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Education Law Today

Schools – Non-Delegable Duty of Care

By Indran Sinnadurai and Alex Kohn on Posted in Liability & Risk

Summary - The non-delegable duty of care owed by a school to its students continues while a student is on an excursion.

In November 2011, his Honour Judge Elkaim in the NSW District Court found both a school and a ski resort liable for a back injury sustained by a school student while the student was participating in a skiing lesson organised by the ski resort during a school excursion (see Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney [2011] NSWDC 172).  While it may seem surprising that a school could be held liable for an injury to a student sustained during a school excursion in an activity supervised by a third party in a field very different from school studies, this result arises from a legal concept known as a “non-delegable duty of care”.

“Non-delegable duties of care” arise when there is a special relationship between the plaintiff and the defendant where the defendant is in a special position with respect to the plaintiff (see Ellis v Wallsend District Hospital (1989) 17 NSWLR 553).  The easiest way to explain the relationship is with examples arising out of everyday life.  The law provides that the following relationships give rise to a non-delegable duty of care (see Kondis v State Transport Authority (1984) 154 CLR 672; Commonwealth v Introvigne (1982) 150 CLR 258):

  • Employer to employee;
  • Hospital to patient;
  • School to student.

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Recovering Unpaid School Fees from Parents

By David Wong and Alex Kohn on Posted in Commercial Relationships, General

Summary - A number of legal procedures to recover outstanding school fees from parents is discussed.Unpaid bills on mat outside front door

PART 2

Options for enforcing judgment debt

  1. If it is known where a judgment debtor works, their wages can be garnished.  A garnishee order is a court order which attaches the judgment debt to any salary or wage the judgment debtor earns above a minimum amount (currently $432.50 per week) and is effectively, a court order against the judgment debtor’s employer.  This is a very effective method of enforcing a judgment.
  2. If examination of the judgment debtor reveals that funds are held in his/her name in financial institutions or he/she receives rental payments, a garnishee order for debts in respect of those funds can be filed.  Judgment debtors generally do not supply this information.
  3. If the judgment debtor owns property such as furniture or other goods, a Writ for Delivery of Goods may be applied for from the court.  This method of enforcing the judgment debt involves the sheriff attending the judgment debtor’s residence or business to seize goods belonging to the judgment debtor for sale at public auction.  This method of enforcement can often be frustrated by claims by a judgment debtor that goods belong to a third party. 
  4. If the judgment debtor is the sole owner of real property, a Writ for the Possession of land can be sought.  The writ cannot be executed unless the judgment debtor consents or the sheriff is satisfied that the land should be sold before other property in order to minimise the hardship to the debtor.
  5. Generally a judgment creditor has six years from the date of judgment to commence bankruptcy proceedings.  This is achieved by serving a Bankruptcy Notice on the judgment debtor.  If the judgment debtor does not comply with the Bankruptcy Notice within 21 days of service, bankruptcy proceedings may be commenced against the judgment debtor.  Such proceedings effectively liquidate most of the judgment debtor’s assets and obtain some of the earnings of the debtor for up to three years following bankruptcy proceedings.  Bankruptcy proceedings can be very lengthy and costly and a trustee must be appointed to investigate the debtor’s affairs and realise the judgment debtor’s property for the benefit of creditors.  Secured creditors will have priority over unsecured creditors.

Take home point

As a garnishee order for wages can often be the most effective and cheapest form of enforcing a judgment debt for fees, we recommend enrolment forms completed by parents to include details of their employment.

Recovering Unpaid School Fees from Parents

By David Wong and Alex Kohn on Posted in Commercial Relationships, General

Unpaid bills on door matSummary - A number of legal procedures to recover outstanding school fees from parents is discussed.

Part 1

Introduction

Parents enrolling their children in boarding schools or religious-based schools want their children to be educated in an environment which reflects their values, beliefs and hopes.  For a variety of reasons, sometimes parents do not or cannot pay their child’s boarding and tuition fees (outstanding fees).

