Expulsions

Reflect and investigate

Following a behavioural incident of such magnitude that expulsion may be considered, it is critical to reflect and conduct a thorough investigation to ensure procedural fairness. Expulsion should not be a pre-determined outcome of this process.

Principals are encouraged to engage and collaborate with the department’s local area team and regional office about supports and interventions for the student that may not have been considered or implemented previously.

Principals are encouraged to use the Principal expulsion checklist (PDF) (staff login required) which reflects the requirements of Ministerial Order 1125. This document will assist principals in ensuring they acquit each step of the process, regardless of whether they proceed to an expulsion.

At the reflection and investigation stage, it is essential that all supports and interventions implemented are thoroughly documented, and proper consideration is given to the Charter of Human Rights and Responsibilities Act 2006 (Vic) and anti-discrimination obligations. This is important to ensure the best outcome for a student, and to ensure that principals have sufficient written evidence to support an expulsion decision if it is later reviewed.

It is not the role or responsibility of schools to conduct criminal investigations. However, to facilitate reflection and a thorough investigation, critical actions for principals are:

• immediately responding to the incident
• establishing the context and details of the student’s behaviour, including where and when the behaviour occurred
• considering the impact on affected parties, including other students and staff at the school
• communicating with students and parent/carer
• considering human rights and anti-discrimination obligations
• considering occupational health and safety obligations
• only putting an immediate suspension in place if there is significant risk that cannot be managed with the student attending on site (suspensions of more than 5 consecutive school days must be approved by the regional director)
• contacting relevant area and regional staff
• taking into account the considerations and actions required for students in priority cohorts
• considering if new interventions, supports and safety measures can be put in place
• considering if the behaviour meets one of the grounds for expulsion and is of significant magnitude to warrant proceeding through the expulsion process.

These actions may take place concurrently.

Immediate incident response

Some incidents will require an immediate response. The principal may need to activate the school’s emergency response management plan, report the incident, act on occupational health and safety (OHS) needs and inform a student’s parent/carer about the incident.

For further information on managing incidents at school, refer to:

• Reporting and Managing School Incidents (including emergencies)
• In the event that:
  • a student has been restrained or secluded, refer to the key actions in Restraint and Seclusion
  • the student is aged 10 or over and the behaviour may amount to a sexual offence, refer to the key actions in Responding to Student Sexual Offending.

It is not the role or responsibility of schools to conduct criminal investigations.

Where police are investigating the same behaviour, schools are to work in partnership with Victoria Police, including seeking advice from police if school staff can speak to relevant students or staff about what occurred. A police investigation into criminal behaviour may or may not preclude the school from implementing safety measures and health and wellbeing supports for any affected staff members and students.

Decisions regarding expulsions do not require a criminal investigation or a charge, they are to be assessed on how that behaviour meets the grounds for expulsion, including the impact on a student or staff member’s ability to come to school to learn and work.

Schools must manage and report incidents in accordance with the Managing and Reporting School Incidents (Including Emergencies) policy. This includes (but is not limited to) incidents that occur during or outside school hours where there is a subsequent impact on students or school community.

Collect and document findings

In addition to the steps required to manage an incident in Managing and Reporting School Incidents (Including Emergencies), schools must, for the purpose of considering an expulsion and ensuring procedural fairness, collect and document all relevant findings to establish the context and details of the behaviour and incident. This should include details on who, what, where, when and why. This may include staff and student witness recounts and information provided by the student directly impacted by the behaviour and the student whose behaviour is being investigated.

Please note there may be circumstances where it is not appropriate, and potentially illegal, for schools to obtain or retain a copy of evidence of student behaviour. For example, any child abuse material that comes into the possession of the school must be forwarded immediately to Victoria Police and managed in accordance with directions given by police.

