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QUEENSLAND PARLIAMENTARY LIBRARY -Research Publications and Resources Section- Research Note

No 1, March 1999 ISSN 1440-5490

SCHOOL BILL 1999

INTRODUCTION detractors the is seen as a symbol of authoritarianism in .3 In his 1997-98 Annual Report to the Queensland THE OMBUDSMAN’S REPORT Legislative Assembly, the Queensland Ombudsman, Mr Fred Albietz, concluded that there was no In his 1996/97 Annual Report to the Parliament, the statutory basis for schools to make the wearing of Queensland Ombudsman stated that: compulsory and that the position could only be changed by legislation.1 It appears that some schools, via their P&C associations or their principals, are either On 3 March 1999, the Minister for Education, Hon excluding children who do not wear a uniform or DM MLA indicated his intention to issue a are imposing certain penalties on them, such as determination under s 84 of the Education (General isolation or exclusion from school activities, Provisions) Act 1989 (Qld) which would “empower which to my mind amount to the same thing, i.e. parents and citizens associations to decide whether compulsion. their school will have a school code policy, and if so what that will be”.2 Subsequently, Nothing in the Education Act or regulations the School Uniform Bill 1999 (Qld), a Private specifically states that school uniforms can be Member’s Bill, was introduced into the Queensland made compulsory and, in fact, I don’t believe that Legislative Assembly on 4 March 1999 by Mr Quinn, even the Education Department’s policy on the the Shadow Minister for Education. This Research matter goes that far. The department and Note looks at the issues which gave rise to the principals have responsibility for the good Ombudsman’s comments and at the relevant management of schools but it is by no means provisions in the Education (General Provisions) Act clear that this entitles them to expel or penalise and Regulation. The responses proposed by the students who don’t wear a school uniform. Minister for Education, and in the Private Member’s Bill, are then outlined in more detail. The approach Expulsion is a fairly drastic consequence and if it which has been implemented in Western is to be government policy, then I believe it should 4 within recent years is also outlined for readers’ be spelt out clearly in legislation. information. This issue was re-visited by the Ombudsman in his BACKGROUND 1997/98 Annual Report. A parent had complained to the principal that his son had been harassed by a The school uniform is generally considered to have teacher for wearing of a different colour to that made its appearance as part of the English Public prescribed in the school’s uniform policy. The school school system in the mid-19th century. The school principal had assured the parent concerned that his uniform, coupled with other school features such as son would not be harassed again; however, the child the school badge and colours, is seen as instrumental was again sent to the office by a teacher for failing to in giving rise to a sense of school spirit, and in serving wear the right socks. The parent subsequently to differentiate between schools by providing a complained to the Education Department and to the distinctive identifying mechanism. Ombudsman’s Office. The complaint was resolved without it being necessary for the Ombudsman’s Proponents of the school uniform argue that wearing a Office to investigate; however the Ombudsman school uniform promotes pride in a school, denotes a nonetheless resolved to look into the question whether -managed and administered educational institution it is compulsory to wear uniforms in State schools. and discourages recalcitrant behaviour. To its After investigating various provisions in the Education (General Provisions) Act and its associated behaviour to create a caring, productive and Regulation, the Ombudsman environment for learning · promote an effective teaching and learning environment at the institution which allows concluded that: positive aspirations, relationships and values to develop ... if it were intended by the Act or Regulation that the Department [of Education] or principals or · teachers or the school community should be able · foster mutual respect among all those at the to enforce school uniforms on pain of penalties up institution to expulsion or exclusion, clearer language would · encourage all of the students attending the have been used. institution to take increasing responsibility for their own behaviour and the consequences of their If schools are imposing sanctions on students not actions. in uniform then they are doing so with no legal basis. Section 28 spells out the grounds upon which a student may be suspended from school. They are ... putting inappropriate dress aside, a student disobedience, misconduct or other conduct prejudicial who is reasonably dressed cannot be punished or to the good order and management of a state treated differently in any way for not wearing the educational