Investigation into Victorian government school expulsions

Letter to the Legislative Council and the Legislative Assembly

To

The Honourable the President of the Legislative Council

and

The Honourable the Speaker of the Legislative Assembly

Pursuant to sections 25 and 25AA of the Ombudsman Act 1973 (Vic), I present to Parliament my Investigation into Victorian government school expulsions.

Deborah Glass OBE
Ombudsman

14 August 2017

Foreword

[“Andrew”] is lucky, he’s got us in his corner but other kids don’t have that and where do they end up? Where are those kids? I know where they are, they’re not at school, they slip through the cracks, they end up in the justice system.
– Parent of “Andrew” to VO investigators

We’re looking at the individual child, not the effect that child has on the system. And we need to look at both … the teacher hasn’t taught the grade for a week because this kid’s going berserk.
- School Principal to VO investigators

Every year several hundred children are expelled from government schools. While this is a tiny fraction of the number of children in those schools, the impact of expulsion on the child, their family, and potentially, the wider community cannot be overstated. A disproportionate number of expelled children have a disability, are in out of home care, or identify as Aboriginal and Torres Strait Islander. Some come from backgrounds of significant trauma. Some are only five or six years old.

The official number is likely to be only a fraction of the number of children informally expelled, on whom no data is kept. Somewhere between hundreds and thousands of children each year disengage from formal education at least in part as a result of pressure from schools. We simply do not know where they end up.

But we do know that some 60 per cent of those in the youth justice system had previously been suspended or expelled from school, and over 90 per cent of adults in our prisons did not complete secondary school. The link between educational disadvantage and incarceration is not new, but remains compelling.

That there are so few children formally expelled must also be a testament to the many dedicated teachers and principals who deal with challenging behaviour by children daily. There is no doubt that such children present a problem not only for a school and its staff, but for other children, whose learning may be compromised by disruptive behaviour. This is a difficult balancing act which many schools are obliged to manage repeatedly.

But while everyone should be able to work and study in a safe environment, expelling a child simply shifts the “problem” of the child’s behaviour from one part of the system to another - to another school, another department, to a parent who cannot cope - potentially entrenching or escalating those behaviours. In many of the cases we reviewed, had the school been willing - or better supported - to deal with the behaviour, the expulsion may not have been necessary.

A key purpose of the investigation was to find out whether expulsions complied with the Ministerial Order - which includes ensuring the student is provided with other educational and development opportunities. What we found was a confused and incomplete picture. There were so many gaps in the Expulsion Reports and data in 2016 it was not possible to answer the question with any certainty. But we can say that some two-thirds of expulsions failed to comply on at least one count, with the lack of information suggesting that this number may well be considerably higher.

We obtained evidence of the lack of early intervention for Aboriginal students, that while help was available it was often brought in too late; for students with disabilities, that instead of providing extra assistance, supplementary funding is used to justify limiting a child’s attendance at school. The influence of trauma - such as exposure to family violence - was also powerfully present in the cases we examined.

[Being expelled is] just another layer of trauma for my child that I now have to address …yes he’s doing well at this school but he would have done well at that school if we’d been able to do the things that we said they were going to do …
– Parent of “Ben” to VO investigators

Expulsion for drug use was also prevalent, for reasons ranging from a single instance of being under the influence, to dealing. In any event, as experts point out, expulsion is, at best, a short term solution, that does not address the underlying cause but shifts the problem elsewhere.

A child goes to another school, they’ve been expelled so straight away they’re starting behind the 8 ball. They’re kids … they’ve got enough problems trying to get through everything as it is ... It destroys families ... I don’t think it’s really looked upon, how big a step it is and how much it affects people.
– Parent of “Daniel” to VO investigators

My investigators went out across Victoria, meeting parents, community groups and others with an interest. These regional visits greatly enriched the breadth and quality of evidence we received, and many of the cases are included in this report. Some of the stories we heard were heartbreaking. It is clear from these cases that these were not bad children; many were children who had bad things happen to them. I thank all of those who spoke with my investigators or made submissions, for their honesty, openness and assistance.

Our investigation found some things being done well - individual good work by both principals and regional department officials demonstrating the success of some approaches, as well as broader programs such as the Education Justice Initiative, which attempts to re-engage young people in the criminal justice system back into education. Other worthwhile initiatives and reforms were also observed after our investigation had begun, and I encourage the department to continue and build on this important work.

My jurisdiction does not extend to non-government schools and in any event no data is available for expulsions there, although common sense dictates that what goes on in one part of the education sector has an impact on the other. The paucity of data across the sector – haphazard and incomplete where it does exist - makes it impossible for us to determine just how bad the problems are.

But there can be no doubt that students from vulnerable groups are over-represented in the numbers of those expelled - formally and informally. Given the autonomy of schools in this area, the department is struggling to address the issues.

How can we ever justify expelling a five-year-old? A welcome start would be recognising that while expulsion remains an option of last resort, no child should ever be expelled from the state’s education system as a whole. A commitment to supporting early intervention is also vital. The challenging behaviour of children is frequently rooted in trauma, disability or mental health. The investment not made in supporting schools to deal with this behaviour will almost inevitably require a vastly greater investment later, elsewhere, to deal with their challenging behaviour as adults.

Deborah Glass
Ombudsman

Executive summary

1. On 1 September 2016 the Ombudsman announced an investigation into expulsions at Victorian government schools. The investigation was prompted by four primary factors.
2. First, although the office does not receive high numbers of complaints about expulsions, those that were made contained similar grievances: families felt that expulsions were unfair or disproportionate; that there was a lack of opportunity to be heard; and a lack of support to find another school for their child following expulsion.
3. Second, the office was aware of work by the Youth Affairs Council of Victoria in early 2016 into expulsions and student engagement, from which it was apparent that the sector was concerned that expulsions were growing, vulnerable groups were over-represented and that informal expulsions were an ongoing and potentially larger issue.
4. Third, this office requested expulsion data from 2013 to 2016, which revealed expulsions had increased by 25 per cent from 2014 to 2015. This increase seemed to confirm that this was an escalating issue.
5. Finally, youth crime in Victoria was increasing with a small cohort of children reportedly responsible. The negative correlation between disengagement from education and difficulties for young people, including contact with the youth justice system, is well evidenced.
6. The investigation was an attempt to explore these issues and give the most complete picture of expulsions in government schools recently undertaken. The lack of data, described further in this report, means it is not the full picture and there is more to be done within the department and government.

Education in Victoria (summary)

7. The system in Victoria is complex. It is shaped by shifts in educational trends and teaching methodology; population and demographic changes; the needs of the labour market; and importantly, the policy objectives of the Commonwealth and State governments of the day.
8. As with other states, Victoria’s education system is further complicated by the fact that it exists parallel with the non-government education sector comprised primarily of Catholic and independent schools. Additionally, both government and non-government schools have complex arrangements where a mix of Commonwealth and State funding makes up what is spent on a student’s education.
9. For principals and teachers working within this complex system, their job is a difficult one. They are required to balance the high needs and difficult behaviour of some students with the educational needs of all students, as well as the safety and welfare of both students and teachers. In these circumstances, it is appropriate for expulsion to be considered as an option where other methods of dealing with the student’s behaviour have failed – that is, it truly is a last resort.
10. But, in many cases, schools do not appear to be equipped with the resources, expertise and assistance, within the school and from the department more broadly, to provide the necessary support to students with higher needs. The behaviour of these children may be extremely challenging, but it must be within the power of our education sector to support these children rather than simply shifting the challenge of the student’s behaviour from one school to another.

Formal expulsions

Vulnerable students

11. The number of students expelled each year from government schools in Victoria is low when compared to the total student population. In 2016 there were 278 students formally expelled.
12. The investigation’s analysis found that in 2016 most expulsions occurred for students between years 8 and 10 and that boys were vastly over-represented. Perhaps more concerning, however, were the instances of children in the early years of primary school also being expelled. It is difficult to conceive of circumstances where the behaviour of children as young as five or six could be of such magnitude that expulsion is the only option available.
13. Those who were expelled were often from vulnerable student groups. The investigation’s analysis of formal expulsions in 2016 found that students in out of home care, students with disabilities and Aboriginal and Torres Strait Islander students are all over-represented in expulsion figures.
14. Students in out of home care face significant challenges in their life and the importance of education for these students cannot be overstated. They represented less than two per cent of the student population but over five per cent of expulsions. While there are safeguards in place if expulsion of a student in out of home care is being considered, the Expulsion Reports do not give sufficient detail as to whether these safeguards are being enacted or are effective.
15. Aboriginal and Torres Strait Islander students were another vulnerable group who make up a small percentage of the total student population, again less than two per cent but accounted for approximately six per cent of the expulsions that occurred in 2016. While departmental policy states that if a school is considering expelling an Aboriginal and Torres Strait Islander child it should consider contacting the region, the investigation received evidence that this is not occurring regularly.
16. Perhaps the most affected group of vulnerable students were those that receive funding for a disability. They are the subject of several case studies throughout this report and the vulnerability of the students and the sense of powerlessness felt by their families can be acute. Some of the stories told are concerning and deeply sad.
17. The decision to expel students with a disability raises significant human rights issues. It is troubling that even though children’s rights are not absolute, the Ministerial Order does not make a single reference to the Charter of Human Rights and Responsibilities Act 2006.
18. Many of these vulnerable students had suffered childhood trauma which was regularly cited by witnesses and in submissions as a key area of concern regarding expulsions. Students suffering from trauma-related behavioural problems were identified as presenting a significant challenge for schools and one they were perhaps ill-equipped to handle.
19. It must be acknowledged that there are bound to be other stories of students and their families who have been greatly supported at their schools and have not been expelled; a couple of these stories are reflected in this report. However, this report largely draws attention to cases where the system has failed students.
20. The case studies detailed in this report are evidence of the need to continue to improve our education system and support those in most need. To its credit, upon reading a draft version of this report the department offered to contact the families of the students in the case studies to offer any support they may need.