Debt recovery for outstanding fees needs to be undertaken within a framework reflecting each school’s policy in the treatment of their students’ parents.

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School Funding Suspended

By Bill d'Apice on Posted in Commercial Relationships, Funding, Tax & Exemptions

Summary - NSW Government Freezes Islamic Schools Funding under Section 21AOld run-down school building

It has been about five years since the NSW Government introduced section 21A of the Education Act which prohibits funding assistance being paid to non government schools operating for profit.

For the first time, to our knowledge, the NSW Government has used this section to freeze funds to a non government school.

The NSW Government is reported to have frozen funding to Sydney’s largest Islamic school, Malek Fahd, after an investigation into payments the school made by way of management fees and backdated rental fees to its owner, the Australia Federation of Islamic Councils, the nation’s peak Muslim body.

Apparently, issues relating to the payments were uncovered during an audit by the NSW Department of Education and Communities.

Under this section of the Act, a non government school is taken to operate for “profit” if any part of its proprietor’s assets or income (insofar as they relate to the school) are paid to any other person.  There are exceptions to that rule which largely relate to operational and capital expenses in conducting the school. There is an exemption for payments to third parties in connection with property, goods or services relating to the school at no more than reasonable market value.

It would appear that the government has formed the view that the amounts paid by the school to the Australian Federation of Islamic Councils do not qualify for that exemption.

Further information appears in a newspaper article in The Australian on 22 March 2012.

Changes to the Education Tax Refund – Information for Schools

By Joanne Irvine on Posted in Tax & Exemptions

Two school girls doing school workSummary - Australian Government has expanded the Education Tax Refund.

The Australian Government recently expanded the Education Tax Refund (ETR) – which helps families meet the cost of primary and secondary education – to include school uniforms.

Schools should be aware that they may be asked by parents to provide evidence of amounts paid to them by, or for, their students.

What is the ETR and how has it changed?

The ETR allows eligible parents, carers, legal guardians and independent students to claim a refund each year of up to 50% of eligible education expenses up to certain maximum amounts.

By virtue of the recent expansion of the ETR, school-approved uniforms purchased from 1 July 2011 may be claimed from 1 July 2012.  To be eligible for claiming, uniforms need to be distinctive and recognised by the school but are not limited to items displaying the school crest.

What are “eligible education expenses”?

“Eligible education expenses” are items that support a student’s primary or secondary school education.  They include the purchase, lease, hire or hire-purchase cost, repairs and running costs of eligible items.

Example of eligible education expenses include:

  • Laptops, desktop computers and printers
  • Stationery, text books, exercise books and reference books such as dictionaries and encyclopaedias
  • Internet connections, computer software for educational use and USB flash drives
  • Prescribed trade tools required to complete a school-based apprenticeship
  • Uniforms – including hats, footwear and sports uniforms – approved by a school as its uniform

What do schools need to know?

For families to be able to claim the ETR, a school statement or receipt should list eligible education expenses separately to non-eligible fees and expenses.  School fees are not an eligible education expense.  So, when a school issues a statement or receipt for school fees which includes eligible educational expenses such as the cost of text books, parents will be able to claim that part of the school fee attributable to the eligible items if those items are itemised or listed separately on the statement or receipt.  A school can assist parents by breaking down the statement or receipt to show the apportionment of expenses instead of issuing a “lump sum” statement or receipt for school fees and expenses.

Otherwise, a school may provide a separate notice in writing – either at the time the statement or receipt is issued or at a later date – advising of the amount that relates to eligible items.  This written notice will be evidence enough for a parent making an ETR claim for those items.

Schools should keep a record of how any apportionment is made to assist with any queries.  However, as it is not the school’s responsibility to specify what is and is not an eligible education expense, schools should be aware that they cannot be questioned by the ATO as to how they determined whether specific expenses are eligible.  The onus is on the parent to identify what is an eligible education expense.