In the case of behaviour being considered under Exceptional Grounds - outside school activity, it is acknowledged that a wide variety of information about the behaviour may not be readily available. The principal should be satisfied that it is more likely than not that the student has engaged in behaviour that poses a significant danger, whether actual or threatened, to the health, safety or wellbeing of another student or a staff member of the school. This decision may be formed by reviewing screen shots, emails and other documentation as well as considering recounts from staff and students. If police are investigating the behaviour, the investigation by the school may be limited to considering any information available from the affected student or staff member and any information provided directly by police.

Schools will also need to gather evidence to understand the impact of the behaviour on a student or staff’s ability to safety engage in work or learning at the school. This should involve discussions with impacted students and staff.

Depending on the circumstances the principal may want to request additional evidence to determine whether the impact of the behaviour is unreasonable. For example, the principal may request that the impacted student or staff member provide documentation from their treating health professional.

Tools that may assist in considering and assessing online incidents and capturing evidence include the eSafety Commissioner’s Respond resources, which help schools to effectively assess and respond to online incidents and the Online incident assessment tool (PDF)

Wellbeing supports

The wellbeing of principals, school staff and students is a priority throughout an expulsion process.

Schools can access a range of health and wellbeing initiatives to support affected students, such as the SSS services and mental health practitioners and can refer to specialist services as required.

The department is also committed to maintaining a safe workplace. Principals are encouraged to access supports available from a range of areas in the department and ensure any impacted staff are assisted to access employee supports, if necessary.

For more information on OHS and wellbeing supports for employees, refer to Employee Health, Safety and Wellbeing — OHS Management System (OHSMS).

For information on principal health and wellbeing, refer to Principal Health and Wellbeing Strategy.

Considering the grounds for expulsions

Standard school activity grounds for expulsion - (Clause 9 (1)(a)(i) - (vii) and 13 of Ministerial Order 1125)

Expulsion is an option of last resort. On rare occasions, an individual student's behaviour may meet the grounds for expulsion.

A principal may expel a student if, whilst attending school, travelling to and from school or engaging in any school activity away from school (including when travelling to or from that activity) the student engages in one or more of the following behaviours:

1. behaves in such a way as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person
2. causes significant damage to or destruction of property
3. commits or attempts to commit or is knowingly involved in the theft of property
4. possesses, uses or sells or deliberately assists another person to possess, use or sell illicit substances or weapons
5. fails to comply with any clear and reasonable instruction of a staff member so as to pose a danger, whether actual, perceived or threatened, to the health, safety or wellbeing of any person
6. consistently engages in behaviour that vilifies, defames, degrades or humiliates another person based on age; breastfeeding; gender; identity; impairment; industrial activity; lawful sexual activity; marital status; parent/carer status or status as a carer; physical features; political belief or activity; pregnancy; race; religious belief or activity; sex; sexual orientation; personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes
7. consistently behaves in an unproductive manner that interferes with the wellbeing, safety or educational opportunities of any other student

and the student's behaviour is of such magnitude that, having regard to the need of the student to receive an education compared to the need to maintain the health, safety and wellbeing of other students and staff at the school and the need to maintain the effectiveness of the school's educational programs, expulsion is the only available mechanism.

Exceptional grounds- outside of school activity (Clause 9 (1)(b) and (2) and 13 of Ministerial Order 1125)

To keep students and staff safe at school, principals can, in exceptional circumstances, expel students for behaviour that occurs outside of school, including online behaviour, if the following are met:

• the student behaves in such a way as to pose a significant danger, whether actual or threatened, to the health, safety or wellbeing of another student or a staff member of the student’s school, and
• the student’s behaviour must have a clear and close connection to the student’s school. This means that it unreasonably impacts a student or staff member of the student’s school, in one or more of the following ways:
  • the behaviour unreasonably prevents or impedes the other student or the staff member from participating in a school activity;
  • the behaviour unreasonably prevents or impedes another student from engaging with educational and learning opportunities at or provided by the school;
  • the behaviour unreasonably prevents or impedes a staff member from performing their work or duties for or at the school.