Observations of expulsions

21. Ministerial Order 625 gives principals the power to expel students from government schools. The Ministerial Order sets out the grounds under which a principal can expel a student and what processes need to be followed. It seeks to protect students from unfair expulsions.
22. The investigation identified serious concerns about whether the requirements of the Ministerial Order are being adhered to and whether the department is providing sufficient support and oversight to ensure principals fulfil their obligations when expelling a student. In the majority of expulsions the requirements of the Ministerial Order were not met.
23. This includes the failure to meet basic requirements of the Ministerial Order, including that expulsions are recorded in the department’s student record system which did not occur in nearly two third of cases. In other instances the Expulsion Reports reviewed did not demonstrate that a student’s behaviour was of such a magnitude that expulsion was the only available response.
24. Perhaps most concerning were the instances where there was no effective plan to find the student a new school. Sixty-one of the students expelled in 2016 were out of school for between three and 12 months following their expulsion. Considering the importance of education, having students out of school for many months following an
    expulsion is clearly not appropriate or compliant with the Ministerial Order.
25. It is important that the department strengthen its oversight of expulsions to ensure that the legal requirements as set out in the Ministerial Order are met.
26. There is also a clear need for improvements in ensuring students facing expulsion are granted procedural fairness. A young person at risk of expulsion ought to have an equal or greater expectation of protection than an adult facing potential termination of employment, not less. Yet it is not mandatory that principals conduct a thorough investigation of the allegations against a student before proceeding with expulsion. While departmental guidance states that it is best practice to conduct investigations, there is no obligation to, and failure to do so does not of itself create a right of appeal.
27. Inconsistency was also apparent across the expulsions, with the magnitude of behaviour that would lead to expulsion varying across schools. This was most striking in the expulsions that were related to drugs: a student caught smoking marijuana one time was punished the same way as a student dealing drugs in a school.

Informal expulsions (summary)

28. Formal expulsions are not the full story. There was clear evidence, although a paucity of data, suggesting that informal expulsions are more prevalent, despite departmental policy prohibiting their use.
29. Formal and informal expulsions, along with a myriad of other reasons students stop attending school, mean that thousands of school-aged children exit the education system each year. There needs to be every attempt made to identify these students and keep them in education.
30. There were 278¹ students expelled in 2016 yet the department states that around 6,800 students per year disengage from government education between year 9 and 12. It can only be concluded that somewhere between these two figures is an indicative number for informal expulsions.
31. There is a clear need for the department to improve its processes so that it knows why students leave school and can begin to get some sense of the number of informal expulsions and what can be done to prevent them.
32. This does not mean that there is never a benefit in a change of school for a student. For whatever reason, the relationship between a school and a student may have broken down and for all concerned a fresh start is needed. But it is important that this process is appropriately managed and that the department has sufficient oversight of it.

Collection and use of data

33. Government agencies need reliable and accurate data to inform good policy making and enable them to provide evidence-based advice to government. During the investigation, obtaining accurate data from the department regarding school expulsions was a constant source of difficulty.
34. The expulsion figures for 2016 took several months to confirm and there remained inconsistencies in this data. Key information such as the number of expulsions within vulnerable student groups or what the outcomes were for expelled students was incomplete, not available or only produced, with some effort, to assist with this investigation.
35. Given what is known about the adverse outcomes for disengaged young people, including increased contact with the criminal justice system, it is critical that the education system comply with the Ministerial Order and places children in education or training as a matter of urgency if they are expelled.
36. The lack of data makes it difficult if not impossible for the department to recognise patterns in which student groups are being expelled and to subsequently develop policies to address any issues identified. There is a clear need for better data and oversight systems.

Effect of disengagement from education (summary)

37. Considering the relatively low numbers of expulsions it may be tempting to ask if this issue is worth such attention. The testimony of parents in this report of the effect expulsion has on students and their families itself justifies the attention and the need to highlight these issues and drive improvement.
38. But the impacts of expulsion and disengagement echo beyond these students and their families. The positive link between education and better results in a person’s life is well established. Similarly, a negative correlation exists between disengagement from education and difficulties for young people, including contact with the criminal justice system. This correlation highlights the importance of ensuring expulsions are used as a last resort and that expelled children are supported to engage in education.
39. In 2015, 1,094 young people involved in the youth justice system were surveyed and 60 per cent had previously been suspended or expelled from school. As a witness to the investigation stated when asked the effect of expulsion, ‘A whole lot of nasty stuff I’d say. What a terrible start to a life, seriously’.
40. Despite this, the department has delivered some effective programs to re-engage students and reduce expulsions. The LOOKOUT Centres, Navigator Program and Education Justice Initiative are all positive programs effectively assisting particularly vulnerable groups and keeping them in education.
41. Similarly the experience of many of the students in the case studies in this report, who after their expulsion are thriving at their new schools, show that when the right supports are put in place it is not beyond the education system to help the most vulnerable students.

Conclusions (summary)

42. There are comparatively few formal expulsions from Victorian government schools each year. However, for those students who are expelled, this is a significant punishment and can have a profound impact on their lives. Apart from the rejection and trauma that being expelled may cause, children disengaged from school are also more likely to come in to contact with the youth justice system.
43. The data collected by the department is haphazard, incomplete and insufficient to make informed policy decisions with respect to expulsions. This is surprising given the profound impact an expulsion may have on a student.
44. The absence of data and the department’s limited oversight of school expulsions, has contributed to the department’s failure to identify and address the prevalence of expulsions among vulnerable groups and schools’ non-compliance with the Ministerial Order, which seeks to protect students from unfair expulsions.
45. Formal expulsions are not the full story. There is clear evidence, although a paucity of data, suggesting that informal expulsions are more prevalent, despite departmental policy prohibiting their use. These do not get recorded or allow for the mandated supports to assist a student to further their education as set out in Ministerial Order for formal expulsions.
46. As with formal expulsions there is evidence in the form of case studies and submissions that vulnerable groups may be more likely to be informally expelled but inevitably
    there is no data available to confirm this. The department does not routinely keep records of why students move from one school to another.
47. There is a clear case for more to be done regarding informal expulsions, although the issue cannot be addressed adequately until the department is able to measure the scale of the issue and fill in the significant gaps in its data.

Scope and methodology

Terms of reference

48. On 7 September 2016 the Ombudsman wrote to the Minister for Education the Hon James Merlino MP and the Secretary of the Department of Education and Training (the department), Ms Gill Callister notifying of her intention to conduct an own motion investigation into the expulsion of students from Victorian government schools.
49. On 8 September 2016 the investigation was publicly announced, with the following terms of reference:
    • Whether the department is complying with Ministerial Order No. 625 – Procedures for Suspension and Expulsion (the Ministerial Order) and policies regarding government school expulsions, which include: ensuring relevant parties are notified that an expulsion is being considered; ensuring a conference is conducted with the affected student; ensuring the student is provided with other educational and development opportunities; and providing a fair and effective appeals process.
    • Whether vulnerable or at-risk students are over-represented in expulsion numbers and whether the department is effectively addressing any such issues.
    • Whether the data collected by the department regarding expulsions is sufficient to inform departmental policy-making and programs.
    • Whether the department is monitoring and preventing instances of informal expulsions, which occur outside the formal expulsion process.
50. The investigation was prompted by four primary factors.
51. First, although the office does not receive high numbers of complaints about expulsions, those that were made contained similar grievances: families felt that expulsions were unfair or disproportionate; that there was a lack of opportunity to be heard; and a lack of support to find another school for their child following expulsion.
52. Second, the office was also aware that through early 2016 the Youth Affairs Council of Victoria (YACVIC) was working on a report into expulsions and student engagement.² As part of its work YACVIC held a forum in April 2016, which was attended by education professionals, advocates, academics and two officers from the Ombudsman. It became clear at this forum that those present had a sense that expulsions were growing, vulnerable groups were over-represented and that informal expulsions were an ongoing and potentially larger issue. What was lacking was the data and detailed information to confirm this.
53. Third, this office requested expulsion data from 2013 to 2016, which revealed expulsions had increased by 25 per cent from 2014 to 2015.³ This increase seemed to confirm the sense at the YACVIC forum of an escalating issue.
54. The department has since advised that the expulsion data it provided did not include expulsions that occurred after August during a school year. The department provided revised figures showing that there were in fact 267 expulsions in 2014 and 309 in 2015, an increase of over 15 per cent.⁴
55. Finally, youth crime in Victoria was increasing with a small cohort of children reportedly responsible. The negative correlation between disengagement from education and difficulties for young people, including contact with the youth justice system, is well evidenced.
56. The department was given the opportunity to respond to the Ombudsman’s draft report on 8 June 2017. The department provided responses on 26 and 27 June 2017, both of which have been fairly set out in this report.

Jurisdiction

57. The investigation was undertaken pursuant to section 16A of the Ombudsman Act 1973, which provides that the Ombudsman may conduct an own motion investigation into any administrative action taken by or in an authority, the definition of which includes a department. The Ombudsman Act does not provide jurisdiction for the Ombudsman to investigate non-government schools.
58. Under section 23(2) of the Ombudsman Act, the Ombudsman also has the power to enquire into or investigate whether any administrative action ‘is incompatible with a human right set out in the Charter of Human Rights and Responsibilities Act 2006’.
59. The primary focus of the investigation was the involvement of the department in relation to Victorian government school expulsions, rather than investigating individual expulsion cases through the relevant school. The investigation did not specifically look at suspensions.
60. It is worth clarifying what an expulsion is compared with a suspension. The department defines expulsion and suspension as follows:
    
    Expulsion is the process of permanently excluding the student from the school in which he or she is currently enrolled.⁵
    
    Suspension is a disciplinary measure that involves temporary removal of a student from classes or school approved activities for a specified period of time. Your child will be allowed to return to class or the school approved activity after the set period of suspension.⁶
61. While the investigation was concerned primarily with expulsions there will on occasion be reference to suspension in this respect. This is particularly the case where a student was initially suspended in the immediate aftermath of their behaviour and the decision was then made to start the expulsion process.
62. This report does not include direct evidence to the investigation from students who have been expelled. As was noted in the Ombudsman’s recent Report on youth justice facilities at the Grevillea unit of Barwon Prison, Malmsbury and Parkville, changes to the Ombudsman Act in 2012 prevent the Ombudsman from interviewing people under 16 years of age during an investigation, regardless of whether they are accompanied by a parent or guardian.

