The law is dynamic, constantly evolving to reflect shifting societal values and beliefs. This notion is particularly evident in the field Anti-Discrimination, which continues to develop in response to the growing expectation that the legal system will fiercely protect individual rights. For educational institutions, who are charged with providing learning environments free from discrimination and vilification, this shifting landscape can create many pitfalls in formulating and revising policies and procedures.

These difficulties are highlighted in the recent decision of the Queensland Civil and Administrative Tribunal in TAH v A School [2024] QCAT 434, which considered the requirement imposed by the College’s uniform policy that female students in years 7 to 12 must wear a skirt to formal school occasions. Deciding in favour of the school, the Tribunal found that this requirement constituted neither direct nor indirect discrimination pursuant to the Anti-Discrimination Act 1991 (Qld) (the AD Act).

Background

The complaint was that the school’s uniform policy required female students in years 7 to 12 to wear a skirt to formal school occasions. That would include school outings or excursions, school ceremonies and events, class photographs, awards nights and external events. It was alleged in the complaint that the policy amounted to both direct and indirect discrimination on the basis of the attribute of sex.

Direct Discrimination

With respect to direct discrimination, it was alleged that the complainant was treated less favourably than a male student in the same or not materially different circumstances because she:

• • had purchase two sets of school uniforms (financial burden);
  • had to take greater care to maintain modesty when sitting;
  • would not be as warm in winter (even if wearing stockings);
  • would be restricted in the physical activity she could partaken in during school outings and excursions;
  • faced exclusion or suspension if she failed to comply with the uniform policy; and
  • would suffer detriment to her education, and it would be unfair, if she failed to attend a formal occasion because she did not wish to wear a skirt.

Indirect Discrimination

It was alleged that the uniform policy created an implicit term that students must be male in in order to be permitted to wear shorts or trousers to formal occasions, and that this constituted indirect discrimination because as a female student she would be unable to comply.

Findings

In dismissing each question, the Tribunal had regard to the following:

On the question of financial burden:

(a)     the financial circumstances of the complainant’s family was such that there was no hardship in purchasing a second uniform;

(b)    no concerns had been expressed to the school by other parents;

(c)     skirts were available on loan for formal occasions from the school; and

(d)    second-hand skirts were available at a cheaper price.

On the question of modesty:

(a)     skirts were required to touch the ground when kneeling, and therefore quite long; and

(b)    students could wear shorts or bike shorts under the skirt.

On the question of comfort/warmth:

(a)     there was no explanation whether wearing tights, stockings or knee highs would assist with the cold; and

(b)    in warmer times, it may be preferrable to wear a skirt than trousers.

On the question of physical activity:

(a)     the evidence from the school was that there is no such physical activity at formal school occasions.

On the question of adverse consequences:

(a)     it would be ‘unlikely’ that a female student would be sent home from a formal event if not wearing a skirt;

(b)    any other consequences were just speculation; and

(c)     the student could apply for an exemption from wearing a skirt on formal occasions.

By way of further, general considerations, the Tribunal noted that female students did not have to wear a skirt on ordinary school days. In despite of having that choice, the overwhelming majority of relevant female students chose to wear a skirt and appeared that they were generally content to wear skirts.

Indirect Discrimination

On the question of indirect discrimination, the Tribunal found that the complaint amounted to an allegation that the term in question was “a condition requiring girls to be boys”, and that it would be artificial to try to identify a disparate and adverse impact arising from the different effect of the policy on female and male students. The different effect arose from differences in the policy applying to female and male students. Put simply, the complaint should have been addressed as a direct discrimination issue rather than raised as indirect discrimination.

What Should Schools Consider?

This case illustrates important considerations by educational institutions when developing regulatory frameworks.

Here, the respondent school had implemented a policy that achieved the desired standard of formality while remaining within the bounds of the law. When introducing new policies, schools should assess whether the policy may lead to complaints and take reasonable and practical steps to avoid potential disputes. Regular reviews of existing policies and procedures should also be undertaken to ensure ongoing compliance.

Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions your current School Policies or whether you would like our office to formally review any policies. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Courtney Linton & Jack Macpherson.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only. 

A recent NSW Supreme Court Case provides guidance to schools concerning their duty of care to protect students from bullying and assault after-hours.

A former Sydney student has been awarded $1.2 million in compensation after he was assaulted at age 14 by a group of students while waiting at his school bus stop in 2017. Now aged 21, the student sued the state of New South Wales through his mother, claiming that the school failed in their duty of care to effectively monitor students at the bus stop, staff an administrative office shortly after school hours, and properly risk-manage the instigator of the assault who had returned from a long school suspension. The defendant conceded that it owed the student a duty of care however denied liability, arguing that this duty did not extend beyond school confines nor lasted after school hours. The student, who has autism spectrum disorder (‘ASD’), suffered serious physical and psychological injury as a result of the assault.