Schools can refer to the Exceptional Grounds - outside school activity quick reference guide ( DOCX) ( PDF) (staff login required)for further guidance on the key considerations in determining if behaviour outside of school hours meets the requirements for Exceptional Grounds - outside of school activity.

Where it is relevant to determine whether the standard or exceptional grounds for suspension are met, the principal must consider the impact of the behaviour on a reasonable person in the same circumstances.

Determining if behaviour is in scope for Exceptional grounds – outside of school activity

The Exceptional grounds – outside of school activity do not extend to all negative behaviour undertaken by young people in the community. Principals cannot exercise their powers to suspend or expel unless the behaviour outside of school poses a significant danger, whether actual or threatened, to the health, safety or wellbeing of another student or a staff member at school. Further the behaviour must have a clear and close connection to the student’s school that unreasonably impacts another staff or student’s participation in school.

Clear and close connection requirement

The seriousness of the behaviour outside of school alone is not sufficient to justify consideration of expulsion under the Exceptional ground – outside of school activity. A student’s behaviour must pose a significant danger, whether actual or threatened, to the health, safety or wellbeing of another student or a staff member of the student’s school, and that behaviour must have a clear and close connection to the student’s school.

To establish if the behaviour has a clear and close connection to the school, principals must determine there is an unreasonable impact on the affected student or staff member which prevents or impedes, in one or more of the following ways:

• Participation in a school activity
• Engaging in education and learning opportunities at or provided by the school
• Performing work duties for or at the school.

Considerations and interventions will be dependent on the behaviour and incident particulars.

Considerations - Risk mitigation – safety measures

In determining the impact on affected staff and/or students, principals must consider if the behaviour will have a continuing impact on participation and engagement at the school and what viable interventions/ or measures to support the safety and well-being of staff and students can be put in place to overcome these.

Some risk mitigation measures to consider include safety planning, reasonable adjustments to minimise interaction between and protect affected staff or student/s and behaviour support planning. Refer to Work- Related Violence in Schools for further information on these tools and other strategies.

Considerations - wellbeing supports

In considering the impact of the affected staff and/or students and their ability to engage and participate in school, schools must consider if there are any supports available for all affected students or staff to wherever possible remain at or return to school.

To support staff wellbeing, schools can refer to the Occupational Health Safety and Wellbeing Management in Schools guidance to consider what wellbeing supports can be put in place.

To support student wellbeing consider:

• Referrals to Student Support Services (SSS)
• Mental health support
• Use of conflict resolution
• School wide education materials to reinforce positive behaviour and communicate expectations.

Communicating with the parent or carer

When investigating a behavioural incident, it is important to communicate with the student and their parent/carer as soon as possible, so that they are aware of the situation and can put in place supports as required. Depending on the circumstances, this may happen prior to, or during the initial stages of an investigation.

When communicating with the student and their parent/carer, the principal should:

• provide details of the alleged incident or behaviour
• let them know an investigation is underway, and that this will be conducted fairly with consideration given to the student’s best interests and the safety and wellbeing of the school community
• seek any relevant information that could inform the investigation
• advise if a suspension is being put in place and follow the relevant suspension processes suspension processes
• establish if any other immediate wellbeing supports are needed that can be provided by the school or the local area team.

Refer to the Decision Making Responsibilities for Students Policy for information about who may act as the parent/carer.

Students with separated parents

For students who have separated parents, it important to remember that all parents and carers are entitled to be notified if there is a behavioural incident of such magnitude that expulsion may be considered. In circumstances where there is more than one parent/carer who would like to participate in the expulsion process, it is important to involve all of them.

If the principal needs advice and assistance on how to proceed with an expulsion in these circumstances, it is strongly recommended that they contact the department’s Legal Division by phone 03 9637 3146 or email legal.services@education.vic.gov.au

Adult students or mature minors

The law recognises that as children become older and more mature they are more capable of making their own decisions on a wide range of issues. Students who are adults (18 years or older), or considered to be a mature minor by the school for the purposes of expulsion issues, may request that their parent/carer not be contacted.

