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This article is a legal commentary on the school closures announced in Queensland for Term 2, 2020. This article is not legal advice. Legal advice must be tailored to the individual circumstances so parents wanting legal advice should see their solicitor.
Under the Public Health Act 2005 (Qld), the Chief Health Officer has power to issue directions in the event of a Public Health Emergency. In Part 7A of Chapter 8 of that Act, the Queensland Parliament has conferred additional powers on the Chief Health Officer to deal with the Covid-19 emergency. In particular, under s.362B the Chief Health Officer has power to issue directions that restrict the movement of persons and to require persons to stay at or in a stated place. Moreover, the section also gives the CHO a catch-all power to give “any other direction the chief health officer considers necessary to protect public health”. The directions have to be published on the department’s website or in the government gazette. The school closure announcement is not a direction by the Chief Health Officer. Rather, as explained below, it's just a political announcement with no force of law. But to the extent that schools can replace ordinary schooling with online instruction, parents can't use the "education" excuse for their children not complying with the Chief Health Officer's direction to "stay at home".
What if my child becomes sick at school? When can he/she go back?
On 29 March 2020 the CHO published the School and Early Childhood Service Exclusion Direction. Under that direction, if a principal, teacher or staff member of a school reasonably suspects a child is unwell and determines that the child must be removed from school and the principal or other designated person notifies the parent, the parent must remove the child from the school as soon as practicable and not return the child to the school until the prescribed period for any contagious condition has passed or, in cases of non-contagious conditions, the child is no longer exhibiting any symptoms.
As with all Queensland public health directions issued during this crisis, this particular direction warns that failing to comply with it without a reasonable excuse can bring a maximum penalty of 100 penalty units, i.e. $13,345. I.e. there is no jail or other penalty available, only a fine.
So if the school tells you to remove your child from school because he or she is sick, you must do it and not return the child until he or she has passed any contagious period or, if suffering from a non-contagious illness, no longer has any symptoms. There is no exception for this at all, whether for “essential workers” or anyone else – it is a universal requirement.
On 2 April 2020 the Chief Health Officer issued the Home Confinement, Movement and Gathering Direction. Under paragraph 6 of that direction, Queensland residents are not permitted to leave their principal place of residence except to the extent reasonably necessary to accomplish certain permitted purposes. One of those permitted purposes is “to attend a childcare facility, school, university, or other educational institution, to the extent care or instruction cannot reasonably be obtained in the person’s principal place of residence”.
For some strange reason, there is no express exemption in the direction for a parent or guardian taking children to school but there is an exemption in sub-paragraph 6 (h) “to provide assistance, care or support to an immediate family member”. That should cover it.
Leaving the transportation issue aside, the effect of the direction is that whatever the circumstances, if the instruction can’t be reasonably obtained in the child’s principal place of residence and leaving the home is reasonably necessary to obtain the instruction, a child is not contravening the direction by leaving home to go to school. In any event, children under 10 are below the age of criminal responsibility so it's really the parents who would be liable if they facilitate the child leaving the home.
Whether the “instruction” can or can’t reasonably be obtained in the child’s home is what lawyers call a question of fact, as opposed to a question of law. But the first question it raises is “what is meant by “instruction?” For Queensland state schools, s.21 of the Education (General Provisions) Act 2006 states that the Education Minister “may decide on a curriculum framework that is to apply to a state instructional institution”. The Minister has done so and it is called the “P-12 curriculum, assessment and reporting framework”. This includes implementing the Australian Curriculum, including its General Capabilities. So if you have a child at a state school and having that child learn from home results in him or her not receiving the instruction he or she would have received in the P-12 curriculum, assessment and reporting framework, then my view is that the Home Confinement, Movement and Gathering Direction does not prevent your child from going to school.
