David 2
ADMITTED TO THE LEGAL PROFESSION
29 Apr 1991
SIGNED VICTORIAN
BAR
ROLL
23 May 1996
ACCREDITED AS MEDIATOR
03 Feb 2005
QUALIFICATIONS
B.Com. (Hons), LLM.
Legalbrief sm
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Subhead 1a
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Queensland state schools should obey the law


Queensland state schools who turn away their students are breaking the law.

 

Attending school is an exemption to the “stay at home direction” by the Chief Health Officer under the Public Health Act 2005 if the student cannot reasonably obtain instruction at home. There are many reasons why a student might not be able to reasonably obtain instruction at home ranging from the inability of the state government to deliver content online to the child’s parents being absent or unable to supervise the instruction that can be delivered, even if it’s because they are working at home.

 

The Queensland Government’s "school closure announcement" is not a public health direction. It has no force of law whatsoever and does not even define what an “essential worker” is. Schools are not closed under the Non-essential business, activity and undertaking Closure Direction (No.6). The only businesses that are closed are those identified in column 1 of that direction and even they have the benefit of the exemptions in column 2. People who don’t work in the closed businesses have to do their normal work, but must do it at home if they reasonably can. Anyone whose workplace is not closed can be fairly regarded as an “essential worker”. There are very few families where the parents can reasonably discharge their obligations to their employers from home whilst the children are simultaneously getting the necessary educational instruction. Schools have no authority to decide that question and parents are not obliged to explain their situation to schools. The only people that have power to enforce directions given under the Public Health Act are emergency officers personally appointed in writing by the Chief Executive under s.333 of the Act. (Not that anybody even knows who the "Chief Executive" is). Thus not even police , let alone school principals, have power to enforce the directions unless they have been personally appointed as emergency officers. Even then, emergency officers are required to be issued with identity cards and must display them before giving a direction and the direction must be in writing. If someone purports to tell you what to do under a Public Health direction, demand their identity card first.

 

Some school principals seem to think that schools are subject to the gathering direction. But the Public Health directions do not prohibit schools from hosting gatherings. The Home Confinement, Movement and Gathering Direction specifically exempts gatherings “at a school, university, educational institution or childcare facility that is necessary for the normal business of the facility”. Nor are schools compelled to close or turn students away for the sake of social distancing, all they are required to do under the same direction is “take reasonable steps to encourage visitors to the premises to practise social distancing to the extent reasonably practicable”.

 

Before dobbing in parents whom they suspect are not complying with public health directions, schools should understand that the usual statutory obligations remain in place. First, s.12 of the Education (General Provisions) Act 2006 requires each state school student to have an educational program and each student is entitled to a basic allocation of 26 semesters over their school life. Second, under s.176 parents who don’t ensure their children attend school are committing an offence unless they have a reasonable excuse. Schools should not stand in the way of parents complying with this legal requirement. Third, under s.50 the cost of all educational instruction, administration and facilities in state schools is to be met by the state. Asking parents of state school children to bear the cost of home schooling is contrary to this section. Fourthly, school principals have no power to exclude or suspend children from school except for misbehavior and the other grounds specified in the Act.

 

Parents of children enrolled at a state school who are being refused education are entitled to enforce their rights in the Supreme Court under the Judicial Review Act 1991. Hopefully the more officious state school principals will come to their senses before winding up in the Supreme Court.