The prolific growth of the digital economy was hailed as revolutionary. With a multi-directional exchange of ideas and other forms of expression, online technological advancements have facilitated the inexpensive exchange of information across national and international boundaries ^[1]. However, the prolific nature of the digital age brings to the fore alarming questions regarding the large caches of information about individuals being generated, used, disclosed and stored, including the young and vulnerable. Research highlights that “Not all young people understand the need to protect their information…[2]”. Let us unpack the Privacy Act Amendments.

The vulnerability of people’s information in the digital age has prompted the release in February 2023 of the Privacy Act Review Report (the Report), which contains 116 proposals for reform of the Privacy Act 1988 (Cth) (the Act). As at the date of this article, feedback is currently being sought to the Report.

For our school and church clients, some the most significant proposals in this Report pertain to children and vulnerable individuals.

Children’s Privacy

Children increasingly rely on online platforms, applications and devices in their everyday lives, such that many young people view their online and offline lives as ‘inextricably linked’.

The implications? The Report found that children are increasingly being ‘datafied’, with information regarding their activities, gender, interests and hobbies, location, mental health and relationships being collected.

The proposed solution? Legislatively enshrine child appropriate privacy policies and collection notices. Modelled on the UK’s Age Appropriate Design Code, the proposals would mandate the companies create a safe space for [children] to learn, explore and play, not by seeking to protect children from the digital world, but by protecting them within it.

Specific proposals include:

16.2. Valid consent must be given with capacity, and an entity must decided if an individual under the age of 18 has the capacity to consent on a case-by-case basis. That is, the consent of a child is only valid if one could reasonably expect that the consenting child would understand the nature, purpose and consequences of the collection, use or disclosure of the personal information to which they are consenting.

16.3. Collection notices and privacy policies, in particular for any information addressed specifically to a child, should be clear and understandable.

16.4. Entities must have regard to the best interests of the child as part of considering whether a collection, use or disclosure of information is fair and reasonable in the circumstances.

16.5. Introduce a Children’s Online Privacy Code that applies to online services that are ‘likely to be accessed by children’.

The Privacy of People Experiencing Vulnerability

Certain groups of consumers may lack the technical, critical and social skills to engage with the internet in a safe and beneficial manner.

Unlike children however, who constitute an easily definable segment of society, identifying who constitutes a vulnerable person is a more challenging matter. Further, clarifying the issues and identifying the options available to protect these individuals once they are recognised to be vulnerable is a nuanced endeavour.

Presently, the Report has adopted a three-pronged approach:

17.1 The Report proposes the inclusion of a non-exhaustive list of both individual characteristics and situational factors, which can alert an entity to the potential that an individual may be at a greater risk of privacy harms. This would assist entities to take proactive steps to minimise risks.

17.2. Guidance on capacity and consent should be updated to reflect developments in supported decision-making.

17.3. (Less relevant to schools and churches) Further consultation should be undertaken to help ensure that financial institutions can act appropriately in the interests of customers who may be experiencing financial abuse or may no longer have capacity to consent.

Supplementary Provisions

Of course, improved privacy protections for all individuals through a number of the proposals in the Report will address many of the issues faced by children and people experiencing vulnerability. These provisions include:

20.4. Introduce a requirement that an individual’s consent must be obtained to trade their personal information.

20.5. Prohibit direct marketing to a child unless the personal information used for the direct marketing was collected directly from the child and the direct marketing is in the child’s best interests.

20.6. Prohibit targeting to a child [for commercial purposes], with an exception for targeting that is in the child’s best interests.

20.7 Prohibit trading in the personal information of children.

20.8.Targeting individuals should be fair and reasonable in the circumstances. This would be likely require consideration of whether the targeting poses risks of unjustified adverse impact or harm to individuals.

Key Takeaways

The proposed reforms to privacy laws would appear to suggest an increasing need in the future for schools and churches to engage on an even greater scale with privacy related issues.

Appointment

If you are seeking further assistance in relation to privacy matters, please feel free to contact us  on (07) 3252 0011 to book a consultation with the writers James Tan and Courtney Linton.

[1] Zi En Chow, ‘Evaluating the Approaches to Social Media Liability for Prohibited Speech’ (2019) 51(4) New York University Journal of International Law and Politics 1293.

[2] eSafety Commissioner, ‘Online safety for young people with intellectual disability’ December 2020 (https://www.esafety.gov.au/research/online-safety-for-young-people-intellectual-disability).

When can notice terms in School Enrolment Contracts be unenforceable?

Simply because a parent has signed a school enrolment contract does not mean the terms of the contract are always enforceable upon that person. Schools must take care to ensure that the terms of their enrolment contracts are reasonable, and do not breach the Australian Consumer Law consumer protections.

