Face-to-Face Conference – Separately Bookable Days & Sessions

Includes Staff, Parents & Student Issues Day, Risk, Business Management & Governance & LawSense School Law Induction

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Program

5 May 2021 – Staff, Parents & Students Non-State Schools

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Ross Tarlinton OAM, Headmaster, St Joseph’s College, Hunters Hill

9.00       Dealing with ‘Toxic’ Staff Behaviour And Understanding When the Lower-Level Issues Can Be Used for Lawful Performance Management or Disciplinary Action

Schools, like other workplaces, encounter staff who may not reach the threshold for performance management or misconduct, but nonetheless throw up ongoing lower-level issues or exhibit conduct that can have a very negative impact. This practical session examines the limits of tolerance in the law for ‘toxic’ conduct in schools and how a school leader can lawfully respond to neutralise or manage the issues.

• Exploring the threshold at which lawful performance management or disciplinary action can be contemplated – learning from case studies and examples
• Identifying when instances of lower level behaviour can be combined to justify performance management or disciplinary action:
  • longstanding staff with continued instances of minor or “borderline” non-compliance
  • toxic behaviours – ongoing criticism, rumours, gossip, undermining
• Understanding what level of evidence is required to justify action – what “proof” do you require?
• Exploring best practice in documenting conduct, communications and responses when dealing with lower level or borderline issues

Jennifer Patterson, Partner, MinterEllison

Staff Stress Claims and Psychological Injury: Effectively Navigating Claims, Medical Evidence, the Insurer, Return to Work, Reasonable Adjustments and Performance Management

• Identifying and exploring key areas where stress claims or claims of psychological injury
• arise against schools and how the school can be liable:
  • claims relating to COVID-19
  • claims in relation to work loads and types of classes
  • difficult behaviour or bullying by parents
  • workplace bullying
  • claims in response to performance management
• Dealing with medical certificates and reports regarding stress or psychological harm – understanding when you can challenge or clarify medical evidence
• Obtaining independent medical reports or evidence – when this can be done and how to brief the expert
• Understanding the interaction between the school investigating and managing the claim and the role of the insurer. How does the insurer accepting a claim impact a school’s ability to dispute the claim?
• Exploring how a stress claim can affect the performance management process
• Return to work – understanding a school’s obligations and reviewing case studies with respect to reasonable adjustments
• Performance management:
  • examining your options in performance managing an employee returning to work from stress leave or psychological injury
  • managing the process to prevent successful claims that the process has caused psychological injury
• Understanding and managing your privacy and confidentiality obligations
• Key elements to consider in school policies and strategies dealing with stress leave and psychological injury

Ben Tallboys, Principal, Russell Kennedy Lawyers

11.00    Refreshment Break

11.15    Responding Effectively to Targeted Social Media Complaints Against Staff: Understanding Your Options and the Limits of the Law

• Exploring types of complaints about staff and the forums often used:
  • online directories with a teacher rating facility
  • Facebook pages or groups
  • member-based chat forums
  • blogs
  • parent initiated surveys
  • P&F forums
• Balancing your obligations to the staff member and the school in investigating a complaint
• Dealing with challenges where the identity of the person complaining is not apparent
• Responding to posts or messages online – understanding the legal position of the staff member, the school and potential pitfalls
• Approaching websites, blogs, Google or Facebook to have material removed. What are your options where material is hosted offshore?
• Exploring best practice in negotiating or mediating a complaint
• Staff commencing defamation action – what are a school’s legal obligations and risks?

Walter MacCallum, Principal, Russell Kennedy Lawyers

Sexual Misconduct and Reportable Conduct: Examining the Threshold for Investigations and Responding to Borderline Allegations

• Assessing current “thresholds” for action:
  • reportable conduct reporting obligations: NSW Office of the Children’s Guardian; NSW Police; DCJ; NSWAIS; insurer (this needs to change for other States)
  • duty of care
• Exploring the range of conduct and “borderline” action that may not meet investigation or reporting thresholds, but require a response
• Responding to borderline action – informal versus formal steps and learning from case studies and scenarios
• Understanding your confidentiality and privacy obligations where formal reporting is not involved
• Documenting your assessment and response to borderline issues

Maria Costa, Manager: Child Protection, Association of Independent Schools of NSW

