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Legal liability and NAPLAN

By Phil Cullen - posted Wednesday, 8 January 2014

Parents of school children who live in a democracy are usually asked to give permission for their children to be supervised by teachers in circumstances that have the potential to be harmful, or might impair their well-being and comfort. Parental permission to attend out-of-school sporting contests and school camps or on-site special events are instances of this.

It is generally described as a DUTY OF CARE and it is a legal obligation. There are issues of social justice, of ethical standards, respect for human dignity and compassion for the young. Schools have always been seen as citadels of child welfare and progress, so instances of litigation have been rare..

In 2008, however, Australia succumbed to the pressures of a political heavyweight who copied a kitsch system of schooling from New York, based on fear-driven testing. The tests, in turn, are based on a rare pedagogical notion that fear is the most effective motivator of classroom learning .....fear of failure, fear of public exposure, fear of parental disappointment....fear. It has been operating with little to no success in Australia for six years and its crass crudity is extremely unpopular amongst those who care for kids.


It can be expected that issues of human rights applied to Standardised Blanket Testing procedures such as NAPLAN and the emotional effects on child learning in classrooms, will be severely tested in the Courts of Justice over the next few years, if NAPLAN lasts that long. It's 'that' kind of harmful emotion-based operation.

When the graduates of recently established socio-legal studies at major universities [e.g. Sydney University and campuses of ACU] are available in a few years on a 'pro bono' basis at community centres around the country [SMH 30-12-13 p35], many parents are expected to claim retribution for the stress and disturbance to family life and the mental injury to their children, caused by the use of Aussie-style quasi-mandatory high-stakes useless forms of testing since 2008. Indeed, it is important that as many as possible seek to do so in the interests of social justice.

It should not take an established common law legal firm too long to show that NAPLAN testing itself has the potential to cause harm. Everyone connected with schooling knows that it can and it does. There is plenty of research evidence and there are thousands of victims each year. The famous Paisley Snail decision in which the manufacturer of the ginger beer that caused an illness, looms large in the application of stare decisis; that courts stand by prior decisions. Locally, we have ample examples of children vomiting, losing sleep, being distressed as a results of the SBT/NAPLAN program. Someone must carry the can for such illnesses caused by a 'perpetrator', whoever it may be. Teacher, principal, authority, state or federal education minister? Both pupil and parent are the victims. Who carries the final responsibility for not protecting our young ones from the 'dirty deed'?

As a school principal in 2014, I'd make sure that every single parent gave me permission to impose NAPLAN testing on their children. It is not worth the risk, these days, of proceeding without it.

If I was the parent of a child at school, I would not allow my child to take the test, in case I should be seen to be culpable for helping to cause mental stress.

If I was either, and a member of a school-oriented organisation, I'd fight like mad to have the whole silly business cease, forthwith.


The importance of the displaying sincere duty of care in school operations, that we know have the potential to cause harm, cannot be gainsaid. Australia claims to be a democratic country and the authoritative exercise of the 'duty of care' is, as a rule, administered cautiously. Until 2008, it was mostly taken for granted in the daily attendance schedules at school; and school principals supervised operations with sturdy professional ethics and integrity. They were trusted to do so. They were, after all, top of the heap amongst the caring professions. In 2014, however, the exercise of the precept is shambolic.

NAPLAN testing was introduced in 2008 with total disrespect for the rights of parents, the ethical standards of the teaching profession and the mental health of children at school. Issues of 'caring for kids' took a back seat. The harmful outcomes of mass testing of the NAPLAN kind have been known to serious educators for centuries; regarded by them as a serious threat to a child's cognitive development and the cause of extreme stress for many. For many public examination purposes, still retained as an historical Grammar School artifact at post-primary upper-level schooling, fear is still seen as a primary motivator.

The kind of imported mass standardised blanket testing [SBT] program now conducted by an Australian federal institution [ACARA], has never ever been requested by any state education authority nor by any reputable professional education organisation in Australia. It was a purely political exercise... unrelated to learning.

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About the Author

Phil Cullen is a teacher. His website is here: Primary Schooling.

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