The Australian Government ETR website at www.educationtaxrefund.gov.au is a very useful resource for families and schools to provide further information in relation to the ETR.  The website provides a helpful Fact Sheet and an A3 poster which schools may distribute or display to assist eligible families in claiming all that they are entitled to.

Racial Discrimination

By Nada Abdel-Fattah on Posted in Discrimination

1 brown egg surrounded by white eggsSummary of Racial Discrimination and an example of a case (Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56) which dealt specifically with direct and indirect discrimination.

The Act makes it unlawful to racially vilify another person, whereby a person is discriminated on the grounds of their race publicly, causing insult and/or humiliation.

The unlawfulness of racial discrimination can occur within employment, access to premises, access to accommodation and within the education sector, whether at a school, university, TAFE or college.

There will be some overlap in these areas.  For example, discrimination on the grounds of race could occur when a person seeks employment at a school, or may be denied access to certain premises or facilities within a school on the basis of their race.

Racial discrimination can be direct or indirect and section 7 of the Anti-Discrimination Act 1977 (“ADA”) outlines what constitutes discrimination on the grounds of race.  The ADA makes it unlawful to discriminate against someone by treating them less favourably than another person in the same or similar circumstances; (Direct Discrimination).  The ADA also makes it unlawful to require someone to comply with a requirement or condition that others who are not of the same race could comply with, and that requirement is not a reasonable one in the circumstances; (Indirect Discrimination).

A case which was before the Administrative Decisions Tribunal at first instance and then on appeal (internally within the Tribunal) which dealt with these issues, in particular, an allegation that a requirement was unreasonable in the circumstances and constituted direct and indirect discrimination, is the case of Laalaa v Director General, Department of Education and Training (EOD) [2009] NSWADTAP 56.

The facts of that matter were as follows:

  • Mr Laalaa completed an undergraduate degree in his home country, Lebanon.
  • In 2006, he accepted a one year scholarship provided by the Department of Education and Training to complete a Graduate Diploma of Education at the Australian Catholic University and during this year he participated in practical training at East Hills Boys Technology High School to train as a teacher of mathematics, engineering and industrial technology.
  • Mr Laalaa then attended an interview in September 2006 to assess his suitability to be a teacher and was recommended for employment. The Department required him to complete the Professional English Assessment for Teachers (PEAT).
  • He complained about that requirement and was offered the opportunity to be assessed to determine whether he should be exempt from the PEAT. He was ultimately assessed as exempt.
  • Following a series of abusive emails to Departmental officers and a further independent assessment of his suitability to be a teacher, the Department declined to offer him employment.

Mr Laalaa alleged that the Department directly and indirectly discriminated against him on the grounds of his race and victimised him in breach of the ADA. Mr Laalaa relied on section 7 of  the ADA, alleging, among other things, that the requirement to undergo the PEAT was unreasonable.

The Tribunal found that:

  • The department was entitled to require him to undergo the PEAT assessment and that this was neither indirect nor direct discrimination under section 7 of the ADA.
  • The PEAT requirement was not based on race but was based on whether a candidate for the position had obtained his tertiary qualifications.
  • The Department’s decision for Mr Laalaa to be exempt from that requirement was not based on his race but rather, his complaints and subsequent abusive emails to the Department and following a further assessment of his suitability for the role, the Department made a decision not to offer him a role at the School.
  • In any event, the department’s requirement for him to undergo the PEAT assessment to determine the level of his tertiary qualifications in order to assess his suitability for the role was not unreasonable in the circumstances.

The Tribunal dismissed Mr Laalaa’s complaint at hearing and also on appeal.

The case is a reminder that an educational authority may decline employment to a prospective employee if its internal requirements are not met and that the mere fact that the applicant is of a particular race does not mean that the application has been refused on the grounds of the applicant’s race.

Sport Injuries in Schools – Understand the Risks and Obligations

By Raymon Anderson on Posted in Liability & Risk

kids playing soccer

Summary – Injuries at school including those sustained as part of sporting activities have the potential to but do not always attract liability and compensation.

