Detention time for parents in Victorian schools

Schools in Victoria will have new powers from 28 June 2022 to address the risk of occupational violence and aggression directed towards school staff by certain adults, including by school parents.

These new laws provide for:

• Principals to make orders to protect members of school communities from harmful, threatening or abusive behaviour on school grounds or other places where school activities occur; and
• civil penalties for the enforcement of those orders.

A community safety order may be made by a Principal against any adult except staff members or students of their school.

The requirements for exercising the new powers are detailed and prescriptive, which are likely to mean that they will be sparingly used.

Immediate school community safety orders

Principals will be able to direct a person to leave and remain off school grounds, or other places related to the school, if the person poses an unacceptable and imminent risk of harm to a member of the school community.

An immediate school community safety order will be able to be made against a person in circumstances that necessitate swift action if the Principal reasonably believes that the order is necessary because of the following grounds:

• the person poses an unacceptable and imminent risk of harm to another person at a school-related place;
• the person poses an unacceptable and imminent risk of causing significant disruption to the school or activities carried on by the school; or
• the person poses an unacceptable and imminent risk of interfering with the wellbeing, safety or educational opportunities of students enrolled at the school.

The Principal must also consider that the order is reasonably necessary to address these grounds and, before making the order, must consider any known vulnerability of the person and whether the order is the least restrictive means available to address the concerns.

The order is intended to operate for the minimum time necessary until the earlier of 14 days, it is revoked, the period of operation stated in the order expires, or an ongoing school community safety order is made. The person against whom the order is made may also make written submissions to the Principal in relation to the continuation of the order.

If the order is made against a parent at the school, the Principal must prepare a communication and access protocol for that parent that sets out:

• measures to be taken to ensure the parent may continue to communicate with the school; and
• arrangements to ensure the child’s continued attendance at and safe access to the school (if the effect of the order is to prevent the parent from escorting the child to or from school).

The order may be given orally or by written notice. If it is given orally, the Principal must give the person written notice of the order as soon as is practicable.

There are prescribed requirements for the content of an immediate school community safety order and for what must be said if an order is given orally.

Ongoing school community safety order

Principals will also be able to prohibit a person from entering school grounds or other places related to the school, or from engaging in certain inappropriate conduct, where the person’s behaviour poses an unacceptable risk of harm to a member of the school community.

These orders are referred to as an ongoing school community safety order.

When can an ongoing order be made?

An ongoing school community safety order can be made against a person if the Principal reasonably believes that the person:

• poses an unacceptable risk of harm to anybody at any school-related place;
• poses an unacceptable risk of causing significant disruption to the school or activities carried on by the school;
• poses an unacceptable risk of interfering with the wellbeing, safety or educational opportunities of students enrolled at the school;
• has behaved and is likely to behave in a disorderly, offensive, intimidating or threatening manner to a member of the school community at any school-related place; or
• has engaged and is likely to engage in vexatious communications with, or regarding, a staff member at the school.

A ‘vexatious communication’ regarding a staff member is a communication that a reasonable person would consider unreasonable, having regard to the circumstances, in one or more of the following forms:

• a person approaching, telephoning, sending messages to or otherwise contacting (whether by electronic means or otherwise) the staff member;
• a person publishing (whether on the internet, by email or by any other form of written communication) material about the staff member; or
• a person causing someone else to engage in the behaviour on the person’s behalf.

What can an ongoing order prohibit?

An ongoing school community safety order can prohibit a person from all or any of the following:

• entering or remaining on any relevant school-related place specified in the order;
• approaching any staff member, or class of staff members, specified in the order to a distance of less than 25 metres whether or not within a relevant school-related area specified in the order;
• telephoning, sending a message to or otherwise contacting any staff member, or class of staff members, specified in the order;
• causing a third person to engage in the behaviour on the person’s behalf; and
• using or communicating on a communication platform or channel specified in the order that is owned or controlled by the school.

The order may also provide any reasonable and appropriate actions that the Principal considers the person may take to have the order revoked automatically, such as for example:

• participating in a specified course
• participating in a nominated alternative dispute resolution process
• apologising or retracting a statement
• participating in an assessment by an independent expert.

Formal requirements for an ongoing order

An ongoing school community safety order must be given in writing and there are prescribed requirements for the content of the order.

There is also a prescribed procedure that must be followed before making an ongoing school community safety order. The procedure is to ensure procedural fairness is afforded to the person to whom the order is to apply. It includes giving notice of the proposal to make the order and giving them at least seven days to make submissions about the proposed order.

The maximum period of an ongoing school community safety order is 12 months.

Ongoing communication with the school

If a parent is subject to an ongoing school community safety order, the Principal must make arrangements to ensure communication and access with the school for that parent.

The intention is to ensure that parents remain involved in their child’s education and that their child’s attendance at school is, to the extent possible, not prevented or limited because of the order.

The Principal must also prepare a communication and access protocol for the parent, as with an immediate school community safety order. 

Review of an ongoing school community safety order

The person to whom the order applies is entitled to apply in writing to the school for internal review of the order.

The application must be referred to a reviewer as soon as is practicable, who must be a person nominated by the Principal or the school council. The review must be conducted in accordance with any guidelines made by the Minister and the procedures for internal review published on the school’s internet.

The reviewer may make a decision that affirms, varies or revokes the decision that is the subject of internal review.

Finally, the person may then apply to the Victorian Civil and Administrative Tribunal (VCAT) for review of that decision if they are dissatisfied with the outcome.

Civil penalties and enforcement

The new laws enable enforcement proceedings to be brought in the Magistrates’ Court against a person who contravenes a school community safety order. The court can order the payment of a civil penalty of up to around $10,000 and compliance with the order.

Action items

Schools should consider publishing a ‘School Community Safety Order Policy and Procedure’ and a documented internal review process that is publicly available.

While schools are likely to resort to school community safety orders only in exceptional situations, they will be a powerful option against parents and other adults who fail to heed prior warnings about their behaviour.

We also recommend that schools update their parent code of conduct to make reference to the school’s ability to use school community safety orders in appropriate situations.

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Authored by:

Steven Troeth, Partner
Diana Diaz, Special Counsel
Emma Moran, Senior Associate

References: Education and Training Reform Amendment (Protection of School Communities) Act 2021 (Vic)