Approach

63. The investigation involved:
    • calling for and receiving 16 submissions from community, education and similar organisations as well as private individuals
    • analysing the departement's policies and processes regarding school expulsions including: Ministerial Order No. 625 - Procedures for Suspension and Expulsion - 2014; Ministerial Order No. 184 - Procedures for Suspension and Expulsion (Superceded) - 2009; Student Engagement Policy - 2017; School Policy and Advisory Guide - 2017; Expulsion Process Flowchart - 2014; Student Resource Package 2016 Guide; Program for Students with Disabilities – operational guidelines for schools 2017; Student Support Group Guidelines - 2015; Marrung Aboriginal Education Plan - 2016; Out of Home Care Education Commitment - 2011; and Drug Education Policy - 2017
    • undertaking cross-jurisdictional comparisons in Australia and overseas to compare education and expulsion policies and practice
    • reviewing the reports for all 278 school expulsions in the 2016 school year
    • reviewing all 22 expulsion appeal files for 2016
    • reviewing data provided by the department relating to school expulsions as well as data on vulnerable student groups, including: Aboriginal and Torres Strait Islander
      students; students with a disability; students who receive funding for a disability, behavioural or learning difficulties; students in out of home care; students who are clients of Child Protection; and students from linguistically or culturally diverse backgrounds
    • conducting four regional visits during which investigators: held six sessions in regional towns and cities⁷ within the four departmental regions to enable members of the public to meet with investigators face to face and discuss their experience; met with 13 stakeholder and community groups to discuss education issues in their communities
    • conducting 25 voluntary interviews with 32 witnesses including: 13 parents of expelled students; 12 departmental employees and school principals; and 7 witnesses from other organisations including Professor Michael Kidd, a senior academic who specialises in researching the links between education and crime
    • meeting with eight stakeholder and community or education groups in Melbourne
    • engaging a clinical psychologist, Ms Katrina Streatfeild to review a sample of Expulsion Reports for indications of childhood trauma.
64. The Ombudsman’s opinion and the reasons for that opinion are being reported to the Secretary of the department pursuant to section 23(1) of the Ombudsman Act.
65. In accordance with section 25A(3) of the Ombudsman Act, any individual who is identifiable, or may be identifiable from the information in this report, is not the subject of any adverse comment or opinion. They are named or identified in this report as:
    • the Ombudsman is satisfied that it is necessary or desirable to do so in the public interest, and
    • the Ombudsman is satisfied that identifying those persons will not cause unreasonable damage to the persons’ reputation, safety or wellbeing.

Anonymity

66. Throughout this report, case studies detail the experience of students and their families during expulsions, both formal and informal. The case studies do not identify the student or their families for privacy reasons and given the age and vulnerability of many of the students involved. In some cases the age and year level of the student has been removed to further protect their identity.
67. In addition, the case studies do not name individual schools as this may result in the identification of the students in case studies.
68. For these reasons, the names used in the case studies throughout this report are not the real names of the students involved. References to evidence that may identify the student have also been removed.

Education in Victoria

The complexity of education in Victoria

69. The government education system in Victoria was established in 1872 with the passing of the Education Act 1872, establishing education as ‘free, secular and compulsory’.⁸
70. While this simple principle underpins the Victorian education system, the reality of how the education system functions is far more complex. It is shaped by shifts in educational trends and teaching methodology; population and demographic changes; the needs of the labour market; and importantly, the policy objectives of the Commonwealth and State governments of the day.
71. As with other states, Victoria’s education system is further complicated by the fact that it exists parallel with the non-government education sector comprised primarily of Catholic and independent schools. Additionally, both government and non-government schools have complex arrangements where a mix of Commonwealth and State funding makes up what is spent on a student’s education.
72. A review of school funding, undertaken for the department by the former Premier the Hon Steve Bracks, Greater Returns on Investment in Education, noted:
    
    "Victoria’s funding allocation model is a mix of needs based, cost based, capped, and legacy funding, and lacks a clear link to future strategy. In addition, funding is hard to understand as it is allocated simultaneously to schools, regions, programs and workforces, creating complexity and a lack of coherence, and constraining innovation.⁹"
    
    
73. The complexity of the Australian education system is unique, as was observed by the late Professor Jack Keating:
    
    "No other OECD country has separate and mostly publicly-funded school sectors competing against each other for the economically and educationally advantaged student market. No other country allows such arrangements to have such a heavy impact on education policy.¹⁰"
    
    
74. This means that the student population in Victoria is mixed. In 2016 there were 1,524 Victorian government primary and secondary schools with 588,908 students enrolled, comprising:
    • 350,583 students in primary school
    • 224,221 students in secondary school
    • 12,503 students in special schools
    • 1,601 students in language schools.¹¹
75. A further 343,199 students were educated in Catholic and independent schools,¹² or nearly 37 per cent of the student population.
76. This inherent complexity in the education system presented difficulties during the investigation. The number of expulsions in the non-government school sector is not publicly available and therefore it is not possible to determine if expulsion rates are comparable across the government and non-government sectors.
77. The investigation made enquiries with both the Victorian Registration and Qualifications Authority¹³ and the Victoria Curriculum and Assessment Authority,¹⁴ and neither was able to provide a figure for expulsions in non-government schools.
78. One of the Regional Directors from the department commented on the difficulty this presents:
    
    "There’s a missing piece in that puzzle … and there’s government funding that goes to those schools and so in the community interest … if you know something about government schools why shouldn’t we know about other schools?¹⁵
    
79. The department was also unable to provide data to demonstrate how expulsions in non-government schools impact the government school sector, such as, how many students expelled in the non-government sector are subsequently enrolled in government schools and what the outcomes were for these students.
80. In its response to the Ombudsman’s draft report the department stated:
    
    "It would be useful if the report could note that the department does not collect the reasons for school enrolment or transfers between sectors. The student transferring may not be willing to share the reason for the transfer and are not required to do so, as any enrolment in a government school is a parent’s choice."
    
    
81. On top of the structural complexity of the system is the most important challenge that faces this and any other education system meeting the needs of the students. In the Victorian system the students range from Prep to Year 12, across metropolitan and regional settings, all with differing needs and vulnerabilities.
82. While it is important to acknowledge all the factors that contribute to the complexity of the Victorian education system, it is also worth noting that the investigation looked at a discrete aspect of the education system: expulsions at Victorian government schools.

Education Training and Reform Act 2006

83. The Education Training and Reform Act 2006 is the primary piece of education legislation in Victoria, its main purpose being:
    
    " … to reform the law relating to education and training in Victoria by providing for a high standard of education and training for all Victorians.¹⁶"
    
    
84. In Victoria the compulsory school age is between 6 and 17 years of age.¹⁷ Under the Education and Training Reform Act there is no specific obligation placed on the State to provide students of compulsory school age an education. However, a principle of the Act is that ‘universal access’ to education is provided by the State through ‘the establishment and maintenance of a government education and training system’.¹⁸
85. Further, section 1.2.2(2)(c) of the Act states:
    
    "Every student has the right to attend a designated neighbourhood government school with the exception of selective government schools that are determined by the Minister."
    
    
86. Section 2.1 of the Act places an onus on parents to ensure their children receive an education. It states:
    
    "It is the duty of the parent of a child of not less than 6 nor more than 17 years of age:
    
    a. to enrol the child at a registered school and to ensure the child attends the school at all times when the school is open for the child’s instruction; or
    
    b. to register the child for home schooling in accordance with the regulations and to ensure that the child receives instruction in accordance with the registration.¹⁹"
    
    
87. A parent failing this obligation can be guilty of an offence and be fined approximately $77.50.
88. At present there is no legislated right to education in Victoria for children. The Charter of Human Rights and Responsibilities Act 2006 (the Charter) provides various rights for children; however, a right to education is not one of them.

The structure of the department

89. The department is responsible for providing education services to students through the government schooling system.
90. The department is organised into seven central units one of which is the regional services group. This group comprises four regions across the state, each covering a mix of metropolitan and regional schools. These regions provide much of the support and services to schools as well as support to students and their families. This report largely concentrates on these regions as the representative of the department in dealing with expulsion matters.
91. Each region has a Regional Director under whom sit a variety of staff who act to support schools and students within the region – including nurses, language officers, health and wellbeing officers and Koori education officers.
92. The four regional offices are further broken down into 17 areas throughout the state to provide further localised support to schools and students. The introduction of 17 areas within the regional structure is one of the changes under the State Government’s Education State Initiative and aligns with the regional structure used by the Department of Health and Human Services.
93. In responding to the Ombudsman’s draft report the department provided the following information about changes to its regional model:

The Education State initiative

94. The State Government’s 2015-16 Budget included $4 billion in funding for early childhood, schools and training²⁰ to support its Education State initiative. The initiative sought to ‘revitalise our education system and transform Victoria into the Education State’²¹ and set targets under the following themes:
    • Learning for Life (Excellence in reading, maths, science and the arts, and in critical and creative thinking)
    • Happy, Healthy and Resilient Kids (Building resilience and physical activity in our children)
    • Breaking the Link (Ensuring more students stay in school and eliminating the connection between outcomes and disadvantage)
    • Pride and Confidence in our Schools (Making sure every community has access to excellence, in every school and classroom ).²²
95. Some of the new programs and structural changes that have come about from the Education State are referred to throughout this report.

Collection and use of data

A human rights perspective

245. Actions and decisions relating to expulsions in Victorian government schools can raise human rights issues under the Charter of Human Rights and Responsibilities Act 2006 (the Charter). Section 38 of the Charter provides that it is unlawful for a public authority (including government schools) to act incompatibly with a human right contained in the Charter or, in making a decision, to fail to give proper consideration to a relevant human right.
246. Section 17(2) is one of a few provisions in the Charter to recognise that children are entitled to special protection by virtue of their status as children. It provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
247. Central to this right, although not defined in the Charter, is ‘the best interests of the child’. Guidance can be drawn from the ‘best interests principles’ in section 10 of the Children, Youth and Families Act 2005 (which expressly includes access to education) and the United Nations Convention on the Rights of the Child (the Convention).⁸⁸
248. The Convention was adopted in 1989 and ratified by Australia in December 1990. It makes the best interests of the child ‘a primary consideration’ in actions and decisions concerning children and, like the Charter, defines ‘child’ as a person under 18 years of age.
249. Several articles in the Convention are particularly relevant to the decision to expel or exclude a child from a government school, including Article 12 that states children have the right to say what they think should happen when adults are making decisions that affect them, and to have their opinions taken into account. According to Justice
     Bell in Secretary to the Department of Human Services v Sanding:
     
     "It is unquestionably important for the voice of a child to be heard in matters affecting them. As I have said, children bear rights personally, and are entitled to respect of their individual human dignity.⁸⁹"
     
     
250. Articles 28 and 29 of the Convention expressly deal with education and the requirement that it be free and compulsory for all children and aim to develop a child’s personality, talents and mental and physical abilities to the fullest extent. Article 28 also requires that school discipline be administered in a way that respects children’s human dignity and other rights in the Convention.
251. In expulsion cases involving students with additional needs, like Daniel and Mitchell in case studies 1 and 2, the right to recognition and equality before the law under section 8 of the Charter is also relevant. Section 8 provides that every person is entitled to the equal protection of the law without discrimination, and has the right to equal and effective protection against discrimination. This right protects against discrimination on the basis of a condition or disorder that results in a person learning more slowly and behaviour that is a symptom or manifestation of a disability.⁹⁰
252. In addition to the Charter, Article 23 of the Convention provides that children with disabilities must have effective access to education in a manner conducive to achieving the fullest possible social integration and individual development.
253. The rights of children like Daniel and Mitchell under the Charter are not absolute and may be limited or balanced with other rights. This ensures that in protecting one human right, another right or the public interest is not unreasonably affected. Limitations on rights, however, must have a clear basis and must be reasonable and necessary in the circumstances.
254. A decision to expel or exclude a child from a state school that does not give proper consideration to the child’s rights under sections 8 and 17(2) may be unlawful. In making such a decision, the school should ask whether there is another reasonable way forward that is less restrictive on the child’s human rights.
255. The Ministerial Order and the Expulsion Report template do not refer to the need to consider the Charter when deciding to expel a student. However, the department’s
     Student Engagement and Inclusion Guidance: Expulsion Considerations provides:
     
     "Under Victorian Law, in deciding whether to expel a student, principals must undertake an assessment of that course of action under the Charter of Human Rights and Responsibilities Act 2006."

