Education Law Notes – Term 3, 2024
Published on September 17, 2024 by David Ford, Stephanie McLuckie and Samuel Chu
It was wonderful to have many of you join us in person and online for our Charity Law Day last month.
Stephanie McLuckie spoke that day on the challenges faced by schools relating to the use of social media and smartphones by students. In her article below, she shares how schools can protect themselves and their students.
Volunteers are so valuable to schools and other not-for-profit organisations. At our Charity Law Day, Michael Barnes spoke about the legal and practical risks involved when you engage with volunteers to support your organisation’s activities. We provide a summary of that important session in today’s Notes.
Finally, we provide an update for you on the Review of Section 83C and Related Provisions of the Education Act and also the Productivity Commission’s final report into philanthropy in relation to schools.
As always, enjoy the read!
Regards,
David
The Dark Side of the Digital World in a School Context
In today’s digital age, schools are increasingly facing challenges related to the use of social media and smartphones among students. Read here to see how schools can create a safer digital environment for their students and protect themselves from potential liabilities.
What to think about when your school engages with volunteers
Parents, alumni and other community members who volunteer in your school are invaluable. All schools and other charities should think carefully about legal and practical risks involved when you engage with volunteers to support your organisation’s activities. Read more here.
Review of Section 83C of the Education Act – Report of Mr Alegounarias
Section 83C of the Education Act 1990 (NSW) (Education Act) prohibits the Minister for Education and Early Learning (the Minister) from providing financial assistance to a non-government school that ‘operates for profit’. On 19 October 2023, the Minister, Prue Car, announced that she had appointed Mr Tom Alegounarias to conduct a Review of Section 83C and Related Provisions of the Education Act (the Review), in accordance with the Minister’s terms of reference. The purpose of the Review was to examine the operation of Section 83C, and to make recommendations to the Minister on any improvements.
On 16 August 2024, Mr Alegounarias presented his report on his findings from the Review. His report is available to read here. Among other things, the Review makes 16 recommendations to improve the regulation of financial assistance to non-government schools in NSW.
Submissions on the Review were accepted from stakeholders until 24 February 2024. You can read the submissions (including those made by Carroll & O’Dea Lawyers) here.
It remains to be seen whether the Minister will accept any of the recommendations from the Review – and what the final form of any legislative amendments (and/or Guidance materials) may take.
The Productivity Commission’s final report into philanthropy: a reprieve, some reforms and ongoing risks
Like many of you, we have been monitoring the Productivity Commission’s inquiry into philanthropy very closely. We made a submission responding to the Commission’s Draft Report, and we also discussed the Commission’s inquiry in a previous edition of Education Law Notes. We engaged with the Commission’s inquiry because the recommendations in the Draft Report – if implemented by the Commonwealth Government – would substantially change the charity and tax law regulatory framework applying to many educational institutions, faith-based organisations and other charities.
As many of you are aware, the Draft Report recommended that school building funds would no longer be eligible for Deductible Gift Recipient status. In addition, existing school building funds would also lose DGR status.
We pored over the Commission’s Final Report when it was released on 18 July 2024 to see whether (and if so, how) the recommendations in the Commission’s Draft Report had changed in any way. We have provided a general update on the implications for educational institutions, faith-based organisations, and other charities of the Final Report. However, we wanted to draw your attention to a number of the Final Report’s recommendations that are specifically relevant for non-government schools.
The Final Report retained the Draft Report’s recommendation that school building funds would no longer be eligible for DGR status (and that by extension, existing school building funds would also lose DGR status). However, the Commonwealth Government on the day the Final Report was released rejected this recommendation from the Commission. Accordingly, your non-government school can continue to receive tax deductible donations for a school building fund that it operates, at least in the near term, without factoring in the possibility of legislative change that would revoke DGR status from (existing and prospective) school building funds.
In general, the Final Report recommended that eligibility for DGR status be extended “to most classes of charitable activities”. However, the Final Report proposed that the Commonwealth Government should exclude primary, secondary, religious and informal education activities from the DGR eligibility framework unless those activities were conducted by a Public Benevolent Institution or otherwise have a “specific equity objective”. This would mean, for example, non-government schools for students with disabilities or Indigenous students would continue to be eligible for DGR status, but most (if not all) other non-government schools would not be eligible for DGR status in their own right.
The Final Report also recommended that the Commonwealth Government should exclude early childhood education and care activities from the DGR eligibility framework (other than any early childhood education and care activities conducted by a Public Benevolent Institution).
Further, the Final Report recommended that the Commonwealth Government should continue to exclude entities that are not “registered charities and equivalent government entities” from the DGR eligibility framework. Relevantly, and by extension, the Commission believes that sporting clubs, which are regulated outside the ACNC regulatory framework (as sporting clubs are not eligible to be charities), should not be eligible for DGR status.
Whilst the Commonwealth Government has rejected the Final Report’s recommendation in relation to school building funds, it is considering the Commission’s other recommendations.
If your non-government school wants to explore tax-deductible giving options to address its current or future fundraising needs, or if your non-government school has other charity or tax law issues that it would like our help with, please contact David Ford, Stephanie McLuckie or Samuel Chu.
Future events
Australia and New Zealand Education Law Annual Conference
Wednesday, 2 October: Conference Welcome Function
Thursday, 3 October: Day 1 of the conference and conference Dinner
Friday, 4 October 2024: Day 2 of the conference
David Ford is presenting on Vicarious Liability of Schools. Stephanie McLuckie is giving two presentations: one on Relationship management between a school and its associated organisations and another on Student Discipline and Your School’s Duty of Care. Samuel Chu is presenting on What now for faith-based schools and their place in the Australian educational ‘public square’?
The Education Network Live Webinar
David Ford will be speaking on “Happy Campers? Student Safety Risks in Offsite Activities”.
Thursday, 7 November 2024
Vic, NSW, ACT, Tas: 11am to 12pm
Qld: 10am to 11am
SA: 10:30am to 11:30am
NT: 9:30am to 10:30am
WA: 8am to 9am
Register here