institution(s). Section 33 provides that a official school uniform.5 student may be excluded on any of the above grounds The relevant provisions of the Education (General where the student’s disobedience, misconduct or other Provisions) Act and Regulation are outlined below, conduct is so serious that suspension is not adequate together with the Ombudsman’s interpretation of to deal with the behaviour. them. Commenting on these provisions in the Education THE EDUCATION (GENERAL PROVISIONS) (General Provisions) Act, Mr Albietz stated: ACT AND REGULATION It might be argued that if a plan makes uniforms The Education (General Provisions) Act 1989 compulsory and a student knowingly refuses to comply, that is at least ‘disobedience’. However Section 27(1) of the Education (General Provisions) this would in my view only be the case if the Act 1989 makes it mandatory for each principal of a requirement to wear a uniform were within the state educational institution to ensure that a process is objects of the plan as delineated in [s 27(2)]. I established for developing a behaviour management cannot see that it is. plan for the principal’s institution. It might also be argued that nothing in the Act or These amendments to the behaviour management Regulation proscribes clearly unacceptable provisions of the Education (General Provisions) Act behaviour such as fighting and talking in class, were inserted by the Education (General Provisions) yet surely a school is entitled to make enforceable Amendment Act 1996 (Qld) to streamline processes rules prohibiting those types of behaviour. That for behaviour management in state schools. The is so, as such behaviours are clearly contrary to changes arose as a result of concerns expressed by the permissible objects of behaviour management principals that there was a need to devolve decision- plans ... (supportive and safe environments, making to principals, consistent with school-based effective teaching and learning environments, management, in order to more effectively manage the mutual respect etc).7 behaviour of disruptive students.6 The Education (General Provisions) Regulation Section 27(2) sets out the objectives behind behaviour 1989 management plans ie a behaviour management plan must: Section 4 of the Regulation · promote a supportive environment such that every Section 4 of the Education (General Provisions) member of the educational institutional may work Regulation 1989 provides that a State school’s together in developing acceptable standards of principal is the person in of the school and is responsible for the general management of the school. Section 4(2) of the Regulation delineates the MLA stated in Parliament on 3 March 1999 that he principal’s responsibilities (under the Regulation, the would issue a determination under s 84 of the list is not exhaustive): Education (General Provisions) Act: · to promote educational practices at the school which lead to student learning outcomes being That will empower parents and citizens improved associations to decide whether their school will have a school dress code policy, and if so what · to manage the school in a manner which promotes that dress code will be. If P&Cs wish to decide in effective, efficient and appropriate management of favour of a school dress code they will be given public resources and a safe, supportive and the opportunity to express a view that a school productive learning environment dress code furthers the objectives of the Act in the · to provide for the effective administration of context of the particular local circumstances of matters about the students at the school their own school, thus giving principals the · to promote organisational and staffing structures opportunity to incorporate the school dress code at the school that encourage skilled, confident and into the school’s behaviour management policy. responsible members of staff · to promote continuous evaluation and ... At the same time, principals should not be able improvement of the school’s operations and to use draconian measures to discipline students delivery of services. whose only offence is failure to wear correct school uniform. Suspension, exclusion, or Of s 4, the Ombudsman said: negative comments in school reports, and any In my opinion it is highly unlikely that a other sanction which has the consequence of responsibility for generally managing a school detrimentally affecting the school career or extends to imposing sanctions on students employability of the student should be avoided. (including expulsion) for the non-wearing of a Departmental protocols will be issued to guide uniform.8 principals in the direction of appropriate means of implementation.10 Part 5 of the Regulation The Minister described the proposal as one which: The Ombudsman considered that if a principal did have authority to enforce the wearing of a uniform, ... requires P & Cs to work together with the basis for that authority would presumably be principals in a policy for their own school found within Part 5 of the Regulation