After expulsion

Continuing education, training or employment options

256. One of the primary concerns identified in complaints to the Ombudsman regarding expulsions was the difficulty some children and their families had in finding another school.
257. Under the Ministerial Order when a student is expelled:
     
     "The principal of the expelling school, in collaboration with the [department] regional office, must ensure that the student is provided with other educational and development opportunities as soon as practicable after the expulsion.⁹¹"
     
     
258. The Ministerial Order specifically requires that during the behaviour review conference, the principal identify ‘future educational, training and/or employment options most suited to the student’s needs and agree on a course of action in the event expulsion is decided’.⁹²
259. The Expulsion Reports analysed for the investigation did not always reveal what arrangements were put in place to ensure that this requirement was met. While some Expulsion Reports indicated that an arrangement was made for the student to enrol in another school, others were more vague.
260. Each Expulsion Report had a section to be completed by the school titled ‘Transition Plan’. Some of the reports lack any form of detail and include ‘plans’ such as:
     
     "[Student name] will continue to be supported with her learning until she commences at her new school.
     
     "School will continue to work with the family to secure an appropriate educational setting that will meet his needs.
     
     "The College will meet with [student] in the first week back to support [student] in finding an appropriate pathway."
     
     
261. The department does not routinely keep a record or any data on whether principals and regional offices are meeting the requirement to ensure that the student is provided with other educational and development opportunities. The investigation asked the department to provide advice on the ‘educational and development opportunity’ arranged for the 278 students expelled in 2016 and how long after their expulsion this occurred.
262. In response the department compiled and provided the investigation with the outcomes for 277 expulsions which occurred in 2016.⁹³ It should be noted that, despite the requirements of the Ministerial Order this information is not usually collected by the department and was provided for the purpose of the investigation.
263. The following table shows how long students were out of school following an expulsion. Although the majority of students were re-enrolled at another school within three months, 61 students were out of school for over three months. For 79 of the students the days missed were not possible to calculate due to deficiencies in the data provided.⁹⁴

Amount of school missed after expulsion

264. The investigation identified Expulsion Reports that did not demonstrate that principals had addressed the requirement in the Ministerial Order to describe pathways for future education. The investigation noted that where there was no clearly articulated plan for the student, there was often also a significant period of disengagement. For example:
     • 184 missed school days: A secondary school student with Post Traumatic Stress Disorder was expelled in early 2016 after admitting to smoking marijuana on school grounds. The Expulsion Report states ‘[another named school] is the preferred educational setting. [Expelling school] will make contact with the Principal to arrange an enrolment meeting’. The student was enrolled at a new school (different from the one suggested) in early 2017 after missing 184 days of school.
     • 150 missed school days: A secondary school student was expelled in early 2016 for driving on school grounds with other students in the vehicle. The Expulsion Report listed three Victorian Certificate of Applied Learning (VCAL), TAFE or alternative education options and stated that a careers counselling meeting had been arranged for the family and details of course options had been provided to family as well as ‘continuing contact with family to transition successfully to another location’. The student enrolled in TAFE in late 2016, 150 days after his expulsion.
     • 126 missed school days: A secondary school student was expelled in mid-2016 as a result of a culmination of behaviour that included inappropriate language, refusing to follow instructions, stealing supplies from the art room and holding a piece of burning paper in class. The section of the Expulsion Report relating to continuing education, training or employment stated:
       
       "school work to be provided for [the student] pending a placement at a neighbouring secondary college" and "[the school] and the regional office to broker an interview and placement at a neighbouring school in the… region."
       
       The student was enrolled in a new school in early 2017, after missing 126 days of school.
     • At least 115 missed school days: A secondary school student was expelled in mid-2016 as a result of being truant, uncooperative with teachers, intimidating to other students and involved in drug use. The Expulsion Report stated that the student and his family recently arrived from overseas and the student had been out of school for some time before arriving in Australia. The student and his parents did not attend the behaviour review conference. In early 2017 the student was enrolled in the nearest government school after missing 115 days of school.
265. The Victorian Association of State Secondary Principals’ submission addressed the issue of pathways for expelled students:
     
     "Principals understand that it is their responsibility to arrange for an expelled student to enrol at another school or find an appropriate educational pathway for students. This is a responsibility taken most seriously by principals. It is a time-consuming process and one which can give rise to a number of concerns, particularly when finding a suitable placement for a student is difficult.
     
     "Difficulties arise when the school approached by the principal refuses to accept the expelled student.
     
     "While at the Behaviour Review Conference, the Principal will discuss options with the student and their parents/carers, it is understood that generally the expelled student would move to the next nearest government school. However, there are occasions when the principal of that school refuses to enrol the student and when parents do not accept enrolment in the next nearest government school. In some rural and regional areas, there is no other government school within a reasonable or practicable distance. These difficulties can be further exacerbated by government schools having to accept expulsions from nearby non-government schools.
     
     "To address and overcome some of these difficulties principals in some areas and networks enter into arrangements to ensure that they fulfil their responsibilities and ‘take their turn’ so that students are placed appropriately. Other examples include schools forming a placement committee to in order to share the placement of expelled students equally among the schools.
     
     "The placement of students in another educational setting or pathway is definitely a stage of the process where principals believe there should be more support and involvement from the Regional Office. At present, principals report that there is little or no support from Regional staff in this process or, when there is, the Regional staff do not have sufficient knowledge of the process or the context in which the principal has made the decision to expel. Therefore, support for principals from the Regional office would assist with principal workload and also help to ensure positive outcome for the student.⁹⁵
     
266. At interview a departmental employee said that schools expel without having a plan in place for the student:
     
     "A lot of the things that I’ve done support on have been where is this young person going to be able to go to school? And one of them, one of the criteria [to expel] is you can’t expel if you can’t find an educational pathway for that student. But that doesn’t seem to be taken into account and there are a range of kids, I have a list of them, who haven’t been able to get to another school. So we’ve had to say from a regional perspective, you need to take that student back because they can’t get to school.⁹⁶"
     

267. For students in rural or regional areas such issues can be exacerbated because fewer schools or training organisations are available. At interview, a departmental officer based in regional Victoria gave an account of a recent example of a student who had been expelled from the only school in their town:
     
     "I said ‘how is he [the student] going to get to [town B] … there’s no bus from [town A] to [town B]?’ and she [the parent] couldn’t drive him, which she shouldn’t have to anyway that distance. But they [the expelling school] saw that as a pathway. And then they said, the principal said to me ‘well he can get on the V/Line bus’. And I went ‘well he will have missed the start of the school day and then he has to catch the bus ... at 2 o’clock to come back’.
     
     "That’s not an educational pathway, that’s nothing, that’s him being at school for about three hours a day and this was already a disadvantaged kid who had an intellectual disability who was funded under the program for students with a disability … But I had to keep pushing with that and so in the end I had to say, with the backing of my area director, ‘he needs to be re-enrolled with your school because there’s no other educational pathway for him so you shouldn’t have expelled him in the first place because you couldn’t find that [pathway]’.⁹⁷"
     
     
268. For some students the resultant educational pathway does not appear satisfactory but is the only one available due to where they live. The following case study is an example of this.

Appeals

269. Any student who is expelled from a government school can elect to appeal the expulsion. To do so they must submit the appeal to the principal within 10 school days of having received the Notice of Expulsion.⁹⁸
270. The principal then provides the Secretary of the department or their delegate with the appeal. In most cases the Secretary’s role in appeals is delegated to the regional office.
271. Following this, an Expulsion Review Panel may be appointed by the department, which must include a departmental representative, a RASP selected by the Regional Director and a RASP selected by the principal.
272. The panel reviews the Notice of Expulsion, Expulsion Report and Expulsion Appeal and convenes a meeting to give the student and/or their family an opportunity to be heard. The panel then prepares a report for the Secretary or their delegate recommending that the decision to expel be upheld or overturned.
273. The power to uphold or overturn the expulsion sits with the Secretary of the department or their delegate, most times the Regional Director or the Area Executive Director.
274. Expulsions can be appealed on one or more of four grounds. The grounds, and the number of times each ground was cited in 2016 appeals, are as follows:
     • the expulsion process was not followed by the principal: 8
     • the grounds on which the student was expelled are unfair: 16
     • there have not been sufficient prior interventions and strategies utilised prior to the decision to expel where the student has a history of behavioural issues: 18
     • other extenuating circumstances: 19.⁹⁹
275. In 2016 there were 22 expulsions appealed with eight overturned. Although the numbers are small it still represents 36 per cent of expulsions being overturned on appeal.
276. A Regional Director interviewed said that 44 per cent of appeals in her region resulted in expulsions being overturned. The Regional Director said:
     
     "That’s saying something isn’t it? If 44 per cent are upheld on process then either the processes are not well understood or they’re understood but they’re being, well, ignored is the strong word. Not carried out correctly.¹⁰⁰"

Successful appeals

277. The Expulsion Review Panel Reports for the eight 2016 appeals that resulted in an overturned decision revealed the following reasons for these decisions.