A school has a non-delegable duty of care to its students, meaning that this duty cannot be delegated to others. However, a school is also not “an insurer of its pupils”.[1] The question for the Court to consider was the scope of the defendant’s care to the student. The Court found that the scope of the duty included “taking reasonable steps to ensure that a school student, such as a vulnerable student [the plaintiff student], can depart the school in a safe manner.”[2]

Ultimately, the Court held that the defendant had breached its duty of care towards the student. On the matter of a school’s duties after-hours, the Court found that:

• There is a heightened risk of physical bullying in and around the school immediately after school hours, which significantly increases the probability of harm where there is no supervision. The injuries from a single attack by fellow students can be life changing. Therefore, the seriousness of harm if no preventative action is taken by the school ranks high.[3]
• Whilst the demands of duty of care owed to students will change as they mature, not all harms will reduce; premeditated group attacks may even increase with age. As such, the duty of care to protect against some harms can increase over time.[4]
• The burden upon a school to supervise students’ safe-passage home is low when weighed against the significant social utility of deterring and intervening in poor student behaviour. Similarly, ensuring that school office hours are staffed until 4:00pm or such a time as students have dispersed provides a point of safety for students, not only in instances of bullying or assault but the risk of collision with motor vehicles and play causing injury.[5]

On the matter of a school’s duties regarding appropriate risk-management of bullying and assault, the Court found that:

• Schools have a duty of care to take reasonable steps to protect particularly vulnerable students (such as those who have physical or psychological issues) who have been bullied from further bullying, and prevent students who are known to have bullied students from further acts of bullying (including assault).[6] Prevention may include a comprehensive risk assessment and behavioural-management interventions.[7]

The student was awarded compensation for non-economic loss, future economic loss, past out-of-pocket expenses, future medical expenses, future attendant care, and cost of future management of funds.

This case signifies that schools should be prudent in managing risks around home-departure for students to fulfil their duty of care to students.

Vocare Law is well equipped to assist our clients with school related matters and has a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on school law or litigation. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Sarah Gates and Alistair Macpherson.

Footnotes

[1] T2 (by his tutor T1) v State of New South Wales [2024] NSWSC 1347, [199].

[2] Ibid [273].

[3] Ibid [291]-[292].

[4] Ibid [284].

[5] Ibid [294]-[296].

[6] Ibid [277]-[281].

[7] Ibid [264]-[266].

Background

In 2021, the Full Federal Court found in The Buddhist Society of Western Australia Inc v Commissioner of Taxation (No 2) (‘the Decision’) that the Australian Taxation Office (‘ATO’) was wrong in its application of law regarding:

1. The ordinary meaning of the term ‘school’; and
2. How to determine whether or not a building was in fact being used as a school building.

The ATO subsequently released a Decision Impact Statement in 2023 recognising the Decision and committing to review and update Tax Ruling 2013/2 (‘TR 2013/2’)[1] which sets out its position on the law as it relates to school building funds. The updated TR 2013/2 was released on 4 October 2024.

The Decision and Decision Impact Statement were significant for the schooling sector because the ATO’s narrower view of what constituted a school in TR 2013/2 meant that many non-conventional, recreational, or non-systematic schools could not about deductible gift recipient (‘DGR’) endorsement from the ATO for their school building funds.

Purpose of the Amendments

The amendments to TR 2013/12 specifically contemplate that the amendments are made in response to the Decision and to ensure consistency between TR 2013/2 and the Decision. In our view, the updates to TR 2013/2 achieve this purpose.

Changes to the meaning of ‘School’

The ATO now, consistent with case law, adopts the ordinary meaning of ‘school’ in TR 2013/2 which is: ‘a place where people, whether young, adolescent or adult, assemble for the purpose of being instructed in some area of knowledge or of activity.’[2]

Furthermore, the ATO now recognises that:[3]

‘While an essential element of the school is to provide education, the education provided does not require formal examination or testing, or the granting of formal awards of certificates of completion. Schools are not limited to those focused on academic pursuits and includes (but is not limited to) recreational, technical, arts and agricultural schools.’

In keeping with this change, the following factors are no longer strictly required, but are of course still demonstrative:[4]

• a set curriculum;
• instruction or training provided by suitably qualified persons;
• the enrolment of students;
• some form of assessment and correction; and
• the creation of a qualification or status which is recognised outside of the organisation.

Changes to determining if a building is a ‘school building’?