The principal should strongly encourage such students to have a support person. For further advice on determining whether a student a mature minor, refer to Decision Making Responsibilities for Students.

Considering human rights and anti-discrimination obligations

Every situation is unique and will require individual consideration of rights affected under the Charter of Human Rights and Responsibilities Act 2006 and principal’s anti-discrimination obligations.

Charter of Human Rights And Responsibilities Act 2006

The Charter of Human Rights and Responsibilities Act 2006 (the Charter) is a Victorian law. The Charter sets out twenty human rights (a full list is available here). Every person in Victoria has these human rights.
When the principal is making a decision about whether or not to expel a student they must consider the Charter rights, and act compatibly with them.
The principal should consider the possible impact of the decision on any Charter rights and identify competing interests and obligations. For example, would an expulsion be compatible with:

• the right to equal and effective protection against discrimination
• a child’s right to protection as is in their best interests and cultural rights
• the right to privacy and reputation
• any other rights that may apply.

Charter rights are not absolute and some have their own specific limitations. Under the Charter, rights may generally be subject to reasonable limitations (for example, in some circumstances, a student’s Charter rights may be limited if their attendance at the school poses a genuine safety or security risk to others).

The principal must consider the implications for the person, or people, affected. A decision about expulsion may affect the rights of several people. In those cases, different rights and interests must be balanced.

If the principal is intending to take a decision or action which will limit a right under the Charter, the department’s Legal Division can help to assess whether the limit is reasonable and justified. Contact the department’s Legal Division by phone 03 9637 3146 or email legal.services@education.vic.gov.au

Anti-discrimination legislation

The rights of students with disability are set out in both federal and state anti-discrimination legislation under the Disability Discrimination Act 1992 (Cth) and the Equal Opportunity Act 2010 (Vic). This legislation imposes a positive obligation on schools to make ‘reasonable adjustments’ for all students with disabilities to enable them to participate in their education on the same basis as their peers without disability.

For example, the Equal Opportunity Act 2010 provides that if a student with disability requires adjustments in order to participate in or derive any substantial benefit from an educational program, then reasonable adjustments must be made unless the student could not participate in or derive any substantial benefit from the educational program even after the adjustments are made.

The anti-discrimination legislation covers all students with disability as defined in the Nationally Consistent Collection of Data on School Students with Disability (NCCD). The definition of disability is very wide and includes physical, intellectual, mental and medical impairments including disorders or malfunctions that result in a person learning differently (for example, learning disorders).

Whether an adjustment is reasonable or not depends on many factors and it is important when considering whether an adjustment is reasonable for principals to seek advice from the:

• local area team (via the regional office)
• Legal Division by phone 03 9637 3146 or email legal.services@education.vic.gov.au

In addition to the obligation to make reasonable adjustments for students with disabilities, there is also a legal obligation not to directly or indirectly discriminate against a student because of a ‘protected attribute’. These attributes include disability, race, gender identity, sex, religious belief or activity, physical features, sexual orientation and a range of other attributes.

For assistance with assessing compliance with anti-discrimination laws, the principal should contact the department’s Legal Division by phone 03 9637 3146 or email legal.services@education.vic.gov.au

Putting an immediate suspension in place if appropriate

The principal may decide that the student should be suspended from school immediately while an expulsion is being considered, if the student’s behaviour is such that they are putting the health, safety and wellbeing of themselves or any other person at significant risk.

The principal must follow the suspension process set out in the Suspension Policy and associated guidance and procedures (which reflect the requirements under Ministerial Order 1125), and:

• ensure the behaviour meets the grounds for suspension
• provide the student and their parent/carer with the Notice of Suspension (staff login required)
• record the suspension in CASES21
• provide the student with meaningful work including developing a student absence learning plan if the suspension extends beyond 3 days.

