Education Law Notes – Term 1 2024
Published on March 18, 2024 by David Ford, Stephanie McLuckie and Samuel Chu
I trust 2024 has started well for you and your schools. By all accounts, it’s been as busy for you as for me and our team.
The task of keeping up-to-date on current and emerging legal issues is never ending. In this Term’s Notes, we want to bring several important issues to your attention, including:
- recent and upcoming changes to workplace laws;
- a recent court of appeal judgment relating to the power of the NSW Education Minister to recover funds from a school that has been declared ‘non-compliant’ in accordance with section 83E of the NSW Education Act;
- a current review of the operation of Section 83C of the NSW Education Act regarding the use of government funding to NSW non-government schools;
- a recent Victorian court judgment finding a school liable for failure to protect Jewish students from anti-Semitic bullying and harassment;
- a warning about the implications of charging a term’s fees when a family withdraws enrolment following an increase in school fees;
- an update on the recent Productivity Commission’s proposal that school building funds would no longer be eligible for Deductible Gift Recipient status; and
- school sporting clubs and reporting self-assessments for income tax.
Finally, I also draw your attention to several upcoming seminars and conferences which will be of great interest to you and your colleagues.
As always, enjoy the read!
Warm regards,
David
A Changing Employment World
The Federal Government has been actively introducing changes to the Fair Work Act 2009 over the last 12 months and more changes are on the horizon. Our summary of the changes that are relevant to schools covers fixed term contracts, unlawful discrimination against employees experiencing family and domestic violence, employee authorised deductions from pay, the right to superannuation contributions, unpaid leave for parents, and wage theft.
Click here to read more.
NSW Court of Appeal wades into meaning of section 83C
A recent decision of the NSW Court of Appeal provides further guidance to non-government schools in relation to the operation and construction of the not-for-profit requirements in section 83C of the Education Act 1990 (NSW) and the power of the Minister to recover funds from a school that has been declared to be ‘non-compliant’ in accordance with section 83E of the Act.
Click here to read more.
Review of section 83C of the Education Act 1990 (NSW)
The NSW Deputy Premier and Minister for Education and Early Learning has announced a review of the operation of Section 83C of the NSW Education Act regarding the use of government funding to NSW non-government schools.
Click here to read more.
Victorian school found liable for failure to protect Jewish students from anti-Semitic bullying and harassment
Five Jewish students applied to the Federal Court of Australia alleging that, during their time at Brighton Secondary College, they were faced with anti-Semitic bullying and harassment from other students at the College and that College staff, including the College Principal, did not take steps to protect them and other Jewish students from this bullying and harassment.
Click here to read more.
Increasing your school’s fees
The Sydney Morning Herald of 11 January 2024 had its usual new year story on fee increases at independent schools. One Sydney school reportedly advised its parents on 10 January 2024 that they would now be paying over $50K for fees for their Year 9 and 10 children this year.
Of course, this raises the question: what do parents do if they discover in January that they will not be able to afford their children’s school fees this year? Having pored over the family budget, they decide that they must move their children to a state school or to a less expensive independent school. Accordingly, they advise the school business office that the children will not be returning in a few weeks’ time. They are shocked when, 10 days later, they receive a letter from the school with a request for a term’s fees in lieu of notice in accordance with the enrolment conditions they signed many years ago.
A similar situation arose at an ACT school and, in the ensuing litigation, it was found that the provisions of the Australian Consumer Law applied. Further, the requirement to give a term’s notice of withdrawal was found to be unfair and therefore unenforceable by the school.
We have therefore been helping schools to update their enrolment conditions to reduce the risk to them of a similar result should parents challenge the notice provisions. Please contact David Ford if you would like a review of your enrolment conditions.
Productivity Commission proposes changes to Deductible Gift Recipient eligibility that could affect schools
As you may be aware, the Productivity Commission released on Thursday, 30 November 2023 its draft report on its inquiry into philanthropy. Amongst other draft recommendations, the Commission has proposed that school building funds would no longer be eligible for Deductible Gift Recipient status. Under this proposal, existing school building funds would also lose DGR status.
Submissions responding to the Draft Report were due by Friday, 9 February 2024. Carroll & O’Dea Lawyers made a submission responding to the Draft Report, which you can view here.
The Commission’s final report is due to the Treasurer by Saturday, 11 May 2024. We are monitoring this inquiry with interest.
New annual self-review return requirements for non-charitable not-for-profit organisations that wish to access an income tax exemption
Does your school operate a sporting club or association and does that club or association self-assess as income tax exempt? We draw your attention to a new Australian Taxation Office requirement, which came into effect on 1 July 2023 (for the 2023/2024 financial year). The new requirement stipulates that any not-for-profit club or association accessing an income tax exemption must lodge a self-review return each year, with the first annual self-review return for sporting clubs due to be lodged between 1 July 2024 and 31 October 2024. Our colleagues published this article in September 2023 about this new requirement. If your school operates a sporting club or association and you would like more information about this, please contact David Ford, Stephanie McLuckie, or Samuel Chu.
Upcoming events
Australian Boarding Schools Association (NSW)
Date: Wednesday 20 March 2024 (9:00 am – 10:30 am)
Location: Pymble Ladies’ College
David Ford will be speaking on “Legal Issues for Boarding House Staff”
Legalwise School Law Series
Date: Wednesday, 27 March 2024 (1-2pm)
Where: Online
Stephanie McLuckie will be speaking on “Student Discipline and Your School’s Duty of Care”.
Click here to register and see the full series program.
ANZELA NSW Seminar
Topic: Conflict, Communication and Criticism:
Dealing with difficult behaviours of parents and school visitors.
Date: Wednesday, 10 April 2024
Time: 5:30 pm – 6:45 pm
Venue: Thomson Geer Lawyers, Level 14, 60 Martin Place, Sydney
This seminar will also be available to join online.
To register or enquire about attending, please email NSW@anzela.edu.au.
The Education Network 9th Annual Schools Law and Regulatory Conference
Date: Thursday 23 & Friday 24 May 2024
Location: Crown Towers, Melbourne or Online
David Ford will be speaking on “Happy Campers? Child Safety Risks in Offsite Activities”.
Stephanie McLuckie will be speaking on “Testing the Boundaries: Relationship Management between a School and its Associated Organisations”.
We encourage you to join us in Melbourne for this comprehensive program and the opportunity to collaborate with colleagues.
The full conference brochure can be seen here.