1.10       Closing Remarks from the Chairperson

1.15       Close of Conference

2.00       Welcome from LawSense

2.00       Opening Remarks from the Chairperson

Dr Briony Scott, Principal, Wenona School

2.05     Student Discipline: Investigations that pass muster; Discipline Policies

• The law about student discipline
  • The Common Law
  • Education Act 1990
  • NSW Education Standards Authority
• Investigating student misbehaviour
  • Procedural fairness
  • Who should investigate
  • Getting evidence: searching students and their gear (including phones and devices)
  • How to conduct interviews
    • Questioning
    • Recording
    • Support Person
  • Involving parents
• What does a fair discipline policy look like?
• Police involvement
  • Understanding your rights and obligations in dealing with police
  • Obeying police v duty of care
  • Allowing police to interview staff and students
  • Should school staff be involved in interviews as support?
  • Providing evidence to police (e.g. documents, CCTV footage)
  • Knowing when to conduct your own investigation when police are involved

David Ford, Partner, Carroll & O’Dea Lawyers

3.05       Refreshment Break

3.15       Disability Law Best Practice Update:

Navigating a School’s Obligations and Opportunities to Provide Inclusive Education

• Outlining current discrimination obligations affecting schools
• Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability update – understanding how this affects interpretation of current laws and further implications for schools
• Interpreting and navigating your obligations and opportunities to provide access to:
  • the school curriculum and assessments
  • school activities and programs
  • school services
  • excursions, trips, concerts and competitions

Student Disability and Behaviour Management, Suspensions and Exclusions: Understanding Your Rights and Obligations Where the Student Has a Diagnosed or Undiagnosed Condition

• Outlining legal rights and obligations regarding student behaviour, suspensions and exclusions where a student with a disability is involved
• Navigating medical assessment, reports and treatment:
  • what should you consider where there is a medical assessment and how does this limit your options with regard to behaviour management, suspensions and exclusions?
  • what if you suspect the behaviour is as a result of a clinical issue or disability, but the parent refuses to acknowledge the possibility or obtain an assessment or consider medication?
• Learning from case studies and scenarios where you are or are not on firm legal ground when you suspend or exclude a student with a disability, including:
  • examples where the student’s behaviour is not a physical threat, but impacts the learning of other students
  • examples where staff rights or wellbeing are arguably impacted
• Examining the rights of parents to challenge your decision and reviewing what avenues they can take
• Effectively responding to complaints by parents, including allegations of bias, improper management or discrimination
• Best practice in documenting communications and your decision making to defend your legal position

Jacquie Seemann, Partner, Thomson Geer Lawyers

4.15       Student Depression, Self-Harm, Suicide Attempts and Other Adverse Student Events: Understanding the Extent of Your Duties, Including After Return to School

• Understanding a school’s obligations in monitoring student wellness – what steps should you take if you suspect student mental health issues

Self-Harm, Suicide Attempts and other Adverse Psychological Events

• Identifying key steps to discharge legal obligations to students who self-harm or are expressing suicidal ideation
• Understanding and managing the duty of care and other legal duties to other students
• Reviewing options for preventing or dealing with social media impacts after self-harm or suicide attempts
• Understanding and managing information sharing within the school and with outside agencies
• Working with parents and mental health professionals
• Managing circumstances where a student self-harms or makes a suicide attempt after visiting the school counsellor

Legal Obligations on Return to School

• Understanding the extent of your duties in managing students returning after self-harm, a suicide attempt or other adverse event:
  • exploring the extent to which you should make adjustments
  • understanding the extent of your obligations to monitor the student, including where you learn of concerning out-of-school activities
  • balancing your obligations to the student with obligations to other students
  • navigating ongoing disclosure of information to staff, students and parents
• Conducting a risk assessment and assessing adjustments. What if there are no plans from the discharging hospital and private practitioner?
• Implementing and monitoring a return to school plan

Nevena Brown, Principal, Meridian Lawyers

5.10       Closing Remarks from the Chairperson

5.15       Close of Conference

ADDITIONAL WEBINAR – 28 April 2021, 12.30pm-2.00pm AEDT

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Natalie Charles, Principal, Mentone Girls’ Grammar School

Transgender and Gender Fluidity: Understanding Current Legal Obligations, Dealing with Parents and Experts and Understanding Legal Exceptions

• Understanding gender changes, gender dysphoria and gender re-assignment
• Examining a school’s obligation to accommodate or assist the student in making gender choices:
  • reviewing your duty of care and discrimination obligations considering recent cases
  • understanding how the age of the chid affects your duty of care and legal obligations in this area
  • dealing with parents and families:
    • when should you get family members or guardians involved and to what extent?
    • navigating circumstances where student and parent wishes and views, are inconsistent
    • responding where a parent is looking for school guidance to decide the issue
  • expert opinions:
    • when should the school seek an opinion from a psychiatrist or psychologist?
    • what if the parents have an expert opinion – should you accept this?
    • when should you recommend an independent expert opinion?
  • exploring a school’s obligations regarding gender re-assignment
• Reviewing exceptions in relevant discrimination legislation and how they impact schools in different sectors
• Exploring options to support gender diverse students and families