Principals may not suspend a student for more than 5 consecutive school days without regional director approval. The regional director may only approve a longer period if the principal has implemented a suspension with immediate effect for the purposes of undertaking the expulsion procedures.

Allocating a teacher

It is important that a student is supported to remain engaged in their education during a suspension and throughout an expulsion process. The school should provide a student with work to support them to keep up with their learning and academic progress.

If a suspension is likely to extend beyond five days, a teacher should be designated as a key point of contact for the student and their family. Allocating a teacher will help to minimise disruption to the student’s education and ensure the school meets its obligations to support a student’s progress.

Ideally, the allocated teacher will be a teacher with whom the student has a positive relationship and who is able to support the student during the suspension and expulsion process.

The allocated teacher should:

• coordinate the collection of appropriate and meaningful tasks for the student to complete during the suspension
• endeavour to support the student to complete the work by maintaining high expectations and offering encouragement
• be a point of contact if the student has any questions about the work teachers have set
• monitor student mental health and wellbeing and ensure referral to support services where necessary
• inform planning of further support for the student and/or the planning for a supported transition in the event the student is expelled.

Contacting relevant regional staff

Engaging early and collaborating with regional staff will enable principals to be supported throughout the process, ensuring that the student is supported and that the correct expulsion process is followed.

There are regional staff who can provide support to principals and/or families throughout the expulsion process. These include the

• senior education improvement leader
• regional engagement coordinator
• regional approved support person
• executive director - area and their local area teams
• regional director.

Regional engagement coordinators

There is a regional engagement coordinator in each of the department’s regions to:

• support principals to acquit the expulsion process
• connect principals to a regional approved support person
• connect principals with local area and regional staff who can advise on available interventions and supports
• connect students and their family with local area and regional supports during the expulsion process and in the event of an expulsion appeal
• support and monitor student transitions to a new setting, working with the local area team and principal, if a decision is made to expel a student – this includes to monitor and oversee compliance of the supported transition plan and student absence learning plan until the student has successfully transitioned to the identified setting.

Regional approved support person

Each region has a number of staff nominated to act as a regional approved support person for the purpose of an expulsion process. The principal will first contact the regional engagement coordinator who will then allocate a regional approved support person to the principal.

A regional approved support person's key responsibility is to provide advice and support to the principal throughout an expulsion process, and ensure the school and student have accessed all relevant interventions and supports. A regional approved support person will not take on any of the principal’s responsibilities or decision-making authority.

The principal must seek the support of a regional approved support person to:

• ensure all available supports and interventions to support the behaviours of concern are explored
• ensure safety and risk mitigation measures have been explored
• ensure alternative disciplinary measures are considered for the student
• attend the behaviour support and intervention meeting
• assist in implementing the actions agreed at the behaviour support and intervention meeting
• ensure that the appropriate education, training and/or employment options are considered for the student.

Considerations and actions for students in a priority cohort

Some cohorts of students face additional barriers to engaging in education, and it is important that additional measures are in place to support them.

To assist schools and local area and regional staff to work together to support students in priority cohorts, and to comply with the requirements set out in Ministerial Order 1125, the principal must advise the regional director via email if they are considering an expulsion for:

• a student in out-of-home care
• a Koorie student
• a student with disability who is identified as receiving substantial or extensive levels of adjustment as defined in the NCCD.

The principal should email the regional director and include the student’s name, school and priority cohorts category and copy in the senior education improvement leader, area executive director and regional engagement coordinator. The executive director - area or regional engagement coordinator will liaise with the following contacts to ensure these students are adequately supported throughout the process:

• students in out-of-home-care: The LOOKOUT Education Support Centre
• Koorie students: Koorie Education Coordinator
• students with disability who are identified as receiving substantial or extensive levels of adjustment as defined by the NCCD: DE area team

The regional director’s role is to monitor and oversee appropriate supports and interventions from regional resources for students in priority cohorts, noting that students may be in one or more of these cohorts. If the student is an international student, the principal must notify the department’s International Education Division at international@education.vic.gov.au

Students in out-of-home care

Students in out-of-home care can face additional barriers to engaging in education. Many of these students have experienced trauma and multiple transitions between schools as a result of their living arrangements.

