LawSense School Law NSW 2024 – Non-State Schools

Tailored to Law Applying to NSW Non-State Schools

Program at a Glance

Program Detail

Day 1 – 6 June 2024 – Students, Parents & Staff

8.45      LawSense Welcome

8.50      Chairperson’s Remarks

Phillip Health AM, Principal, Barker College

9.00      Student Disability Update: Navigating Obligations, Reasonable Adjustments and Challenges and Exploring the Implications of the Disability Royal Commission for Schools

Current Legal Framework and Disability Royal Commission

• Outlining current laws and guidelines applying to student disability
• Understanding the findings and potential impacts of the Disability Royal Commission relevant to schools. What you should be doing now in response?

Enrolment

Information You Should Collect Prior to Enrolment and Pre-Enrolment Contracts Regarding Disclosure

• Exploring optimum information collection – what information should you seek from whom. What information can you collect without consent?
• Dealing with reports from external professional provided by the parents or advocates. When should you obtain your own professional opinion?
• Entering into a pre-enrolment contract with the parents requiring provision of all relevant information

Extent of Consultation Required

• Examining obligations to consult. What constitutes a reasonable level of consultation. What information should be communicated to parents?

Unjustifiable Hardship and Factoring Impacts on Other Students, Existing Disabled Students and Staff

• Examining when you can decline enrolment or adjustments because of ‘unjustifiable hardship’. What is ’unjustifiable’?
• Balancing the impact on:

• other students – 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 students with a disability

Dealing With Challenging Scenarios:

Determining the Extent of Reasonable Adjustments and Dealing with External Professional Opinion

• Understanding the rights and responsibilities of the school versus health experts to determine what the student requires to meet the diagnosis or disability
• Learning from case studies and examples:
  • how should schools approach determining the limits of reasonable adjustments required in each circumstance? What particular issues should be considered when there is a behavioural disability?
  • balancing impacts on other students and staff
  • managing experts: responding to experts, briefing, and managing school experts
  • determining unjustifiable hardship
• Documenting steps and decision making regarding reasonable adjustments to ensure compliance and optimise your legal position

Parents Not Disclosing or Not Concerned About Meeting Educational Needs

• Managing discrimination obligations where:

• the student has a disability that was not disclosed by parents/guardian in the enrolment process

• • the parents/guardian do not care if you are unable to meet the educational needs or curriculum regarding the student, but just want them to be able to attend school

Disability Emerging After a Place Has Been Offered or Accepted

• Managing obligations where:

• • a place has been offered, but the student develops a disability prior to commencing school
  • a disability is developed post-enrolment

No Diagnosis or Parents Refuse to Diagnose and Imputing Disability

• Examining rights and obligations where there is no condition diagnosed, and parents are reluctant to seek a diagnosis, but where you consider adjustments are required

• Exploring circumstances where you can impute disability and navigating adjustments

Cara Seymour, Special Counsel, Integroe Partners

10.00    Break

10.30    Effectively Managing Separated Parents in Schools: Navigating a School’s Obligations in Practice and Understanding the Impacts of the New Family Law Amendment Act 2023

Outlining Key Laws and the New Family Law Amendment Act 2023

• Outlining key laws and duties applying when dealing with separated parents and families including duty of care, privacy, enrolment contract and court orders
• Examining recent changes to Family Law legislation and how these affect the rights of children, parent obligations and Court orders, including changes to equal shared responsibility
• Understanding and interpreting Family Court Orders and parenting agreements including:
  • Interim Orders
  • Final Orders
  • the difference between Family Court Orders and Parenting Plans

School Obligations – Court Orders, Parents and Families in Conflict

• Managing your obligations:
  • understanding a school’s obligations to seek information about Court Orders
  • following Court Orders
  • dealing with drop-offs and handovers; what if a student does not wish to go with a parent, despite Court Orders?
  • managing conflict:
    • between parents (on or outside school grounds)
    • between families
    • from new partners and in blended families
• Understanding the extent to which you should investigate and act
• Parents attending school or activities in breach of parenting arrangements, Family Court, or other Orders – what should you do?

