Education Law Notes – Term 2 2022
Published on June 6, 2022 by David Ford
As we move forward and learn to live with COVID-19, we examine what it means for schools now that government vaccination mandates affecting school staff are disappearing.
In our last edition of Education Law Notes, we outlined the recent changes to the Teacher Accreditation Act 2004 (NSW), noting that NESA is now recognised as the only body which can assess a person’s suitability to teach. In this edition of the Notes, we consider a recent NSW Court of Appeal case where NESA suspended the accreditation of a teacher.
Claims of child sexual abuse from decades ago continue to emerge. We look at a recent case where the court decided that it would be too unfair to allow such a claim to be heard.
We also share some thoughts about a case where we helped a school resist a request that it provide information that a person antagonistic to the school was seeking under legislation designed to promote freedom of information.
Finally, I was recently interviewed by Brad Entwistle of imageseven for the School Marketing Journal Podcast where we discussed enrolment contracts, sending emails to prospective parents and how to handle online reviews. Our chat goes for just under 20 minutes. You can listen to the podcast here.
Enjoy the read!
David
Moving from COVID-19 Vaccine Mandates to Risk Assessments in NSW Schools
Over the last year, we saw all states and territories implement some form of vaccination mandates affecting school staff, although how the mandates were implemented (and who they affected) differed. Some states and territories are now requiring school staff to be ‘up to date’ with vaccinations. In April 2022, about 420 public school teachers in Victoria were stood down for failing to meet vaccination requirements, with a majority stood down because they had not received a third dose of a COVID-19 vaccine. The Northern Territory and Western Australia are also requiring teachers to be ‘triple-dosed’.
The situation in NSW is quite different. Instead of mandating a booster shot, the NSW Government has dropped the vaccination mandate, with the repeal of the Public Health (COVID-19 Vaccination of Education and Care Workers) Order 2022. This is a true indication that the response in NSW has shifted to living with COVID-19.
Read more to understand the position in NSW following the repeal of the Public Health Order. The same issues will apply to schools elsewhere as their statutory mandates disappear.
NSW Education Standards Authority flexes its muscles
Mr Thomas was a casual teacher on a temporary contract at Moree Public School in 2020. During his time at the School, he had performance-related concerns raised with him. Also during his time at the School, Mr Thomas made complaints to the NSW Department of Education, SafeWork and the NSW Anti-Discrimination Board alleging bullying, harassment and discrimination on the grounds of his sexuality. In making these complaints, he threatened to contact media outlets to voice the contents of his complaints and experience.
Read the details of the litigation between NESA and Mr Thomas here and keep on top of NESA’s rights to suspend a teacher for misconduct.
Stopping claims of historical child sexual abuse
Andrew sued his former School for damages arising from incidents of sexual abuse alleged to have taken place in 1981, while he was in Year 6. The allegations named the then Head of Primary as the perpetrator. Andrew alleged the School breached its duty of care to him, and additionally and alternatively, that the School was vicariously liable for the acts of the Head of Primary. At the time the complaint was first raised, the Head of Primary and other material witnesses had died.
Read more to see if the School was able to have the claim permanently stayed.
Freedom of information has its risks
AA applied to Transport for NSW for information under the Government Information (Public Access) Act 2009. Transport for NSW identified 57 pages of information that fell within the application but refused access to the information on the basis that disclosure would expose a person to a risk of harm or of serious harassment or serious intimidation. AA applied to the Information Commissioner for an external review which concluded that Transport for NSW’s original decision was not justified and recommended that it make a new decision. Transport for NSW then decided to grant AA access to the requested information subject only to very limited redactions.
The requested information was about vehicle “permits” or registrations to use ATVs, tractors and other special vehicles on roads by an independent school. The school began a process of appeals to the Information Commissioner and to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (NCAT).
To see how the School sought, with our help, to protect its students, staff, contractors and property, and what NCAT decided, read more.
Seminars
LawSense held its Schools Law Conference on 31 May and 1 June 2022. David spoke on “Transgender and Gender Fluid Students: Navigating Differing Views on Student Welfare and Developing Effective Policies”. In a separate session, Stephanie McLuckie and David Ford addressed Section 83C of the Education Act 1990 (NSW) and “Navigating ‘Not for Profit’ Requirements to Optimise Opportunities and Compliance: Case Studies and Scenarios”. Please contact David Ford or Stephanie McLuckie if you would like information on either of these topics.
David Ford is presenting at a Television Education Network webinar on 16 August 2022 about: “Student Discipline & Schools: How Far Can You Go?”.
At the Alliance of Girls’ Schools Australasia webinar on 31 August 2022, David will be speaking about the legal implications of gender issues for schools. This webinar is open to members and non-members of the Alliance.