Assuming that instruction in the relevant content is available, the second question is whether the instruction can be reasonably obtained in the child’s home. If a child’s school has set up an online instruction system and that child is able to access and use the system and the system functions and stays online then it would seem that the education can be reasonably obtained. But if the physical circumstances such as space, disruptions (including from working parents), lack of internet connections or poor family atmosphere mean that the child can't reasonably obtain the instruction then the exemption applies. And given that the curriculum includes such things as collaborating to perform in a class musical ensemble, it’s difficult to see how instruction in the entire curriculum can be sustained for any real length of time. It’s also more likely that the younger the child, the more likely it is that the child cannot reasonably obtain the required instruction in his or her home.
Perhaps more problematically for the government, under s.50 of the Education (General Provisions) Act 2006, the cost of providing instruction, administration and facilities for the education of a person at a state school must be met by the state. If the state is not meeting its obligations under that provision it's difficult to see how obtaining the instruction is reasonable.
Another element of what is reasonable is the legal obligation to ensure school attendance imposed on parents by s.176 of the Education (General Provisions) Act 2006. That section makes it a criminal offence if parents don’t ensure that their child attends school unless they have a reasonable excuse. However, under s.202 there is an exemption from this obligation if the child is subject to a direction given under an Act about an infectious or contagious disease or condition. But as seen above, whether any particular child is subject to that direction depends on whether the relevant instruction can be reasonably obtained in the home. So if a child can’t reasonably obtain the instruction he or she needs at home the parent would actually be breaching his or her obligation to ensure attendance under s.176. Believing that to be the case would probably constitute a reasonable excuse if a parent was prosecuted for breaching the Home Confinement, Movement and Gathering Direction!
What about the school closure announcement?
The Minister for Education and the Premier have announced that Schools and community kindergartens will move to a home-based learning model from 20 April until at least 22 May 2020. This announcement also states that “Students will actively participate in home-based learning and will follow the learning material provided by their classroom teacher” and “Children of essential workers or those who are vulnerable or in a designated Indigenous community, can attend their school if they are unable to remain at home.”
The important thing to understand about this announcement is that is all it is. It is not a direction under the Public Health Act and has no legal force so compliance with it is effectively voluntary. In other words there is no legal penalty for failing to comply with the announcement - it's really just designed to get more people to comply with the home confinement direction. Of course, the practicality is that the state schools will be complying with it and are unlikely to be providing “business as usual classes”. Private schools are making their own arrangements and likewise have no obligation to give effect to the announcement.
The announcement purports to exempt children of "essential workers" but unhelpfully does not contain any definition of that term. But guidance may be had from the Non-essential business, activity and undertaking Closure Direction (No.5) published on 9 April 2020. Under that direction, there is a table which specifies in column 1 businesses which are not allowed to operate save for the exceptions mentioned in column 2. For example, cafes and restaurants are in column 1 but there is an exception in column 2 for take away and home delivery services. Because this direction refers to “non-essential” businesses and activities anything that is not in it, is, by implication, an essential business or activity. So if you are a professional dog walker, that is not prohibited by the direction so implicitly you are an “essential worker”.
My school has told me I’m not an essential worker and refused to take my child. What should I do?
You should get legal advice. But feel free to take this article to your lawyer as a starting point.
If you can’t afford a lawyer you could, as an alternative, print out the Non-essential business, activity and undertaking Closure Direction (No.5) and ask the school to identify where your job is in the table. If it’s not there, you’ve got a strong argument you’re an essential worker. But even if the school closure announcement did have the force of law, given that you’re under no obligation to even tell the school what your job is, they might have a hard time proving that you’re not an essential worker.
Alternatively, you might show your school your copy of your child’s education program provided under s.12 of the Education (General Provisions) Act 2006 and give them a free copy of s.176 of that Act.
My child is at a private school and they are refusing to provide classes
As stated above, the school closure announcement has no legal force. The government has no power to close private schools generally. If a private school refuses to provide classes to an enrolled student it is probably in breach of its contract with you. You might like to remind the school that it has contractual obligations.
I’m writing this at 11.00 PM on the day before school starts. I predict a day of utter chaos. But parents, stick to your guns. If your children can’t reasonably get adequate instruction at home, for whatever reason, they are permitted to leave home to go to school and the schools have no power to refuse them. Good luck!