The changes clarify that the ATO must now have regard to the following factors in determining if a building has the character of being a ‘school building’:[5]

• the overall purpose (or purposes) for which the building has been established and maintained;
• the importance of each of the activities carried out to that purpose;
• any connection that the non-school use has towards the school use; and
• the extent the school use and non-school use have contributed to that purpose.

The following factors are noted as being indicative but not determinative:[6]

• the amount of time the building is put to school use relative to the amount of time it is put to non-school use;
• the number of people involved in the school use of the building relative to the number involved in its non-school use;
• the physical area of the building put to school use relative to the physical area put to non-school use;
• the extent to which the building has been adapted or modified in order to accommodate its school or non-school use.

Based on these changes, the fact that a school building is significantly used for non-school use will no longer necessarily exclude it from being a school building for the purposes of use of school building fund funds for its acquisition, construction, or maintenance.

How can we help?

If you operate or are considering operating a school which is more recreational than systematic, you may now have a basis for obtaining DGR endorsement for your school building fund. Furthermore, if you have previously been unable to use school building fund funds on the acquisition, construction or maintenance of certain buildings you may now be able to do so. We can assist with determining your entitlement and making any necessary applications to the ATO.

If you operate a school, we can assist in determining whether or not your school might be able to make use of a DGR endorsed school building fund. If you already operate a school building fund, we can assist with reviewing your practice to ensure that you continue to comply with the ATO’s requirements.

Vocare Law is well equipped to assist our charity and not-for-profit clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your charity is maximising its tax concessions. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Paul Neville, Senior Associate.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only. 

Footnotes

[1] A consolidated version of TR 2013/2 incorporating the changes is available here: https://www.ato.gov.au/law/view/document?DocID=TXR/TR20132/NAT/ATO/00001&PiT=99991231235958

[2] TR 2013/2, paragraph 12.

[3] TR 2013/2, paragraph 12A.

[4] TR 2013/2, paragraph 12B.

[5] TR 2013/2, paragraph 30.

[6] TR 2013/2, paragraph 30A.

Schools are not entitled to DGR endorsement

As a general proposition, non-state schools can be registered with the Australian Charities and Not-for-Profit Commission (‘ACNC’) as a charity for the advancement of education. Indeed, State regulators will expect this, and this will generally be required for grant eligibility.

Registration as a charity with the ACNC entitles a school to an income tax exemption, but it does not qualify the school for endorsement as a deductible gift recipient (‘DGR’) for the issuing of tax deductible receipts to donors.

However, through careful structuring, schools can utilise both a Public Ancillary Fund and DGR endorsed Public Funds to provide donors with tax deductible giving options.

Making use of DGR endorsed Public Funds

In our experience, many schools will benefit from the establishment and operation of one or more of the following DGR endorsed Public Funds:

1. 1. School Building Fund;[1]
   2. Scholarship Fund;[2]
   3. Public Library (not technically a public fund);[3] and
   4. Necessitous Circumstances Fund[4]

Each of these funds can be established by the school for the receipt of public donations to be used for specific regulated purposes.

For example: donations made to a school’s building fund must be applied to the acquisition, construction and maintenance of school buildings. The ATO has published a detailed tax ruling setting out what the funds can and cannot be used for.[5]

We can assist your school with:

1. Understanding the ATO’s requirements for each public fund;
2. Establishing each of the public funds; and
3. Assisting with ongoing compliance.

Making use of a Public Ancillary Fund

A Public Ancillary Funds is a specific kind of DGR,[6] established by a trust deed and endorsed as a public fund which:

1. Seeks public donations on a deductible basis for the later distribution to other DGR endorsed charities or funds (excluding other ancillary funds); and
2. Can be used to invest the DGR donations to grow the corpus of fund for later distribution to DGR endorsed charities.[7]

Put another way, Public Ancillary Funds are generally used as both funnels and investment vehicles for DGR donations.

Therefore, the primary benefit of a Public Ancillary Fund to a school is that it provides a single place for public appeals for donations for its various public funds, and it allows the school to grow the corpus of those donations in the fund.

We can assist with both the establishment and ongoing compliance of your Public Ancillary Fund.

How can we help?

We can assist your school in exploring whether or not this approach to philanthropic structuring is right for your school. We can also assist with the establishment and ongoing compliance for each.

Vocare Law is well equipped to assist our charity and not-for-profit clients with a wealth of collective knowledge and over two decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions on ensuring your charity is maximising its tax concessions. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Paul Neville, Senior Associate.

**The information contained herein does not, and is not intended to, constitute legal advice and is for general informational purposes only. 

Footnotes

[1] ATO guidance available here: https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/getting-started/in-detail/types-of-dgrs/l-z/school-building-funds (accessed 10 October 2024).