which deals community. It builds social capital in our schools with student administration. Matters covered by Part by requiring parents, staff and principals to work 5 include recording the attendance of students (s 32), together on the basis of trust. Most importantly it the continued absence from school of a student (s 31), gives the decision as to what children will wear to enrolment requirements (s 33), student transfers (s 34) the people who ought to be making it - their mums 11 and the transfer of student records (s 35), home study and dads. (s 37) and detention (s 38), and makes a principal The School Uniform Bill 1999 responsible for “the progress and good behaviour of a student” while the student is under the principal’s On 4 March 1999, Mr Quinn, the Shadow Minister care and control, and for making arrangements for for Education, introduced the School Uniform Bill as students to be effectively supervised during the times a Private Member’s Bill. In doing so, he stated that they are under the principal’s care and control (s 36). the Bill’s purpose was “... to ensure that our 1,300 However, as the Ombudsman pointed out, Part 5 State school communities have the legal backing they “does not refer to school uniforms, either explicitly need to develop and apply their own individual dress 9 or implicitly”. codes within an agreed framework, whether or not that involves the student uniform”12. The provisions RESPONSES TO THE OMBUDSMAN’S of the Bill are outlined below. Wherever relevant, the REPORT comments of the Queensland Parliament’s Scrutiny of Ministerial Statement on School Uniforms Legislation Committee about the Bill are also referred to. To clarify the situation regarding the wearing of school uniforms in the wake of the Ombudsman’s Power to make a school dress code vested in school report, the Minister for Education, Hon DM Wells principal Clause 3 of the Bill proposes to amend the Education rights and liberties of the students or their (General Provisions) Act by inserting a new s 26A parents. Reasonable restrictions on other matters which gives to principals of State schools the such as hairstyles, and body discretionary power to make a dress code for the are considered by the committee to fall into the students at their schools. same category.16

The Scrutiny of Legislation Committee noted that Ultimately, the Scrutiny of Legislation Committee “dress code” was not defined within the Bill. In view referred to Parliament the question whether Clause 3 of the likelihood that it would encompass matters such of the School Uniform Bill by authorising the making as hairstyles and the wearing of jewellery and other of dress codes which compel students to wear body ornaments, but given the uncertainty due to the specified types of including uniforms, and absence of a definition, the Committee recommended which may control matters such as hairstyles and the that the term “dress” or “dress code” be defined in the wearing of jewellery and body ornaments, can be said Bill, even if non-exhaustively.13 to have sufficient regard to the rights and liberties of students and their parents.17 School dress code may make provision about Consultation to take place before dress code is wearing school uniforms made Proposed new s 26A(2) goes on to provide that a Under proposed new s 26A(3), it is a mandatory school dress code may include provision about the requirement for a school principal to undertake wearing of uniforms by students when they are consultation as prescribed by regulation with the attending or representing the school. school’s staff, parents and students before formulating a dress code. The Scrutiny of Legislation Committee that the term “representing” could on occasions give rise to Dress code to be approved by executive difficulties of interpretation, in view of the range of school-related activities in which students may take Under the proposed amendment, the dress code will part.14 have no effect until the chief executive (ie the Director-General of Education) approves it: proposed Effect on rights and liberties new s 26A(4). In deciding whether to approve a dress In its booklet, Know Your Rights at School, the code, the chief executive must consider the matters National Children’s and Youth Law Centre looked at prescribed by regulation: proposed new s 26A(5). students’ rights in relation to uniforms and dress Regulation-making power codes. Their view was expressed as follows: Clause 4 of the School Uniform Bill 1999 provides The Convention on the Rights of the Child for the regulation-making power contained in the (CROC) says that all children under 18 have a Education (General Provisions) Act to be amended by right to freedom of expression. Perhaps laying adding the making of a dress code to the list of matters down strict uniform rules takes away your right to about which the Governor may make regulations. express yourself through your clothing, but school Under proposed new s 152(2)(ba), regulations may uniforms are part of life in Australia. Many prescribe: working people (for example, airline attendants and bank tellers) have to wear special clothes as · consultation about a proposed dress code - (ba)(i) part of their job. While it has never been legally · matters that must be considered when deciding a decided, it is likely that the courts would support dress code - (ba)(ii) the right of schools to set reasonable dress codes · provision in a dress code for exemptions from or for students.15 modifications to the code’s requirements - (ba)(iii) After examining the question whether making it · sanctions that may be applied for contravening a compulsory to conform to a dress code might infringe dress code - (ba)(iv) the rights and liberties of students and parents, the · other matters that may or may not be included in a Scrutiny of Legislation Committee took the view that: dress code - (ba)(v) · matters for consideration by the chief executive in ... requirements that school students wear clothes deciding whether to approve a dress code - of a reasonable standard, or that in addition they (ba)(vi) wear a prescribed uniform of a reasonable type · publication of a dress code - (ba)(vii). and price, do not unreasonably intrude upon the Matters for inclusion in a dress code Under the Act, a school decision-making group is to be comprised of parents of students at the school, staff The Scrutiny of Legislation Committee speculated at the school, members of the local community and that issues such as whether the term “dress code” (except for pre-primary centres or primary schools) extended to hairstyles, jewellery etc were perhaps students at the school: s 21D(1). Students need not be intended to be addressed in proposed new represented on a school decision-making group if they s 152(2)(ba)(v). If so, the Committee said, that have chosen not to be: s 21D(1). would, in its opinion, be an inappropriate delegation of legislative power.18 A school decision-making group must consult with the “school community” before preparing and approving a Sanctions dress code: s 21D(2)(b). The “school community” is The Scrutiny of Legislation Committee expressed defined as comprising parents of students at a school, concern that the sanction-making power had been together with students and staff at the school: s delegated entirely to the regulation-making process. 21D(4). The Committee took the view that it was: Under s 21E (ga) to (gc) of the Education Act, as ... essential that the range of sanctions which may amended by the Education Amendment Act 1996, be visited upon a student not complying with a s 26A dress code be stipulated in the Act itself, regulations can be made: rather than being left to regulations. · about the matters which may, or cannot, be The committee notes that current s 28 (suspension provided for in a school dress code of student) and s 33 (exclusion of student) may · about the procedures to be followed by a school both be invoked against a student guilty of, decision-making group when formulating and amongst other things, ‘disobedience’. approving a school dress code Presumably these provisions are intended to be · enabling the principal of a school to exempt a ousted in relation to contravention of a s 26A student at the school from complying with any dress code, but the committee believes this should requirement of the school dress code. be expressly stated”19 Under s 28(1)(c), the discipline to be enforced for not Review Processes complying with a requirement of an approved school dress code may also be prescribed by regulation. The School Uniform Bill does not expressly provide for review of decisions about dress codes. In conjunction with the amendment of the Education Commenting upon this omission, the Scrutiny of Act and Regulations, the Education Department of Legislation Committee stated: Western Australia developed a policy and guidelines for dress codes for government school students. A person aggrieved by a dress code would, of Under the Guidelines, school decision-making groups course, have access to the judicial review process. are to ensure that the following elements are addressed However, if non-compliance with a dress code is when formulating a dress code: ultimately to involve substantive sanctions against students (suspension, exclusion or expulsion) then · The basic criteria are to be met for appropriate the committee would consider some form of merits and safe dress for school activities. 