Children often participate in school sport activities as part of the curriculum, during study breaks or as elective activities. However, the adolescent body of a school student is not fully developed and with participants of varying age, skill, knowledge and respect for the rules, the risk of injury is ever present.

The NSW Sporting Injuries Committee compiled data for the Sydney Morning Herald indicating hospital emergency treatment of sporting injuries has doubled since 2002 and deaths do occasionally result, two in the last financial year relating to rugby union and futsal (indoor soccer).

Another statistic on the rise is litigated claims arising from sport injuries sustained at school activities, but do the different parties to sporting activities understand the relevant risks and obligations?

Parents should understand the limit of supervision in the prevention of injuries just as children sometimes sustain injuries while in the care of their parents. When a child is injured at school, however, parents may wrongly perceive a much higher absolute obligation on a school to protect a child from all injury. Parents should also be aware that they may have obligations to inform a school about any pre-disposition to injury that their child may have including a heart condition, bone density deficiency or prior injury.

Students should understand there are risks associated with all activities including sport. Physical contact is common in rugby and soccer, environmental conditions are relevant in surfing and skiing, and in the simplest form running can increase the chance and severity of stress, strain or fall injuries. Students have an obligation to take steps for their own care and comply with instructions, however that obligation is unlikely to apply to the full extent as it might in relation to an adult.

Teachers should understand that while responsibility and liability will not automatically follow from all injuries to students, the duty of care to a student cannot be easily reduced, cannot be delegated and in certain circumstances may be increased. The duties of teachers will also be under heavy scrutiny when potential claimants look back from what might be an unlikely but severe injury event and are looking to make a claim.

Educational institutions are not insurance companies and do not guarantee injury prevention or compensation. The relationship between teacher and student does however come with obligations and duties and proactive steps should continue to be taken to ensure those obligations and duties are fulfilled and students are protected from harm to the fullest reasonable extent.

Criminal Aspects of Cyber Bullying

By Alex Kohn on Posted in General, Liability & Risk

A schoolboy using a laptop

Summary

Cyber bullying also attracts potential criminal action which is often not appreciated.

As today is the National Day of Action Against Bullying and Violence, I thought it appropriate to post another blog about cyber bullying.

In my last blog I discussed some aspects of cyber bullying and in particular the circumstances under which a school authority may be at risk of a civil claim for breach of its duty of care. 

In this blog I am going to discuss some of the criminal aspects of cyber bullying, because it is apparent from many discussions I have with educators that the criminal consequences are sometimes overlooked.

In February 2003, the NSW Crimes Amendment (School Protection) Act commenced to provide protection where a person assaults, stalks, harasses or intimidates any school staff or student while attending a school.  I see no reason why, in certain circumstances, these expressions might not encompass cyber bullying.  Unfortunately, the section is somewhat limited in that it only provides protection for a member of staff or student when the act takes place on school premises or while entering or leaving school premises.  Therefore, this provision would not cover cyber bullying activities occurring at home or on the way home. 

Section 31 of the NSW Crimes Act makes it an offence to maliciously send or deliver, or cause to be received, any document threatening to kill or inflict bodily harm.  In certain circumstances, cyber bullying might fall within the ambit of this section.

Moreover, cyber bullying behaviour which constitutes harassment, intimidation or stalking may in some circumstances be in breach of criminal legislation which applies in most states of Australia. 

Where cyber bullying consists of the use of non-consensual visual recordings, often on a mobile phone camera, such that there is a gross breach of privacy, the posting of such recordings on a website may also constitute a criminal offence.

Cyber bullying can also take place through telecommunication services.  Where telecommunication services are used to menace, threaten or hoax other persons, which can often be the case in cyber bullying, the Commonwealth Criminal Code may provide some protection.

Finally, cyber bullying can, in some circumstances, constitute an assault.  It must be remembered that assaults cover not only physical force, but also situations where a person fears imminent harm by means of a verbal threat.  Most cyber bullying is verbal in nature and in some cases the criminal offence of assault might be triggered by the bully’s conduct. 

