Natural Justice, Children and the School

Naomi White

"Due process", unlike some legal rules, is not a technical conception

with a fixed context unrelated to time, place and circumstance. ...
Representing a profound attitude of fairness between man and man
(sic) ... due process is compounded of history, reason, the past course
of decisions and stout confidence in the strength of the democratic faith
which we profess. The heart of the matter is that democracy implies
respect for the elementary rights of men (sic) ...1

Over the past few years, judges’ findings in rape cases have provoked
vociferous public debate.2 Attention has been drawn to the ways in which
the social construction of gender influences the administration of justice.
Similarly, the role of racism in the maltreatment of Aboriginal people in the
courts and in the prison system has been the focus of government inquiry.3
It is now generally understood Aborigines and women have been subjected
to discriminatory treatment and they have suffered as a result. We are slower

1 Frankfurter, J Joint Anti-Fascist Refugee Committee v McGrath (1950) 341 US 123.

2 See the cases dealing with the degeree of suffering supposedly experience by a prostitute who is raped
(unreported, R v Leary, NSW District Court, 8 October, 1993) and the rights of a husband to use
"rougher than usual handling" when initiating sexual relations with his wife (unreported, Director of
Public Prosecutions, South Australian Court of Criminal Appeals, 20 April 1993, King, Perry and
Duggan J Ref 1/1993).
3 D Biles and D McDonald, eds, Deaths in Custody: Australia 1980-1989, The Research Papers of the
Criminology Unit of the Royal Commission into Aboriginal Deaths in Custody, Australian Institute
of Criminology, Canberra, 1992. See also R Brunton, Black Suffering, White Guilt? Aboriginal
disadvantage and the Royal Commission into deaths in Custody, West Perth Institute of Public Affairs,
Perth, 1993.

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to accept children constitute a silenced group which is also experiencing

discrimination.

Children’s exclusion by law from both the labour force and the polity
suggests their status is of a different order from that based on race, ethnicity,
gender or class. For the most part, contemporary discussion about children
is couched in the language of protection, defining children as people who
require time, attention, care and protection in a way adults do not. The
obligation of adults to protect and care for children in ways which are
appropriate to children’s individual needs is generally uncontested. Problems
can arise when this discourse masks the conditions under which protection
becomes institutionalised control. In addition to the family, one significant
locus of the institutionalised control of children is the law, another is
education.

As with other social institutions, education and the law operate within and are
constituted by dominant discourses. In this paper, I will be concerned with
the way in which judicial decisions articulate and codify broadly accepted
social definitions of children, supporting practices which control children’s
lives. I will show how these social constructions are contained in approaches
to children’s rights to due process in the school.

Two cases dealing with children’s expulsion from private schools serve as the
starting point for a discussion of the social assumptions underlying legal
interpretations of applicability of the rules of natural justice to children. The
principles of natural justice, the United Nations’ Convention on the Rights of
the Child* and relevant developments in American and Australian law
dealing with children in school are discussed. Social definitions of children
are outlined. Finally, two models of political community are explored with
respect to their implications for the extension of due process rights to
children in the school setting and for participation by children in the social
and political life of the school.

The Judicial Decisions

Case 1
The plaintiff, a pupil at a private school, was expelled from the school
by the headmistress until the end of the current term. She sued those4

4 United Nations, Adoption of a Convention on the Rights of the Child, United Nations (UN) General
Assembly New York, 1989.

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in control of the school claiming she had been denied natural justice
because no detailed specification of the reasons for which it was
proposed to exclude her had been given and she had not been given a
proper opportunity to reply.

Held: there is no principle of law by virtue of which a headmistress of

a private school has to act or acts in a quasi-judicial capacity and is
therefore bound to apply rules of natural justice.5

Case 2
A student was expelled from school six weeks before the Higher
School Certificate (year 12) examinations, due to alleged unruly
behaviour. The student and his parents sought a declaration the
expulsion was wrong and void and made in contravention of the rules
of natural justice. They sought an interlocutory injunction.

Held: (1) In order to grant interlocutory relief of this nature the court
is required to inquire first whether there is a serious question of law to
be tried and then to consider where the balance of convenience lies.

(2) The question whether a student is entitled to rely on the principles

of natural justice to challenge a decision to expel him from school is
a serious question of law, yet without clear and consistent authority is
one only for the trial judge ultimately to determine. There was
therefore a serious question of law to be tried. On the evidence
presented to the court there was also a serious question of fact to be
tried. (Emphasis added.)

