School Community Safety Orders

Mandatory considerations before issuing an order

After determining that there are grounds for issuing a school community safety order (order) and the order is reasonably necessary to address these grounds, authorised persons must account for mandatory considerations before making a final decision about whether to issue an order. These mandatory considerations include:

• whether the order is the least restrictive means available to address the grounds on which the order is proposed to be made
• any vulnerability of the person of which they are aware
• where relevant, any impact of the order on the safety, wellbeing and educational opportunities of a child or children, including the children of a person against who the order is proposed to be made.

The authorised person must consider whether any of these matters are relevant to the decision and, if they are, weigh them up at their discretion after taking into account all relevant information and the particular circumstances of the matter. For example, an authorised person may be aware of a vulnerability but determine that it is not relevant to their decision to make an order, or should be given little weight, because it did not contribute to or cause the behaviour that satisfied the relevant ground.

There are further obligations under other legislation that authorised persons must consider, which includes:

• occupational health and safety considerations
• the Human Rights Charter obligations for public authorities.

For guidance and advice on these mandatory considerations, contact Legal Division on 03 9637 3146 or email legal.services@education.vic.gov.au

Mandatory consideration 1 – Least restrictive means

Authorised persons need to consider alternative actions to address the behaviour before issuing an order. ‘Least restrictive’ means the option that leaves the person with the most autonomy while addressing its intended aim.

This must be determined on a case-by-case basis having regard to the nature of the risk that the order is seeking to mitigate and whether any reasonable and less restrictive alternatives to an order are available to address that risk. An order can still be issued even if it is not the least restrictive option, so long as alternative actions have been considered, and the order is still reasonably necessary.

Authorised persons can refer to the Work-Related Violence in Schools Policy for suggestions about less restrictive options available to deal with parent/carer aggression. This includes sending a letter to the parent or carer (DOCX) (staff login required) in response to an incident or correspondence where they have not met expectations to behave respectfully towards staff as reflected in the Respectful Behaviours within the School Community Policy.

Mandatory consideration 2 – Vulnerability of the person subject to an order

An authorised person must take into account the vulnerability of the person who may be subject to an order where it is relevant to the decision to issue an order.

An authorised person may become aware of a vulnerability through:

• a disclosure by the person to whom an order may apply or by another person, or official record;
• any prior relationships and interactions with the person; and
• forming a reasonable perception that the person has difficulty communicating in English.

Authorised persons should take positive steps to provide a person who may be subject to an order with the opportunity to raise vulnerabilities that are relevant to the proposed decision to issue an order, while ensuring that the person is not treated unfavourably because of those vulnerabilities. This can be done by providing a person to whom an order may apply with the opportunity to raise any vulnerabilities for consideration through the Written submission form (DOCX) when notice of a proposal to give an ongoing order is given and when an immediate order has been issued.

Examples of vulnerabilities that an authorised person may be required to consider include:

• whether a person is Aboriginal or Torres Strait Islander and, because of that, has suffered racism, discrimination and systemic disadvantage
• whether a person is culturally and/or linguistically diverse, from a migrant or refugee background or seeking asylum, or who have experienced racism
• whether a person has limited English language ability
• whether a person is living with disability, including:
  • sensory impairment, for example, vision or hearing loss which prevents interaction with others and difficulties in accessing information
  • mental illness or emotional disorder, for example, episodes of mental ill health which seriously affect mood, grief and loss reactions, depression, thought disorder and difficulties with complex reasoning
  • intellectual, developmental and learning disabilities
  • communication or language disability or disorder
  • physical disability, for example, problems with mobility and muscle movement
  • neurological disorders including those caused by trauma to the head or brain
• whether a person identifies as an LGBTIQ+ person, who may be vulnerable due to discrimination and barriers to their participation, systemic disadvantage, risks to their safety or the status of their mental or physical health and wellbeing
• whether a person has suffered a trauma in the past, including victims of physical or psychological abuse and trauma, torture, rape, slavery, slavery-like practices such as forced labour and forced marriage, human trafficking or other serious forms of psychological, physical or sexual violence
• whether a person is facing serious financial hardship, including people without a home or who are living in crisis or emergency accommodation or who are supported by a housing agency or family services
• whether a person is experiencing family violence or dysfunction
• whether a person suffers from a serious drug or alcohol dependence
• whether a person is elderly or frail, for example, where their age and condition causes or contributes to memory loss, inability to cope with complex decision-making and sensory and mobility problems which prevent the ability to access and learn new information.

An authorised person may form the view that a known vulnerability could be relevant when:

• identifying whether there are grounds to make an order
• assessing whether the order is the least restrictive means available to respond to the behaviour
• giving notice and allowing submissions, including alternative arrangements for submissions and
• determining the content and form of an order.

Mandatory consideration 3 – Impact on child safety, wellbeing and education

Where relevant, an authorised person must consider the impact of the order on the safety, wellbeing and educational opportunities of an individual child or children, including the children of a person against whom an order is being considered.

Such risks may include impacts on the child’s:

• continued attendance and engagement at school
• mental health and wellbeing due either to the knowledge that their parent is subject to an order, or, as a flow on effect of any detrimental impacts on parent health, wellbeing or behaviour that may affect the child
• physical safety and wellbeing of the child, particularly if there is a risk of family violence. Making an order may have the potential to exacerbate existing safety risks that a person poses to their family in some circumstances. For example, children might suffer retaliatory or retributive action from the parent who is subject of the order.

These risks must be appropriately considered and managed by the authorised person when making an order, for example, reporting concerns to relevant police and child protection and otherwise taking steps to fulfil duty of care obligations to the student.

The authorised persons should consider using available tools, such as the Child and Family Violence Information Sharing Schemes and Multi-Agency Risk Assessment and Management, to obtain information which may be relevant to determining whether issuing an order may present a heightened risk to a child or another person.

Other requirements under other legislation

Occupational Health and Safety obligations

The department and principals have certain obligations under the Occupational Health and Safety Act 2004 (Vic) to ensure that, so far as is reasonably practicable, the workplace is safe and without risks to health.

Authorised persons must consider the health and safety impacts of the behaviour of the person on staff and/or other members of the school community, should an order not be issued, when considering whether to issue an order. Refer to OHS Management System (OHSMS) Overview.

Human Rights Charter obligations

The Charter of Human Rights and Responsibilities Act 2006 requires authorised persons in government schools and the department to act in a way that is compatible with and to consider the human rights in the Charter when issuing an order.