Table: Grounds for overturned expulsion decisions

278. In five of the eight appeals that resulted in the overturning of an expulsion, the decision was based on a failure to follow the expulsion process required by the Ministerial Order. For example, some Expulsion Review Panels recommended overturning expulsions when:
     
     "There was insufficient evidence to support that the Ministerial Order 625 [was complied with]. The BRC [behaviour review conference] MUST cover the following: any modifications or adjustments that would need to be made to enable the student to remain at the school.
     
     "There was no evidence presented in the documentation that the student’s options for future education were discussed. The Notice of Expulsion stated ‘enrolment [at other school] or alternate program to be discussed."
     
     
279. Expulsion Review Panels also recommended the reversal of expulsions when schools could not demonstrate that they had acted fairly in expelling the student. For example, one Expulsion Panel pointed out that:
     
     "On the evidence presented by the [school] the Panel concludes that it was difficult to understand the decision making process leadership had gone through to come to the conclusion that [the student’s] behaviour was of such magnitude that expulsion was the only mechanism available to them and that there were not alternative measures that could have been taken to address the behaviour."
     
     
280. One expulsion was overturned because in implementing strategies to support the student, the school had inadequately dealt with the needs of the student as an Aboriginal and Torres Strait Islander. The Panel wrote:
     
     " … the school provided support from school counsellor, arranged for referrals to external agencies which were declined by the family, adopted a restorative practice approach to behaviour management and liaised with Child Protection and Child First. [The parent/guardian] acknowledged that the school had made adjustments to support [the student]. The panel identified that there was not sufficient evidence of strategies in place to support [the student] as a Koori student."
     
281. When it considered extenuating circumstances, the Panel found that:
     
     "The panel acknowledges that the school was aware of and had taken into account that [the student] had recently moved to the area from the western suburbs of Melbourne and is a year 7 student. There is insufficient evidence that [the student’s] status as a Koori student was sufficiently taken into account in responding to his educational needs and the preparation for the [Behaviour] Review Conference in this instance."
     
     
282. The lack of strategies and interventions before deciding to expel and the lack of consideration of extenuating circumstances convinced another Expulsion Review Panel to recommend an expulsion be overturned. The Panel wrote:
     
     " … the family raised that [the student] is still adapting to [the school]. Having been in three schools in his secondary career, repeating a year and reportedly having been overseas for … months last year [the student] is at risk of not completing his education. On the evidence presented the Panel suggests he could have been more comprehensively supported over this transition period into the new school setting."
     
     
283. The following case study is an example of an expulsion that was overturned on appeal.

Lack of confidence in the process

284. The appeal process was a concern to several of the parents interviewed during the investigation. One parent interviewed felt the decision to uphold the expulsion had been made before the appeal was heard stating ‘basically we were walking into a fait accompli’.
285. Another parent said:
     
     "[the Ministerial Order does not hold schools] strongly enough to account. … They can manage the situation really, really poorly, there’s only a few boxes they have to tick based on that order and at the end of the day the way it’s written [the appeal panel] can say the principal complied with the order. Technically if you look at ticking the boxes he did comply with the order. Yes he notified us within the right time, there are very basic administrative things he has to do to comply with the order. There is nothing in the order around getting to the bottom of what has happened and understanding the situation. It talks about human rights and those sorts of things but it doesn’t provide any real criteria around those."
     
     
286. Some parents interviewed decided not to appeal an expulsion as they did not feel it would change the outcome and they did not want to further distress their child. A parent of an 11 year-old-child with Post Traumatic Stress Disorder who had been expelled said:
     
     "So I can’t find another school if I go ‘well hang on a minute I want to appeal it’. That just pushes everything out for [my son] and he’s missed so much school over the years and he needs, he wants to be at school he needs to be at school. That if I did the appeal process and then pushed it out even further and further and further as well as, I’m trying to do a full time job, I’m trying to look after [my son] and make sure he’s okay which is my number one priority. I feel that he needed my focus rather than me putting all this energy into appealing something that was kind of like pushing shit up hill in a sense because they weren’t listening to what I said anyway.¹⁰¹"
     
     
287. Another parent of an expelled 13 year-old child with Autism Spectrum Disorder said:
     
     "He’ll get back [to school], their attitude hasn’t changed, they’ve got no strategies in place they’re refusing to do anything. He’ll just get suspended and eventually expelled again. I said there’s no point appealing it because nothing’s going to change and by not appealing it I knew they had to give him another education pathway.¹⁰²"

Lack of independence

288. Consistent with parents’ concerns about the presence of RASPs at behaviour review conferences, the involvement of RASPs in the appeal process led some parents to perceive a lack of independence. The following case study gives an example of the issues one parent has with the current appeal process.

289. This is not to suggest the RASPs involved were not professional and impartial in performing their role; however, the perception was problematic for parents the investigators spoke with. One of the Regional Directors interviewed stated:
     
     "I just think it often puts principals in really difficult situations.
     
     …
     
     "I can understand why parents would say ‘This is a completely internal process reviewed by colleagues and other principals so where’s the objectivity sitting?¹⁰³"
     
     
290. A regional officer also said:
     
     "I think that stuff about the appeals panel is something I’ve always been concerned about and how that’s even effective or useful in any way, shape or form. It just looks like an administrative tick box to me.¹⁰⁴"

Lack of advocacy for the student in the appeal process

291. Seven of the parents interviewed for the investigation raised concerns about the lack of advocacy or support when appealing an expulsion. The following case study is an example.

292. In its response to the Ombudsman’s draft report the department stated:
     
     "The Ministerial Order provides for language and advocacy support for parents, carers and students in the expulsion process."
     
     
293. These include information sheets for parents titled Procedures for expulsion - Information for parents following your child’s expulsion that includes information on the appeal process. Another document available specific for Aboriginal and Torres Strait Islander students is titled Fact sheet for parents and carers of Koorie children and young people.

Unclear departmental guidelines

294. During the investigation it became clear that there were some inconsistencies in departmental policy regarding appeals, particularly for appeals on the grounds that the principal did not follow the expulsion process.
295. The School Policy and Advisory Guide lists a number of things that a principal must do and should do before, during and after a behavioural review conference and provides guidance about the Ministerial Order. It states:
     
     "Principals please note that throughout this guidance anything that is a legal obligation under Ministerial Order 625 is written as ‘the principal must’. Where the guidance states that ‘the principal should’, this is a best practice recommendation. Expulsion appeals on the basis of process [emphasis added] can only relate to items that state ‘the principal must’ not occurring.¹⁰⁵"
     
     
296. The distinction made between ‘must’ and ‘should’ is not relevant as the four grounds upon which students and their families can appeal an expulsion are set out in the Ministerial Order where no distinction between must and should is defined. This is confusing.

Informal expulsions

297. A common theme expressed during a period of scoping the investigation was the issue of informal expulsions, referred to by witnesses variously as ‘exclusions’, ‘soft exits’ or ‘soft expulsions’. Accordingly, the investigation’s fourth term of reference was to determine:
     
     "Whether the department is monitoring and preventing instances of informal expulsions, which occur outside a formal expulsion process."
     
     
298. For the purpose of the investigation informal expulsions are instances where a student (or their family) is encouraged or forced to leave a school without a formal expulsion process.
299. This can occur in a variety of different ways. A student or their family may be told to withdraw the student so they do not have a formal expulsion on their record. They may be encouraged to leave the school and enrol in a Victorian Certificate of Applied Learning (VCAL) or other education setting. These can include alternative education schools, TAFEs or other Registered Training Organisations.
300. In other instances a student may be placed on reduced hours or regularly suspended until their progress is sufficiently stymied that they will cease attending.
301. Informal expulsions are not permitted. The department’s School Policy and Advisory Guide states:
     
     "Schools must avoid practices that:
     • force students to transfer or withdraw from school; except when the student is expelled
     • restrict entry to eligible students.¹⁰⁶"
302. Despite this, none of the witnesses interviewed for the investigation, including departmental officers and school principals, were in any doubt that informal expulsions occurred.
303. In responding to the Ombudsman’s draft report the department stated:
     
     "Any action by a principal or a school to exclude a student from education, outside of formal processes, is contrary not only to the Department’s policy and guidance (as the draft report references) but also to the Ministerial Order.
     
     "The Department is very concerned about these instances and the impact they have on the wellbeing and future opportunities of the students involved."
     
     
304. The investigation met with 13 stakeholder and community groups involved with vulnerable young people in the four regions. The issue of informal expulsion was raised as significant in 11 of these meetings. Examples of informal expulsions mentioned to the investigation included:
     • A secondary school student was suspended for assaulting students and staff. The school refused to allow her to return to the school, but has also refused to expel her. The school has threatened to call the police if she returns to the school.
     • A secondary school student was told to leave the school after being caught with marijuana. The school said that she could come back a few years later in year 11 to complete VCE at the school.
305. Given the nature of informal expulsions, there are no figures on how many informal expulsions occur each year and which students are affected. Much of the evidence available is anecdotal. This will be revealed in this chapter in submissions, case studies and small sets of data from particular settings.
306. While schools can record on CASES21 why a student is ceasing enrolment at the school, the investigation has been unable to find a specific policy that requires that schools record the reason for a student ceasing enrolment.
307. Further, as the case studies in this chapter will show, families can be more or less forced into withdrawing their child. This means that even if regular data was collected and analysed by the department on student exits, it still may not be sufficient to measure informal expulsions.
308. However, it is worth noting some other data available in order to frame a discussion of informal expulsions. There were 278 formal expulsions in Victorian government schools in the 2016 school year between prep and year 12.
309. In a review of school funding, undertaken for the former Premier, the Hon Steve Bracks, Greater Returns on Investment in Education, notes ‘It is estimated that some 10,000 young Victorians from government and non-government schools drop out of school each year’.¹⁰⁷ The department reported that in 2013, 6,800 of these students disengaged from government schools.¹⁰⁸
310. There are a variety of reasons a student may cease attending a Victorian school in any one year. They may move interstate or overseas, they may enrol in a TAFE or similar or they may enter the workforce.
311. However, there appears to be some disconnect between the 278 formal expulsions in 2016 across all year levels and the estimated 6,800 students in years 9 to 12 becoming disengaged. Somewhere in between is the figure for informal expulsions.
312. The issue of informal expulsions was highlighted in a 2016 report by the Youth Affairs Council of Victoria titled Out of sight, out of mind? The exclusion of students from Victorian schools. The report states:
     
     " … a number of stakeholders from the education and youth sectors have reflected to us that formal expulsions are only the tip of the iceberg. While some students go through a standardised, official process of being expelled from school, there are others who are encouraged or urged to leave. Anecdotally, it appears the numbers of students in this latter category are much higher than those who are officially expelled.¹⁰⁹"
     
     
313. It should be noted that the department is piloting a new program that is attempting to re-engage students who have left school. The program, called Navigator, aims to assist students aged 12 to 17 ‘to re-engage with and education or training pathway’.¹¹⁰ The program is part of the current government’s Education State policy and is being trialled in eight sites across Victoria, a trial which was recently funded to extend until the end of 2018.¹¹¹
314. In its response to the Ombudsman’s draft report the department stated:
     
     "Early data indicates that Navigator is already achieving success. Data from the end of March 2017 (10 months into the pilot) indicates:
     
     • 496 young people are receiving case management supports through Navigator, and an additional 225 young people on the waitlist
     • 270 Navigator clients have re-engaged in education, with 157 (58 per cent) returned to a mainstream school, 30 per cent returned to a flexible learning option and 12 per cent to a Registered Training Organisation.
       