Conclusion

It can be seen from this brief summary that cyber bullying is extremely complex.  It not only encompasses a number of civil causes of action, including civil duty of care issues canvassed in my last blog, but also has many criminal elements.  Although not all of these criminal elements apply in every state of Australia, they are reasonably similar from state to state. 

Children and teachers who are the subject of cyber bullying might keep these criminal sanctions in mind should the cyber bullying escalate to the point of triggering one of these offences. 

There is an excellent article by Des Butler, Sally Kift and Marilyn Campbell called “Cyber Bullying in Schools and the Law:  is there an effective means of addressing the power imbalance?” published in the Murdoch University Electronic Journal of Law (2009) which I have linked.  Those wishing further in-depth reading on this topic would find this article a great resource.

Asbestos Exposure in Schools

By Indran Sinnadurai and Alex Kohn on Posted in Liability & Risk

Summary

Up until the late 1970s and the early 1980s, one of the most popular building materials in Australia was “fibro”.  Fibro houses and buildings can be seen throughout Australia, particularly in areas where there was a large amount of construction in the years following the Second World War.

Issues

“Fibro” is actually a short-hand name for asbestos cement.  The full name is “fibrolite” but when most people speak of “fibro”, they are not speaking of “fibrolite”, they are speaking of asbestos building materials generally.

In addition to its use as an ingredient in building materials, asbestos was also an ingredient in insulation.  Asbestos is well known for its fire retardant properties and its resultant ability to insulate against heat.

Asbestos building materials might have been used in the construction of many schools prior to the late 1970s or early 1980s.  Because very small amounts of asbestos have been known to cause the life threatening cancer, mesothelioma, schools need to be aware of the presence of asbestos and the dangers that might arise.

One obvious source of asbestos is in the building materials and insulation used in the buildings themselves as well as air conditioning ducts.  Another less well-known source of asbestos is land fill.  If the school used land fill to build up ovals or other facilities in the past, that landfill might have contained asbestos.  Both can be sources of exposure for staff, students or any other person visiting the school site.

Recommendations

As employers, schools will obviously maintain workers’ compensation policies.  These policies should be kept up to date and be checked to ensure they cover liabilities for asbestos risks.  Further, schools should check their public liability policies to ensure that they have coverage for persons other than staff (e.g. students and visitors) who might develop an asbestos-related disease as a result of exposure at the school.

Lastly, schools should maintain a register of any known asbestos materials on site.  The school might already hold a register of asbestos for OHS purposes but it would be wise to check the register and ensure that it is current.

Asbestos regulation should form part of the risk management strategies from all schools.

School or College Building Funds Under Review

By Kylie Maxwell and Bill d'Apice on Posted in Funding

Summary snapshot of changes proposed to be introduced to the requirements for a school or college building fund to be endorsed as a DGR.

The Australian Taxation Office (ATO) has released a proposal which changes the circumstances within which a School or College
Building Fund may be established and maintained to enable an effective tax deduction to be given to donors to the fund.

Draft Taxation Ruling TR2011/D5 addresses important questions about when buildings can be used for purposes other than the purposes of the School or College and still enable the School or College Building Fund to give a valid tax deduction.  It also explains the position in relation to buildings commissioned under the Building Education Revolution (BER) and the BER’s requirement that certain buildings built within the BER be made available for community use.

The draft ruling clarifies whether the community use of school libraries and school multi-purpose halls under the BER is to be considered likely to interfere with the conduct of the School, in which case it would cause the College or School Building Fund to be disqualified from Deductible Gift Recipient (DGR) status by the ATO.

The draft ruling changes the test that is currently applicable regarding the issue of when buildings can be used for other purposes to allow the fund to remain a DGR.

Schools and Colleges constantly balancing school and community needs should consider drafting Submissions before 2 March 2012, after which the ATO will no longer receive them.