Education Law Notes – Term 3 2019
Published on September 25, 2019 by David Ford
Welcome to the first issue of Education Law Notes from my desk at Carroll & O’Dea Lawyers. It’s my pleasure to continue to keep you up-to-date with developments in education law both here in Australia and abroad – something I have been doing now for some 30 years.
As always, please feel free to forward the Notes to your colleagues and, if any of them would like to receive the notes each term direct to their inbox, please ask them to email me.
Enjoy the read!
Not-For-Profit Guidelines for Non-Government Schools
The NSW Minister for Education issued yet another version of the Not-For-Profit Guidelines for Non-Government Schools in June 2019, only six months after the previous version. While many had hoped for substantial change and improvement, this was not to be. On the positive side, there is now a section in the Guidelines dealing with the use of a school’s assets by other schools or community groups. On the negative side, the vexed issue of whether redress payments by a school which has decided to participate in the National Redress Scheme could cause the school to operate for profit has not been dealt with specifically.
Traps in Fee Recovery
Mum signed an enrolment document for her son to start at Christian Brothers College Adelaide in 2009. By 2018, the School was suing mum for unpaid fees and debt recovery costs. Judgment was entered in the School’s favour in early 2019 and mum twice sought unsuccessfully to have the judgment set aside. Basically, the magistrate did not think that she had an arguable defence. Mum then appealed to the Supreme Court of South Australia.
The terms of the enrolment were in issue. The School contended that she was a party to the 2009 contract. However, in early 2017 and 2018, the Business Manager sent a pro forma letter to all parents enclosing the 2017 fee invoice and noting that “all families must complete the School Fee Agreement form” and pay the fees if they wished their child’s enrolment to continue. Mum neither signed the form nor paid the fees. She argued that her relationship with the School was one of annual contracts or renewals and that she did not agree to any contract or renewal in 2017 or 2018. The Court felt that the enrolment documents were not entirely clear and found, therefore, that it was at least arguable that the proper construction of the relationship between the School and mum was that of a series of separate annual contracts for each school year.
Religious Discrimination Bill 2019
On 29 August 2019, Christian Porter, the Federal Attorney-General, released a draft Religious Discrimination Bill and has invited comment on it by 2 October 2019. Should schools be concerned, excited or even interested? Most schools think that they don’t discriminate in the enrolment process against students or their families on the ground of their religious belief or activity. However, there are many faith-based schools which include in their enrolment conditions a requirement that students attend religious instruction classes and religious activities such as a chapel service. The normal response to parents who might challenge this requirement is that this is all part of the school’s offering and that, if they don’t like it, they should go elsewhere. If the Bill becomes law, will that response stack up?
The Future of Education 2019
I commend to you this most recent report from McCrindle. Much of it resonates but nothing more so than the note about the complexity and governance and the growing compliance requirements which are key challenges for principals in schools today.
The ANZ has recently prepared an interesting industry and financial benchmarking paper on Non-Government Schools which is also worth a look. The key insights include:
- Since 2000, tuition fees for secondary schools have more than tripled.
- The financial performance of non-government schools varies considerably and for the first time we are witnessing troubling signs for medium tuition fee schools (tuition fees between $10k and $20k). On average, schools in this bracket have seen a reduction in student numbers, sluggish tuition fee growth and an increased reliance on debt.
- Low tuition fee schools (<$10k) on the whole are the most profitable schools from a margin perspective.
Upcoming Seminars
Law of Religious Institutions Conference
11 & 12 November 2019 in Brisbane
David Ford will be speaking on Managing & Conducting Investigations in Religious Institutions.
Registration details here.
Religious Based Institutions: The Legal Issues
27 November 2019 in Sydney
The intersection of religion and law in contemporary Australian society has become increasingly apparent in the recent past. The program brings important voices to the table in examining religious freedom, expression, discrimination, governance, employment law and the legal framework necessary for religious institutions. And finally, take a deep dive into the practicalities of civil claims & liability.
Carroll & O’Dea partners David Ford and Josephine Heesh will be speaking on Employment Contracts for Faith Based Organisations and Property Law and the Church respectively.
Registration details here.
Asia Pacific Summit on Girls’ Education
10 – 12 May 2020 in Hobart
This is an event of Alliance of Girls’ Schools Australasia.
David Ford will be speaking on Transgender Students and Girls’ Schools.
Registration details here.