[2] ATO guidance available here: https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/getting-started/in-detail/types-of-dgrs/l-z/scholarship-funds (accessed 10 October 2024).

[3] ATO guidance accessible here: https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/getting-started/in-detail/types-of-dgrs/l-z/public-libraries-public-museums-and-public-art-galleries (accessed 10 October 2024).

[4] ATO guidance available here:https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/getting-started/in-detail/types-of-dgrs/l-z/necessitous-circumstances-fund (accessed 10 October 2024).

[5] ATO TR 2013/2 Income Tax: school or college building funds accessible here: https://www.ato.gov.au/law/view/document?DocID=TXR/TR20132/NAT/ATO/00001&PiT=99991231235958 (accessed 10 October 2024).

[6] ATO Guidance available here: https://www.ato.gov.au/businesses-and-organisations/not-for-profit-organisations/getting-started/in-detail/types-of-dgrs/l-z/public-ancillary-funds (accessed 10 October 2024).

[7] Note, however, that there is a mandatory annual minimum distribution required for public ancillary funds.

The new Child Safe Organisations Bill 2024 (“the Bill”) will come into effect from October 2025, and will apply to all “child safe entities”. A child safe entity is any entity that provides services or facilities specifically for children. The Bill specifically states that this will include schools, religious bodies and early childhood education and care services eg childcare centres, Kindies, and OSHC services (Schools, Religious bodies and Care services).  

All Schools, Religious bodies and Care services should ensure that they take the time to read and understand the Bill, as it imposes new and important obligations on education providers, which are likely to have a significant impact on how they function. 

We outline some of the main sections of the Bill below. 

Child Safe Standards

The first thing that the Bill outlines are new “Child Safe Standards”. These are extensive, and include requirements such as: 

1. 1. The promotion of child safety and wellbeing within an entity’s organisational governance 
   2. Informing children about their rights and allowing them to participate in decisions affecting them 
   3. Ensuring that complaints processes are child-focused 
   4. Ensuring that online environments promote safety and wellbeing for children 
   5. Promoting the right to cultural safety for children who are Aboriginal persons or Torres Strait Islander persons. 

Under the Bill, all Schools, Religious bodies and Care services must implement and comply with the new Child Safe Standards, and must have regard to the Queensland Family and Child Commission’s (the Commission) guidelines when doing so. Similar standards/requirements have been in place in Victoria for some time, and some helpful information on how to implement and comply with the Child Safe Standards can be found on the Victorian Government’s website: https://www.vic.gov.au/child-safe-standards-schools-and-school-boarding-premises.  

The Queensland Family and Child Commission has also created some informational fact sheets and guidance which may be of assistance to schools and other child safe entities, which can be accessed on their website: https://www.qfcc.qld.gov.au/childsafe.

Investigations for Reportable Conduct

The Bill also outlines a specific process and requirement for investigations and reports into misconduct or concerning behaviour. This process applies to all current and former “workers” of a School, Religious body, or Care service – “worker” includes employees, volunteers, contractors/consultants, trainees, executive officers, and ministers of religion. 

In particular, the Bill requires that Schools, Religious bodies and Care services must have a system in place to notify the head of the School, Religious body, or Care service and the Commission of reportable allegations and reportable convictions. 

Reportable allegations are those that lead a person to reasonably believe that a worker of a relevant entity has committed reportable conduct or misconduct that could involve reportable conduct. An allegation is reportable even if the conduct does not occur in the course of the accused’s work with the School, Religious body, or Care service – i.e. if the allegation relates to the person’s personal life, it can still be reportable. 

“Reportable Conduct” is defined in the Bill as any of the following conduct, whether or not criminal proceedings have been commenced: 

1. 1. A child sexual offence; 
   2. Sexual misconduct committed in relation to, or in the presence of, a child; 
   3. Ill-treatment of a child; 
   4. Significant neglect of a child; 
   5. Physical violence committed in relation to, or in the presence of, a child; 
   6. Behaviour that causes significant emotional or psychological harm to a child. 

The Bill specifies that persons becoming aware of a reportable allegation must report it to the head of the School, Religious body, or Care service as soon as possible, but can also report it to the Commission at any time.  

The head is required to notify the Commission in writing in a report within 3 business days of becoming aware of the allegation or conviction, and is also required give an interim report within 30 business days. Schools, Religious bodies and Care services can be exempt from these reporting if they have “the competence and resources to investigate a reportable allegation or conviction without the oversight of the Commission” and they have “demonstrated competence in taking appropriate action in response to a finding of reportable conduct”. 