The ACAT case of Brindabella Christian Education v Respondent XD 561 of 2021 (Civil Dispute) [2022] ACAT 37 (5 May 2022) exhibits this principle in action – where specific terms in a school’s enrolment contract were deemed unfair and unenforceable against the student’s parents, despite the parents having read and signed the enrolment contract.

Facts

The parents (Respondents) of a child signed an enrolment contract with Brindabella Christian Education (“the School”) for the provision of educational services and schooling. The enrolment contract relevantly stated ( “the notice term”): (emphasis added)

One full College term’s notice in writing to the Principal is required for the intended withdrawal of the child, otherwise a full term’s fees will be charged. The written notice must be received at the College by the first day of term. Any notice received after the first day of term will render parents/carers liable for the fees for that term and the subsequent term in lieu of notice.

In 2019, the parents withdrew their child from the School without providing the required written notice. Instead, they claimed they had informed the teachers of their intention to withdraw at the end of year meeting, filled out an online withdrawal form, and emailed the administration and enrolments department of the School.

The School pursued the parents for one full term’s worth of fees relying on the notice term to ground the action. The parents claimed the notice term was unfair under the Australian Consumer Law’s (“ACL”) consumer protections, and sought to have the Tribunal declare the term as being void and unenforceable against the parents.

Issue

The Tribunal considered:

1. Whether the parents had admitted to partial liability in the amount of $1,900.00 during the course of the proceedings; and
2. Whether the notice term in the enrolment contract was void and unenforceable against the parents in accordance with s 23(1) of the ACL;

Unfairness

In assessing unfairness, the Tribunal considered the elements of ACL s 23(1):

• Whether the contract was a “consumer contract”;
• Whether the contract was in “standard form”; and
• Whether the term was “unfair”.

Consumer Contract

ACL consumer protections only applied to standard form contracts. These are “a contract for the supply of goods or services…[1] to an individual whose acquisition of the goods [or] services… is wholly or predominantly for personal, domestic or household use or consumption.”[2] Relevantly, “services” was defined in the ACL as “any rights,…benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce…”[3]

Although the School claimed that whether the ‘provision of educational services’ could be considered as occurring ‘in trade or commerce’ for the purposes of the ACL was unsettled law, the Tribunal drew its conclusion from decisions in Hearn v O’Rourke and Wright v Christ College Trust. As the conduct occurred in circumstances that had a trading or commercial character,[4] and recent decisions recognized that providing education in exchange for fees was itself of a commercial nature,[5] the contract occurred in trade and commerce, was for services, and was therefore a consumer contract.

The Tribunal rejected the School’s alternative argument that since the parents were not the ones using the educational services (which were for the benefit of their children), the parents were not entitled to ACL protection. If that argument was allowed, anyone who acquired services for their kids would not be entitled to the consumer protections, which was not the ACL’s intent.

Standard Form

A contract must be a standard form contract within the meaning of ACL s 27 to attract consumer protections. Whilst no party made formal submissions on this point, the Tribunal inferred it was standard form by the parents’ reference to the contract as “stock standard” and that the parents had no chances to negotiate the contract’s terms.

The Tribunal also considered mandatory considerations under ACL s 27(2), finding the parents would not have had a say in the contractual terms[6] and that the contract was offered to the parents on a take-it-or-leave-it basis.

Unfairness

To be “unfair”, the notice term:[7]

• Would need to cause significant imbalance in the parties’ rights and obligations arising under the contract;
• Would not be reasonably necessary to protect the legitimate interests of the School (who was advantaged by the term); and
• Would cause the parents detriment if the School was permitted to rely upon the term.

The Tribunal considered various factors under ACL ss 24(2) – 24(4).

Significant Imbalance?

The Tribunal found that a number of terms in relation to the enrolment policy, curriculum, acceptance of the Fee Schedule, and the notice term evidenced significant imbalance to the parties’ rights in the School’s favour. The School could unilaterally vary contractual terms and change the upfront price payable under the contract without providing the parents’ complimentary termination rights without incurring financial loss (a term expressly considered as unfair ACL s 25),[8] and the contract did not state this clearly. The Tribunal also found the contract was not sufficiently clear as to its intentions to remain as an ongoing contract. Whether the parents should have eventually deduced the contract was an ongoing one, or whether the parents’ decision to withdraw stemmed from the School varying the enrolment contract, was irrelevant as fairness and transparency is assessed at the time of contract formation.

Reasonably Necessary to Protect Legitimate Interests?

The School was required to prove the notice term was reasonably necessary to protect its legitimate interests. If the notice term was not a genuine pre-estimate the loss the school would suffer from unexpected student withdrawal, it would be considered a penalty and therefore enforceable.