Skye Rose, Practice Leader, Moores Legal

6 May 2021 – Risk, Business Management & Governance

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Richard Arkell, Head of Operations, Meriden School

9.00       Enrolment Best Practice Update:

Enrolment and Students with a Disability: Navigating Disclosure, Assessment, Reasonable Adjustments and Unjustifiable Hardship

• Reviewing the current laws affecting disability discrimination in schools
• Understanding current interpretations of disability laws, including the implications of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability
• Optimising information about a student disability at the enrolment stage – what information can you request or require prior to enrolment?
• Exploring the limits of the ‘reasonable adjustments’ the school should make: clarifying what is ‘reasonable’
• Unjustifiable hardship:
  • examining when you can decline enrolment for ‘unjustifiable hardship’. What is ’unjustifiable’?
  • balancing the impact on other students – to what extent does this factor into ‘unjustifiable hardship’ or ‘reasonable’ adjustments?
• Managing discrimination obligations where:
  • a place has been offered, but the student develops a disability prior to commencing school
  • a disability is developed post-enrolment
  • the student has a disability that was not disclosed by parents in the enrolment process

Ben Foley, Special Counsel (Education and Workplace), Clifford Gouldson Lawyers; Former Director of Enrolments & Marketing, Toowoomba Grammar School

10.00    Refreshment Break

10.15    Enrolment Contract Update: Reviewing Family Separation, Payment Plans, Credit Code and Debt Collection

• Understanding what level of ‘proof’ a school should obtain regarding the authority of parents/guardians with respect to the child being enrolled
• Identifying key aspects of family law to consider in drafting enrolment contracts, including the impact of court orders or their absence where there is parent separation
• Outlining the types of clauses to include in the enrolment documents to manage information, fee recovery and other issues where there are separated parents
• Payment terms and arrangements and late payment fees/interest
  • Understanding the extent of your rights to obtain financial information about parents prior to enrolment
  • understanding your options in setting payment methods and late payment fees/interest
  • avoiding negative impacts of the Consumer Credit Code in providing payment arrangements or re-negotiated fees
  • Understanding risks in pointing families to education payment providers
• Debt collection
  • reviewing options for schools in recovering debts
  • understanding what constitutes harassment or unconscionable conduct under the Australian Consumer Law
  • navigating bankruptcy and the recovery of school fees

Jen Patterson, Partner, MinterEllison

 Assisting the Board In 2021: What Should They Expect from You and Dealing with the More “Hands-On” Board Member

• Reviewing current governance obligations and emerging areas of risk
• Exploring challenges in reporting on risk and demonstrating compliance:
  • what a board member needs to see in 2021
  • working with the more ‘hands on’ board member and understanding your options where you feel the board member involvement is beyond the scope of their role
  • learning from examples and case studies of reporting in risk areas
• Assisting the Board in carrying out other key functions

Tracey Cain, Chief Executive Officer, Australian Public Affairs; Director, Association of Independent Schools of NSW; Director, Knox Grammar School

12.15    Lunch

1.00       Welcome from LawSense

1.05       Opening Remarks from the Chairperson

Bradley Cooper, Director of Workplace Law and Child Protection, The Scots College

1.05       School Child Protection Frameworks and Policies Update: Exploring Best Practice and Examining What Updates You Should Make Considering Recent Regulatory Action and Experiences

• Outlining current obligations of schools regarding implementing child protection frameworks
• Examining recent reviews by regulators of school frameworks implementing the child safe standards – what have regulators looked for and found deficient?
• Managing regulatory reviews
• Exploring changes or updates a school should consider given recent regulatory action and case studies

Deborah de Fina, Principal Consultant – Child Protection, CompliSpace

Managing and Defending Staff Adverse Action Claims and Against You and Learnings from Recent Cases

• Reviewing circumstances where adverse action claims are commonly made in schools
• Examining the Fair Work Act general protections for employees which are the basis for adverse action claims:

• • what constitutes a ‘workplace right’ including ‘an inquiry or complaint in the employee’s employment
  • understanding when a school is taking ‘adverse action’ against an employee
  • the reverse onus of proof – what requirements does a school need to meet to defend an adverse action claim and what sort of evidence is needed?
  • examining some penalties, damages and other orders a school is exposed to
• Understanding how discrimination claims under the general protections provision apply and differ from anti-discrimination laws.
• Reviewing learnings from case studies and scenarios