The Bill also grants broad powers to the Commission to conduct investigations, including powers to enter premises with a warrant to collect information, powers to require reasonable help or the provision of personal details (and penalties for non-compliance), and powers to enforce penalties for persons or entities that “obstruct” an officer from exercising their other powers.

Information and Confidentiality

The overarching principles are that information should be disclosed quickly and completely (i.e. providing all relevant information, not simply providing the specific information requested), and should be done so appropriately having regard to the need to protect children from harm and promote the safety, wellbeing, and best interests of all children. In doing so, entities must protect the identity of the specific child whose information is being provided as much as possible. 

The Bill allows heads of relevant organisations (e.g. Queensland Police, DOCS, the Department of Education, etc.) to communicate and share information with each other as required for things like risk management, investigations, and to protect children from harm. This includes schools and other child safe entities in circumstances where a worker of that entity is/has been the subject of a reportable allegation or conviction. There is also provision for Schools, Religious bodies and Care services to obtain information from Queensland Police (and Police Prosecutions) if required as part of their investigations into reportable conduct – see section 52 of the Bill. 

Strict confidentiality requirements apply for information obtained through this sharing scheme (including large penalties for unauthorised disclosures), however, the Bill does allow information to be disclosed to individual people who are subject to or affected by an investigation (e.g. children and their parents) where it is appropriate to do so – see section 50 and 56 of the Bill.

Next Steps

As the Bill comes into effect, it is important that child safe entities, particularly schools, review all of their policies and procedures to ensure that they are compliant. 

Vocare Law is well equipped to assist our Schools & Education clients with a wealth of collective knowledge and over decades experience providing insight and advice in this area. Please don’t hesitate to contact our office if you have any questions or require assistance to review or update your policies ahead of October 2025. Contact us on 1300-VOC-LAW / 1300-862-529 or email: enquiry@vocarelaw.com.au

This article was written by Tabitha Gulley.

On 14 June 2024, the Respect at Work and Other Matters Amendment Bill 2024 (the Bill) was introduced into the Queensland Parliament. Among other sweeping changes, the Bill, seeks to amend the Anti-Discrimination Act 1991 (Qld) (the Act) to:

1. introduce a positive duty to eliminate all forms of unlawful discrimination, vilification and other associated objectionable conduct as far as possible;
2. empower the Commission to conduct investigations in respect of this; and
3. update and expand the attributes protected by the Act.

The proposed amendments represent the Queensland government’s initial legislative response to key recommendations of the Queensland Human Rights Commission (QHRC) in its report, Building Belonging – Review of Queensland’s Anti-Discrimination Act 1991.

There is some suggestion that the further recommendations of the Building Belonging Report will be pursued after the October State Election.

In this article we summarise the most pertinent amendments for educational institutions.

The Bill

Positive Duty

The Bill introduces a broad positive duty on certain persons to eliminate, as far as possible, discrimination, sexual harassment, harassment on the basis of sex and certain other objectionable conduct.

The positive duty will apply to all persons—including individuals, corporations and the state—who have an obligation not to engage in discrimination, sexual harassment, harassment on the basis of sex and other unlawful conduct.

However, with respect to individuals, it will only apply in the context of an individual conducting a business or undertaking, a concept which is presently used in work health and safety laws.

In practical terms, the positive duty will mean that, rather than merely waiting for complaints to be made, duty holders will be required to take proactive steps to prevent conduct that would be discrimination, sexual harassment, harassment on the basis of sex or other objectionable conduct in the first place.

What does this look like for educational institutions?

1. ensuring there are organisational policies in place that address the importance of respectful behaviour in the workplace;
2. ensuring easily accessible information is available;
3. conducting workplace surveys to measure knowledge and awareness of unlawful conduct like discrimination or sexual harassment and the extent to which such conduct may have been experienced by members of the workforce;
4. engaging in informal or formal disciplinary discussions with members of the organisation who are displaying conduct that may be disrespectful and unlawful under the AD Act; and
5. members of the senior leadership team clearly and regularly articulating expectations of respectful behaviour.

In determining what measures are reasonable and proportionate in the circumstances, the Act prescribes the following factors that must be considered:

• the size, nature and circumstances of the business operations;
• the resources of the person, whether financial or otherwise;
• the practicability and the cost of the measure;
• the person’s operational priorities; and
• any other relevant matter.

Accordingly, the extent to which the positive duty is imposed will differ significantly between a Prep to 12 school of 1500 pupils situated in an affluent area, and a small primary school comprised predominately of students from low socioeconomic households.

Compliance and Enforcement

The Bill also introduces new compliance and enforcement functions for the Queensland Human Rights Commission to allow the positive duty to be enforced.