The School tried to rationalize the full-term fee by outlining that the school budgeted all classes and set teacher numbers and class alignments in Term 4, and there was potential inability for the school to find a replacement student without incurring financial burden for the leaving student.

However, the Tribunal stated that, in the context of the notice term’s operation within the contract as a whole, the notice term had to be both “reasonable” and “necessary”. The term allowed the school to unilaterally vary contractual terms without allowing the parents the ability to terminate, and therefore this term was not reasonable or necessary to protect the School’s interests. Further, the Tribunal indicated that these rights could be better balanced and the School validly protected from unexpected financial loss if the contract required the School to let parents know in advance of any proposed contractual amendments and the parents to notify the School by a particular date in term 4 whether the child would return the following year. The School could not sufficiently show that the notice term was reasonable.

Detriment Suffered

The “Detriment” criterion of the claim was easily applied, as the parents would suffer loss in the form of paying school fees if the School was allowed to rely on the notice term.

Conclusion and Takeaway

The Tribunal found the notice term satisfied the elements of ACL s 24(1) and was an unfair term that could not be enforced against the parents. Therefore, the Application by the School was dismissed.

This case shows the importance for schools to ensure the terms of their enrolment contracts are fair and therefore enforceable, or they risk incurring unexpected, and potentially unrecoverable, financial liability.

Would you like a School Enrolment Contract review?

We offer a fixed fee for school enrolment contract reviews. Call our office today on (07) 3252 0011 and speak with our education team to find out more.

This article was written by Jackson Litzow & Jessica Lipsett.

Footnotes

[1] ACL s 23(3)(a)

[2] ACL s 23(3).

[3] ACL s 2(1).

[4] Hearn v O’Rourke

[5] Wright v Christ College Trust

[6] ACL s 27(2)(d).

[7] ACL s 24(1).

[8] ACL ss 25(d), (f).

Uniform policy v Religious beliefs | Discrimination in Schools

In schools, there can be a fine line between enforcing compliance with uniform policies and the need to accommodate a student’s cultural and religious beliefs. Failing to understand when indirect discrimination may arise on the ground of religious beliefs can be a source of real difficulty for schools across Australia, and particularly is a more pronounced issue in schools with a religious background or mission perspective.

In Australia it is widely accepted that sensitivity must be given to students and their family’s religious convictions, especially when it comes to religious attire. This is reflected in the various State based anti-discrimination legislation across Australia, and it is important that educational institutions are aware of the applicable legislation and its application to student enrolments. Anti-discrimination legislation applies to all facets of education including the terms of student admission and enrolment. Whilst, having a school uniform is important in promoting school identity and integration, schools must be careful that the school’s uniform policy is not unreasonably enforced in a discriminatory manner.

Arora v Melton Christian College (19 September 2017 – VCAT)

The recent Victorian case of Arora v Melton Christian College [2017] VCAT 1507 (19 September 2017 – VCAT) is noteworthy as it highlights the need for schools to consider enforcement of its uniform policy without discriminating against the religious belief or culture of students (or potential students).

Summary of Facts

This case involved a five year old boy, whose parents sought to enrol in the College. In processing the enrolment, it appears that the College refused to make exceptions regarding the application of the uniform policy for the child. At the relevant time, the child had uncut hair (a kesh), and wore a head covering called a patka.

Having kesh is a Sikh religious belief, and wearing a patka is an essential practice or activity of being a Sikh.

On the other hand, the College had a uniform policy in place at the relevant time said that boys must have short hair, and may not wear any head coverings related to a non-Christian faith.

Allegedly, the College refused to make adjustments to their uniform policy to accommodate the child’s uncut hair and head covering.

The child’s parents brought a complaint to the Victorian Equal Opportunity and Human Rights Commission on the basis the school had discriminated against the child under the Equal Opportunity Act 2010 (Vic) (“EO Act”). This gave rise to a complaint of Indirect Discrimination, in that requiring the child to comply with the College’s Uniform Policy was not reasonable. The Applicant alleged that the College contravened the EO Act by discriminating against the child in:

• • Making a decision not to admit the child as a student;
  • Refusing or failing to accept his application for admission of the child as a student; and
  •  Proposing to admit the child under the term that they comply with conditions it the College’s uniform policy.

In the complaint, the child’s parents relied on sections 9 and 38 of the EO Act which prohibits direct or indirect discrimination on the basis of a person’s religious belief. Similar provisions apply in Queensland’s Anti-Discrimination Act 1991 (Qld).

In its defence, the College made a number of claims, including (without limitation):

• • The child was not disadvantaged by not being able to attend the College;
  •  Even if the child was disadvantaged, the requirement that he comply with the College’s uniform policy was reasonable;
  • Even though the College did not make an exception to its uniform policy for the child, it was not done on the basis of the child wearing a patka;
  •  Even if the College did contravene the EO Act, it relied upon the exception that
    • The educational authority operates a school for students of a particular religious belief to exclude students who are not of that particular religious belief; and
    • The exception which allows an educational authority to set and enforce reasonable standards of dress, appearance and behaviour for students.

