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Program

3 May 2021 – Staff, Parent & Student Issues

8.45       Welcome from LawSense

8.50       Opening Remarks from the Chairperson

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

9.00       Keynote Address: Delivering Education in 2021: Leadership During Uncertain Times

The NSW Department of Education has responsibility for the operation of 2,200 public schools educating over 800,000 students. The challenges of 2020, with drought, bushfires and the COVID-19 pandemic, has provided an opportunity to reflect on the obligations of school leaders to be responsive to changing circumstances. Murat will discuss the educational response to these challenging situations and the key learnings for school leaders to deliver education in 2021.

Murat Dizdar, Deputy Secretary School Performance – South, NSW Department of Education

9.25       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:
  • COVID-19 related claims
  • 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

Neale Dawson, Managing Director / Principal Solicitor, New Law

10.10    DoE Perspectives: Dealing with Challenging and Long-Term Cases Involving Stress Claims and Psychological Injury

Joanne Frearson, Director of Work Health Management, NSW Department of Education

10.45    Handling Staff Claims Against You During Performance Management or Investigations: Bullying and Discrimination

• Reviewing key claims that can be made by staff against you:
  • bullying and harassment
  • discrimination
• Understanding how these claims affect performance management or investigations
• Exploring strategies during performance management or investigations to help avoid potential claims
• Dealing with external investigators
• Reviewing case studies and lessons learnt

Veronica Kapsimali, Director Employee Performance, NSW Department of Education

Katharine Ovenden, Director Feedback and Complaints, NSW Department of Education

Nicole Mcfarlane, Director Child Protection Investigations (Preliminary Investigations Coordinator), NSW Department of Education

11.30    Refreshment Break

11.45    Grooming: Assessing Conduct, Responding to Allegations Against Staff and Managing Investigations

• Examining the legal framework applying to grooming and reviewing grooming offences
• Understanding what conduct is “grooming” and the extent of conduct necessary to be unlawful – can subtle behaviours over time constitute grooming?
• What if conduct is not unlawful or police decide not to investigate, but it is still of concern to the school? What is the school’s duty of care?
• Examining key steps in responding to allegations:
  • when and how should an internal investigation be conducted?
  • should the staff member be stood down during any investigation?
  • reporting to police and police investigations – understanding your rights and obligations, including where police seek to interview students or staff
  • examining your obligations with respect to privacy and confidentiality
• Addressing the potential legal fallout where the allegations are proven false or the staff member is exonerated

David Wright-Smith, Director Child Protection Investigations, NSW Department of Education

Victoria Myerscough, Director Systems and Practice, NSW Department of Education

Nicole Mcfarlane, Director Child Protection Investigations (Preliminary Investigations Coordinator), NSW Department of Education

12.30    Managing Difficult Parents:

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 / P&C forums
• Balancing your obligations to the staff member and the school in investigating a complaint
• Dealing with anonymous complaints
• 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?
• Staff commencing defamation action – what are a school’s legal obligations and risks?

Margaret Baker, Principal Legal Officer, NSW Department of Education

Greg McLaren, Principal, Samuel Gilbert Public School, Castle Hill; State Secretary, NSW Primary Principals’ Association (NSWPPA); Executive Liaison, NSWPPA Legal Issues Standing Committee

Parent Complaints to the Ombudsman: Responding to Optimise Outcomes and Protect Your Legal Position

• Outlining the legal framework applying to parent and student complaints about schools to the ombudsman
• Dealing with preliminary enquiries from the Ombudsman
• Understanding your rights and obligations should the Ombudsman decide to investigate
• Examining what evidence you should provide
• Communicating with students and parents during investigations
• Responding to findings by the Ombudsman

Margaret Baker, Principal Legal Officer, NSW Department of Education

Greg McLaren, Principal, Samuel Gilbert Public School, Castle Hill; State Secretary, NSW Primary Principals’ Association (NSWPPA); Executive Liaison, NSWPPA Legal Issues Standing Committee