(3) While the effect of granting an injunction might be said to lower

the authority of the headmaster and therefore affect school discipline,
the great importance of the Higher School Certificate examinations
made it highly desirable the student should have full access to masters
and facilities at the school and not be forced to sit for his examinations
in unfamiliar locations. Accordingly, an interlocutory injunction should
be granted. The student was permitted to visit teachers, to use the
school resources and to sit for his examinations at the school.6

5 Seymour v Swift (1976) 10 ACTR 1, ACT Sup Ct Blackburn J (emphasis added).

6 Dage v Baptist Union of Victoria (1985) VR 270.

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The Legal Context

Natural Justice

In its broadest terms, the issue of natural justice focuses attention on the
moral basis of the law. It requires us to reflect on what we understand to be
"just action" with respect to all administrative decisions. Historically, due
process emerged as a way of guaranteeing rights and the privileges of
governmental protection to a wide range of people in English and American
institutions. In law, natural justice has been interpreted in procedural terms:
the opportunity to be heard with respect to decisions which may affect a
person adversely in areas relevant to that person’s rights (such as rights to
liberty and property) or areas relevant to a person’s legitimate expectations
(such as expectations of a livelihood, employment, preservation of reputation
and character and exercise of privileges).

In this context, the principles of natural justice involve being given the
opportunity to present evidence and submissions in favour of one’s own
cause, and also an opportunity to be heard by an impartial adjudicator.7
Natural justice principles raise the question of the right to be represented by
a lawyer or non-legal advocate in order that one’s case can be made fully and
appropriately.

Natural justice principles also have a bearing on the categories of persons

who may be considered to be legitimate decision-makers in a particular case.
For example, decisionmakers may be disqualified from participating in an
adjudication if they have prejudged the merits of a particular case or if
statements made on other occasions suggest the decision-maker is biased
against the individual whose case is being considered.8 Decision-makers may
also be disqualified on the basis of their prior involvement with the facts of
the case they are later called upon to decide.9

Legal precedent suggests the principles of natural justice apply to "every

tribunal or body of persons invested with authority to adjudicate upon matters
involving civil consequences to individuals".10 Therefore, clubs, trade
associations, racing associations and sporting clubs, professional disciplinary

7 G A Flick, Natural Justice: Principles and Practical Applications, Butterworths, Sydney, 1998, p 26.
8 Flick, above, n 7, p 158.
9 Flick, above, n 7, p 164.
10 Wood v Wood (1874) LR 9 Ex 190 cited in Hick, above, n 7, p 32.

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bodies and trade unions are bound by these natural justice principles.11 The
conferral of discretionary power is not sufficient in itself to exclude the
relevance of the rules of natural justice, although they are normally excluded
once it is shown that the relationship is of master and servant.12 13

The school, children and the law

Traditionally, law dealing with education has been concerned with protecting
the rights of parents against intervention in child-rearing by the state. That
is, attention has been focused on parental rights to preserve control of their
children’s schooling rather than on children’s rights to autonomy and
participation in educational decisions and processes.

This approach is now being challenged by the international community,

which recognises children have the right not only to an education but also
rights to participate in educational decisions, including the content of
educational programs and the imposition of school discipline. The United
Nations Convention on the Rights of the Childn states the child has the
right to free and compulsory education, as well as to equal access to
secondary and higher education. Furthermore, the state is obliged to ensure
school discipline reflects the child’s human dignity and to ensure education
is directed at developing the child’s personality and talents to the fullest
potential. With respect to the children’s rights to due process, the Convention
states the child’s right is:

to be presumed innocent, to know the case against them and to test

’’under conditions of equality" the evidence in a fair and speedy trial
before an impartial tribunal; to receive "legal or other appropriate
assistance in the preparation and presentation of (their) defence"...14 15 16

As Dage v Baptist Union of Victoria15 and Swift v Seymour16 demonstrate,

a possible legal remedy does not ensure that the institutions responsible for

11 Flick, above, n 7, p 32.

12 Flick, above, n 7, pp 38, 30.
13 United Nations, above, n 4.
14 M Rayner, "A Right to be Heard" in The UN Children’s Convention and Australia, P Alson and G
Brennan (eds), Human Rights and Equal Opportunity Commission, ANU Centre for International and
Public Law, Australian Council of Social Service, Paragon Press, Canberra, 1991, pp 34-39.
15 Above, n 6.
16 Above, n 5.

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the care of children are required to extend natural justice rights to their
charges.

Van Bueren17 argues the emphasis of the Convention on the evolving

capacities of the child sets the expectation children will increasingly be
empowered to direct their own development. Articles 12, 13, 14, 15, 16 and
17 encourage schools to respect the perspective and the decision-making
capabilities of young people. Article 29 specifically directs schools to prepare
"the child for responsible life in a free society". But the Convention does not
uniformly promote autonomy. Children are perceived as "being" and as
"becoming" persons. For example, in the Preamble to the Convention the
child is characterised by "his (sic) physical and mental immaturity". As
"being" persons they are entitled to human rights, but as "becoming persons"
they are entitled to enjoy these rights only under governance of responsible
adults.