Ben Tallboys, Principal, Russell Kennedy Lawyers

3.05       Refreshment Break

3.15       Effectively Negotiating and Documenting Staff Exits, Including of Long-Standing Staff

• Reviewing the advantages and disadvantages of negotiated staff exits
• Examining key factors to weigh up in determining when and how to negotiate
• Exploring considerations in exiting long-standing staff
• Understanding the differences in negotiations involving executive and non-executive staff
• Dealing effectively with unions
• Documenting staff exits – key issues to consider
• Including and enforcing non-disparagement and confidentiality clauses

Kristen Lopes, Partner, Colin Biggers & Paisley Lawyers

4.15       Closing Remarks from Chairperson

4.20       Close of Conference

4 May 2021 – LawSense School Law Induction

General Legal & Compliance Grounding For Leaders & Teaching Staff

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

Phillip Heath AM, Head of School, Barker College

9.00       Examining Best Practice Note-Taking and Record Keeping in Schools to Ensure Legal Compliance and to Effectively Defend Your Legal Position

• Reviewing note taking and record keeping obligations affecting teachers and leaders in schools, including the impact of recommendations on note-taking and record keeping from the Royal Commission

Note-Taking in Schools: Exploring Best Practice

• Examining different aspects and deficiencies in note-taking that can lead to legal risk or criticism by the Courts
  • lack of detail or clarity
  • failure to cover key aspects
  • “loaded” words from which inferences could be drawn about the writer
  • writing what you think is happening versus what you observe
  • 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
• Understanding how much detail to put into notes and what aspects to cover
• Multiple staff involved in the same issues or occurrence:
  • who should take the notes? What would be expected from teachers at different levels of responsibility?
  • should staff “compare” notes and how should multiple staff taking notes on the same issues be managed?

Record Keeping in Schools: Understanding Your Obligations and Exploring Best Practice

• Outlining the legal framework applying to record-keeping in schools
• Clarifying what a ‘record’ is in schools
• Examining who ‘owns’ the records
• Keeping records in different formats – exploring best practice with emails, texts, hand-written and electronic notes, and social media/web
• How long does a school need to keep the records?

Live-Streamed – Annie Smeaton, Partner, Cooper Grace Ward Lawyers

10.00    Refreshment Break

10.15    Excursions, Trips and Camps: Managing Risk and Understanding the Extent of Your Obligations

• Outlining key laws affecting excursions, camps and trips, including duty of care, child protection and discrimination laws
• Reviewing current government health restrictions affecting excursions, camps and trips

• Understanding the extent of your obligations to assess and manage risk:
  • examining safety and security conditions in host location and venue
  • assessing external providers
  • evaluating appropriate transport
  • exploring accommodation risks and issues
  • understanding and documenting medical conditions and fitness of students and staff
  • determining the level of supervision required at different stages
  • assessing social events and student “free time”

Students with a Disability and Events, Excursions and Trips

• Exploring key considerations in allowing access to events, excursions, and trips to students with a disability

Documentation and Record Keeping

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

Matthew Gerathy, Partner, Makinson d’Apice Lawyers

11.15    Family Law: Reviewing Family Law and Domestic Violence Orders and How These Affect Schools and Management of Students and Parents

• Outlining the role of the Family Court and the different Court orders that can be made or arrangements reached affecting children of separated parents
• Understanding AVO’s, including common orders that are made that can affect schools
• Exploring the role of the school or teacher as an independent, objective, and neutral third party

Which Parent Has the ‘Rights’

• Understanding parent rights and responsibilities where parents are newly separated and there are no court orders
• What is the legal effect of parenting plans versus court orders and how do these affect the school?
• Identifying and managing interim versus final orders
• Navigating permission for excursions and other activities where parents disagree

Blended Families and ‘Rights’

• Understanding the legal position of new partners, step-parents and grandparents

Dealing with Alleged Violence and AVO’s

• Examining the impact of AVO’s on how a school should deal with a parent:
  • does the AVO override parenting plans or court orders?
  • what is the extent of the school’s obligation to ensure the order is observed by a parent at school?
  • responding to breaches of AVO’s
  • your responsibility when a parent/child alleges domestic violence

Access and Handovers

• Responding to requests for pick-up contrary to a parenting plan or court orders
• Dealing with circumstances where the court orders specify time with a parent, but the child does not wish to comply

Providing Information to One Parent or The Other

• Examining key laws, agreements and orders that would dictate what information can be provided to a parent
• Understanding what information can be shared with parties who are not parents

