as an excuse not to provide relevant information to staff about OH&S risks.

Section 13 of the OH&S Act requires employers to consult with employees to enable them to contribute to making decisions affecting their health, safety and welfare at work. Section 25 of the NSW Privacy and Personal Information Protection Act allows for non compliance in terms of the disclosure of personal information where it is otherwise permitted under an Act or other law. This means that where the information relates to risks to the health, safety and welfare of employees, they should be provided with the relevant information.

Joan Lemaire is an Industrial Officer.