The Findings of the Tribunal

Ultimately, the Tribunal held that the College had contravened the EO Act, and the exceptions relied upon by the College did not apply in these circumstances. We summarise some of the critical findings of the Tribunal as follows:

• • The Uniform Policy amounted to a requirement, condition or practice imposed on the child.
  • The child was subjected to disadvantage, in that the College was located in a convenient position for the child’s family, and his cousins also attended the College.
  • The requirement for the child to comply with the uniform policy was not reasonable.
  • The burden of proof was on the College to prove whether the requirement was reasonable, and this was a question of fact and requires an objective assessment of all relevant factors. A reasonable requirement was held to be less demanding than necessity but more demanding than convenience, and required the Tribunal to weigh the nature and effect of the discrimination against the reasons in favour of the requirement.
  • The disadvantage suffered by child was “reasonably significant”.
    
  • The College argued that the uniform policy was intended to achieve a number of objects, including a common identity, community, sense of purpose, inclusivity and protection from discrimination.  The Tribunal found that there are a myriad of ways to achieve this without imposing a discriminatory requirement. Additionally, there was also no evidence that the Uniform Policy achieved these outcomes, particularly where the College also had a bullying policy and expects teachers to treats all students equally.
  • The Tribunal was not satisfied that the uniform policy (as amended in 2014) reflected the views of the school community at the time.
  • The disadvantage suffered by the child was not proportionate to the results sought by the College in imposing the uniform policy on the child.

Could the School rely on any exemptions?

In certain circumstances, exemptions from the application of anti-discrimination legislation may apply. Melton Christian College sought to rely on two exemptions set out in sections 39 and 42 of the EO Act  , which state:

• • Educational institutions operated wholly or mainly for students of a particular religion, may exclude applicants who are not of that particular religion.[1]
  • Educational institution may set and enforce reasonable standards of dress, appearance and behaviour for students but must take into account the views of the school community in setting the standard[2] (a specific exemption in the Victorian legislation).

Under the first exemption, the College was required to prove that the school operated wholly or mainly for students of a particular religion. The onus to prove the exception applied was on the College and the College argued it operated wholly or mainly for students of the Christian religious belief, and may exclude persons without those attributes.

However the Tribunal held that this exemption did not apply, and that:

The College had a open enrolment policy (just over 50% of families did not identify as Christian).  It was not reasonable to accept enrolments from non-Christians on condition that they do not look like “non-Christians”.

The Tribunal held that the College does not exclude persons with other non-Christian religious beliefs, and noted that the College would have made exceptions to the uniform policy if the proposed student had medical circumstances that warranted so.

Rather, the child was excluded because of his religious belief regarding hair cut and head covering, not because he was a non-Christian. The Tribunal noted that the College accepted the child’s cousin’s enrolment into the school (that were of the same religious faith as the child). On these findings, the Tribunal found that the child was excluded for his religious belief regarding the hair cut and head covering, not because he was a non-Christian.

Under the second exemption, the College argued that they were entitled to set reasonable standards of dress, appearance or behaviour for students, so long as they take into account the views of the school community.

However, the Tribunal held that this exemption should be read narrowly and strictly, as it only allows the College to set and enforce reasonable standards of dress, appearance and behaviour. It does not allow the College to exclude persons seeking to be admitted where they are unable to comply with the Uniform Policy due to their religious belief or activity.  It was for this reason the Tribunal held that the exemption did not apply.

Additionally, the College did not take into account the views of the College Community at the time, and, separate from this exemption, the Tribunal also noted that the College could have made reasonable adjustments to the uniform policy by requiring the child to wear a head covering of the same colour as the school uniform.

How could this apply to your school?

It is clear from this decision that a generalised and strict application of a uniform policy may cause a College to be in breach of its obligations under anti-discrimination legislation. Particularly for Colleges with a religious background or mission perspective, and in an increasingly diverse population in Australia, Colleges need to carefully consider whether their uniform policies might offend current anti-discrimination legislation.

Exceptional circumstances may apply which may allow an exemption. However, a cautious approach with professional advice should be adopted before seeking to rely on these exemptions, particularly with many schools adopting an open enrolment policy.

Placing conditions upon a child’s enrolment that conflict with their religious convictions may lead to legal action for discrimination. When creating, or enforcing policies, schools must be mindful these policies are not indirectly discriminating against students with different religious beliefs (or, for that matter, any protected attributes under the anti-discrimination legislation) and make reasonable adjustments to policies for students who cannot reasonably comply with the policy.