The Bill amends the Act to allow the Commissioner to conduct investigations into person’s compliance with the positive duty if the commissioner suspects that the person is not complying with this duty.

After conducting an investigation, the Commissioner may:

1. decide to take no further action;
2. issue a compliance notice; or
3. help a person prepare and/or accept an undertaking.

Expanding on this final point, where an investigation reveals the person has contravened, is contravening or is likely to contravene the positive duty, the commissioner may enter into a written undertaking with the person that details the actions the person will take to comply with the duty.

If the non-compliance continues, the Commissioner may withdraw acceptance of the undertaking and issue a compliance notice, which requires the person to take specified actions to comply with their obligations.

Failure to comply with a compliance notice may result in the commissioner applying to the Queensland Civil and Administrative Tribunal or the Queensland Industrial Relations Commission for an appropriate order to enforce that compliance.

Review of Compliance Notice

A person who is served with a compliance notice by the Commissioner may apply to the Tribunal (QCAT) or Queensland Industrial Relations Commission for a review of the issuing of the compliance notice or any of the terms of the notice:

• within 28 days after receiving the notice; and
• as provided under the relevant tribunal Act and/or Industrial Relations Act 2016.

After a review, the Tribunal or QIRC may either confirm the compliance notice or withdraw the compliance notice. In situations where the compliance notice is confirmed, the Tribunal or QIRC will consider whether the time for compliance should be amended.

Expanding Protected Attributes

Finally, the Bill includes amendments to introduce new attributes on the basis of which discrimination is prohibited and updates some of the existing attributes. With respect to the latter, the attribute ‘sexuality’ has been updated to ‘sexual orientation’, which is defined as:

[a] person’s capacity, or lack of capacity, for emotional, affectional and sexual attraction to, or intimate or sexual relations with, persons of a different gender or the same gender or more than one gender.

What’s Next?

Interested parties have until 2 July 2024 to make a submission to the parliamentary committee, which will table its report on 2 August 2024.  It is anticipated that the Bill will progress through parliament before the October election.

This article was written by Jonas Whincop, Courtney Linton & Alistair Macpherson.

The non-government school sector has witnessed a significant upturn in litigation in recent times with several high-profile cases attracting significant media attention. Most of those cases centred around a decision of the Minister to recover financial assistance that had been provided to a school, who was later declared to be operating ‘for profit’. In late 2023 the New South Wales government announced that it would be undertaking a review of section 83C of the Education Act 1990 (NSW), and a full report with recommendations is due to be delivered to the Minister by end of June 2024. This article provides insight into the scheme as it currently stands and will provide a benchmark for our analysis of the forthcoming review.  

It is worthwhile taking a moment at the outset to consider the framework of the system. The Education Act 1990 (the Act) which serves as the primary legislative instrument governing schooling in New South Wales was enacted by the Parliament based on four fundamental principles, namely that: 

1. every child has the right to receive an education; 
2. the education of a child is primarily the responsibility of the child’s parents; 
3. it is the duty of the State to ensure that every child receives an education of the highest quality; 
4. the principal responsibility of the State in the education of children is the provision of public education 

To make a matters more complex, there are also five principal objects of the Act as well as a list of objects for the administration of education3 which notably includes: assisting each child to achieve his or her educational potential, and mitigating educational disadvantages arising from a multitude of socio-economic factors. The purpose and objects of the Act serve as the cornerstone in judicial review conducted by the courts and can assist non-government schools to frame decision making in a way that is consistent with the statutory framework.  

Financial Assistance for Non-Government Schools 

Many perusing this article will be familiar, if not well acquainted, with section 83C of the Act. It stipulates that the Minister must not provide financial assistance to schools operating ‘for profit’ and outlines a number of scenarios (which is a non-exhaustive list) in which a school would be considered to be operating for profit. Much of the section turns on the concept of ‘reasonable market value’. Notably, there is a broad coverall provision under section 83C(2)(b)(iii) which allows the Minister to deem any payment made by the school unreasonable, considering that financial assistance is provided by the State.  

The term ‘reasonable market value’ is not defined in the Act and is the subject of much consideration and conjecture for non-government schools. Some guidance is provided in the Not-for-Profit Guidelines for Non-Government schools. In the guidelines ‘reasonable market value’ is defined as ‘the price that a knowledgeable and willing third party would pay for property, goods or services in an arm’s length transaction from the seller’.  

There is also a strong emphasis in the guidelines on the implementation of appropriate policies, and procedures for maintaining business records, with suggestions made as to what policies should be held in different circumstances. Non-government schools must ensure they have implemented appropriate financial controls and governance systems and hold appropriate business governance policies in order to maintain compliance with the Act. 