20 review should be provided. · The dress code is to be reasonable by contemporary standards and to provide for some THE WESTERN AUSTRALIAN MODEL choice, so that it does not intrude unnecessarily on In Western Australia, s 21D of the Education Act a student’s rights in matters of personal 1928 (WA), as substituted by the Education appearance. Amendment Act 1996, broadened the functions of · Items in the dress code are not to be gender school-decision-making groups under the Act to specific. Some provision is to be made for include formulating and approving dress codes for individual expression. students attending or representing a school (see · The requirements of the dress code are to be able s 21D(2)(b). to be met by all students. The range and choice of specified garments, their cost and availability should reflect the capacity of parents to provide them. 24th Annual Report to Parliament, 1997/98, pp 60- · Provision is to be made for exemptions on the 62, p 62. grounds of student health, ethnic considerations, 2 Hon DM Wells MLA, Ministerial Statement on religion or any other matter which the principal School Uniforms, Queensland Parliamentary considers to be sufficient to exempt a student from Debates, 3 March 1999, pp 101-2, p 101. the dress code’s requirements. Provision is also to 3 Daphne Meadmore and Colin Symes, ‘Of uniform be made for temporary exemptions to appearance: a symbol of school discipline and accommodate new students and the non- governmentality’, Discourse: Studies in the Cultural availability of dress code items. Politics of Education, 17(2), 1996, pp 209-225 4 Queensland Ombudsman, 23rd Annual Report, · The dress code is to take into account the risks of 21 1996/97, pp 11-12. ultraviolet radiation. 5 Queensland Ombudsman, 1997/98 Annual Report, pp 61-62. Scope of the dress code 6 Education (General Provisions) Amendment Bill 1996, Explanatory Notes, p 2. Under the Western Australian model, a school dress 7 Queensland Ombudsman, 1997/98 Annual Report, code may include components such as : pp 60-61. 8 · clothing Queensland Ombudsman, 1997/98 Annual Report, p 61. · a school uniform 9 Queensland Ombudsman, 1997/98 Annual Report, p 61. · school bags 10 Hon DM Wells MLA, Ministerial Statement ‘School · jewellery Uniforms’, QPD, 3 March 1999, pp 101-2. 11 Hon DM Wells MLA, Ministerial Statement ‘School · cosmetics Uniforms’, QPD, 3 March 1999, p 102. 12 Mr Quinn MLA, School Uniform Bill 1999, Second · clothing for sporting activities and extra- Reading Speech, QPD, 4 March 1999, pp 222-3, curricular activities p 222. 13 · safety requirements for outdoor activities and Queensland. Parliament. Scrutiny of Legislation specialist activities.22 Committee, Alert Digest No. 2 of 1999, p 2. 14 Alert Digest No. 2 of 1999, p 2. 15 National Children’s and Youth Law Centre, Know Sanctions Your Rights at School, 1994 (Information Sheet: School Uniforms”). Under the Western Australian guidelines, students 16 Alert Digest No. 2 of 1999, p 1. who do not comply with the dress code approved by 17 Alert Digest No. 2 of 1999, p 2. their school decision-making group will be counselled, 18 Alert Digest No. 2 of 1999, p 2. and their concerns will be sought to be resolved. It is 19 Alert Digest No. 2 of 1999, p 4. the school principal who is responsible for resolving 20 Alert Digest No. 2 of 1999, p 4. 21 conflicts about school dress. Education Department of Western Australia, Dress Codes for Students in Government Schools, June Where a student fails to comply with the requirements 1997, pp 9 & 10. 22 of a school dress code, and has not been granted an Dress Codes for Students in Government Schools exemption, he or she may be prevented from attending (WA), p 17 (“Answers to Questions Asked about Dress Codes for Students in Government Schools”). any activity where the student is representing the 23 Dress Codes for Students in Government Schools school. It is envisaged that this would refer to any in- (WA), pp 10 & 11. school or out-of school activity where the student is a member or a spectator of a sporting or debating team, musical or dramatic event, is receiving an award on Karen Sampford behalf of the school at a non-school event, or is Research Publications and Resources Section attending a social function as a member of the ã Queensland Parliamentary Library, 1999 school.23 PARLIAMENT HOUSE GEORGE & ALICE STS BRISBANE 4000 QLD 1 AUSTRALIA Queensland Ombudsman (Parliamentary Fax (+617) 3210 0172 Commissioner for Administrative Investigations), Tel. (+617) 3406 7199

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968, reproduction by whatever means is prohibited, other Why do we have to wear a in 30-degree heat?. than by Members of the Queensland Parliament in the course of their official duties, without the prior written permission of the Parliamentary Librarian, Why do we have to wear ? Queensland Parliamentary Library. And the biggest “unknown” of them all - why do we have to wear little white , with maroon ribbons, in public...hats which barely cover the nose? Standard response to all questions: “Because it's school policy.” Do we want to inflict this type of insanity on state school Title Skirting the uniform issue. children? Author Lawlor, Ali Source Courier Mail Under the proposed Bill, kids wouldn't be excluded for Date Issue 03/03/99 non-compliance of uniform codes but they could be Page 11 stopped from playing sport and going on excursions. IN Grade Two, our headmistress lined up all the girls This already happens to some degree, but do we want it and systematically lifted our sport to check we had backed up by law? school , not sports , underneath. It's unfair to suggest that a child should miss out on sport Not only did