Prior to the Convention, parties could only challenge the imposition of school
discipline grave enough to be classified as torture or cruel, inhuman or
degrading punishment.18 Under Article 28 (2) of the Convention, however,
any educational disciplinary measure must be administered in accordance
with other applicable international laws on the rights of the chic. Article 28
(2) is further strengthened by Article 19 (1) according to which states parties
undertake to protect children from any form of physical or mental violence,
injury or abuse while the child is under the care of any person, including a
teacher.19

In the two decades preceding the United Nations Convention on the Rights
of the Child,20 efforts were made through the American court system to
eliminate abusive practices and the application of procedures to guard against
capricious decision-making about children.21 Litigation stimulated attention
to institutional abuse and neglect of children. The 1967 Gault decision that
a minor charged with a juvenile offence was entitled to representation by
Counsel and to other due process rights represented an effort to extend to

17 G Van Bueren, "Autonomy and the Child: The International Educational Rights of the Child" (1992)
Social Education 214-5.
18 Van Bueren, above, n 17, p 214.
19 Van Bueren, above, n 17, p 214.
20 Above, n 4.
21 J Ritzer, "Children’s Rights in the Family and Society: Dilemmas and Realities" (1982) 53(3)
American Journal of Orthopsychiatry 481-495.

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juveniles the rights accorded to adults.22 Its effects were felt in subsequent
efforts to extend procedural protections to children in other institutional
settings such as schools.

Other American cases have also addressed children’s rights to due process.
Tinker v Des Moines Independent Community School District, 196923
unequivocally affirmed that fundamental constitutional rights were available
to students, as well as adults. During the 1970s increased government
legislation to ensure individual rights and equal opportunities resulted in the
drafting of" A Bill of Rights for Children” ensuring protection under the law.
This Bill was not enacted, and the United States has not yet become a
signatory to the United Nations Convention. Many precedent-setting court
cases maintained that students do not shed their constitutional rights at the
schoolhouse door in cases of suspension or discipline.24

In the 1975 case Goss v Lopez the court recognised students’ rights to
procedural due process, ruling that schools are required to set up hearing
procedures for students before they can be suspended.25 It was also ruled
that school suspension procedures should include a statement of the charges
of wrongdoing, presentation to the students of the evidence if they request it,
and the opportunity for the students to present their side of the conflict.
Another case, Wood v Strickland held school officials liable for damages if
they abridge the civil rights of students.26

American courts have on occasion intervened where students were denied

constitutional rights of due process, freedom of speech or the right to privacy,
but their intervention has not been consistent. For example, in 1988 the Sixth
Circuit Court approved an expulsion process even though the student was
"convicted" on hearsay testimony alone and was denied the opportunity to
confront and cross-examine witnesses.27

22 Ritzer, above, n 21, p 487.

23 Cited in D D Butterfield, "Children’s Liberation: A Educational Dilemma in the Making", paper
presented at the Boise State University, Education and Contemporary America Symposium, Boise,
Idaho, 1980.
24 Butterworth, above, n 23.
25 R J Anson, "The educator’s response to Goss and Wood" (1975) 57 Phi Delta Kappa 16-19.
26 Anson, above, n 25.
27 DM Sacken, "Due Process in Student Discipline" (1989) 50(2) West’s Education Law Reporter 305­
16.

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In Australia, courts have examined whether the punishment imposed on

students has been for just and reasonable cause, whether teachers or school
officials have acted on malice, whether the power exercised by them has been
abused or whether punishment has been rendered capriciously, excessively
or carelessly. Unlike the United States the courts have not provided a basis
for requiring that Australian schools be bound by the requirements of due
process, although in both countries legislation dealing with human rights,
equal opportunity and anti-discrimination legislation have been relevant to the
framing of revised procedures for dealing with students in schools. Schools
have until recently remained exempt from the duty to act with reference to
the rules of natural justice in administrative decisions regarding the children
who are their students, although they are bound to do so in decisions
affecting their employees. The Industrial Relations Reform Act 1993 (Cth)
states that employees are to be given notice of termination, an opportunity to
respond to allegations28 and that the termination may not be "harsh, unjust
or unreasonable".