Live-Streamed – Fiona Manderson, Director of Compliance, Risk, and HR, In-house Legal Counsel, Hillcrest Christian College

12.15    Lunch

1.00       Welcome from LawSense

1.00       Opening Remarks from the Chairperson

Megan Krimmer, Headmistress, Abbotsleigh; Chair, AHISA NSW

1.05       Privacy and Confidentiality: Examining Your Obligations and Exceptions to Disclosure

• Reviewing current laws affecting privacy and confidentiality in schools
• Examining rights and obligations in using and publishing photos of students and staff
• Examining who can have access to student information:
  • within the school, including medical / psychological reports
  • external parties, including sharing information with other schools
  • groups related to the school such as sporting groups, alumni and P&C bodies
  • access to school counselling records
• Dealing with requests for information:
  • by family members
  • from other schools or organisations

Nevena Brown, Principal, Meridian Lawyers

2.05       Refreshment Break

2.15       Social Media Use in Schools: Understanding Staff Obligations Using Social Media; and Duties and Options to Protect Students from Bullying and Sexting

Obligations of Staff on Social Media

• Reviewing key applicable laws and understanding professional obligations and boundaries in relation to non-school activities
• Interacting with students and social media
• Understanding the rights of the school to information or to act where staff conduct on social media affects the school

Students on Social Media – Bullying and Current Laws on Sexting

• Navigating sexting and online offences and knowing how to investigate and respond
• Legislation update: examining current offences students can commit online and potential consequences
• Storing evidence of porn – what are the legal restrictions?
• Understanding the limits of duty of care with students or online activities outside the school
• Exploring the boundaries of a school’s duty of care where material:
  • is sent to a student by a student outside the school, including images of self-harm
  • is posted on social media relating to parties or events which are not school activities, but include students at the school
• Gaining assistance from the Office of the eSafety Commissioner

Walter MacCallum, Principal, Russell Kennedy Lawyers

3.15       Discrimination: Navigating Direct and Indirect Discrimination and Reasonable Adjustments

• Reviewing the current legislation and case law affecting disability discrimination in schools:
  • Disability Discrimination Act 1992 (Cth)
  • Disability Standards for Education 2005 (Cth)
  • Anti-Discrimination Act 1977 (NSW)
• Clarifying direct versus indirect discrimination and the obligation to make ‘reasonable adjustments’
• Managing behaviours associated with disability – balancing educational outcomes for students with disabilities and the safety of all staff and students
• Learnings from case studies and scenarios:
  • mental health issues and discrimination
  • discrimination obligations with camps and excursions
  • transgender students and discrimination

Tim McDonald, Partner, Moray & Agnew Lawyers

4.10      Closing Remarks from the Chairperson

4.15       Close of Conference

Presenters / panelists include:

	Tim McDonald leads the national workplace practice at Moray & Agnew Lawyers, practising in employment and industrial law, work health and safety, discrimination, bullying and harassment, management of injured workers and termination of employment. Over the last 20 years, Tim has advised and represented employers, from a broad range of industries, including education
	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.
	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.
	Walter MacCallum is experienced in employment, contract disputes and school law matters. He acts for independent schools in relation to various dispute resolution matters and provides a variety of advice.
	David Ford practices mainly in commercial and education law. He has advised well over 80 educational institutions throughout Australia and is a former Chairman of the Council of MLC School in Sydney. David has presented on education law at conferences throughout Australia and internationally.
	Annie Smeaton specialises in employment, anti-discrimination and industrial law. She has extensive experience dealing with proceedings in the Federal Court, Federal Circuit Court, Queensland Industrial Relations Commission, Fair Work Commission, Australian Human Rights Commission, Anti-Discrimination Commission and the Queensland Civil and Administrative Tribunal.
	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.
	Bradley Cooper commenced his teaching career in 1992 at Trinity Grammar School in Summer Hill. He later spent 7 years at Saint Ignatius’ College – Riverview as a senior teacher. Prior to departing Riverview in 2007, he oversaw the College's risk and compliance program for registration and accreditation. From 2008 -2013 he worked in the Transport and Logistics industry. His responsibilities included overseeing 1200 employees across 17 worksites. He commenced studying law in 2010 and was admitted in 2017. Bradley is Director of Workplace Law & Child Protection at the Scots College.
	Kristen Lopes has expertise in employment, industrial relations and human rights law. She has experience in matters of both a litigious and non-litigious nature. Kristen has a special interest in managing workplace discrimination, harassment and bullying. In 2004, she was invited to present a paper at the Oxford University Round Table on discrimination in employment.

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