my private primary school principal insist because they are wearing the wrong socks or have we look like little girls during sports - hence the skirts - colours on their . but she, ridiculously, insisted we wear “proper” shorts And it happens all the time. under them. Schools forget they are learning institutions, not Not wearing the shorts or wearing sports briefs left you detention centres. with after- school detention and a stern note home to Although uniforms provide a sense of discipline and save your parents. a lot of kids the embarrassment of having to wear charity In Year 11, it was a similar situation at my private high clothing, they shouldn't interfere in education. school. There needs to be a standard dress code for public On the way to tennis, in front of a busload of students I schools which sets rules for modesty, health and safety, a was ordered to take off my bike pants because they standard controlled by the State Government. weren't “regulation uniform”. Principals could then monitor that standard. The only thing that had changed in nine years was that Many argue that uniforms make all students equal, the school didn't seem to care I was exposing myself in preclude competition in expensive clothing and save public. poorer children from embarrassment. This week the Queensland Coalition is expected to Not always true in my experience. introduce a private member's Bill which gives principals of public schools the power to devise and enforce Some of the children victimised at my school weren't the uniform codes. ones who wore tattered clothing on “uniform free days” but the ones who had second-hand school ports, too-tight Ombudsman Fred Albietz raised the issue last year when school and hand-me down socks. he said state school principals were acting unlawfully by making students wear uniforms. Parents at some private schools find it difficult to pay $40 for a regulation white but could find a similar If the Bill is passed, from my experience, expect the one for $20 at a discount store. ridiculous bordering on the insane. Any legislation should not restrict public school parents Labor's Education Minister Dean Wells has resisted and students from choosing different and cheaper calls to change the law, but supports a school's right to clothing brands. make students wear uniforms. The Coalition has consulted with P&Cs, principal State school principals shouldn't be given the green light associations and the Queensland Teachers Union but has to rule in or out their choice of uniform. typically left out the people who will have to wear the Private school students have always complained about legislation if passed - students. inappropriate dress codes with little success. Surely students' representatives should have a say in how Why can't girls wear shorts or pants? the school uniform is worn and how it is enforced.

And don't worry, given the chance they would have a lot to say. Principals would have to take a commonsense approach and not harm the academic career or humiliate students The opportunity to save future teenagers from trying to who had valid reasons for not wearing uniforms, he said. rationalise with teachers over their lack of polish would be too good to be true. Newspaper Articles: Copyright Provision: Copy recorded for Parliamentarians only. Detention for pink hair is one thing, punishment for a different shade of grey is taking uniformity too far. Disclaimer: No responsibility is taken for any transmission errors

Title School uniform law left in limbo. Author MAHER, SID Source SUNDAY MAIL ( 151 ) Date Issue 17/01/99 Page 3 The State Government is resisting calls to resolve the legal limbo over compulsory school uniforms. Ombudsman Fred Albietz raised the issue last year when he said state school principals were acting unlawfully by making students wear uniforms. With Queensland's 460,000 students due to return to school next week, teachers and principals have been waiting for Education Minister Dean Wells to solve the problem. But he is resisting calls to change the law, promising instead to make a statement to parliament which he is confident will be a solution. Queensland Teachers Union vice-president Julie-Ann McCullough said the union had been advised that legislation was needed to enforce compulsory uniforms. School communities could make policies but principals at present could do nothing if students decided to flout the rulings, she said. Queensland Secondary Principals Association president Bernadette O'Rourke said legislation would “bury the issue” but Mr Wells' parliamentary statement would be “a big step” forward. Mr Wells, who is seeking legal advice on the issue, said he was exploring options which could put an end to the uncertainty created by the Ombudsman's report without changing the law, he said. He is concerned that legislating on basic issues of school life will create further legal complications in running schools. Although he is in favour of uniforms, the decision on whether they are compulsory will remain up to individual school communities.