Policy and legislation relating to students' safety at school

(from Janis Caroll-Lind (2010). Responsive Schools. Wellington: Office of the Children's Commissioner. pp 7-9)

The following table identifies the domestic and international policy and legislation that underpins children’s right to safety at school.

Table 4: Relevant policy and legislation – international and domestic

United Nations Convention on the Rights of the Child (UNCROC)

· Article 19: Right to protection from all forms of violence.

· Article 28: Right to education.

· Article 29: Children’s education must develop respect for human rights, identity, and democracy and be delivered in a spirit of peace, clearly anticipating non-violent and wholly supportive places of learning.

The International Covenant on Economic, Social and Cultural Rights

· Requires education to demonstrate respect for human rights and fundamental freedoms.

· Education experiences should be offered in situations and environments that are consistent with human dignity.

Treaty of Waitangi

· Articles reflect the concept of turangawaewae, the right to belong, which is consistent with New Zealand’s philosophy of inclusive education within the school context.

New Zealand Teachers Council Code of Ethics

· Places an ethical obligation on registered teachers to “promote the physical, emotional, social, intellectual and spiritual wellbeing of learners”.

National Administration Guidelines -- NAG 5

New Zealand boards of trustees are legally required to:

· Provide a safe physical and emotional environment for students - NAG 5(i) Ð NAG 5(iv).

· Comply in full with any legislation currently in force or that may be developed to ensure the safety of students and employees.

Education Act 1989

· Sections 60A and 61(2) of the Education Act 1989 refer to NAGs in relation to the National Education Guidelines (NEGs) and school charters, respectively.

· Section 60A of the Education Act 1989 (relating to the NEGs) requires teachers/schools to report to parents any matters that may put a student at risk of not achieving (NAG 1).

· Section 77 also relates to schools’ obligations to parents. It requires every principal of a state school to take all reasonable steps to ensure parents are told of matters which are preventing or slowing the student’s progress through school or are harming the student’s relationships with teachers or other students.

Health and Safety in Employment Act 1992 (Amended 2003)

· Schools must comply with the Health and Safety in Employment Act 1992 and the Ministry
of Education’s Health and Safety Code of Practice for state and state-integrated schools.

· Schools are obligated to take all practicable steps to prevent hazards from harming people. Hazards can be anything that may cause physical, emotional, or psychological harm, therefore a person’s behaviour may be a hazard.

· A school permitting bullying to occur due to the inaction of teachers, with students suffering harm, could be in breach of a duty and face prosecution under the Health and Safety in Employment Act 1992.

Education (Hostels) Regulations 2005

· Section 55 requires a policy on hostel relationships (e.g., relationships between the boarders or between the boarders and staff) and the protection of the boarders from ill treatment.

· Section 58 relates to the abuse, harassment, or serious neglect of boarders.

· The Code of Practice details requirements for written policies and operating procedures. These include giving boarders:

· respect and dignity

· positive guidance and control

· protection from discrimination, degradation, ill-treatment, solitary confinement, or deprivation

· protection while on leave from the hostel or on hostel excursions.

Duty of Care

· Schools owe a duty of care not to cause injury to students whom they accept for enrolment.

· Duty of care is based on the assumption that the school is acting in loco parentis (in place of the parent).

· The Court could find that a teacher (in addition to the board of trustees) owes a duty of care to students who are bullied; the consequence being that a student could have a claim against three parties (the board of trustees, the teacher, and the Ministry of Education). Key questions would be: Was the school aware of the bullying? If so, were the appropriate steps taken to mitigate the effects and protect the bullied student from future bullying?

· While duties of care and civil actions for negligence are applicable in New Zealand, ACC limits claims arising from these actions to physical injuries only.³⁸

Fiduciary Obligations

· A fiduciary is a party who, via a particular relationship, has the special ability to exercise rights and powers to affect another party, for better or worse. As a result of these powers, the nature of the relationship, and the vulnerability of the other party, the fiduciary is under a duty to act in good faith, trust, and confidence.³⁹

· A school’s in loco parentis role forms the basis for the establishment of a fiduciary relationship between teachers and their students.

· Should the matter of fiduciary duty be argued, a Court could potentially hold the school and/or the Ministry of Education liable for breaching this duty when a student is bullied at school and is psychologically harmed as a result. This has currently not been tested in New Zealand.

Children’s Commissioner’s Act 2003

The Children’s Commissioner has a statutory responsibility to:

· be an independent advocate for children and young people in New Zealand

· investigate any matters affecting children and young people (unless the matter is before the Court).

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