       Extending the pilot until the end of 2018 enables the department to build up a stronger evidence base of how the program is working and the best practice elements of a successful model.

Submissions

315. As no data is collected on informal expulsions, submissions and other information requested from individual organisations was important. This material not only highlighted individual cases of informal expulsion but also provided small data sets that help quantify informal expulsions.
316. One such submission was received from the Melbourne City Mission, which has established the Melbourne Academy (the academy) to ‘provide supportive, flexible education to young people who are disengaged from education and to reconnect them with schooling’.¹¹² In 2016 it had 209 students.
317. In preparing its submission Melbourne City Mission surveyed 35 of its students and conducted 16 interviews with students, teachers and wellbeing staff.
318. The survey revealed that 46 per cent of the students had been ‘informally asked to leave’ their school compared with 25 per cent who had been formally expelled.¹¹³ Others had become disengaged for other reasons such as their personal circumstances or difficulties with other students at a school.
319. The interviews conducted with students from the academy give an insight into how informal expulsions can occur at a school. One student stated:
     
     "I did get to complete year 11 and then when I wanted to complete year 12 they kicked me out because of my attendance. I couldn’t go every single day because I had a baby. They asked my mum to come in and sat us down in the office and just told us that I needed to put my six-week-old baby into childcare so I could come to school five days a week as well as doing work experience. I told them I couldn’t do that because I had a six-week-old baby and my mum couldn’t look after him either.¹¹⁴"
     
     
320. Another student stated:
     
     "I was told to leave and that I couldn’t finish year 11 and 12 because of my disability and my mental health as well. I was kicked out and sent to different schools and they couldn’t handle me.¹¹⁵"
     
     
321. A third stated:
     
     "I was never formally suspended or expelled, I was kicked out and asked to leave. They just told me that the school was too big for me. They gave me a couple of alternative schools, like, behaviour schools, but they didn’t really care once I left.¹¹⁶"
     
     
322. Like the academy, there are other schools around Victoria that seek to reengage young people in education who, for a variety of reasons have become disengaged. These schools are referred to as flexible or alternative schools.
323. One of these is the Pavilion School. At the request of the investigation, the Pavilion School reviewed its student enrolments to give a sense of the prevalence of informal expulsions.
324. The school informed the investigation that of the 126 students who enrolled between 1 October 2015 and 30 September 2016, 25 per cent had been informally expelled compared with less than nine per cent who had been formally expelled.¹¹⁷
325. Although both the academy and the Pavilion School are in metropolitan Melbourne, it appears that the issue of informal expulsions also exists in regional Victoria. In August 2015 staff from the Highlands Local Learning and Employment Network interviewed 16 young people in the region about their educational experience. The resultant report, Straight Up: The Lived Experience of Central Highlands Youth, noted:
     
     "It is understood that the Department of Education and Training has policies in place relating to both suspension and expulsion however, none of the young people interviewed identified a process of investigation or that a behaviour review conference occurred prior to ‘being kicked out of school’.¹¹⁸"

Alternative or flexible learning placements

326. Alternative education settings such the academy and the Pavilion School have been set up for the purpose of re-engaging students. However, there was concern expressed by some witnesses that children were being moved into such alternative settings via informal expulsions.
327. A Regional Director interviewed for the investigation said of alternative settings:
     
     "I’ve seen it work well and I’ve seen it be a dumping ground and an exit strategy for those kids.¹¹⁹"
     
328. Another regional officer echoed these concerns:
     
     "When it’s seen as a dumping ground for kids with behaviour problems then it’s wrong and it shouldn’t work.¹²⁰"
     
     
329. A submission to the investigation from Ballarat Community Health also raised concerns about the practice. The submission was informed by Ballarat Community Health’s operation of two programs that aim to support students to remain in education, Youth Support Service (YSS) and School Focused Youth Service (SFYS). The submission stated:
     
     "The difficulties and frustration that YSS and SFYS have experienced are with Victorian government schools that disregard Department of Education and Training (DET) policies. These schools, instead of following expulsion or suspension protocols, use euphemisms such as ‘moving a student on’ to other forms of education (often outside the mainstream) or employment. This is done without informing DET of the student’s movements.¹²¹"
     
     
330. Such concerns were illustrated in a case study provided by a community organisation.¹²²

331. Another example of a student being effectively forced into an alternative education setting through an informal expulsion is contained in the following case study. It is worth reiterating at this time that alternative or flexible education is primarily aimed at students who are disengaged from education.

Vulnerable groups

332. As with formal expulsions, evidence provided to the investigation suggested that vulnerable student groups may be more likely to be informally expelled. Though this is not possible to quantify, the anecdotal evidence from several witnesses and community groups highlighted the issue.
333. In a submission to the investigation, YACVIC and its partner organisations¹²⁴ stated:
     
     " … on the broader topic of student ‘exclusion’, the existing knowledge indicates that exclusion from school is often part of a bigger picture of disadvantage and marginalisation. Our members and stakeholders tell us that young people from disadvantaged backgrounds, young people with disabilities, and Aboriginal young people appear to be at higher risk than their peers of being excluded from school.¹²⁵"

Students with a disability

334. The parents of a young child contacted the Ombudsman direct to give an account of their experience when their child was informally expelled.

Effect of disengagement from education

349. The positive link between education and better results in a person’s life is well established. Similarly, a negative correlation exists between disengagement from education and difficulties for young people, including contact with the criminal justice system. This correlation highlights the importance of ensuring expulsions are used as a last resort and that expelled children are supported to engage in education.
350. DHHS provided data to the investigation relating to young people and their contact with the youth justice system. The data provides:
     
     "A ‘snapshot’ of 1094 children and young people involved with the Victorian youth justice service on 7 October 2015, both in youth justice centres on remand and sentence, and in the community on bail supervision, deferral of sentence, community sentences, parole and interstate orders.¹³²"
     
     
351. The data includes the educational attainment levels of young people involved in the youth justice system both in the community and in custody. The data provided does not allow a full examination of educational attainment levels, however does show that educational attainment appears to be generally low.
352. For example, 74 of these young people had attained education to grade 6 levels only despite the fact that only four of the young people were under 13 years of age.¹³³
353. Sixty per cent of the group have completed year 9 or lower and seven per cent have not been educated beyond primary school age.
354. By way of comparison, Department of Education and Training data shows that in 2016 approximately 89 per cent of students in Victorian government schools had completed at least year 11 at school and were commencing year 12.¹³⁴
355. The figures provided by the Department of Health and Human Services regarding youth justice clients also revealed that there were high levels of suspension and expulsion within the group.
356. Of the 1094 young people surveyed, 60 per cent (651) had previously been suspended or expelled from school.
357. For the 150 students clinically assessed as having intellectual functioning issues, the percentage was higher: 70 per cent (105) had previously been suspended or expelled from school.
358. The negative correlation between a lack of education and interaction with the justice system has also been the subject of academic study. During the investigation, Professor Michael Kidd contacted the Ombudsman to advise of research he and colleagues had undertaken in Queensland.
359. The research project involved analysing whether a causal relationship existed between education and crime, using data provided by the Queensland education department and the Queensland Police Service. In particular, the research examined criminal offending before and after the compulsory school age in Queensland was increased from 15 to 17 in 2006.
360. At interview, Professor Kidd said the research showed that increasing the school age in Queensland led to a reduction in crime rates among young people aged 15 to 17. When asked why, Professor Kidd stated:
     
     "There are sort of two obvious possibilities … one is that if you invest in, if you stay in school a bit longer, presumably you acquire more skills and consequently that increases the earnings in the labour market, which makes a life of crime, other things equal, less attractive than doing normal work. So that’s one possibility. The alternative is essentially that the reduction in crime comes solely from the fact that people are kept in school. They are incarcerated within the school system.^135"
     
     
361. The research also found the reduction of crime rates extended beyond school years into adulthood.¹³⁶
362. This is an issue that was also raised in a submission from the Victorian Association for Restorative Justice. In its submission it noted:
     
     "Young people are often particularly vulnerable at the point when they become fully disengaged from a school. If alternative arrangements are not made quickly, responsibility for ‘managing’ the young person may shift from the Department of Education, to Justice (through police) and/or by Health and Human Services (through young workers, Children’s Court officials and possibly also youth detention officers). Young people and other members of society are put at risk.¹³⁷"
     
     
363. The submission further makes an explicit connection between school disengagement and recent youth crime in Victoria that has attracted significant media attention:
     
     "A common feature in many of the aggravated burglary cases has been that the fifteen, sixteen, seventeen year olds appearing before the Children’s Court became disengaged from school, typically through suspension or expulsions, only shortly before becoming involved in significant offending. A recent generalisation about these cases, offered by an experienced Children’s Court lawyer, is consistent with the research literature, and with the experience of other professionals in the field - that the need to belong has overridden the will to do right.¹³⁸"

The Education Justice Initiative

364. One program that the department has set up to address these issues is the Education Justice Initiative (the EJI). The EJI was established in 2014:
     
     " … in response to the high level of school disengagement of young people appearing in the Criminal Division at the Melbourne Children’s Court of Victoria. Research shows that almost one-third of the children appearing at the Melbourne Children’s Court are not formally enrolled in any education setting, with many more enrolled but attending school [in]frequently.¹³⁹"
     
     
365. The EJI is funded by the department and managed through Parkville College, which is the government school for children who are or have been in custody. EJI staff are based at the Melbourne’s Children Court where they make contact with children coming through the court to establish if they are engaged in education and if they are not, offer assistance to re-engage them.
366. The funding for the program included an allocation to pay for an independent evaluation of its progress. This evaluation was undertaken by Victoria Institute for Education, Diversity and Lifelong Learning at Victoria University, which published a report in December 2015 titled, Education at the Heart of the Children’s Court - Evaluation of the Education Justice Initiative.
367. This report details the results achieved by the EJI as well as providing the reflections of students, their families and professionals in legal and human services who work with the same children.
     