This is so despite a long history of requiring non-statutory clubs and

associations to act subject to the principles of natural justice in disciplining
or expelling their adult members or, on occasion, in refusing membership.29
In Forbes v NSW Trotting Club30 the High Court ruling suggests any private
body which is in effect exercising its powers for a public purpose and whose
function is to control a public activity in which large numbers of people take
part is bound by the rules of natural justice. The duty to observe natural
justice is related to the contractual nature of the group’s set of rules or
constitution to which the group’s members have given their consent.31

How then, might Forbes be seen to raise issues relevant to determining

whether there is a duty to apply natural justice principles to the treatment of
children in schools? As Forbes dealt with non-statutory clubs and
associations it could appear that it has some application to private schooling.
Private schools operate with reference to the common law unless legislation
leaves no scope for the operation of common law principles.32 Difficulties

28 Industrial Relations Act Reform 1993, ss 170DB, DC.

2g P Tate, "The Coherence of Legitimate Expectations and Natural Justice" (1988) 14(1) Monash
University Law Review 15-81.
30 (1979) 143 CLR 242.
31 Tate, above, n 29, p 47.
32 G J McCarry, "Some Legal Aspects of Punishment in Schools" (1984) 58 The Australian Law Journal
707-722.

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arise when the statutes are virtually silent or incomplete in their treatment of
some topic (such as children’s rights to due process or natural justice in
schools). In these instances "it is clear that the courts will in fact have
recourse to common law principles, even in problems arising in State
schools"33 Even when the court has akcnowledged the possible applicability
of the principles of natural justice to children in schools, this
acknowledgement has been stated in a less than forceful manner and has not
required that any particular formality should apply. For instance, in
McMahon v Buggy,34 Mahoney JA put the relevance of natural justice this
way:

... There is nothing in the nature of the power of expulsion or

exclusion of a pupil from a school which would render the natural
justice principles inapplicable.35

It would seem the arguments made in the Forbes decision should enable
children, as significant participants in the life of the school, to have
legitimate expectations about the application of the rules of natural justice in
decisions made about them by teachers and school administrators. But this
expectation was not met in either Seymour v Swift or Dage v Baptist Union.
That is, while the school appears to conform to the criterion of a public body
exercising its powers for a public purpose, Seymour and Dage suggest
children are not seen to be "members" -of the school community in the same
way as adults are understood to be members of clubs or associations.

In McMahon v Buggy, another case dealing with expulsion of a student, the

court referred to the need for fairness and the likelihood of injustice if the
school authorities expelled on what was later found to be a mistaken basis.
It concluded that in the case of a student over school leaving age, public
school authorities in New South Wales could refuse to accept or continue to
accept a student "on the basis of an honest and reasonable belief in facts
which, if true, would warrant expulsion",36 (Emphasis added). This
conjectural basis for expulsion would seem to violate the principles of natural
justice as conventionally understood.

33 McCarry, above, n 32, p 714.

34 McMahon v Buggy (unreported, Supreme Court of New South Wales, 28 December 1997).
35 Cited in McCarry, above, n 32, p 719.
36 McCarry, above, n 32, p 718.

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The application of these decisions to State schooling is less immediate. This

is because State and private schools are differently regulated. State schools
are governed by statutes, by Departmental instructions and by policy
guidelines issued to teachers. In recent years, many states have reviewed the
procedures and principles regulating suspension and expulsion procedures in
State schools. Most of these revised procedures reflect a growing awareness
of the need for counselling and problem-solving measures to assist and
support students who are experiencing difficulties at school.

The procedures are still deficient in a number of areas.37 Only Western

Australia requires that the decision about expulsion be made by an
independent panel rather than by the school principal, and only three states
(NSW, SA and the ACT) require that the principal guarantee the student a
fair hearing prior to suspension. None of states give the student the right to
request a conference prior or subsequent to suspension or expulsion. While
some states (NSW, WA, SA and the ACT) require that the student (in
addition to his or her parents) be notified in writing of the suspension or
exclusion, most of the others direct their correspondence to the parents (who
are assumed to act on behalf of their children). Clearly parents must be
involved when their children are experiencing difficulties at school. Given
the likelihood the problems being experienced by children are connected to
difficulties in the home, the implicit assumption that parents are the most
appropriate people to act on behalf of their children, or to act as advocates
for their children is extremely problematical. Furthermore, this practice fails
to deal adequately with the relative disadvantage which can arise from
parents’ class position and ethnicity. Few states require this correspondence
to include a statement of reasons.

Apart from the ACT, none of the other states’ regulations stipulate students
(or someone they have nominated) be present when their situation is being
discussed. No state regulation explicitly states the student (as opposed to his
or her parents) may independently nominate someone to speak on his or her

37 The following state regulations were examined at the time the article was prepared (1995): Guidelines
for Developing the Student Code of Conduct (Draft) 1993, Directorate of School Education, Victoria;
Suspension and Exclusion Policy, 1994, Department of Education and Training, ACT; Suspension,
Exclusion and Expulsion of Students from School and Procedures for the Declaration of Place Vacant,
1994, Department of School Education, New South Wales; Procedures for Suspension, Exclusion and
Expulsion of Students from Attendance at School, 1993, Education Department of South Australia;
Procedures for Student Exclusion Review Panel, 1990, Ministry of Education, Western Australia;
Student Support: A Resource Folder, 1991 (At the time of writing under' review) Tasmania,
Suspension and Expulsion Policies, (At the time of writing under review), Department of Education,
Northern Territory.