Contact our School Law specialists

We’re here to help guide you through your School Law legal matters after separation. Please call our Brisbane School Lawyers  on 07 3252 0011 to discuss how we can help you.

Article prepared by James Tan, Jessica Lipsett

Footnotes

[1] See Equal Opportunity Act 2010 (Vic) s 39

[2] See Equal Opportunity Act 2010 (Vic) s 42

Changes to Childcare Vaccination Legislation

While changes to the childcare vaccination legislation through amendments to the Public Health Act 2005 (Qld) will not make immunisation mandatory, it gives the person in charge of an approved education and care service (ECEC services) the power to exercise discretion regarding enrolment and attendance of children who are not up to date with their immunisations. These changes will take effect on 1 January 2016.

Changes from 1 January 2015

ECEC services can request parents provide the following:

1. 1. An immunisation history statement when first enrolling a child;
   2. An updated immunisation history statement when a child passes the 2, 4, 6, 12, 18 months and 4 years vaccination milestones.

The immunisation history statement will show if a child is up-to-date with their scheduled vaccinations and could for example be requested in an enrolment form, or similar documentation used for enrolling a new child.

Services covered by the legislative changes

The changes will only apply to education and care services approved under the Education and Care Services National Law (Queensland) and the Education and Care Services Act 2013. The most common ECEC services include the following:

1. 1. Family day care
   2. Kindergarten
   3. Long day care
   4. Limited hours
   5. Outside school hours/holiday care

Unregulated services such as nannies, babysitters, au pairs, or playgroups are not covered.

What if a child is not up-to-date?

If a child is not up-to-date, the ECEC service can choose to:

1. 1. Refuse enrolment;
   2. Cancel enrolment and/or refuse attendance; or
   3. Conditionally accept enrolment and/or attendance;
   4. Accept the enrolment and/or attendance

The changes offer discretionary power to the ECEC service and does not prevent the service from allowing unvaccinated children to enrol and/or attend their service or elect to waive the requirement to provide an immunisation history statement all together.

Services are encouraged to take into consideration a child’s circumstances when utilising their discretionary power and consider whether refusing enrolment or attendance would be in the best interest of the child.

What if child’s immunisation status is not updated at a key milestone?

The ECEC service can:

1. Request the parent provide an immunisation history statement;
2. Where the parent has not provided an update with 4 weeks of the request, the service may:

a) Refuse to enrol or allow the child to attend the service; or

b) Impose conditions on the child’s attendance, for example, agreement of a reasonable timeframe to immunisation history statement or a catch up schedule approved by a recognised immunisation provider.

Are any children exempt?

Children who cannot be vaccinated for medical reasons (e.g. medical contraindication) or who are on a recognised vaccination catch-up schedule are considered up-to-date. The ECEC service cannot refuse to let these children attend, based on their immunisation status.

Conscientious objection

Children from families who conscientiously object to immunisation will have the immunisation status “not- up-to-date”. Enrolment or attendance of these children will be at the discretion of each ECEC service.

Missing or incomplete records

The parents should discuss their options with their immunisation provider. The immunisation provider can review the child’s immunisation history, begin a catch-up vaccination schedule if needed, or provide the parent with an immunisation history statement.

Key definitions

What does up-to-date mean?

1. The child is age-appropriately immunised; or
2. The child is following an approved immunisation catch-up schedule; or
3. The child has not been vaccinated due to a medical contraindication.

What is an immunisation history statement?

Demonstrates whether a child is up-to-date or not. An immunisation history statement as recorded on the Australian Childhood Immunisation Register kept under the Health Insurance Act 1973 (Cwlth), section 46B, or a statement about a child’s immunisation history given by a recognised immunisation provider (such as an immunisation nurse or GP).

Who is a recognised immunisation provider?

Is defined by reference to section 46A of the Health Insurance Act 1973 (Cth) – under section 46A of the Health Insurance Act 1973, a recognised immunisation provider is a person who is recognised by the Chief Executive Medicare as a provider of immunisation to children.

Legal implications of ChatGPT in Australian Schools

Since launching in November 2022, the popular artificial intelligence tool Chat Generative Pre-Trained Transformer (“ChatGPT”) has facilitated a technological revolution with far reaching consequences. For Australian schools, this brings to the fore an abundance of legal issues for consideration.

This article provides an introduction to the legal challenges arising from ChatGPT and offers several measures to manage and stay abreast of this ever-changing technological landscape.

How does ChatGPT work?

ChatGPT is a language processing tool, accessible to the public through web browsers. It has the capability to compose emails, essays, code, scripts and a variety of other forms of advanced text.

How have schools responded?