School Obligations – Providing Information to One Parent or the Other

• Examining factors dictating what information can be provided to a parent or withheld from a parent
• Understanding the role of the students wishes/consent:
  • when should student consent be sought in releasing information to parents
  • when do student wishes about parent information access override parent requests
  • understanding how student wishes should be documented where information is going to withheld from one parent or another

School Obligations – Providing Information to Non-Parents

• Understanding rights and obligations in providing information to:
  • step-parents or grandparents; should you pass on messages to the student from grandparents?
  • lawyers for the parent or Independent Children’s Lawyer
  • family professionals providing reports, including Family Report Writers

School Obligations – Domestic Violence / Coercive Control Suspicions and Information Received

• Exploring domestic violence and coercive control and how it may manifest in schools
• Understanding your duties where:
  • you suspect domestic violence or coercive control regarding a staff member or parent – to what extent should you make enquiries/investigate?
  • staff or parents provide information or make allegations related to domestic violence or coercive control
• Conducting risk assessments regarding domestic violence or coercive control following suspicions, information or evidence

Carly Mirza-Price, Partner, Mills Oakley

11.30    Harmful Sexualised Behaviours and Harassment: Navigating Student Conduct to Other Students and Staff, Conducting Risk Assessments and Examining the Impacts of Recent Legislative Change

• Impacts of new laws:
  • outlining key laws and duties affecting schools including sexting and new consent laws and WHS laws applying to sexual harassment
  • understanding how the changes WHS laws regarding sexual harassment apply to students as well as staff.
  • harassment – examining what action could students, staff or regulators could take against the school

Understanding the Extent of The School’s Duties

• Examining the obligations of the school where the alleged incident
  • occurred outside school hours or activities
  • involves students from other schools
  • involves students who are 18 or over

Conducting Effective Risk Assessments

• Examining the extent of obligations in conducting risks assessments regarding students in the circumstances
• Exploring key considerations and balancing factors in risk assessments

Examining When Reporting Obligations to Agencies and Police are Triggered and Dealing with Police

• Evaluating when legal obligations to report and notify police are triggered
• What steps should be taken where there are only rumours or suspicions of abuse or offending?
• Understanding the obligations and options of the school where the alleged victim does not wish the matter to be disclosed, investigated, or reported or is not cooperative
• Dealing with police – navigating rights and obligations where police with to interview students of staff or obtain school documents

Navigating Privacy Considerations

• Dealing with requests from students you not inform their parents
• Examining potential risks and conflicts where the school counsellor is involved with both students

• Understanding the extent to which you should or shouldn’t disclose allegations or investigations to school staff members

• Providing a witness statement and giving evidence to police – what is your exposure and how should this be managed?

School Case Studies

• Learning from school experiences in updating polices and managing challenging scenarios in a changed environment

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Consultant to Association of Heads of Independent Schools of Australia (AHISA)

12.25    Chairperson’s Remarks

12.30    Session Close

1.15      LawSense Welcome

1.20      Chairperson’s Remarks

Cathy Lovell, Associate Chief Executive: School Operations and Governance, AIS NSW

1.30   Child Safety: Responding to and Investigating Allegations Against Staff – Navigating Duties to The School, Students, Families and The Staff Member

Key Considerations Once a Report is Made

• Exploring the risks and considerations once a report has been made or an investigation has commenced:
  • risk to students and your duty of care
  • communication of information to families. What families should be informed? Should the whole of school be informed?
  • informing staff – should only selected staff be informed?
  • the rights of the person the subject of the report – privacy, damage to reputation and defamation
  • reputational damage to the school during the process
  • if information about the report is to be communicated – what should it contain, what level of detail should be used?

Applicable Legal Frameworks and Reportable Conduct Investigations

• Examining the applicable legal framework, including reviewing mandatory reporting / reportable conduct obligations
• Examining the extent of investigation required by schools and dealing with regulators and the police

Staff Member Rights and Obligations

• Understanding the rights of the staff member once an allegation is made and balancing those with other school obligations
• Examining options for suspension
• Navigating reputational impacts on the staff member and privacy
• Managing impacts where the person the subject of the report is charged or exonerated

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Consultant to Association of Heads of Independent Schools of Australia (AHISA)

2.30      New Psychosocial Hazards Law Update: Identifying Hazards in Your School, Reviewing Job Design, Meeting Obligations and Managing Regulators

Recent Changes in the Law Regarding Psychosocial Hazards and Proactive Duties

• Outlining the recent changes to WHS legislation affecting schools including:
  • examining definitions or psychosocial hazard and how this can include bullying, sexual harassment, and other behaviours
  • outlining how it applies to staff, students and others interacting with the school
  • understanding obligations to identify reasonably foreseeable psychosocial hazards that could give rise to health and safety risks
  • examining interactions with other laws, including laws regarding, toxic staff, bullying and sexual harassment – what has changed in responding to these issues?