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behalf. Although the recognition of a student’s right to a fair hearing is a

significant move in the direction of natural justice for children in schools it
must be examined in relation to the unequal power relationships and social
status of the child in relation to the adults who consider his or her statement.
It would seem in this situation principles of fairness would require the child
to be represented by an adult. Not all states offer a right of appeal. The ACT
is the only territory or state in which all students (as opposed to their parents)
are granted the right to request an appeal and to choose someone other than
a parent to "accompany" them during suspension or exclusion proceedings.
Only in South Australia do the regulations specifically state the appeal can
rest on the grounds that due process was not followed or exclusion was
unjustly used as a sanction.

While the revised state regulations represent a significant shift in the

direction of incorporating due process mechanisms into school expulsion and
suspension procedures, students in State schools are still not consistently
treated as persons in their own right. The two judicial decisions noted above
also appear to have differentiated children’s rights to natural justice from
adults’ rights.

Beyond the questions of law are the social assumptions which underpin these
regulations and which led the judges to find natural justice considerations did
not apply to the processes of expulsion. What were the socially constructed
meanings which supported the judge’s finding in Seymour that the
headmistress is free of obligation to apply the rales of natural justice in
making decisions about children at her school? What tiiken-for-granted social
understandings legitimated the judge’s finding in Dage that the child’s
"entitlement to rely on natural justice ... (is) without clear consistency"?

The Social Construction of Childhood

The ambiguous status of the school as a body bound by the application of the
rules of natural justice to children, as well as the exemption of the
master-servant relationship from application of these rules is interesting in
light of parallels which have been suggested in the social construction of both
master-servant and adult-child relationships. Aries, in his book Centuries of
Childhood, points out that in the Middle Ages the word "child" was not
given the restricted meaning we give it today. "Child", "son", "boy" and
"valet" were used interchangeably in the vocabulary of feudal subordination.
The end of childhood was not related to biological changes; nobody would
have thought of considering childhood to end with puberty. One could leave

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childhood (or servant status) only by leaving a state of dependence. While the
social construction of children has changed in significant respects since
medieval times, there are also continuities, the most significant being the
dependence of the child on adults.

The philosopher Hume argued the possession of some degree of power is a

necessary condition of having a right. In other words, one may be able to
provide a morally compelling justification for why one has the right to do
something, but without the power to do the thing in question, nothing much
will happen. Given power rests on a combination of factors including control
of material resources, of decisionmaking processes, of definitions of status
and on authority, it becomes very clear children in our society are dependent
and powerless. The rights to which they hold an entitlement (for example, an
education, health, safety) are of the kind which require others to act on their
behalf. Their rights to self-determination are curtailed.

When a section of the population is prevented from enjoying the same rights
and privileges as the dominant group, the differential treatment is frequently
legitimated by impugning the capabilities of the excluded group. This process
is evident in the way observed biological and behavioural differences
between children and adults are assigned meanings and significance which
serve to diminish and devalue children. Contemporary social constructions of
children embrace conflicting evaluations of the state of childhood. Among the
many evaluations are those which cast children as at once as naturally good
("little angels") and naturally bad ("little devils"), as ignorant and intuitively
all-knowing or as innocent and impure.38

There are two recurrent and consistent themes in the way we think about
children. The first is to define children’s characteristics negatively and in
opposition to adult characteristics: not adult, not rational, not fully grown, not
"mature" and so on.39 The child is seen as emotionally immature,
inexperienced, cognitively undeveloped and incompetent. Second, children
are not seen as social actors, agents of their own lives or persons in their own
right. They are potential people.

38 D Archard, Children: Rights and Childhood, Routledge, London, 1993; A Synnott, "Little angels, little
devils: a sociology of children" (1983) 20(1) Canadian Review of Sociology and Anthropology 79-95;
R Takanishi, "Childhood as a Social Issue: Historical Roots of Contemporary Child Advocacy" (1978)
34(2) Journal of Social Issues 8-28.
39 L Alanen, "Rethinking Childhood" (1988) 31(1) Acta Sociologica 53-67.