As a new technology, educational institutions are in the initial phases of managing and responding to ChatGPT. The various Departments of Education in Western Australia, New South Wales, Queensland and Tasmanian have responded swiftly, banning the use of ChatGPT in primary and secondary public schools.

At a tertiary level, Australian universities have had to rapidly restructure their respective curriculums; such measures include increased face-to-face supervision and pen-and-paper examinations, which afford students fewer opportunities to plagiarise work with ChatGPT.

What legal issues arise for schools? 

Intellectual Property and Ownership Issues

Just as the advent of computers and other educational technology has become a regular practice for teachers, why not utilise ChatGPT to boost productivity and thereby afford more time to focus on what matters most – the children?

One potential hindrance in this regard, is legal ownership of the content created. Is the teacher and/or educational institution the proprietor, or is it ChatGPT?

Recently, the Australia Federal Court in Thaler v Commissioner of Patents [2021]¹, found that AI could not be credited as being an ‘inventor’ of a patent under the Patents Act,² as it is not a natural person, and therefore incapable of owning intellectual property.

Whilst the Thaler case provides a useful illustration of this constantly evolving technological space, it leaves many questions unanswered.

As a starting point, sub-clause 3(a) of OpenAI’s (the creator of ChatGPT) Terms of Use Policy purports:

As between the parties and to the extent permitted by applicable law, you own all Input. Subject to your compliance with these Terms, OpenAI hereby assigns to you all its right, title and interest in and to Output. This means you can use Content for any purpose, including commercial purposes such as sale or publication, if you comply with these Terms. 

However, there is a caveat to this proposition.

While OpenAI does not use data submitted by customers to their API³ to develop or improve Services, the same cannot be said for ChatGPT. When users engage with ChatGPT, OpenAI stipulates at subclause 3(c) of its Terms of Use Policy that it may utilise the content “to help develop and improve our Services”.

What does this mean for educators? By way of example, Teacher A uses the ChatGPT prompt tool to create a lesson plan based on a pre-existing set of learning objectives. Ownership of both the learning objectives and lesson plan generated remains and is assigned respectively to the user, here, the teacher.

But, the data from both the input (learning objectives) and the output (lesson plan), per clause 3(c) may be used to improve the ChatGPT model. So, if an unrelated Teacher B subsequently requests either a lesson plan or learning objectives, the product generated by ChatGPT to satisfy this request may draw from the information entered and generated by Teacher A.

Copyright

The provenance of the data used to train ChatGPT is problematic.  The data was acquired from a wide range of sources, including personal information obtained without consent and from copyrighted texts.

Clause 9(d) of the Terms of Use provide a mechanism for resolution of alleged copyright infringement, which may result in the “[deletion] or [disabling of] content alleged to be infringing”. In the interim however, what are the flow on impacts as they relate to the legality of accessing this information within an educational context?

The Privacy Act 1988 (Cth)

Educational institutions must abide by the Australian Privacy Principles set out in the Privacy Act 1988 (Cth), which establish the minimum standards for the collection, use, access, and disclosure of personal information (for further information regarding the Privacy Principles, see our Article Disclosing Private Information Regarding Schools).

The intersection of the Privacy Principles and AI is another area for close consideration.

Primarily, the Privacy Policy of OpenAI provides for the collection of the following personal information:

a. account information and user content; 

b. the contents of any messages [users] send (referred to as Communication Information); 

c. Internet Protocol address, browser type and settings, and how users interact with the website; and 

d. the types of content that users view or engage with, the features users utilise and the actions users take, as well as time zone, country, the dates and times of access, user agent and version, type of computer or mobile device, computer connection, IP address and ‘the like’. 

Let us consider, then, a hypothetical situation where a teacher asks ChatGPT to provide suggestions regarding a student’s individual learning plan. The teacher includes specific information about the student, including their learning difficulties and sensitive personal background. 

In circumstances where ChatGPT can extract the contents of any message, this would constitute a breach of Privacy Principle 11.1(b), which requires schools to take such steps as are reasonable in the circumstances to protect personal information from unauthorised access, modification or disclosure. 

How can schools manage and mitigate legal risks arising from use of ChatGPT?  

