It’s important to know your child’s rights under the law, if you are concerned about your child’s safety, or the use of restrictive behaviour control or disciplinary measures at your child’s school.
On this page:
- Restraint and other restrictive measures
- Restrictive measures: what might they look like?
- Legal protections against restrictive measures in all schools
- Additional legal protection in government schools
- Rights under international human rights treaties
- Your child’s right to be safe at school – call the police if you are concerned
- What other actions can you take?
Restraint and other restrictive measures
Physical restraint, protective isolation (such as locking a student in a room) or other ‘restrictive interventions’ are only allowed if necessary to protect the student’s, the teacher’s or another student’s safety. Under law, no restrictive measures can ever be used regularly, for example for behaviour control.
If there is an emergency situation where your child was physically restrained because their own or another’s safety was threatened, you must be notified, and the school must meet with you urgently to discuss strategies and supports to ensure such a situation does not arise again.
Restrictive measures: what might they look like?
Before applying any form of physical intervention in circumstances where a student is displaying challenging behaviours, school staff members should first seek to implement non-physical interventions, unless a physical intervention is immediately required to protect others. Such interventions might include de-escalation and distraction (that is, identifying and responding to triggers and early signs of frustration) and incident intervention (such as moving other students away, or removing objects that might be used to cause harm from the vicinity).
In some situations, school staff may need to physically intervene to protect a student who is behaving dangerously from harming themselves, other students or staff members. There are three broad types of physical intervention that might be used by school staff:
- Protective physical interventions
- Physical restraint
- Isolation of students
Examples of protective physical interventions include:
- guiding a student’s arm away from their mouth to prevent biting behaviour
- the staff member using their arm to block a student from hitting them
- physically redirecting a student who is aggressively running towards the staff member
- breakaway techniques to disengage from the inappropriate grip or hold of a student.
Physical restraint is the use of physical force to prevent, restrict or subdue movement of a student’s body or part of their body. Physical restraint should only be used when it is immediately required to protect the safety of the student or any other person and be proportionate to the needs and circumstances of the situation.
Isolation occurs where a student is alone in a room with the door closed from which they are physically unable to leave.
Legal protections against restrictive measures in all schools
All Victorian schools are bound by the Equal Opportunity Act 2010 (“EO Act) and the Disability Discrimination Act 1992. If a school requires a student to submit to restrictive practices to remain at the school, this might be seen as an ‘unreasonable requirement or condition’ that disadvantages them because of their disability under the EO Act. Whether a requirement or condition is reasonable depends on the circumstances, including whether the action was proportional to its aim, and whether an alternative approach would achieve the same result.
Under the EO Act, a school can discriminate against a student with a disability in such a way if this is necessary to protect the immediate health or safety of any person, but this does not apply to strategies for general behaviour control. There are also some situations in which a student’s rights under the EO Act would be overridden by other laws, in particular related to the health and safety of school staff.
Additional legal protection in government schools
Government schools, as government-funded entities, must also consider the rights of students outlined in the Victorian Charter of Human Rights and Responsibilities (2006) (‘the Charter’). Under the Charter, your child has the right to:
- Protection, without discrimination, in their best interests
- Equality before the law, and to ‘enjoy his or her human rights without discrimination’
- Protection from torture and cruel, inhuman or degrading treatment. International human rights bodies generally regard corporate punishment and physical restraint at school as incompatible with this right
- Freedom of movement
- Liberty and security of person.
‘Security of person’ refers to a person’s mental and physical health. Schools are responsible for protecting your child’s ‘security of person’ when they are in their direct care, or if the school is responsible for overseeing your child’s treatment by another person or organization.
Charter rights are not ‘absolute’, but must be balanced against each other and other public interests, for example to protect a student’s or other people’s safety.
Rights under international human rights treaties
A range of UN human rights treaties are relevant to the use of restrictive practices with children and young people with disabilities, including:
- the Convention on the Rights of Persons with Disabilities
- the Convention on the Rights of the Child
- the International Convenant on Civil and Political Rights
- the International Convention on Economic, Social and Cultural Rights
- the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Under the Convention on the Rights of the Child, Australia is obliged to ‘take all appropriate legislative, administrative, social and educational measures’ to protect children from violence, abuse, neglect or exploitation. The relevant UN committee has recognised that children need special safeguards and care, including legal protection, and that schools and other government institutions have additional responsibilities to protect children. The committee has also recognised that children with disabilities are more vulnerable to violence, abuse and neglect, including in schools (Declaration on the Rights of the Child, Resolution 1386, 1959). Visit the UN Treaty Collection website for links.
Your child’s right to be safe at school – call the police if you are concerned
All children and young people have the right to be safe at school, and to protection of their rights and dignity. Schools have a special legal duty of care to their students, including to protect their students (for example through supervision) from any reasonably foreseeable risk of injury.
If you are concerned that your child is at risk of or being subjected to any form of violence or abuse at school, this is a matter for the police.
- In an emergency you should always telephone 000. Or you can contact your regional Victoria Police SOCA (Sexual Offences and Child Abuse) Unit. Find contacts at police.vic.gov.au – search under “SOCA unit”.
- Read more about schools duty of care to their students and other aspects of education law in The Law Handbook, a plain language guide to the law in Victoria produced annually by Fitzroy Legal Service.
What other actions can you take?
In ACD’s experience, situations can escalate to a point where restrictive measures because of a lack of understanding from staff about why a student might have challenging behaviours, how to support student so these behaviour do not arise, and how to respond to them in supportive ways if they do arise. Resources are available to school staff and families to build knowledge and skills in this area. See Challenging behaviours and school responses.
Here are other actions you can take:
- You can contact the ACD Support team for advice if you are concerned about restrictive measures or discipline at your child’s school. We can give information and support, but we cannot give legal advice.
- You can seek support and advocacy for your child through another advocacy body such as Communication Rights Australia (CRA) or Youth Disability Advocacy Services (YDAS).
- You can contact the Victorian Equal Opportunity and Human Rights Commission to discuss your concerns, seek advice or make a complaint. Read more about Using external complaints mechanisms including human rights bodies.
- You can raise a concern or make a complaint through the complaints system. It is a good idea to get support from an advocacy service to do so. Find out more about making a complaint in the section A guide to the complaints system, and about how to do so effectively, and how an advocate can help, in the section Raising a concern with school.