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These putative characteristics are seen to disqualify children from certain

activities and statuses.40 They are seen to merit a clear separation between
the world of the adult and that of the child. This separation holds in a social
context in which the period of children’s economic dependence has extended
to beyond their teenage years, and in a milieu in which there is concurrently
parental commitment and abdication of responsibility with respect to
children’s upbringing, an increasing professionalization of child supervision
and a "pedagogicization" of the child’s life and its environment.41

The definitions or cultural meanings of childhood as a period during which

an individual lacks the capacities, skills and powers of adulthood are
equivalent to what Foucault has called "regimes of truth" 42 These "regimes"
operate rather like self-fulfilling prophecies. Ways of thinking about
childhood fuse with institutionalised practices and affect the rights which
children are accorded. Often contradictory meanings are constructed and
realised in overlapping institutional sites, by people differentially positioned
in networks of power. Out of these processes understandings arise of how
adults may treat children, of the rights adults and children have in relation to
one another and justifications for the control adults exercise over children in
the family, in the community and of course, in the school.

For example, children are not protected from physical assault by adults in the
same way as adults are protected from assault. Corporal punishment of boys
in schools is still permissible in Queensland (though it will be banned in
1995) and the Draft Criminal Code currently provides for teachers to retain
a right to apply "reasonable force" for disciplinary purposes. Until recently,
school councils in New South Wales were able to determine the disciplinary
policies to be enacted in local schools, including whether or not corporal
punishment is to be used.43 The Northern Territory has no state-wide ban
on corporal punishment in schools and it is allowed in all State schools for
boys and girls in Tasmania.

40 Archard, above, n 38, p 2.

41 L Dencik, "Growing Up in the Post Modem Age: On the Child’s Situation in the Modem Family, and
on the Position of the Family in the Modem Welfare State" (1989) 32(23) Acta Sociologica 155-180.
42 A James and A Proutt, eds, Constructing and Reconstructing Childhood: Contemporary Issues in the
Sociological Study of Childhood, Falmer Press, London, 1990, p 23.
43 G Brewer and P Swain "Where rights are Wronged: A critique of Australia’s compliance with the
United Nations Convention on the Rights of the Child", a Report of the National Children’s Bureau
of Australia for the Children’s Rights Coalition, National Children’s Bureau of Australia, Notting Hill,
1993, p 26.

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The social definition of children as immature and irrational, as potential

persons rather than persons, legitimates differential treatment of children and
justifies the view they should be ineligible to give consent. The ineligibility
to consent to rules to which they are nevertheless required to conform places
children in an iniquitous position.

For instance, while schooling is compulsory for all children under the age of
16, the "contract” to ensure that the child attends is not between the child, the
state and the school, but between the parent, the state and the school. Parents
who choose to send their children to Australian independent (private) schools
are seen to have "elect(ed) to abide by the school’s policies (and practices)
as set out in the literature when they send their children there".44 The
contract between an independent school and parents whose children attend
the school in effect limits the ability of children to act in defense of their
own interests, except in areas covered by anti-discrimination and equal
opportunity policy and legislation45

The school is seen to be acting in loco parentis, with corresponding powers

to control the conduct of students. This, when combined with the parens
patriae jurisdiction for the care of individuals who cannot take care of
themselves has resulted in the denial to school children of certain substantive
rights and procedural safeguards. Students are considered to be "under a
disability" by the law, and have recourse to a legal remedy only when adults
are satisfied the student has been subjected to "overly vigorous corporal
punishment, onerous detention, suspension for a trifling matter or
expulsion".46 As a consequence of these circumstances, concern has been
expressed about school disciplinary procedures and adequate protection for
suspended or excluded students in Australian schools.47

The School as a Political Community : Natural justice and political

literacy

The status of children in the school setting was documented in a study of an

urban high school in the United States.48 This study showed how the social

44 E Gaynor, "Discipline and Children’s Rights" Leo Cussen Institute, Melbourne, 1988, p 10.
45 Gaynor, above, n 44.
46 Gaynor, above, n 44, p 10.
47 Brewer and Swain, above, n 43.
48 S W Rothstein, "The Ethics of Coercion: Social Control Practices in an Urban Junior High School"
(1987) 22(1) Urban Education 53-72.

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world of the school was structured by specific understandings of children,

and by practices which expressed these understandings. School practices
consistently and systematically emphasised the differences in power between
students and teachers in the school. Children were made aware they would
be subjected to continuous evaluation by staff members. Teachers were the
ones who were responsible for the order and control procedures and for
determining the propriety of students’ presence in particular situations.
School relations were governed by coerciveness and mistrust, and the
weakness and "ignorance” of children were used to ridicule and shame them.
In concluding, Rothstein stated:

The educational folklore of our society assigned limited ethical

responsibility to teachers in their dealings with students.49

While not all schools are characterised by extremes of malpractice and

psychological abuse of students, the exercise of power and control by
teachers and administrators is common to all schools. The classroom and the
school are closed environments. Government regulations and school directives
notwithstanding, in practice teachers have limited accountability to anyone
other than their immediate superiors. These factors, when combined with
evidence of considerable disagreement among teachers and principals over
what school rules should be, how they should be conveyed to students, and
what should be done when students are observed breaking those rules50
suggest the ways in which power and control feature in children’s daily lives
at school.

