LawSense Law for Early Learning Centres & Pre-Schools

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Remarks

12.10    Reforms Update: Examining Key Reforms and Dealing Effectively with Regulator Checks, Inspections and Audits

Outlining Key Reforms

• Outlining evolving reforms:
  • Outlining key aspects of government reviews
  • understanding proposed changes including:
    • expanded powers to conduct unannounced spot checks, revoke funding because of compliance issues
    • broader powers to refuse, suspend, or cancel approvals based on compliance history, serious incidents or complaints or previous quality ratings or conditions imposed
    • increased information for parents regarding centres
    • changes regarding fee collection
    • nationwide early childhood workforce register
    • exploration of CCTV use in centres [INFORM SPEAKER THERE IS A DEDICATED CCTV TOPIC LATER]
    • individual state legislation, including mobile device ban in Victorian early learning centres

Application to OSHC

• Examining the application of reforms to ELCs versus OSHC

Areas of Regulator Scrutiny and Dealing with Inspections, Audits & Regulator Inconsistency

• Exploring areas of likely increased scrutiny and activity by regulators
• Understanding your rights and obligations with checks, inspections or audits, including:
  • understanding what information you are obliged to provide and options for obtaining more time to provide them
  • rights to challenge inspectors, processes or findings
• Effectively managing interaction with regulators, including preparation and navigating inconsistency in regulator requests and interpretations

Biljana Apostolova, Partner, Gadens

1.10      Break

1.20      Child Protection and Supervision

Understanding Child Protection Challenges Following Reforms, Regulator Scrutiny and Changed Expectations

• Understanding what you should be doing now in light of reforms and increased regulator scrutiny, including:
  • reviewing recruitment practices and due diligence
  • assessing and updating polices

Supervision, Mobile Phones, Photos and CCTV: Implementing Compliant Policies and Managing Supervision Challenges in a Changed Environment

Applicable Laws, Including Duty of Care, Privacy and Recent Reforms

• Outlining key laws applying in centres to:
  • mobile phones
  • the taking and storing of images
  • use of CCTV
  • supervision of staff, children and parents

Implementing Policies Regarding Phones and Images

• Navigating mobile phones and images – staff and parents
• Updating current policies to manage the changing obligations and regulator focus

Navigating Rights and Obligations with CCTV

• Examining recent reforms regarding CCTV and key applicable laws
• Understanding the limits of how you can use CCTV, including privacy, storage and other legal issues
• Exploring the implications for your duty of care, including avoiding risks of over-reliance
• Providing CCTV recordings to:
  • other staff members
  • parents
  • police or other agencies
• Examining best practice in developing and communicating CCTV policies
• Implementing effective consent forms/clauses for CCTV

Managing Particular Supervision Challenges

• Meeting changed expectations and scrutiny – understanding the extent of your duties in implementing active supervision in a changed environment
• Managing particular challenges:
  • children on the Centre/School grounds before and after centre hours
  • social events, celebrations – what is your obligation to supervise with parents present
  • parents leaving children in cars

Sonya Parsons, Partner, Mills Oakley Lawyers

2.30      Break

2.40      Child Disability: Refusing Enrolment, Navigating Reasonable Adjustments and Dealing with Experts and Parents

Current Legal Framework

• Reviewing the current laws affecting enrolment of children with a disability in schools and potential reform

Declining Enrolment Based on Unjustifiable Hardship

• Examining when you can decline enrolment for unjustifiable hardship. What is ’unjustifiable’?
• Balancing the impact on:

• other children – to what extent does this factor into ‘unjustifiable hardship’ or ‘reasonable’ adjustments?
• impacts on staff – understanding what to consider

• • factoring in limitations on resources as a result of already supporting a number of children with a disability

Parents Not Accepting a Potential Disability or Not Providing Information Disclosing Disability

• Exploring discrimination obligations and options to decline enrolment where:
  • you believe there is a potential disability, but the parents are not willing to seek a diagnosis
  • you consider the parents/guardian are not cooperating or providing adequate information
  • the child has a disability that the parents have not disclosed

Disability Emerging After a Place Has Been Offered or Accepted

• Managing obligations where a disability is developed post-enrolment

Implementing Effective Documentation

• Examining key questions you should ask parents and include in enrolment forms
• Including options to review a child’s enrolment after a period of time
• Examining best practice documentation and communication to support your decision to decline enrolment