1.10       Closing Remarks from the Chairperson

1.15       Close of Conference

2.00       Welcome from LawSense

2.00       Opening Remarks from the Chairperson

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

2.05       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

• 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

• 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 because 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

Margaret Baker, Principal Legal Officer, NSW Department of Education

Jacquie Seemann, Partner, Thomson Geer Lawyers

Cassy Norris, Principal, Ryde Secondary College; Member, Secondary Principals Council Executive

3.05       Social Media Update – Sexting, Online Offences and Bullying: Knowing How to Investigate, Respond and Understand New DoE Policies

• Exploring common applications and online platforms currently used by students
• Legislation and DoE policy updates:
  • examining current offences students can commit online and potential consequences
  • reviewing relevant changes to DoE policies affecting how social media issues are dealt with in schools
• What is the role or requirement of the school to:
  • investigate allegations made by students or parents
  • report suspicions or allegations of potential offences
  • provide information to the police and what information
• Understanding the extent of a school’s obligations where the activity happens outside school including where material:
  • is sent to a student by a student outside the school
  • is posted on social media relating to parties or events which are not school activities, but include students at the school
• Police interviewing students and staff – what are a school’s rights and obligations?
• Storing evidence of porn – what are the legal restrictions?

Leighton Hawkes, Principal, McCabe Curwood

Cassy Norris, Principal, Ryde Secondary College; Member, Secondary Principals Council Executive

4.05       Refreshment Break

4.15       Student Discipline: Ensuring Your Investigation of Incidents and Allegations Involving a Student is Legally Defensible

• Outlining the law applying to student discipline and investigations in schools and understanding procedural fairness
• Understanding when to investigate and determining the scope of investigation required
• When should an external investigator be used?
• Incidents where police may become involved:
  • understanding your rights and obligations in dealing with police. Should you allow them to interview school staff and students? Should the school be involved in interviews as support? When should you provide evidence such as documents or CCTV footage?
  • knowing to what extent you should conduct your own investigation
• Conducting a fair and legally defensible investigation:
  • understanding your rights in obtaining information, including student searches, and review of data on phones
  • requesting and conducting student interviews, including notifying or dealing with parents
  • allowing support people for the student – does this have to be a parent?
  • preparing to interview a student and tips in the form of questions
  • recording and documenting interviews – what approach is optimum for schools?

Leighton Hawkes, Principal, McCabe Curwood

Cassy Norris, Principal, Ryde Secondary College; Member, Secondary Principals Council Executive

5.10       Closing Remarks from the Chairperson

5.15       Close of Conference

4 May 2021 – LawSense School Law Induction Program

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       Live Streamed Session 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?

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    Live Streamed Session Family Law: Reviewing Family Law and AVO’s 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

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:

	Lila Mularczyk was Principal at Merrylands High School for 15 years until 2016.  She was the Deputy President of the NSW Secondary Principals’ Council (SPC) for 8 years, and was SPC Executive Member for 15 years.
	Murat Dizdar PSM, Deputy Secretary, School Performance – South, is a senior leader of the NSW Department of Education who oversees the provision of a quality public education for students in over 2,200 schools. Murat co-leads the School Performance division that provides support to 80,000 teachers and school leaders to deliver a high-quality education for over 820,000 students.
	Veronica Kapsimali has extensive experience in senior level educational management, at local and state level, Veronica has led and coordinated the development of policy and procedures. She has delivered expert advice on educational issues in NSW schools and across government and nongovernment educational jurisdictions, at a local and state-wide level.
	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.
	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.
	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.
	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.
	Nevena Brown brings a common-sense confidence to her work, and more than 25 years’ experience. Her experience with liability claims is enhanced from having worked as a senior solicitor at NZI/CGU Insurance Ltd for five years. Nevena has advised and defended claims for GIO General Ltd, Vero Insurance, NZI/CGU Insurance Ltd, QBE Europe and other major insurers.
	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.

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