Compulsory school attendance is accompanied by the exclusion of children

from decision-making processes and from consultation about the manner in
which they are to be treated. Some schools use corporal punishment,
detentions, suspension (in school and out of school) and expulsion as a
means of school discipline. Children have token or no input into the rules
and disciplinary procedures by which they are bound at school. Their rights
to decisions about their own actions, to the expression of opinions about
unjust treatment by teachers and to involvement in institutional decisions is
so severely circumscribed as to be virtually non-existent. As a consequence,
schools can be viewed as places involved in the production of social

49 Rothstein, above, n 48, p 67.

50 H Lufler, "Debating with untested assumptions: The need to understand School Disciplines" (1979)
11(4) Education and Urban Society 450-464.

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hierarchies and in the legitimation of structural inequality through routine

practices which systematically exclude children:

Teachers not only ... frame the rules, (but also) police them, act as
witness, prosecution, judge, jury and eventually jailer or probation
officer. In this way the rules of natural justice are ignored.51

Common to each of these measures is the fact children are seen as the objects
of, rather than participants in, schooling. Children are what anthropologists
call a "muted group". That is, their values, attitudes and feelings are largely
excluded from the official record and from the decisions which determine
how adults may regulate their lives. These practices in relation to children
persist despite evidence that from an early age children are capable of moral
reasoning and of understanding the needs of others, and despite arguments
that the role given to students within such institutions will crucially affect
their political literacy and concept of citizenship in later life.52

Evidence suggests children as young as pre-schoolers can take account of the

point of view of other children, solve problems, work with categories,
appreciate possible causal action, and construe objects symbolically.53 Other
research has shown by the age of nine, children have acquired much of the
political language of adult life.54 The tendency to ignore these findings
might be compounded by conflating cognitive competence with knowledge
and experience. A child may simply not know as much or have experienced
as much as an adult. But relative to what children have experienced and
know, they may in fact have the ability to make significant contributions to
the life of the immediate community in which they are situated.55

The exclusion of children rests on a fusion of social definitions of their

characteristics with institutional structures and practices. These definitions
and practices intersect with particular models of political and social life.
Broadly speaking, one can distinguish between two models of political and

51 T Jeffs, "Children’s Rights at School" in The Rights of Children, B Franklin ed, Basil Blackwell,
London, p 67.
52 M Bottery, The Ethics of Educational Management: Personal, Social and Political Perspective on
School Organisation, Cassell Educational Limited, London, 1993.
53 M Donaldson, Children's Minds, Fontana, Glasgow, 1978.
54 O Stevens, Children Talking Politics: Political Learning in Childhood, Martin Robertson, Oxford,
1982.
55 Archard, above, n 38, p 66.

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social life: associational and community.561 will briefly outline the principal
features of these two models, because they suggest different ways of thinking
about the status and entitlements of children in schools.

The associational model is based on the view groups or individuals come

together in free association for mutual benefit. These individuals consent to
subject themselves to regulation arising from majority decision or from less
procedurally specific notions of the general will. Not all individuals are
recognised to be participating members of the political entity. Individuals
may participate only if they meet specified criteria, which vary from one
society to another. Skin colour, sex, and age are examples of criteria which
have been used to exclude categories of people from participation and from
eligibility to rights which are extended to others.

If we consider the school to be a micro polis, it becomes apparent schools

operate according to the exclusionary principles of this associational model.
That is, children have not come together in schools in free association for
mutual benefit. Children do not give consent to regulation of their lives by
the school. In fact, the opposite is true. Children are excluded from
decision-making in this associational collectivity because they are considered
to be incapable of giving informed, rational consent. They are denied
reciprocity in procedures such as performance evaluation and assessment.
These are the sole province of the adult members of the group. Apart from
telling a teacher (who has absolute discretionary power with little public
accountability with respect to whether or how to act on complaints or
grievances which fall outside legislative provisions), in most schools children
do not have access to formalised school procedures which enable them to
deal with maltreatment by adults or bullying and harassment by other
children. They are also denied the application of principles of natural justice
in decisions by adults to expel them from this association.

In contrast to this the community model is based on the view each member
has automatic membership in the collectivity.

Membership and rights are not withheld from those who lack the requisite
capacity to exercise them. Individuals (whether adults or children) who do
not have the relevant capacities may still have certain rights as long as
another person who has these capacities can be required (via the

56 J Hughes, "Thinking about Children" in Children, Parents and Politics, Geoffrey Scarre (ed),
Cambridge University Press, Cambridge, 1989.