368. The report states that between September 2014 and June 2015, over 950 individual young people appeared in the criminal division of the Melbourne Children’s Court. The EJI made contact with nearly half of these young people and worked closely with 103 of them to re-engage them in education.
369. An analysis of the education background of this group of 103, referred to by the EJI as their clients, revealed 32 per cent had been excluded from school¹⁴⁰ and 46 per cent were not currently enrolled in education¹⁴¹. Of the 54 per cent enrolled:
     • less than five per cent had attended school in the week prior to meeting with EJI staff
     • less than two per cent had attended more than half of school days the previous month
     • 72 per cent had been disengaged from school for at least two months
     • 34 per cent had last attended school between two and six months previous
     • 17 per cent had last attended school between six and 12 months previous
     • 21 per cent had been disengaged from school for more than a year
     • 44 per cent had five or more previous school enrolments.¹⁴²
370. The report found that the EJI had been successful in re-engaging a high proportion of its clients back into education. Of the group of 103 young people, 68 became ‘full clients’ of the EJI and the report notes that as of 30 June 2015 75 per cent had been re-engaged with education.
371. The report highlighted the positive feedback from those who had been involved in the program. The parent of one of the children said:
     
     "It was a big deal, getting himself to school, one hour on public transport, after not going for two years. He went most days. The program had a positive impact on him and a big change even at home. He could see himself doing something.¹⁴³"
     
     
372. A Koori Court officer said:
     
     "I know a few of the cases where you know, kids were disengaged from school for a couple of years and EJI staff reengaged them. And to me, you can’t actually put a value on that … just seeing the pride when they go back to school, that’s the main thing that I’ve seen from these kids when they go back to school, the pride and the self-worth.¹⁴⁴"

373. The former President of the Melbourne Children’s Court, Judge Couzens said:
     
     "I don’t talk about expenditure, I talk about investments. I think everyone knows from the publicity that appears from time to time, the cost of incarcerating either adults or children is huge. So the more you can do, particularly with young people, to rehabilitate them, the fewer will graduate into adult crime and the less the community will have to pay, it’s simple.¹⁴⁵"
     
     
374. The investigation received a submission from the Neighbourhood Justice Centre (NJC).¹⁴⁶ The submission described the way different schools responded to their students’ arrests after ‘offending incidents’ within the vicinity of Melbourne’s Federation Square.¹⁴⁷ Eight young men were involved in four separate incidents. The young men had no previous involvement with the criminal justice system.
375. The submission provided the following case study of one of the students involved in the incidents.

Conclusions

376. There are comparatively few formal expulsions from Victorian government schools each year. However, for those students who are expelled, this is a significant punishment and can have a profound impact on their lives. Apart from the rejection and trauma that being expelled may cause, children disengaged from school are also more likely to come into contact with the youth justice system.
377. The investigation’s analysis of expulsions in 2016 found that most expulsions occur for students between years 8 and 10 and that boys are vastly over-represented. Perhaps more concerning, however, are the instances of children in the early years of primary school also being expelled. It is difficult to conceive of circumstances where the behaviour of children as young as five or six could be of such magnitude that expulsion is the only option available.
378. The expulsions that are occurring also disproportionately affect some of the most vulnerable student groups, including students with disabilities, those in out of home care and Aboriginal and Torres Strait Islander students.
379. These vulnerable groups are not sufficiently protected by the current Ministerial Order and there is a need for greater support from the department for these students. Whether other vulnerable groups such as recent arrivals are also over-represented is not known due to poor data collection within the department. There is a clear need for improvement in this area.
380. It must be acknowledged that the job of principals and teachers is a difficult one, balancing the high needs and difficult behaviour of some students with the educational needs of all students, as well as the safety and welfare of both students and teachers. In these circumstances, it is appropriate for expulsion to be considered as an option where other methods of dealing with the student’s behaviour have failed – that is, it truly is a last resort.
381. But, in many cases, schools do not appear to be equipped with the resources, expertise and assistance, within the school and from the department more broadly, to provide the necessary support to students with higher needs; hence, the reliance on expulsion. The behaviour of these children may be extremely challenging, but it must be within the power of our education sector to support these children rather than simply shifting the challenge of the student’s behaviour from one school to another.
382. Formal expulsions are not the full story. There is clear evidence, although a paucity of data, suggesting that informal expulsions are more prevalent, despite departmental policy prohibiting their use. These do not get recorded or allow for the mandated supports to assist a student to further their education as set out in the Ministerial Order for formal expulsions.
383. Formal and informal expulsions, along with a myriad of other reasons students stop attending school, mean that thousands of school-aged children exit the education system each year. There needs to be every attempt made to identify these students and keep them in education.
384. Not only does this improve their prospects but research demonstrates that keeping young people in education reduces their likelihood of committing crimes in their youth and in later life. The benefits for society are obvious.
385. The findings of a review into the Education Justice Initiative illustrate this point. The clients of the Education Justice Initiative were children who had come in contact with the youth justice system. Forty-six per cent of them were not enrolled in education at the time they appeared at the Children’s Court and 32 per cent had been excluded from school.

Oversight and data

Oversight

386. In March 2014, Ministerial Order No.625 replaced Ministerial Order No.184 significantly shifting the level of departmental involvement in the expulsion process. Crucially, under the previous Ministerial Order a principal was required to notify the region if a student’s expulsion was being considered. The Regional Director was then required to send an officer to the school to discuss the potential expulsion, to ensure that there was an appropriate plan for the student’s future if the expulsion went ahead and to help implement this plan.
387. Under Ministerial Order No. 625 the power to expel a student is exercised by the principal alone. The department, through the Regional Director, is only notified of an expulsion after the fact (unless the student is in out of home care) and can only review an expulsion if it is appealed. There can also be departmental involvement after an expulsion if the school or parent asks for help in finding a new school for the student.
388. The record of expulsion provided to the Regional Director consists of the Expulsion Report and Notice of Expulsion, both completed by the principal. These documents do not provide sufficient information for the department or the Ombudsman to determine whether an expulsion has been carried out in accordance with the Ministerial Order.
389. What can be concluded is that close to two thirds of expulsions in 2016 did not meet the requirements of the Ministerial Order by virtue of the fact they are not recorded in the department’s CASES21 system.

Data

390. The data collected by the department is haphazard, incomplete and insufficient to make informed policy decisions with respect to expulsions. This is surprising given the profound impact an expulsion may have on a student.
391. The department, at the request of the investigation, collated the full expulsion numbers for 2014, 2015 and 2016. The department’s practice has been to only keep numbers for expulsions that occurred before August each year, meaning it does not know year on year how many expulsions are occurring for the full school year.
392. Further, despite it being a requirement of the Ministerial Order, only around one third of expulsions are recorded in CASES21. The data collection processes rely on a paper-based system where the only reliable record of an expulsion are forms, completed by the principal and sent to the regional office. There exists no other automated mechanism that allows for a centralised collection and qualitative analysis of expulsions.
393. This meant that the department had no reliable or easily accessible electronic records of the expulsions that had occurred in its schools. It also meant that the department had to undertake a time and labour intensive process to obtain the evidence required by this investigation from the Regional Offices.
394. From initial requests in late 2016, it took until May 2017 for the department to be able to provide a final number of expulsions that had occurred in Victorian government schools in 2016.
395. Until the investigation undertook its analysis, there was no data available on expulsions for:
     • children in out of home care
     • children with a disability
     • children with a mental illness
     • children who have recently arrived in Australia.
396. Apart from numbers on Aboriginal and Torres Strait Islander students expelled, this data was not kept by the department and is only available because of the analysis undertaken by the investigation.
397. Due to limitations in the data collected by the department this story is not complete.
398. The lack of data makes it difficult if not impossible for the department to recognise patterns in which students groups are being expelled and subsequently develop policies to address any issues identified.
399. In addition, the department does not collect data or track the outcomes for students who are expelled from government schools. This is surprising given the Education State initiative’s focus on keeping more students in school and eliminating the connection between outcomes and disadvantage. Our analysis revealed that 61 of the students expelled in 2016 were out of school for over three months and for 79 students there is insufficient data to determine how long they were out of school.
400. The absence of data and the department’s limited oversight of school expulsions, has contributed to the department’s failure to identify and address the prevalence of expulsions among vulnerable groups and schools’ non-compliance with the Ministerial Order, which seeks to protect students from unfair expulsions.

Formal expulsions (observations)

401. The Ministerial Order outlines basic requirements that a principal must meet when expelling a student. These requirements are not onerous; nevertheless, the investigation’s review of the 2016 expulsions identified non-compliance with the Ministerial Order.
402. The investigation identified expulsion reports that failed to demonstrate how options other than expulsion were considered.
403. In addition, in at least 120 of the expulsion reports reviewed did not demonstrate that a student’s behaviour was of such a magnitude that expulsion was the only available response.
404. It is reasonable and in line with community expectations that predictable, consistent and objective decisions are made across Victorian government schools. However, inconsistent decision making was evident across the 278 expulsions.
405. This was most striking in the expulsions that were related to drugs: a student caught smoking marijuana one time was punished the same way as a student dealing drugs in the school. Decisions to expel in some of these cases were questionable considering the department’s drugs policy and public statements emphasising a student wellbeing approach to drug matters.
406. Principals are able to exercise their discretion within the parameters set by the Ministerial Order and with the exercise of autonomous decision making comes a level of subjectivity and can lack accountability. The issue is not whether principals have the discretion to make these decisions, but whether a young person’s future at their school or future pathway should depend entirely on the view of one principal.
407. The investigation also identified expulsions in which principals did not provide evidence to support the allegations against students. This is inconsistent with principles of good decision making.
408. Under the Ministerial Order, it is not mandatory that principals conduct a thorough investigation of the allegations against a student before proceeding with expulsion. While, departmental guidance states that it is best practice to conduct investigations, there is no obligation to, and failure to do so does not create a right of appeal. This was a concern to the investigation.
409. A young person at risk of expulsion ought to have an equal or greater expectation of protection than an adult facing potential termination of employment, not less. This is especially true when the expulsion numbers reflect an over-representation of young people from vulnerable groups.