• • For schools that are utilizing ChatGPT to create educational content, it is important they are aware that content created by ChatGPT may not be protected by copyright. While the status of copyright protection for AI generated content is a developing area of Australian law, schools should implement appropriate policies to provide clarity for its educators. 
  • If permitting teachers to utilise ChatGPT, teachers should ensure material is cross checked for accuracy prior to use. Furthermore, when using the service to draft policies, procedures and marketing material, the information should be appropriately reviewed and verified. 
  • To maintain academic outcomes and integrity in the face of these challenges and in consideration of the changing technological landscape, educational institutions may wish to consider which detection tools are most applicable and necessary for detecting use of ChatGPT and similar programmes. 
  • In creating new policies and approaches to ChatGPT and similar technologies, schools should consider strategies to integrate these technological tools in the classroom. Since they will remain a fixture within the technological landscape, empowering students to effectively and ethically use these new tools is a productive approach.  
  • Schools should maintain open communication about steps being taken to manage these challenges. While this will be an ongoing process, schools may need seek external resources and support in educating themselves on policies and procedures that are up to date, comprehensive and legally sound.  
  • Since ChatGPT does not explicitly copy text, this raises the question about whether use by students is regarded as plagiarism. On its face, use of ChatGPT may not be plagiarism however it may in fact contravene academic policies. While not a legal obstacle for schools, it is a consideration that educational institutions should consider in the drafting of relevant policies.  

What are the benefits of having an ChatGPT Policy?  

While the permanent bans provide an interim solution for schools to gather information and assess its next steps, this technology is here to stay. We recommend the implementation of an agile policy that addresses the issues raised above and facilitates responsible use.  

By providing a ChatGPT policy for students, schools are taking proactive steps to this new technology  and safeguarding academic integrity. While the policy itself may be subject to ongoing updates and reviews, the creation and implementation of a policy will clarify the schools expectations and response to the challenges raised. Furthermore, it will provide clarity to students and staff regarding their obligations, and serve as a starting point for schools in handling issues regarding the use of ChatGPT. 

If you are an educational institution seeking assistance in creating policies in response to ChatGPT and Artificial Intelligence tools or looking to further understand your obligations, the friendly team at Corney & Lind Lawyers can help. Contact our team today on (07) 3252 0011 or email us at: enquiry@corneyandlind.com.au

Corney & Lind Lawyers provides articles on its website for general and informative purposes only. Any articles on our website are not intended as, nor should they be taken as, constituting professional legal advice. If you have a problem that requires a legal opinion, Corney & Lind lawyers always recommends that you seek independent legal advice that is appropriately tailored to your circumstances from an appropriately qualified legal representative.

This article was written by Courtney Linton & James Tan.

Footnotes

¹ FCAFC 62.

2 1990 (Cth).

3 Application programming interface: a software intermediary that allows two applications to talk to each other.

Removal of the Statute of Limitations for Child Sexual Abuse

Can the Court Still Permanently Stay a Claim?

The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that Australian jurisdictions remove the limitation period for survivors of childhood sexual abuse to bring claims.  The recommendation recognises that it can take on average up to 20 years for survivors to speak openly about their abuse.  The Queensland parliament responded by passing amending legislation, retrospectively abolishing the 3 year time limit that existed (from the child turning 18) (s11A of the Limitation of Actions Act 1974 (QLD)).  Equivalent legislation has also been passed in other Australian jurisdictions.

However, Institutions (such as schools) may be concerned about the effect of these amendments, particularly where the abuse is alleged to have occurred many years ago, and there is a paucity of evidence available to respond to the claim.  In this regard, the Queensland amendments do not limit any inherent, implied or statutory jurisdiction of a Court.  The legislation includes the example that a Court may summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

The Victorian Court of Appeal recently considered the effect of this exclusion (Connellan v Murphy [2017] VSCA 116).  Specifically, the Court was asked to consider whether the lack of quantity and quality of evidence in the case justified the court placing a permanent stay on the proceedings.

Facts

In April 2016, the Plaintiff initiated proceedings against the Defendant, alleging that he, his brother and another male named “Eugene” sexually assaulted her in approximately 1967/1968. She was approximately 13 years old at the time. The alleged perpetrators were approximately the same age. She claims that she stayed with the Defendant’s family for a short period (approximately a week) after her father died and the assaults occurred during this time.

While the alleged perpetrators are still living and available to give evidence, the only potential witnesses who were adults at the time are deceased and the locations involved are significantly altered. The claims made by the Plaintiff were vague and occasionally inconsistent and unable to be tested due to the 50 year lapse in time.

The Defendant applied to have the proceedings permanently stayed on the basis that there was a lack of evidence as to both liability and quantum. He argued that the proceedings were an abuse of process and/or that he was irretrievably prejudiced by them. Similar to the Queensland legislation, section 27R of the Limitation of Actions Act 1958 (VIC) allows the court to permanently stay proceedings “where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.”

The need for consistent evidence

At first instance, while accepting that the Defendant was prejudiced by the lapse of time, the Court dismissed his application on the basis that key witnesses were still available and that the intention of the legislative amendments was to allow the court to hear sexual abuse cases that were made difficult by the lapse of time. The Defendant appealed this decision to the Victorian Court of Appeal.

