Education Law Notes – Term 4, 2024
Published on November 18, 2024 by David Ford, Bill Madden, Stephanie McLuckie and Samuel Chu
The law never stops! Despite the end of the year being only a few weeks away, there are important and relevant legal issues to bring to your attention. We trust these Notes will be helpful to you in your important work with children and young people and in your leadership in the school context.
First, we look at a recent High Court decision which confirmed that the law in Australia is that an employer is not vicariously liable for the conduct of anyone who is not an employee. Being like an employee is not enough.
We examine a case of vicious bullying after school hours and away from the school campus and the resulting successful claim against the State of NSW.
We also consider the lessons from a case where a 10 year old girl with disabilities was injured in an off-campus horse riding activity overseen by an external provider.
Industrial manslaughter legislation is now in place across the Commonwealth and in each state and territory for matters relating to grossly negligent conduct that breaches work health and safety duties that are owed to an individual and cause the death of an individual. We highlight how these laws have implications for school governors and principals.
Finally, the Australian Taxation Office has provided further clarity about the recent changes to the law applying to school building funds.
Our team wish you a very Happy Christmas and a refreshing break over the summer!
Regards,
David
Beyond the School Gates: When is a School liable in negligence for bullying & student assault?
It is late 2017 at a NSW government high school. The end-of-day bell has rung and the students make their way out of the school gates. Away from the school property, a 14-year-old student was set upon by 12 fellow students in an attack that was unprovoked, violent and lengthy. The victim of this attack sued the State of New South Wales claiming it was negligent, in its capacity as the occupier of the school site and having the care, management and control of the school at which the student and his attackers were students. Click here to read more.
Duty of Care in Off-Campus Activities
A 10-year-old girl, who lives with cerebral palsy, severe global developmental delay and autism, sustained a right femoral neck fracture when she fell from a horse in 2019 at an equestrian complex owned by Riding for the Disabled Association (NSW). At the time, she was a student at a NSW Department of Education school which provided specialised care and teaching for children with complex disabilities. The girl sued the Association and the Department. Read more to find out why she was unsuccessful against the Department.
Industrial Manslaughter Offences Now Australia Wide
The Commonwealth and all states have passed industrial manslaughter offences in recent years (NSW and Tasmania only in 2024). These supplement existing work health and safety provisions under which school governors and principals can be personally liable for fines or even imprisonment in all states and territories. Read more to see how a school and an external provider were both charged in Victoria following the death of Lachlan Cook on an ill-fated trip to Vietnam.
A further update on changes to the law applying to school building funds
School building funds have been in the spotlight over the last few years. The Australian Taxation Office has recently updated its position in a positive way for schools and school foundations that operate school building funds. Read more here.
Upcoming event
ANZELA NSW Seminar and AGM (in person and online)
Thursday, 21 November 2024
5.15pm AGM
5.45pm Seminar: Alternate Dispute Resolution in the Education Sector
With special guest speakers:
Bernadette Fay, Director of Risk & Compliance, Barker College
Greg McLaren, Deputy President, NSW Primary Principals’ Association
Venue: New South Wales Teachers Federation (23-33 Mary Street, Surry Hills)
Light refreshments will be served.
Please RSVP by email to nsw@anzela.edu.au by Tuesday, 19 November 2024.
Dates for your 2025 diary
Legalwise School Law Webinar
Stephanie McLuckie will speak on “Risks Associated with Vexatious and Bullying Parents”
Tuesday, 25 March 2025
Time: 1-2pm
The Education Network 10th Annual Schools Law Conference
David Ford will speak on “Gender And Sexuality In Schools: A Delicate Balancing Act”
Thursday, 22 and Friday, 23 May 2025
Melbourne