In addition to advising the regional director, the principal should:

• ensure the partnering agreement (PDF) has been delivered on, including arranging for an educational needs assessment, holding student support group meetings at least once a term, developing and implementing the individual education plan and appointing a learning mentor
• work with:
  • the case manager to understand the impact that trauma may have on the student’s behaviours and any underlying needs
  • the LOOKOUT learning advisor to discuss previous interventions, preventions, supports and strategies available
  • the school’s designated teacher and student’s learning mentor to understand the student’s individual needs and what supports have been offered to support the student.

When an expulsion is being considered for a student in out-of-home-care, the executive director - area or regional engagement coordinator will also contact the LOOKOUT Centre to work closely with the respective executive principals in their region to ensure available supports are put in place.

For more information, please refer to the Supporting Students in Out-of-Home Care Policy.

Koorie students

Some Koorie students face increased barriers to engagement in education. In addition to advising the regional director, the principal can seek additional support for Koorie students through their executive director - area or regional engagement coordinator.

When the principal notifies the regional director that they are considering expulsion of a Koorie student, the executive director - area or regional engagement coordinator will contact the Koorie education coordinator to discuss appropriate supports.

For information on the department’s dedicated Koorie workforce, refer to: Koorie Education Coordinators.

The principal should also let families know that they can contact the Victorian Aboriginal Education Association Incorporated (VAEAI) directly for independent support on 03 9481 0800.

Students with disability

For students with disability, as defined by the NCCD, the principal should also seek support from their local area team (via the regional office) to consider if:

• the student’s behaviour is a symptom or manifestation of their disability
• the student could be supported to remain and positively engage at the school with appropriate intervention and support
• reasonable adjustments have been made to support the student to participate in their education on the same basis as their peers without disability.

When the principal notifies the regional director that they are considering expulsion of a student with disability identified as receiving substantial or extensive levels of adjustment as defined by the NCCD, the executive director - area or regional engagement coordinator will contact the relevant area team to discuss appropriate supports.

International students

If the student is an international student, the principal must contact the department’s International Education Division on 03 9637 2990 as the decision to expel may impact on the student’s visa conditions.

This will ensure that the necessary transition arrangements and/or implications for the student’s visa can be managed. It will also ensure that the department complies with its obligations as a registered CRICOS provider under Commonwealth legislation.

Considerations and actions for students being considered for an expulsion under Exceptional Grounds – outside of school activity

Under Ministerial Order MO1125 a principal must inform the Regional Director if considering an expulsion of a student under the Exceptional Ground – outside of school activity to provide support and monitoring.

Principals must follow the below steps if considering an expulsion under the Exceptional Grounds – outside of school activity:

• Discuss the student’s behaviour and perceived impact on the health, safety and wellbeing of students and staff at the school with their senior education improvement leader.
• If the principal is intending to proceed following these discussions, email Regional Director (cc senior engagement improvement leader, executive director - area and Regional Engagement Coordinator) to notify that they are considering expulsion under the exceptional ground.
• Contact the Regional Engagement Coordinator who will provide support to the principal on process requirements, connect them to relevant department staff, and document key information related to the behaviour and impact, including interventions and supports in place.

Next steps

If after reflecting and investigating, the principal thinks that the student can be supported to stay at the school, they should establish or reconvene a student support group. The student support group can develop, review or modify a behaviour support plan and ensure appropriate interventions and support are in place to enable the student to remain at the school.

The principal should also give consideration to any supports required for students or staff affected by another student’s behaviour. It may also be appropriate to consider accessing conflict resolution options where there is an ongoing conflict or tension between members of the school community.

Alternatively, the principal can proceed to convene a behaviour support and intervention meeting.