The Court of Appeal found that because the only available witnesses were children at the time and that there was a quantitative and qualitative lack of evidence surrounding both the events and the quantum arising from the claim, the proceedings were unjustifiably prejudicial to the Defendant and should be permanently stayed.

What does this mean for Schools?

This case provides some guidance for Institutions when dealing with sexual abuse claims, particularly where the allegations are historical in nature and there is a paucity of evidence available.  However, each application will depend on the relevant facts in that matter, and care will need to be exercised when considering bring an application of this nature.  Whilst the Institution might ultimately be successful in having the claim permanently stayed, there may still be significant reputational risks for the Institution to consider.

Three (3) strategies for dealing with unpaid school fees

What impact does unpaid school fees have on students and schools?

The ability for a family to meet tuition fee/school fees payments can deteriorate very rapidly for a variety of reasons. This can negatively affect the student’s education as well as the school’s or college’s financial position particularly where budgets have already been set.

Our firm has had lengthy experience in advising on debt recovery matters for the school and education sector. Our breadth of experience informs this article which aims to assist schools in implementing strategies to minimizethe loss of a school both financially and in the delivery of stable education to students.

Strategy 1 – Address Defaults Early with Parents

Parents are almost always able to meet private school tuition fees at the start of a student’s enrolment. However, the circumstances of parents can change quickly and may not occur with any malicious intent of the parent.

What is the cause of the unpaid school fees?

A default in tuition fees may arise out of difficult family circumstances, including:

• • Unexpected redundancy
  • Family law proceedings
  • Increased medical expenses to address a serious illness.

These circumstances usually have an effect on a student’s education and are often beyond the control of parents and guardians.

What are the benefits of early intervention in school fees?

Acting on an early default and maintaining open and frank discussions between the school and the parent allows for alternative suitable agreements to be put in place. These discussions and ensuing documents do not prejudice the strict legal rights of the school or college if they are conducted on a “without prejudice” basis.

For example, if a parent is in default due to increased legal spend as family law proceedings are afoot, it may be possible to reach agreement for alternative suitable arrangements such when school fees are deferred and paid out of a family property settlement.

Engaging early with parents may not just prevent unpaid school fees from “spiralling out of control”, but it allows a school to preempt any future legal issues that may arise out of the family’s changing circumstances (e.g. it is common for schools to get caught in the middle of family law proceedings).

In our experience, neglected defaults are the ones at risk of “spiraling out of control”. A parent’s capacity to repay is reduced as additional costs are added to the debt, or other debtors commence recovery action against the parent.

Strategy 2 – Involve a Lawyer

Unpaid school fees relate to the recovery of a debt, which can attract the services of a debt collector. However, we suggest that retaining a lawyer has a number of added benefits over retaining a debt collector.

Why engage a lawyer over a debt collector?

Receiving a Letter of Demand from a lawyer on their letterhead is usually a firm reminder to the debtor of the seriousness of an unpaid debt. Such a letter will usually remind the debtor that an unpaid school fees/debt gives rights to the school to commence legal proceedings.

What options are available after a Letter of Demand?

In the event the Letter of Demand is ignored, a lawyer is able to assist the school in escalating legal proceedings in pursuit of the debt. A debt collector will need to engage lawyers to do this.

Lawyers are also regulated by strict ethical duties (although debt collectors are also highly regulated). This ensures procedure is followed and works towards preserving the reputation of the school.

Due to the nature of legal work, a Lawyer will be able to advise on associated legal risks and or are able to carry the matter to preparing enforceable agreements through a court process, if alternative payment terms are agreed upon with the parent.

Strategy 3 – Review Your Enrolment Contract

Having a clearly worded and enforceable enrolment contract can be an effective deterrent against potential defaults.

For a school, it is important to review the enrolment contract from an enforcement perspective. Steps should be taken to ensure that an enrolment contract is able to be relied upon to enforce matters such as (without limitation):

• • Payment of up-front monies
  • Termination in event of un-remedied default
  • Payable notice in the event of early termination by parent
  • Interest payable on unpaid monies, and
  • Passing on additional costs of recovery (i.e. legal fees)

Need a Streamlined Debt Recovery Process?

Through our significant experience and understanding of the schools and education sector, we have developed a streamlined debt recovery process specifically tailored to your priorities.

Our process is inexpensive and affordable. We are able to offer ethical and cost-effective debt recovery solutions that take into consideration your interests, of which other debt collectors may be unaware.

This includes a fixed-fee recovery option and discounts for pursuing multiple debts.

Please call us on on (07) 3252 0011 and ask to speak to a member of our schools and education team today.

Helpful Links

https://corneyandlind.com.au/education-law/childrens-rights/

https://corneyandlind.com.au/education-law/could-a-school-be-liable-in-negligence-for-a-students-poor-performance/

https://corneyandlind.com.au/education-law/informed-consent/