Attitude of Regulators and Regulatory Action So Far

• Examining the approach of regulators, recent examples of action and implications for schools
• Dealing with enquires from the regulator or investigations

Identifying Psycho-Social Hazards in Your School

• Exploring best practice in identifying psycho-social hazards in your school:
  • examining different stakeholders and how they may be affected differently – staff, students, parents
  • exploring optimum data time-frames for identifying psycho-social hazards in your school
  • consultation – surveys, focus groups and other tools including committee meetings, team meeting, networks and individual discussions
  • conducting effective exit interviews for identifying hazards
  • other data sources and records available to schools
• Analysing and evaluating data. What weight should be given to different sources of data? What level of evidence do you need?
• Learning from examples of effective data collection, consultation, and analysis to determine hazards

Reviewing Job Design, Implementing Control Measures for Hazards and Updating Policies

• Meeting your obligation to introduce, maintain and review control measures to eliminate (or minimise) psychosocial risks to health and safety.
• Reviewing job design, including duties, workload, team structures, and resource allocations
• Updating policies to meet your obligations and expectations regarding psycho-social hazards

Jen Patterson, Partner, MinterEllison

3.30      Break

3.45      Managing Workplace Relationships in 2024: Toxic Staff, Bullying and Harassment

New Laws and Relationship with Other Laws

• Outlining the interrelationship between recent reforms regarding psychosocial hazards and toxic staff, bullying and sexual harassment laws

Toxic Behaviour

• Identifying “toxic” staff behaviour:

• • “anti-social” behaviours, “rudeness”, ongoing criticism of the school, school leaders or other staff, undermining, rumours, gossip
  • continued instances of minor or ‘borderline’ non-compliance, including lateness / absenteeism, not carrying out administrative tasks
• Exploring how toxic behaviours can meet the threshold at which you can have lawful performance management, disciplinary action or dismissal – learning from case studies and examples

• Understanding what level of evidence is required to justify action – what ‘proof’ do you require?

Bullying, Harassment, Sexual Harassment

• Identifying workplace bullying, harassment and sexual harassment
• Examining your obligations in 2024 and expectations of the Fair Work Commission, Courts and regulators
• Responding to claims of bullying / harassment in response to performance management – how has the legal position of school leaders changed with new laws and expectations?

Effective Documentation to Protect Your Legal Position

• Exploring best practice in documenting conduct, communications and responses when dealing with lower level or borderline issues

Jacquie Seemann, Partner, Thomson Geer Lawyers

4.40      Closing Remarks

4.45      Event Close

Day 2 – 7 June 2024 – Risk, Business Management & Governance

8.45      LawSense Welcome

8.50      Chairperson’s Remarks

9.00      Enrolment Contracts Update: Ensuring Your Contracts Meet Current Challenges

• Outlining key laws applying to enrolment contracts
• Examining the applicability of the Australian Consumer Law to enrolment contracts and recent changes to the legislation
• Learning from notable cases, including the Brindabella matters
• Identifying key contract clauses and documents to have or update in the current environment
• Addressing particular challenges, including:
  • privacy and consent issues
  • limits regarding inclusivity
  • information regarding student disability
  • separated families
  • student and parent behaviour
  • fee recovery
  • other particular programs, including scholarships
• Changing enrolment terms during the course of the student’s enrolment at the school
• Managing pre-enrolment including:
  • the application form, what should be included and ensuring your collecting of data limits privacy breach risks and optimises privacy compliance
  • managing waitlists
• Optimising communications with parents and students

Ben Tallboys, Principal, Russell Kennedy Lawyers; Legal Consultant to Association of Heads of Independent Schools of Australia (AHISA)

10.00    Break

10.25    Artificial Intelligence: Implementing School Policies to Effectively Manage Emerging Risks and Opportunities and Navigate Legal Obligations

• Exploring the emerging and potential role of AI in schools, including
  • customised learning, tutoring, feedback, automation of administrative tasks and marking
  • generative AI
• Identifying key risks:
  • privacy and data risks
  • accuracy/reliability and suitability for learning to meet curriculum obligations
  • academic integrity
  • discrimination
• Understanding the application of existing law and regulation, including:
  • duty of care in use of AI for learning
  • obligations regarding academic integrity
  • privacy and confidentiality, including privacy reforms
  • surveillance laws
  • discrimination laws
  • copyright/intellectual property
  • contractual requirements in a platform’s terms of service
  • understanding The Artificial Intelligence (AI) Ethics Framework and application to schools
• Exploring policy options for schools and what schools have implemented to respond to emerging AI

