For everyone The law & you: Using restraint

Illustration: iStock

The issue of restraint has arisen a number of times throughout 2019. This is a complicated issue because it intersects with various legal and policy considerations.

In relation to the legal regulation of restraining students, the starting point under the common law is that a teacher stands in the position of a parent in respect of their students – they are “in loco parentis”. 

Again under the common law, a parent has, according to Sholl J in the 1955 case of R v Terry, “a lawful right to inflict reasonable and moderate corporal punishment on a child for the purpose of correcting the child in wrong behaviour” (R v Terry [1955] VLR 114 at 116 (Sholl J)). 

At the time, Justice Sholl considered that the right of “lawful correction” is circumscribed (or limited), his Honour suggested that caning a 14-year-old boy would be acceptable. 

More recently, Croucher J in R v Hughes [2015] VSC 312 doubted this would be acceptable today and noted that the “lawful correction” right had been abolished in jurisdictions outside of Victoria. His Honour stated that the issue was a matter for the legislature to decide

DET should explain its policies to employees and take steps centrally or through regional offices to train staff in their obligations.

The legislature has, in part, regulated this matter in schools. For example, it is not possible to register a school unless it has policies that proscribe corporal punishment.

DET regulates aspects of physical control of students principally through the:

  • Education and Training Reform Regulations 2017 (Vic) regulation 25
  • “School Policy and Advisory Guide — Restraint of Student”.

While there is no absolute prohibition on restraining a student, the practice is strictly circumscribed. A document that supplements the department’s policy (and sets out 15 principles around the issue of restraints) states that a restraint can only be used:

  • in situations where the student’s behaviour poses an imminent threat of physical harm or danger to self or others; and
  • where such action (i.e. to physically restrain or seclude) would be considered reasonable in all the circumstances; and
  • where there is no less restrictive means of responding in the circumstances.

The document adds that restraint or seclusion should be discontinued “as soon as the immediate danger has dissipated”.

These obligations are couched in terms that are, by their nature, indefinite. For example:

  • What is an “imminent threat”?
  • What level of harm or danger to a teacher or another person allows the use of a restraint?
  • What is “reasonable in all the circumstances”?

The indefinite language contained in the department’s policy makes it difficult to apply in practice – particularly when the use of restraint is most likely to be a split-second decision. Further, even if the decision to restrain a student is originally permissible, an employee then needs to consider using the least restrictive means of restraint and for no longer than necessary. 

The department has produced a good deal of information that can guide members on their obligations. However, DET needs to do more than upload material on its website and expect that it will be absorbed and enacted. Given the seriousness of the obligations – and the fact that the obligations are cast in indefinite terms – the employer should explain its policies to employees and take steps centrally or through regional offices to train staff in their obligations. 

After all, the potential disciplinary consequences for those employees who get it wrong (irrespective of their intent) are significant. 

This is a general problem with the department – it is good at promulgating policies but poor at explaining the obligations. If the destruction of a small forest was not a consideration, it would be interesting to actually see how many pages of these obligations DET sets for employees through its policies, legislation and regulations.

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