LawSense Best Practice Note-Taking, Interviewing & Investigations in Schools

Examining Best Practice to Ensure You Meet Your Obligations, Minimise Legal Exposure and Can Defend Your Legal Position

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Program

12.00    LawSense Welcome

12.05    Chairperson’s Introduction

Nikki Kirkup, Principal & Chief Executive, The Knox School

12.10    Note-Taking in Schools: Examining Best Practice and Case Studies to Ensure You Meet Your Obligations, Minimise Legal Exposure and Can Defend Your Legal Position

Legal Obligations and Key Principles

• Outlining note-taking and record keeping obligations and guides affecting schools, including the impact of recommendations on note-taking and record keeping from the Royal Commission

• Examining key aspects of note-taking to meet legal risk and avoid criticism by Courts:
  • level of detail or clarity
  • ensuring you cover key aspects
  • “loaded” words from which inferences could be drawn about the writer
  • writing what you observe versus what you think is happening
  • properly and clearly setting out the basis of any opinions expressed
  • accurately recording conversations, including hearsay
  • making changes to notes after they were originally written

Case Studies and Examples – Best Practice Notetaking in Different Areas

• Student disability:
  • examining what you should record for legal protection and funding audits:
    • recording diagnosis/diagnosis management and assessment
    • evidence of assessment of adjustments
    • evidence of parent consultation
    • liaison with external experts
  • Student discipline and expulsions – case studies and examples:
    • identifying particular considerations in taking notes of conversations with students of different ages
    • exploring important aspects to record where there is a serious discipline issue
  • Conflicts with parents – case studies and examples:
    • examining how parents can use notes or other communications between staff as evidence in action against the school
    • outlining how school staff records can be used in Family Court proceedings
    • exploring what to record in dealing with difficult parents
  • Performance management and dismissals – case studies and examples:
    • understanding when you should be documenting and dealing with informal conversations
    • outlining key aspects to record regarding:
      • incidents of poor performance
      • complaints from other staff or parents
      • informal conversations
      • formal performance management meetings
      • show cause meetings

Morgan Smithe, Associate, Russell Kennedy Lawyers

1.10      Break

1.20      Conducting Effective Student and Staff Investigations: Navigating Grey Areas, Managing Fallout and Responding to Complaints

Key Laws, Planning, Steps and Considerations in Investigating

• Outlining the legal framework applying to workplace investigations and identifying common circumstances that led to them in schools
• Understanding differences in legal requirements between student investigations and staff investigations
• Examining the Rules of Natural Justice and procedural fairness obligations and how they apply at different points in the process
• Assessing when to use an external investigator: who should conduct the investigation if you decide to do it internally?
• Examining what evidence you should consider obtaining and understanding the value of different types of evidence – hearsay versus “first hand” evidence, independent and corroborative evidence
• Dealing with contradictory evidence
• Managing communications, confidentiality, and privacy rights
• Assessing the evidence and making findings – what level of evidence is enough? When can you accept a version of events without corroborating evidence?
• Acting on investigation findings

Responding to Claims/Complaints Regarding the Investigation

• Examining and responding to claims that can be made by staff regarding the investigation:
  • lack of procedural fairness – exploring case studies and scenarios
  • a failure to seek or properly assess evidence
  • bias and discrimination
  • psychological stress/injury resulting from the way the investigation was conducted

Megan Kavanagh, Partner, Colin Biggers & Paisley Lawyers

2.20      Break

2.30      Best Practice Interviewing to Optimise Effectiveness and Your Legal Position

• Reviewing the circumstances in schools where you may need to conduct interviews – student discipline or incidents, staff investigations, parent complaints
• Examining key laws to consider in interviewing:
  • procedural fairness
  • privacy
  • laws applying where other regulatory bodies or police could potentially be involved
  • contracts or EBA’s where staff are involved
• Optimising information gathering:
  • considering objectives for the interview and interview planning
  • foundation for questions – who, what, when, where, why
  • learning from case studies and scenarios

Support Persons and Parents

• Understanding when a support person is required or recommended– student interviews, staff interviews
• Informing parents and dealing with parents wanting to be involved in any interview
• When should you involve the wellbeing team with student or staff interviews?

Recording of Interviews

• Examining how interviews should be documented. Should interviews be recorded? What if the interviewee seeks to record the interview?

Student Interviews

• Exploring particular considerations in interviewing students – duty of care, child protection, privacy and confidentiality
• Dealing with requests from the student to not reveal them as a source
• Approaches to questioning, using scripts, examples of questions to ask and practical tips

Staff Interviews

• Ensuring you provide procedural fairness
• Are you obliged to reveal the source of allegations of information in your interview?
• Approaches to questioning, using scripts, examples of questions to ask and practical tips

Amy Walsh, Special Counsel, MinterEllison

3.30      Closing Remarks

3.30      Event Close

Presenters / panelists include:

	Ben Tallboys provides sector-specific, practical legal solutions to schools across Australia. Ben is a passionate and effective advocate for principals dealing with complex matters relating to parents, staff and students, as well as their own employment.
	As part of her education and health care practice Megan Kavanagh provides operational advice regarding child protection, responding to third party court matters, dealing with and responding to parent/client and community complaints. Megan drafts policy and procedure to assist her clients to respond to these matters.
	Amy Walsh advises Independent Schools and the NSW Department of Education on matters including enrolment disputes, student issues and wellbeing and safety matters, employment matters, parent disputes, child protection investigations, funding issues and governance.

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