LawSense School Law NSW 2024 – State Schools

Separately Bookable Morning & Afternoon

Tailored for NSW DoE Schools

Program

8.45       LawSense Welcome

8.50      Chairperson’s Opening Remarks

Lila Mularczyk OAM, Education Consultant; former Director, Secondary Education, NSW Department of Education; Immediate Past President, NSW Secondary Principals’ Council

Margaret Baker, Principal Legal Officer (Policy, Compliance and Administrative Law), Legal Services, NSW Department of Education

9.00      Student Behaviour Management: Navigating Current Laws, Impact of DoE Policies, Suspensions and Expulsions

• Outlining current laws and polices applying to student behaviour management
• Reviewing current DoE Policy – what have been some of the challenges in its implementation to date?

Students with a Behavioural Disability

• Understanding options in responding to students with a behavioural disability, what are your obligations with respect to behaviour management

Suspensions

• Navigating suspensions:
  • examining valid grounds for suspension
  • how should suspensions be approached where the student has a behavioural disability?
  • applying requirements for procedural fairness
  • examining your obligations during and after the suspension
  • documentation and record keeping – understand what aspects to cover and the level of detail required to ensure you protect your legal position

Expulsions

• Understanding and managing key steps, requirements and pitfalls in expelling a student

Complaints and Appeals

• Responding to complaints – understanding your rights and obligations and optimising communications and record keeping
• Appeals: examining how the merit of appeals is evaluated and optimising your role in the appeals process to protect your legal position

Tim McDonald, Principal, McCabes Lawyers; Law Society of NSW Accredited Specialist in Employment and Industrial Law

10.00   Student Bullying and Violence in 2024: Understanding Obligations to Identify Patterns of Bullying, Dealing with Issues Outside School and Learnings from Recent Cases

Outlining Key Obligations

• Outlining key laws applying to bullying and violence in schools, including:
  • defining bullying
  • duty of care
  • criminal laws and AVOs

Extent of Obligations to Manage Issues Outside School

Before and After School –Bus/Train Stops and Other Scenarios

• Understanding the extent of your liability in monitoring student transport and activity before and after school, including learnings from recent cases

Social Media

• Understanding the extent of a school’s obligations where student bullying occurs on social media, including:
  • assessing when social media activity outside school can increase legal risk and evolve into a situation a school should actively manage
  • examining the extent of a school’s rights and obligations to manage or respond to students on social media outside school
  • understanding duties where the bullying is from a student not from the school

Findings Against Schools Regarding Bullying Management – Where Have Schools Come Unstuck?

• Learnings from recent cases – how should schools approach multiple and repeated instances of bullying?  What is a school’s obligation to pro-actively identify patterns of bullying?
• Optimising note-taking and record keeping to protect your legal position, including time-saving approaches and tips
• Effectively implementing DoE policies to mitigate your exposure from bullying claims

Leighton Hawkes, Principal, Insurance Division, McCabes Lawyers

11.00    Morning Tea

11.30    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 on Schools

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

Angelo Bistolaridis, Dispute Resolutionist, Myra Aris & Co Lawyers; Former Judicial Registrar, Federal Circuit and Family Court of Australia

12.30    Chairperson’s Remarks

12.35    Session Close

12.35       Lunch

1.15      Welcome from LawSense

1.20      Chairperson’s Remarks

Sarah Hargans, General Counsel, NSW Department of Education

1.30      Staff Burnout, Stress Claims and Psychological Injury: Effectively Navigating Claims, Medical Evidence, 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 in relation to work loads and types of classes
  • difficult behaviour or bullying by parents
  • workplace bullying
  • claims in response to performance management
  • claims related to circumstances or conditions outside work
• Outlining key laws to be aware of, including the new laws regarding identification and management of psycho-social hazards
• 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
• Dealing with challenging and long-term cases involving stress claims and psychological injury

Felicity Edwards, Partner – Workplace, and Julie Kneebone, Partner, Sparke Helmore Lawyers

2.30      Afternoon Tea

2.50      Managing Workplace Relationships in 2024: Toxic Staff, Bullying and Harassment, and Challenging Behaviours Between Staff

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

3.50    Parent Complaints and Claims: Implementing Effective Complaints Management to Protect Your Legal Position and Navigating Challenging Scenarios

Complaints Management and Communications

• Examining effective polices in receiving, triaging, and escalating parent complaints
• Managing communications:
• when to phone, email or meet
  • dealing with requests by parents to record communications or meetings
  • taking and distributing notes of meetings or other interactions
• Understanding the role of and managing the “support person” in meetings or interviews

Options in Dealing with Parent Behaviour

• Understanding options in responding to parent behaviour, including:
  • restricting or limiting communication with the parent
  • restricting the parent from involvement in school activities
  • banning a parent from a school

Online Criticism

• Responding to posts or messages online:
  • understanding the legal position of the school and/or staff targeted online
  • balancing whether or not and how to respond in the online forum
  • approaching websites, blogs, or social media providers to have material removed
  • staff commencing defamation action – what are a school’s legal obligations and risks?

Information and GIPA Requests by Parents

• Outlining options for parents to request information about school management, including under the Government Information (Public Access) Act 2009 (NSW)
• Understanding when you can decline to provide certain types of documents or information, including under GIPA legislation

Complaints to The Ombudsman

• Complaints to the Ombudsman – navigating your rights and obligations and how you should respond

Effective Note-Taking and Record Keeping

• Implementing effective record keeping protecting your legal position – understanding what you should record and who should be keeping notes of records

Christa Lenard, Partner, Kingston Reid Lawyers

4.50       Chairperson’s Closing Remarks

4.55       Event Close

Presenters / panelists include:

	Lila Mularczyk was Principal at Merrylands High School for 15 years. She was the President of the NSW Secondary Principals’ Council (SPC) and Director of Secondary Education. Lila currently works with principals, the DoE, and universities.
	Margaret Baker has worked for the NSW DoE for over 15 years. Over that time Margaret has provided legal support and advice to people working in schools, TAFE NSW, State Office and other Department areas. This advice ranges from prevention of legal liability and legal risk reduction, to privacy, contracts and compliance. She has also represented the Department in courts and tribunals.
	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.
	Leighton Hawkes commenced his career in claims management and other technical roles with a major Australian insurance, working on claims for the NSW Treasury Managed Fund (TMF). Leighton has acted for the NSW Department of Education for a large number of years. Presently he acts in a diverse range of matters, including claims arising from public liability, property damage to NSW schools, historical sexual abuse, discrimination (employee and disability), and Coronial enquiries.
	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.
	Christa Lenard is a workplace relations and employment lawyer with extensive experience in advising public sector departments and agencies at both Commonwealth and state level, as well as large and medium private sector companies.
	Felicity Edwards is a workplace lawyer who assists clients in the private and public sector with privacy and employment related issues. She has seen matters through to state and federal courts and tribunals including unfair dismissals, general protections claims, contractual disputes and anti-discrimination claims.

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