Veronica Scott, Partner, KPMG Law

11.25    Overseas Trips and Exchanges: Navigating Obligations and Implementing Best Practice Risk Assessment and Management

Outlining Key Laws Applying to Overseas Trips

• Outlining key laws applying to overseas trips including duty of care, child protection obligations and discrimination

Risk Assessment and Learnings from Recent Cases and Coronial Inquests

• Understanding the scope and extent of risk assessment required to meet changing standards and expectations
• Examining recent cases and learnings, including recent coronial inquests involving schools

Medical Assessment of Students

• Understanding when and the extent to which you should require medical assessments of students

Inclusiveness and Trips/Exchanges

• Examining the extent to which discrimination obligations impact risk management assessment and planning of trips or exchanges
• Exploring key considerations in allowing and managing access to trips/exchanges to students with a disability

Staff Ratios

• Examining staff ratios in the current environment, how they apply and what is counted
• Understanding obligations to tailor staff ratios depending on the cohort of students involved

Qualifications, Skill Mix and Assessment of Staff, External Providers and Volunteers

• Examining your obligations in assessing what skills mix is required
• Exploring the extent of requirements to include staff with medical training at different times
• What information should you request or obtain about staff of venues or contractors?
• Understanding your rights and obligations when parents or other volunteers are involved
• Determining appropriate induction and supervision

Supervision of External Providers and Inspection

• Exploring the extent to which you which you need to:
  • inspect and assess places for activities and venues managed by external providers
  • monitor external providers during activities

Billeting, Accommodation and Transport

• Assessing billeting and whether you are able to meet your obligations, including child safety obligations. What approaches have schools implemented to manage risks with billeting?
• Reviewing and assessing transport arrangements and managing visas

Child Protection and Professional Boundaries

• Identifying grey areas that cross professional boundaries and putting in place practical and effective risk management measures

Consent Forms, Risk Waivers and Warnings

• Collecting information about the trip to assist the development of appropriate risk warnings and consent forms
• Risk warnings or consent forms from external suppliers and venues – understanding how these should be considered and incorporated into what the school provides to students and families
• Optimising consent forms, risk waivers and warnings to manage legal risk

Documentation and Record Keeping

• Exploring best practice in documenting and recording risk assessments, management, and incidents

Amy Walsh, Special Counsel, MinterEllison

12.30    Closing Remarks

12.30    Session Close & Lunch

1.15      LawSense Welcome

1.20      Chairperson’s Remarks

Richard Arkell, Head of Operations, Meriden, An Anglican School for Girls; President, ASBA NSW

1.25      Navigating “Not for Profit” Requirements: Examining Guidelines, Learnings from the Latest Section 83C Cases and Dealing with Regulators

• Outlining and understanding key provisions:
  • Section 83C of the Education Act 1990 (NSW)
  • Australian Education Act 2013 (Cth)
  • Not-for-Profit Guidelines for Non-Government Schools
  • ACNC Governance Standards
• Understanding the current attitude of the Department of Education and review of guidelines

• Section 83C case studies – reviewing how schools have become unstuck and learnings from recent cases

Jen Patterson, Partner, MinterEllison

2.25      Break

2.40      Navigating School Liability Risks and Grey Areas with Associated Entities – School Management Entities, Parents Organisations, Alumni Associations, Sport Organisations and Other Associated Entities

Conflicts in School Management Entities

• Exploring where conflicts of interests and duties can arise in with different school structures and board composition
• Managing conflicts and competing interests and duties between school and related entities
• Navigating circumstances where related entities can dictate funding allocation

Navigating Liability and Risks in School Associated Entities

• Examining different entities that can be associated with the school and how the school could be liable for the conduct of the organisation or its officers
• Dealing with challenging scenarios:
  • parent or alumni association members criticise school decisions, including in the media
  • a parent association breaks down due to in-fighting
  • associated organisations run tours or events that could expose the school to liability
• Implementing measures to:
  • limit school liability
  • ensure associated organisations act in the best interest of the school
  • enable the school to intervene where necessary
  • examining potential arrangements that can be entered into between the school and association, including contracts, licensing arrangements or MOU’s
  • assessing and managing options for providing funding or other assistance to associations
• Understanding the limits of insurance