The terms of reference for the review of section 83C require recommendations to be made to improve the regulation of financial assistance to non-government schools. An area under consideration is the effectiveness and the wording of both section 83C and the associated sections, to determine if there is sufficient clarity for schools to comply with the legislation. We expect to see recommendations being made to the Minister for the improvement of this division of the legislation, along with clarity for the phrase ‘reasonable market value’.  

Powers of the Minister

Another topic of interest for non-government schools, which has also been considered by the courts in recent times, is the extent of the power held by the Minister. The Minister, on the advice of the Advisory Committee, has a very broad power to terminate or otherwise restrict the financial assistance given to a school if they are declared to be operating either currently or in the past ‘for profit’.6 However, the Minister my choose not to terminate the provision of financial assistance if, following an investigation the Minister is satisfied that termination is not justified because of the minor nature of the relevant conduct, or more appropriate action can be taken under section 83E of the Act. 

It is important to note that should a school be the subject of an investigation, the Minister must provide written notice to the school of any recommendations made by the Advisory Committee and allow 30 days for a response. 

Let us help you

Should your school come under investigation by the Advisory Committee, Vocare Law is here to help you carefully consider your response. This is a nuanced area with the potential for severe consequences in the event of non-compliance, and we recommend that you seek our legal assistance should you find yourself in that situation.  

We are also passionate about assisting our non-government school clients to ensure that their due diligence is of a sufficiently high standard, well before an investigation is ever contemplated. We support schools in meeting their regulatory requirements, ultimately helping to ensure that educational services remain robust and compliant. Should you require any assistance in this area, please don’t hesitate to contact our office on 1300 862 529.  

We look forward to contemplating part 2 to this article as the recommendations from the review are released in due course.  

This article was written by Alice Osborne.

A recent Queensland Industrial Relations Commission (QIRC) overturned a Teacher transfer decision on appeal due to failure to give proper weight to domestic violence matters. Read here: KB v State of Queensland (Department of Education) [2024 QIRC 143]

On 6 June 2024, the QIRC delivered a decision setting aside the Education Department’s September 2023 decision to transfer South East Region teacher “KB” to another school within the region. Commissioner Dwyer found this decision was unfair and unreasonable particularly in light of the ongoing risk of domestic violence to her and her children. Commissioner Dwyer made some observations important for our School clients to consider

Commissioner Dwyer’s observations:

It is a regrettable feature of our society that we are increasingly compelled to be aware of the diverse and complex nature of domestic violence.

Domestic violence can be easy to dismiss or diminish by those who are inexperienced in dealing with it, or who still do not appreciate what a pervasive and serious problem it is.

But, with recent media and other awareness campaigns highlighting the tragic consequences of domestic and family violence that unfold every week in Australia, there is no longer an excuse for decision makers to make such errors.

In my view, to the extent it is not occurring already, the Department ought to ensure that its decision makers are properly trained and able to more competently evaluate the relevance of domestic violence concerns when they arise in transfer refusals.

Background  – transfer decision review sought by teacher KB

KB had applied to the Commission to have the transfer decision overturned on compassionate grounds, after an internal review of the decision was dismissed.

Those grounds included being the sole parent of two children without access to family or other support to care for them; and serious concerns of potential exposure to danger to the children from their estranged father, who is a habitual alcohol and drug user. She submitted her employer owed a duty of care to her children, aged 11 and 13, who would be at risk if they had to be left unattended for any period either before or after school.

She also submitted that her family had suffered significant emotional turmoil and had mental health conditions; that her children had strong community and sporting ties and a transfer would preclude her from transporting her children to events; and that the commute to the transfer school, along a chronically congested highway, would be longer and a financial burden she could not meet.

The department contended the decision was fair and reasonable, and that KB did not establish exceptional and compelling circumstances as to why she should not be transferred.

It argued she did not have a current Domestic Violence Order in place; that she was not the only sole parent working for the department; and that the commute travel time of 40 minutes was considered reasonable under the department’s Teacher Transfer Guidelines.

QIRC overturns Education Department decision

Commissioner Dwyer said there were two clear errors in the department’s reasoning that rendered the decision unfair and unreasonable: failure to give proper weight to domestic violence issues, and failure to properly consider the question of reasonable travel time.

KB had particularised a long history of interventions necessary to protect her and her children. Commissioner Dwyer said the department’s response showed the department “grossly underestimated the significance of the (uncontested) history of domestic violence particularised by KB and further, have demonstrated a significant lack of understanding of the relevance of lapsed Domestic Violence Orders as an indicator of the future risk of violence”.