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 AUSTRALIAN JOURNAL OF LAW AND SOCIETY (1997) 13

interpretation of rights as claims on the performance of others) to help these

individuals exercise their rights.57

Both adults and children can borrow the capacities of others to secure their
entitlements. For example, if a child feels another child is consistently being
treated unfairly by a teacher, then that child can nominate an adult to
intervene on behalf of the victimised child. From this perspective,
chronological age is no longer the significant criterion for determining rights.
Furthermore, children are regarded as persons actively involved in the
construction of their own lives and of the communities in which they live.

The community model includes children in the social and political life of the
group. The conferral of rights is not dependent on the development of
particular capacities but is part and parcel of group membership. The group
is seen to contain individuals (both adults and children) with diverse
capacities. Where necessary, individuals (adults and children) can borrow the
skills of others in order to secure or protect their entitlements.

The implications for the school of this community model is that children
become participants in the governance of schools. They become participants
in the decision-making processes which regulate the social and political life
of the school community. The possibility of reciprocal social rights and
obligations between adults and children, and among children is opened up for
consideration, as is deliberation by the whole community about the
boundaries of these rights and obligations.

Concluding Remarks

Recent research studies and articles in the press have drawn attention to the
sexual abuse of children in schools and to bullying among children in the
schoolyard.58 The UNICEF report59, The Progress of Nations, comments
on the high level of acceptance of physical punishment of children in
Australia. In some private and state schools, corporal punishment is still used
as a disciplinary procedure. Children speak among themselves about teachers
who "pick on" a particular child or who discipline arbitrarily and harshly. For

57 H Cohen, "Ending the Double Standard: Equal Rights for Children" in Child Nurturance: Volume 1
Philosophy, Children and the Family, A C Cafagna et al (eds), Plenum Press, New York, 1982, pp
149-158.
58 P Slee and K Rigby, "Peer victimisation at School" (1994) 19(1) Australian Journal of Early
Childhood Education 3-10.
59 Above, n 4.

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the most part, the community has remained silent about these instances of
maltreatment.

Schools rarely incorporate formally acknowledged and publicised mechanisms

which give children a voice, enabling them to speak and to be heard on these
issues. Student Representative Councils in schools have circumscribed areas
of responsibility and act in an advisory rather than policymaking capacity.
Few schools have procedures through which children can protect themselves
from maltreatment or psychological abuse by the adults who are given
responsibility for them. Yet research has shown children’s learning,
motivation and psychological development is impeded by unjust, unequal or
stigmatising treatment by teachers, and by school structures which deny
children a sense of autonomy and the protection of due process.60

The need to extend the application of natural justice principles to relations

between adults and children in schools derives from recognising the
authorities can, on occasion, act improperly or unjustly. In such cases, the
absence of due process provisions denies students the opportunity to redress
grievances both within the school community and beyond it through the legal
system.

The call for due process can also be seen to be one aspect of a broader
commitment to treating children as persons and to the development of
children’s political competencies. Educators and politicians are returning to
proposals for the incorporation of citizenship education in schools. The
ministers of education in Australian state and federal governments included
the following goal in a declaration of ten National Goals for Schooling in
Australia:

To develop knowledge, skills, attitudes and values which will enable

students to participate as active and informed citizens in our democratic
Australian society within an international context.61

60 L A Neese, "Psychological Matreatment in Schools: Emerging Issues for Counsellors" (1989) 23(3)
Elemetary School Guidance and Counselling 194-200; J S Paulson, "Covert and Overt Forms of
Matreatment in the Preschools" (1983) 7(1) Child Abuse and Neglect: The International Journal 45­
54; K M Conlee, "Emotional Abuse; The Hidden Crime in the Classroom" (1986) 57(2) Contemporary
Education 66-71; M Campbell-Smith, "The School: Liberator or Censurer" (1983) 7(3) Child Abuse
and Neglect: The International Journal 329-337.
61 Australian Education Council, Hobart Declaration on Schooling: Common and Agreed National Goals
for Schooling in Australia, AEC, Hobart, 1989.

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Furthermore one Australian Prime Minister, Paul Keating established a

Federal Civic Experts Group whose task was to explore the teaching of the
Constitution, history and citizenship in schools.

Citizenship in a democracy does not mean "citizens" only receive decisions

made by others. It implies an equal voice in collective decision-making on
major issues. At present children are largely denied the right of
self-determination and participation in decision-making processes which
affect them. Presumed incapable of making collective and individual
decisions, children are denied the opportunity to show they can. Perhaps what
is required is the courage to provide children with an authentic political
education which gives them the experience, privileges and responsibilities of
civic life by enabling them to participate in the formulation and
administration of the rules which bind them, and by extending to them the
rights to natural justice enjoyed by the rest of us.

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