Vulnerable groups

410. The investigation has found that Aboriginal and Torres Strait Islander students, students with a disability and students in out of home care were all over-represented in formal expulsion numbers in 2016.
411. For instance students who receive PSD funding represent around four per cent of the student population, yet they represent over 16 per cent of expulsions.
412. Despite the vulnerability of these groups there is a lack of protection in the current Ministerial Order and associated policies for expulsions. For instance, it is a requirement that the regional office be notified when a principal is considering an expulsion for a student in out of home care and international students.
413. However, for others such as Aboriginal and Torres Strait Islander students or students with a disability, such safeguards are optional and the evidence of witnesses in the investigation suggests it is not effective.
414. The instances of students with a disability being expelled is of particular concern. There is no requirement that the regional office be consulted and it can be argued that, as in some of the case studies in this report, the students were expelled for behaviour that is a result of their disability.
415. This brings into question whether the department is providing sufficient support for students with a disability and whether the expulsion of a student with a disability is discriminatory and a breach of the department’s obligations under the Charter of Human Rights and Responsibilities Act 2006.
416. In its response to the Ombudsman’s draft report the department stated:
     
     "The issue raised is a very complex one (where the student’s behaviours are a manifestation of their disability but despite provision of all reasonable adjustments the student is still behaving in a manner that endangers others). However, Ministerial Order 625 does require principals to take into account a student’s disability (and other circumstances) when determining whether the expulsion is appropriate."

Trauma

417. Childhood trauma was regularly cited by witnesses and in submissions as a key area of concern regarding expulsions. Students suffering from trauma-related behavioural problems were identified as presenting a significant challenge for schools and one they were perhaps ill-equipped to handle.
418. No departmental data was available on how many of the students had been expelled exhibited signs of trauma. An analysis conducted by a clinical psychologist for the investigation showed that indicators of trauma were highly prevalent in a random sample of expulsion reports.
419. There is an obvious need for the department to continue to develop policies and support programs to assist students who have been exposed to trauma, and to equip schools and teachers with the skills and assistance to do so.

After expulsion

Future education, training or employment options

420. Children between 6 and 17 years of age are of compulsory school age. In Victoria universal access to education is provided through the government school and training system.¹⁴⁸
421. The importance of young people being in school is highlighted in the Ministerial Order, which requires that the principal, in collaboration with the regional office, ensure that the student is provided with other education or development opportunities as soon as practicable after expulsion, and that the plan is documented in the Expulsion Report.
422. The investigation identified that, contrary to the Ministerial Order, principals often provide details of a plan for future education or training upon expelling a student and the department does not monitor compliance with this requirement.
423. It was only after a request from the investigation that the department was able to provide information about where the majority of the 278 students ended up after expulsion. The investigation was concerned by the amount of time many students were disengaged after expulsion and that for some students their destination was unknown.
424. Given what is known about the adverse outcomes for disengaged young people, including increased contact with the criminal justice system, it is critical that the education system comply with the Ministerial Order and places children in education or training as a matter of urgency if they are expelled.

Appeals

425. Evidence to the investigation from parents was that the appeals process is unclear, contradictory and does not provide adequate support for students and their families while they try to navigate the process.
426. Parents told the investigation that they lacked confidence in the process, one describing it as a fait accompli. Parents also felt that RASPs were too closely aligned with the expelling principal to be an independent voice during the expulsion review. At interview, a Regional Director said that they could understand why parents felt this way.
427. The majority of parents interviewed raised concerns about the lack of advocacy and support during the appeals process, especially when faced with the expertise and resources of the department. Some expressed concerns that it would be that nearly impossible for parents with less education or who spoke English as a second language to be able to navigate the appeals process.
428. The guidance material for parents appealing an expulsion makes an unnecessary distinction between the use of ‘must’ and ‘should’ in the Ministerial Order as grounds for an appeal.
429. The grounds under which an expulsion can be appealed are themselves already set out in the Ministerial Order and should not be qualified in departmental guidance material. This has the potential to confuse students and their families and discourage appeals.
430. Thirty-eight per cent of appealed expulsions were overturned by the department in 2016. Of these, five out of the eight overturned expulsions were because the expelling school failed to follow the process outlined in the Ministerial Order. This indicates that too often schools are expelling students contrary to departmental expectations and the requirements of the Ministerial Order. Our analysis demonstrates that this issue is not confined to those expulsions that were appealed.

Informal expulsions (conclusions)

431. Informal expulsions are not permitted, yet they are clearly occurring. All departmental witnesses acknowledged that informal expulsions occur in government schools. The case studies in this report as well as submissions to the investigation provide further evidence.
432. Despite this, it does not appear that the department is taking effective action to prevent or monitor instances of informal expulsions. Some case studies identified instances where regional officers were aware of a school’s intention to informally expel, but nothing was done to prevent it. Perhaps because the officers felt powerless to do something; or because they perceived the child would be better off in another school.
433. There was no reliable way for the investigation to get data on informal expulsions as there is simply no data kept by the department. The number of informal expulsions is not known nor is any indicative number available.
434. As was noted in the report, there were 278 students expelled in 2016 yet the department states that around 6,800 students per year disengage from government education between year 9 and 12. It can only be concluded that somewhere between these two figures is an indicative number for informal expulsions.
435. The small data sets the investigation obtained from two alternative education providers, the Melbourne Academy and the Pavilion School, show that informal expulsions were approximately twice as prevalent as formal expulsions amongst its students.
436. Based on these small data sets and the witness evidence and submissions provided to the investigation, it is reasonable to conclude that informal expulsions are more common than formal expulsions, perhaps much more common.
437. As with formal expulsions there is evidence in the form of case studies and submissions that vulnerable groups may be more likely to be informally expelled but there is unfortunately no data available to confirm this. The department does not routinely keep records of why students move from one school to another.
438. There is a clear case for more to be done regarding informal expulsions. The issue cannot be addressed adequately until the department is able to measure the scale of the issue and fill in the significant gaps in the data.

Results of efforts to re-engage students and reduce expulsions

439. The evidence highlights significant areas for improvement with respect to formal and informal expulsions. However, the investigation also received evidence of successful efforts to re-engage students and reduce expulsions:
     
     LOOKOUT Centres
     
     LOOKOUT Centres provide professional development and support to schools, carers and child protection practitioners to improve educational outcomes for students living in out of home care. As of Term 1 2017, LOOKOUT Centres are operating state-wide. A principal leads the Centres, which consist of a multidisciplinary team with skills in education, psychology, social work, and expertise in the particular educational and cultural needs of Aboriginal and Torres Strait Islander children and young people. Through LOOKOUT, nominated teachers in government and Catholic schools are trained to become Designated Teachers, who ‘act as advocates for kids in care, ensuring high expectations for their learning and development and ensuring the best interests of every child is given the highest priority’.
     
     The LOOKOUT Centre in South West Victoria Region was the first Centre to be established. By the end of 2016 it was already demonstrating an impact, reducing the number of expulsions of students in out of home care in the region from 9 in 2015 to zero in 2016.
     
     The Victorian Government reported that, as a result of the pilot, the ‘number of students in out of home care in the region who were not enrolled in school declined from 64 to 17 by December 2016 and expulsions reduced to zero’. The government reportedly aims ‘for every school in Victoria to have a trained Designated Teacher by the end of the year’.¹⁴⁹
     
     The Education Justice Initiative
     
     The EJI was established in 2014 ‘in response to the high level of school disengagement of young people appearing in the Criminal Division at the Melbourne Children’s Court of Victoria’.¹⁵⁰ EJI staff make contact with children coming through the court to establish if they are engaged in education and if they are not, offer assistance to re-engage them. An evaluation of the program found that the EJI had been successful in re-engaging a high proportion of its clients back into education. Of the group of 103 young people it worked with, 68 became ‘full clients’ of the EJI and, as of 30 June 2015, 75 per cent had been re-engaged with education.¹⁵¹
     
     Project to improve students’ social and emotional skills
     
     As detailedin this report, in response to ‘high rates of students being exited from class for misbehaviour, and of students being suspended or expelled for incidents involving disruption, defiance and aggression’ the North West Victoria Region implemented a series of actions to improve students’ social and emotional skills. Since the project commenced, the Regional Director reported there has been an almost 50 per cent reduction in students being removed from class or suspended for misbehaviour; and a reduction in the number of students expelled from 12-18 in 2013-15 to four in 2016.
     
     Responses of individual schools
     
     Case studies one and two of this report also detailed parents’ satisfaction with the support provided to their children in their respective new schools after expulsions and a reported lack of support from other government schools.
     

Opinion

440. On the basis of the evidence obtained in the investigation, the Department of Education and Training appears to have acted in a manner that is wrong¹⁵² by failing to effectively oversee expulsions at Victorian government schools during the 2016 school year - in particular, by failing to:
     • ensure that expulsions occurred in accordance with Ministerial Order 625
     • keep adequate data regarding expulsions in light of the impact on a child
     • monitor and ensure that students expelled are provided with further educational or development opportunities
     • monitor and prevent incidents of informal expulsion.

Recommendations

To the Minister for Education

Minister's response:

I support your proposed recommendation for amendment to the current ministerial order. The Victorian Government is committed to transforming Victoria into the Education State. That means every Victorian child and young person is supported to remain engaged in education, so that they reach their potential, regardless of background or circumstance.

A significant challenge for schools is also ensuring the safety and order of the school, in order to protect the learning environment for all students and staff and to allow for effective teaching. Every Victorian child and young person should have the opportunity to learn in a safe, positive and supportive classroom environment.

As you are aware, I have asked the Department to review its suspension and expulsion policy to ensure that it aligns with the Education State targets to reduce the number of students who disengage from education. The Department’s review of suspension and expulsion policy will be informed by and address the findings and recommendations of the Ombudsman’s report.

This includes consideration of further potential amendments to the Ministerial Order 625 governing suspensions and expulsions, to ensure all students, particularly vulnerable groups are supported to remain engaged in education.

As part of its review, the Department will also consult with our stakeholders to ensure that we can draw from their expertise in the finalisation of our reform proposals.

To the Department

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.

Department's response: The department supports this recommendation.