Reasonable Adjustments – Determining What is “Reasonable”

• Determining the limits of reasonable adjustments required in each circumstance:
  • balancing impacts on other children and staff
  • managing experts: responding to experts, briefing, and managing your own experts
• Documenting steps and decision making regarding reasonable adjustments to ensure compliance and optimise your legal position

Dealing with Challenging Scenarios

• Balancing the reasonable workload of staff with reasonable adjustments
• Managing differences in views between experts, parents and the centre/school about adjustments
• Assessing whether you are required to provide one-on-one support
• Asking parents to cover some of the costs
• Managing circumstances where parents do not wish adjustments to be made or are not engaging with the issue
• An expert report suggests certain adjustments, but there is no evidence of the child needing the adjustments
• Managing therapists attending to observe, including privacy and child protection issues and therapist reporting on issues outside the scope of visiting arrangements

Erin McCarthy, Partner, Piper Alderman

Emily Haar, Partner, Piper Alderman

3.40      “Toxic” Staff Behaviour: Actioning “Lower Level” Conduct and Navigating Bullying Allegations, Psychosocial Hazards, Rights, Obligations and Mediation

Defining “Toxic” Behaviour or ‘Incivility’

• Identifying “lower level” “toxic” staff behaviour including considering “anti-social” behaviours, “rudeness”, ongoing criticism of school leaders or other staff, undermining, rumours, gossip

Applicable Laws

• Outlining laws applying to staff “toxic” behaviour:
  • laws regarding staff performance and conduct
  • bullying and harassment
  • recent law changes regarding psychosocial hazards
  • respect@work laws

Performance Management and Conflict Between Staff

• Examining how “lower level” behaviours such as toxic behaviours can:
  • be used for lawful performance management or disciplinary action
  • amount to bullying or harassment or breach psychosocial hazards laws or other obligations affecting the school
• Are toxic behaviours between staff outside school actionable?

Investigating and Navigating Staff Claims Regarding Other Staff

• Exploring challenges in obtaining and assessing evidence of incivility or toxic behaviour
• Determining when the evidence and circumstances meet the legal threshold for you to take legal action

Mediation/Dispute Resolution

• Exploring options for informal and formal mediation of staff disputes
• Ensuring mediation processes protect the school’s legal position, including understanding how evidence from mediation processes can be utilised

Policies and Codes of Conduct in a Changed Environment

• Implementing policies and codes of conduct to optimise management of toxic staff in a changed environment
• Ensuring your code is worded to capture toxic behaviour

David Scanlan, Employment Law Practice Lead – WA, Mapien Law; Former, Director, People and culture, St Hilda’s Anglican School for Girls, Perth

4.40      Closing Remarks

4.45      Event Close

Presenters / panelists include:

	Biljana Apostolova has extensive experience in advising schools on a range of structuring, taxation and contractual matters, fundraising, corporate governance and compliance and government funding
	Sonya Parsons focusses on resolving disputes for charities, not for profits and in the education sector. In particular, she represents both religious entities and charities in historic institutional abuse claims across NSW, Victoria, Western Australia, and Queensland. She has advised on the entry into the National Redress Scheme, on compliance with charitable fundraising laws, licensing, and regulation, on compliance with information requests and in contractual disputes for those organisations
	Although Erin McCarthy's first passion was for employment, WHS and industrial relations law, over the past 25 years she has found herself also becoming an accidental expert in School Law issues advising independent, Catholic and Lutheran schools in South Australia on all aspects of their operations. In April 2025, Erin was again named on the Best Lawyers ranking for Education Law and remains the only South Australian based lawyer on that national listing.
	David Scanlan is currently a Senior Employment Lawyer at Mapien Law heading up their WA office, having commenced in September 2025. Prior, David was the Director of People & Culture at St Hilda’s from 2020. In this role he drove the people development, cultural development, talent acquisition and compliance functions of the School. Prior to joining St Hilda’s, David worked in private practice as lawyer. He spent much of his career at international law firm Ashurst in their Perth Employment and Industrial Relations team, starting there as a graduate and leaving as a Senior Associate.

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