Childhood and schooling is recognized as a crucial period in a person’s life for the ‘formation of character’,2 with both positive and negative experiences influencing a child’s development well into adult life. 3 School bullying is now recognized as one of the most potentially harmful experiences children may face during this highly vulnerable period. 4 Traditionally, bullying in schools (and society in general) was ignored, condoned or even encouraged, with little support or management for victims and bullies.
In the 1970’s momentum gathered within education for a more proactive approach to school bullying,6 in response to a greater understanding of its effects and also the threat of detrimental civil action against the schools by victims of bullies. 7 However, schools and staff largely adopted punitive methods to manage incidents of school bullying,8 including suspension and expulsion which are supported legislatively in all Australian jurisdictions except South Australia.
Increasingly, restorative practices have been recognized as providing a more effective solution to the problem of bullying in schools,10 but the transition from a punitive to non-punitive paradigm faces a number of legal (and social) barriers to effective implementation,11 particularly in the rapidly advancing age of digital technology which has witnessed the emergence of ‘cyber bullying’. 12 This paper will examine the legal issues, and identify key legal considerations regarding the application of restorative practices within government schools.
II THE PROBLEM OF SCHOOL BULLYING Bullying is defined as ‘repeated oppression, psychological or physical, of a less powerful person, by a more powerful person or group of persons. ’13 The harm caused by both school and workplace bullying is staggering, not only in psychological terms, which can lead to disruption to learning, anxiety, depression, suicide and even murder,14 but also in economic terms, through lost productivity, absenteeism and the payment of monetary compensation such as that provided by the various jurisdictional WorkCover schemes.
The relationship between school bullying and workplace bullying is only now becoming fully understood, with research evidence supporting the premise that children who behave as bullies during their school years later grow up to be dysfunctional and in many cases, bullies in the workplace. 16 School years are recognized as a highly formative period for a person’s character,17 therefore it is crucial to effectively address bullying behaviour and vulnerabilities during these early stages of life, to not only protect children throughout school, but to also provide them with sound personality traits to protect them in their adult life.
18 The importance of effectively managing bullying in the school place is important because, negation of such behaviour will provide both short, medium and long term benefits to the individuals, the school and society as a whole. 19 III CURRENT LEGISLATIVE MEASURES Government schools are provided legislative authority to ‘manage’ bullying through the various state Education Acts, and disciplinary codes established by the relevant Ministers pursuant to those instruments.
The New South Wales Education Act provides a good example of the current legislative perspective consistent with other state and territories: ‘The guidelines and codes may permit other reasonable forms of punishment or correction of those students, including requiring students to perform any reasonable work or service for the school. ‘ (Emphasis added) 20 Government schools are required to develop their own student discipline and anti-bullying policies in accordance with state and territory frameworks.
The broad nature of the framework permits considerable flexibility for schools to tailor their own discipline codes to suit the schools individual requirements,22 but in reality Australia continues to rely primarily on punitive measures to counter bullying behaviour in schools. 23 However, an alternative approach is gaining more support in light of several domestic and international trial studies.
IV ALTERNATIVE APPROACH – RESTORATIVE JUSTICE
In the 1990’s educational professionals recognized the merits of the alternate approach of restorative justice in application to incidents involving bullying within schools. 25 Key areas were identified for the effective operation of restorative practices in the school environment, which instead of focusing on short term reactive responses to bullying, the focus was to teach ‘in culturally meaningful ways, a variety of processes, practices and skills that help address individual, interpersonal, and institutional conflicts, and create safe and welcoming communities.
’26 The process became inclusionary; not exclusionary, sought to discover underlying problems; not ignore them, focused on restoration and maintenance of social relationships rather than punishment for specific behaviour. 27 Also essential to any restorative practice system is that of ‘responsive regulation’ that advocates ‘a continuum of responses in accordance with the needs of the parties involved.
28 This is in contrast to the existing punitive system of ‘regulatory formalism’ which involves some form of moral judgment regarding the misconduct and a legal judgment based on established rules and codes of conduct. 29 V RESTORATIVE JUSTICE – POLITICAL LEGAL BARRIER? In 2003 the National Safe Schools Framework Report (NSSFR) was completed after collaboration between the Commonwealth, State and Territory Governments, with the policy objective of addressing safety within school environments throughout all Australian jurisdictions.
30 It symbolized a political departure from the traditional perceptions of school bullying and its management, and provided clear recommendations for the use of restorative justice to counter bullying behaviour. 31 In its eleven key recommended principles the problem of bullying required a positive, respectful and inclusionary, holistic school approach. This should be supported with clear policy, staff training, student education, ongoing evaluation in addition to sufficient funding.
This and other reports have recognized that restorative justice requires clear and tangible support from politicians, in order to be effective. 32 Despite this new awareness, reality has proven to be far less encouraging as was demonstrated by the NSW Education Minister in 2007 in support of the traditional use of punitive powers and the ‘exclusionary’ approach: ‘In 2006 there was a 10 per cent increase in long-term suspensions. This indicates the principals are using their increased powers to provide a safer learning environment and are referring students to purpose-built suspension facilities.
’33 The Minister’s approach is reflective of the State’s policies provided in the Student Discipline in Government Schools Policy,34 and the Anti-Bullying Plan for Schools – Procedures. 35 In reviewing the two policies, it is my view they fail to clearly define and provide clearly enounced focus toward restorative justice as established in the NSSFR, and whilst providing detailed procedures relating to suspension and expulsion (supported by specific legislative provisions) do not mention or provide any established restorative framework for schools to adopt.
This presents a substantial legal barrier to the effective implementation of restorative practices for two main reasons: First, research has established that as for any institutionalized policy to be effective, it must be clearly stated, supported, consistent and fully implemented across the relevant jurisdiction. Whilst restorative practices by their nature must be individually tailored to the specific needs of the school, they still require some form of institutionalized framework consistent with restorative principles. 36
Secondly, the absence of clear government policy and legislative provisions in support of restorative practices does not provide incentive or motivation for the embracing of non-punitive policies. 37 Schools are increasingly being subjected to civil action in tort regarding bullying incidents,38 and there is strong argument to support the notion that schools will value action of suspension and expulsion as greater protection against such action because it demonstrates clear, definitive action supported by policy and legislation and involves rapid removal of the ‘threat’ from the school.
Evidence in favour for the punitive approach is supported by recent Australian research that revealed in particular, secondary school teachers are ‘less likely to employ all strategies apart from punishment and aggression’ in managing student misbehaviour. 39 Schools attempting to adopt restorative practices generally resort back to the use of punitive measures with restorative practices being used as supporting mechanisms only.
Research has clearly identified that for restorative practices to be truly effective they must be clearly and consistently supported by state-wide policy and legislation; something not currently provided. 41 The political failings raise a number of legal implications for schools seeking to embrace restorative practices.