Education Law Notes – Term 4 2022
Published on November 18, 2022 by David Ford
Vaping. It’s increasingly common amongst young people. Does a school have a duty of care to students to prevent harm to them from vaping? In this article, we set out best practice for schools to tackle the growing use of addictive and harmful e-cigarettes.
The Australian Law Reform Commission is undertaking an Inquiry into federal anti-discrimination laws and how they apply to religious educational institutions. We take a look at the Terms of Reference and how faith-based schools may be impacted by the outcomes of this Inquiry.
No school wants to jeopardise its State or Federal government funding. We highlight for school leaders and their governing bodies how to ensure your school remains compliant with the relevant legislation regarding funding and maintains good governance.
We felt the collective sigh of relief last year when students could return to school after lockdown and educators could recommence face-to-face lessons with their classes. However, this didn’t bring an end to online communication within school communities. We take a look at every school’s responsibility to the care and protection of their students and staff in the online environment.
With the end of term only weeks away, the team at Carroll & O’Dea Lawyers wishes you a very happy Christmas, a restful holiday, and a New Year full of opportunities to make a positive difference in the lives of your students.
Warm regards,
David
Does a school have a duty of care to students to prevent harm to them from vaping?
An e-cigarette is a device that heats a liquid to produce vapours that users inhale. E-cigarette use is also commonly referred to as vaping. Liquids used in e-cigarettes may contain nicotine and other toxic chemicals harmful to humans.
Click here to read more about a school’s duty of care to its students – both those who vape and those who don’t. We also talk about the offences that students and staff may commit!
Religious Educational Institutions and Anti-Discrimination Laws
On 4 November 2022, the federal Attorney-General issued the Australian Law Reform Commission with Terms of Reference to consider reforms to the way federal anti-discrimination laws apply to religious educational institutions. This was no surprise given Mr Albanese in his speech to the Parliament on 9 February 2022 about the then Government’s proposed religious freedom bill said:
That is why we will move a simple amendment to delete section 38(3) of the Sex Discrimination Act in full to remove discrimination against all children, whether they are gay or lesbian, whether they are by sexual, whether they are transgender.
The next day, in his statement on religious discrimination legislation, the now Prime Minister said that “a future Labor government would act to protect all students from discrimination on any grounds.”
In the Terms of Reference, the Attorney-General asks the Law Reform Commission to have regard to the Government’s commitment to amend the Sex Discrimination Act 1984 (Cth) and other Federal anti-discrimination laws (as necessary), including the Fair Work Act 2009 (Cth), to ensure that an educational institution conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
- must not discriminate against a student on the basis of sexual orientation, gender identity, marital or relationship status or pregnancy;
- must not discriminate against a member of staff on the basis of sex, sexual orientation, gender identity, marital or relationship status or pregnancy;
- can continue to build a community of faith by giving preference, in good faith, to persons of the same religion as the educational institution in the selection of staff.
The Commission, having regard to the Government’s commitment as outlined above, is then asked to consider what reforms to federal anti-discrimination laws (including section 38 of the Sex Discrimination Act 1984 and the Fair Work Act 2009) should be made in order to ensure that, to the extent practicable, federal anti-discrimination laws reflect the Government’s commitments (as set out above) in a manner that is consistent with the rights and freedoms recognised in the international agreements to which Australia is a party including the International Covenant on Civil and Political Rights.
The inclusion of paragraph (c) in the Terms of Reference may give some comfort to faith-based schools who seek to employ staff who are committed to the school’s faith. However, the indication that the Government is wanting to prevent faith-based schools from discriminating in any way against students based on their sexual orientation, gender identity, marital or relationship status or pregnancy is likely to cause concern for some of those schools. While few if any are wanting to refuse or end the enrolment of a child on any of these grounds, some may want to prevent LGBTIQ+ students from forming a student group and/or advocating their lifestyle to other students. Repealing section 38 of the Sex Discrimination Act 1984 may be seen as a blunt instrument.
The Government has appointed New South Wales Supreme Court Judge, the Hon Justice Stephen Rothman AM, as a Part-Time Commissioner for the Inquiry. The Commission has been asked to deliver its report to the Attorney-General by 21 April 2023. It is expected that the Commission will undertake consultation with religious organisations, the education sector, unions, legal experts and others before then.
If your school or religious organisation would like assistance in preparing a submission to the Law Reform Commission, please contact David Ford as soon as possible.
Navigating the not-for-profit requirements for independent schools in NSW
Earlier this year, an independent school in NSW came to the attention of the media and then the NSW Department of Education because, reportedly, the school planned to install a private plunge pool at the principal’s residence and had recently sent senior staff to the UK for a rowing event (including the principal and his wife) on business class flights.
This sparked concerns that the school was not using its funds (including funds received from government) appropriately.
In this article, we review for you the relevant legislation, governance standards and guidelines and set out our top tips for maintaining good governance of your school.
The online environment during the COVID recovery: child protection, duty of care and privacy
While schools continued to operate during lockdowns, many activities, including teaching and learning, continued online rather than in the classroom. Now that new digital technologies and online systems are in place, some school learning activities and communication will continue to take place through online platforms, which blur the lines between being ‘at school’, ‘at work’ and ‘at home’.
As we continue to live with COVID-19, educators should take the time now to consider the duty of care owed to students in this context and how these online activities may raise concerns around child protection and impact the privacy of students and staff.
Full article on website starts here.
Carroll & O’Dea Lawyers Inservice Training 2023
Our lawyers are available to come to your School to present to all staff on topics such as duty of care in the playground, classroom, sporting field, excursions and outdoor education as well as bullying and cyber-bullying. We can also address your School Council/Board and Executive team on topics including duty of care for the transgender student, school discipline, and good governance.
Please contact Lyndall Smart to make an arrangement.