Sonya Parsons, Partner, Mills Oakley

2.40      The School Executive and The Board Chair, Board Members and Committees: Navigating the Limits of Respective Rights and Obligations and Effectively Managing the Relationships

• Reviewing different structures and governance models in schools and how this can affect the Principal/Board relationship
• Examining the responsibilities and accountability of:
  • the Board/Council versus the school executive, including the Board/Council’s role in policy development and child safety
  • the Board/Council Chair versus other Board/Council members
  • committees and sub-committees, including where members of the executive are involved
• Examining and optimising key relationships in practice:
  • optimising the relationship between the Principal and Board/Council Chair including:
    • recognising when the lines between the board and school executive responsibility can become blurred
    • setting the nature and frequency of communications and reporting
  • examining how the Principal should work with other Board/Council members and committees/sub-committees, including where a school executive is a member of the committee
  • navigating where the Principal is on the Board/Council or where a school executive member is the Secretary
• Exploring particular challenges experienced in schools:
  • staff or parents approaching the Board/Council directly with complaints or concerns
  • the Board/Council Chair or members becoming involved in operational decisions
  • dismissal of executive staff where the Board/Council view of the performance of the executive differs from that of the Principal
  • conflicting views between the executive and Board/Council

Anne Robinson AM, Founding Partner, Prolegis

4.40      Closing Remarks

4.45      Event Close

Presenters / panelists include:

	Phillip Heath AM has been Headmaster of St Andrew’s Cathedral School, Sydney, Principal of Radford College ACT in 2009. He was made a Fellow of the ACT Branch ACEL in 2011 and in 2018 was awarded as a Member in the general division of the Order of Australia for his service to education and his commitment to creating greater opportunities for Indigenous students. Mr Heath was appointed as the Head of Barker College in 2014.
	Cara Seymour brings more than 25 years of professional experience in workplace relations law having held roles in the Australian Human Rights Commission, Fair Work Ombudsman and in commercial practice. More recently Cara has been engaged as General Counsel for a large education organisation; in this role Cara was responsible for the management of litigation, legal compliance and the delivery of advice on a broad range of complex matters.
	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.
	Cathy Lovell is the Associate Chief Executive: School Operations and Governance at the Association of Independent Schools of NSW (AISNSW). Cathy has been with AISNSW for over 20 years in various roles. Over the years she has provided advice to school leaders in the areas of employment relations, industrial relations, redundancy and restructure, change management, discrimination, performance management, appraisal, child protection and work health and safety. In the last decade Cathy has assisted independent schools to manage the increase in compliance in the areas of privacy and teacher accreditation and provided advice to schools in the areas of family law, the enrolment contract and issues with difficult parents, and the scope of their duty of care.
	Jen Patterson has extensive experience as an industrial relations, employment and WHS law advisor. Jen has particular expertise advising schools. She has acted for the Association of Independent Schools in NSW for more than 20 years and sits on their Employee Relations Committee. Jen was the lead adviser to the AISNSW on industrial strategy for its member schools following the two most recent legislative reforms.
	Jacquie Seeman acts for education sector clients across the education lifecycle, including preschools, schools and universities. She advises these clients on employment-related issues and also on the broadest range of education law issues, including child protection and health and disability issues.
	Veronica Scott is an experienced media and privacy lawyer, with local and international experience advising on defamation claims, freedom of information requests, court reporting and contempt of court, privacy and data protection, internet liability, media regulation, breach of confidence, injunctions, pre-publication advice and reputation management.
	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.
	Sonya Parsons focusses on resolving disputes for charities, not for profits and in the education sector, as well as more broadly for commercial entities. 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.
	Anne Robinson has advised charities, not-for-profits and philanthropists on corporate law, governance, charitable trust structuring and tax issues across the whole range of Australia's charitable institutions. She is a Fellow of the Australian Institute of Company Directors and also has had 40 years' experience in governance of not-for-profit organisations, including as director and board chair of several significant and well-known charities, including Australia’s largest international aid and development organisation.
	Richard Arkell is the Head of Operations at Meriden School and started there in 2017. Meriden is in Sydney's Inner West and is an Anglican School for Girls from Pre-Kindergarten to Year 12. The Head of Operations role oversees Finance, Property, IT, Marketing, HR and Compliance. Richard has worked in the Education sector since the mid 1990's, starting in international Education. He also ran his own consulting firm for a number of years. Richard has recently been appointed as the President of ASBA NSW.

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