It takes no imagination at all to appreciate that an individual against whom a court has issued an order restraining him from contacting or approaching his former partner (and his children) for a total period of seven years is, in all likelihood, the type of individual who will continue to pose a risk of violence to those people, or others.

On the history provided, KB and her children have plainly been living with the threat of violence (since at least 2015) from a person who has demonstrated a propensity to breach orders and engage in further acts endangering the safety of other children.

Commissioner Dwyer said the fact that no further orders had been made did not mean that there was no risk.

In my view, the extensive seven-year history of domestic violence orders culminating in the granting of a Sole Parental Responsibility order are much more than mere antecedents or ‘ongoing actions associated with Domestic Violence’. They are indicators that this particular individual will likely continue to pose a risk to KB and her children indefinitely, regardless of whether he is the subject of a domestic violence order.

Commissioner Dwyer said in relation to the other error, the distance between the current school and the transfer school was not significant at 37 kilometres, but would involve using the M1, which was notorious for worsening delays.

In my view, the extensive seven-year history of domestic violence orders culminating in the granting of a Sole Parental Responsibility order are much more than mere antecedents or ‘ongoing actions associated with Domestic Violence’. They are indicators that this particular individual will likely continue to pose a risk to KB and her children indefinitely, regardless of whether he is the subject of a domestic violence order.

Commissioner Dwyer said in relation to the other error, the distance between the current school and the transfer school was not significant at 37 kilometres, but would involve using the M1, which was notorious for worsening delays.

The absence of any reference in the decision to consideration of road and traffic conditions, even if it occurred, renders the decision unfair and unreasonable simply by virtue of the absence of such evidence and intelligible justification,” he said.

Between the interminable road widening projects, accidents, and outdated infrastructure that is incapable of coping with a rapidly increasing population, there is almost no journey on the M1 that will not be subject to delay.

The estimate of the Department of a 40-minute journey, most of which is on the M1, is even more precarious having regard to these common experiences.

Lessons for Schools to consider

Schools need to be mindful of the importance of considering the reasonableness of transfer requests against background of family violence and increased travel time particularly when the teacher is a sole parent caring for children. Ignorance is no excuse given recent media and other awareness campaigns highlighting the tragic consequences of domestic and family violence that unfold every week in Australia.

Please reach out to our employment lawyers for specific advice affecting your School or if you are a school employee. Call us today on 1300 862 529, or email your enquiry via the Contact us link, to arrange an initial consultation. We look forward to meeting with you.

This article was written by Fran Keyes, Practice leader (Employment & Discrimination Law)

Amendments to the Family Law Act 1975 (Cth) which took effect on 6 May 2024 significantly change the way the family law matters will be decided. While previously the law focused on the rights of the child and the responsibilities of the parents, the amendments now bring into sharp relief that the focus should be on the best interests of the child, including ensuring their safety.

Changes to the Family Law Act

Parental responsibility means all the duties, powers, responsibilities and authority which parents have in relation to children. Unless there is a court order allocating parental responsibility to a particular parent, each parent can make decisions relating to the long-term care, welfare, and development of a child, for example, enrolling them in a school. Where there is no court order, parents can exercise this decision-making power either in agreement with the other parent or on their own. This understanding of parental responsibility is not changing under the amendments.

However, a significant change to the law is the removal of the presumption that it will be in a child’s best interests for parents to be allocated equal joint decision-making responsibility for decisions about long-term issues, such as schooling, health, and education. Further, the requirement that a court must consider an ‘equal time’ arrangement has been removed.

What the changes may mean for schools

• There may be more variety in the types of parenting orders that are made, and schools should not assume that parents have equal joint decision-making power, even if the child is living in an “equal time” arrangement.

• There may be more orders that allocate decision-making responsibility to only one parent for some matters (such as schooling) and to both parents for other matters (such as religion and health).

• Where there are no court orders or there is an order for equal decision-making for all matters, schools can continue to rely on one parent’s communicated decision as if it is a joint decision of the parents.

• However, if there is an order for joint decision-making and parents communicate conflicting instructions, there is no decision the school can make – they should put the responsibility back on the parents to resolve the dispute between themselves.

In the context of a school, some examples of major-long term issues relating to the care, welfare, and development of a child could be:

•  Enrolment of a student

• Termination of an enrolment

• Providing counselling services to a student

• Senior subject selection

• Long camps

• Inherently dangerous activities like horse-riding and contact sports

Whereas some examples which may not require the consent of both parents are:

• Participation in a workshop or series of workshops designed to improve a student’s social interactions

• Sporting events

• Most camps

What about Domestic and Family Violence?

In the wake of recent public outcry, there are significant changes on their way in many states in relation to their domestic and family violence laws.

In Queensland, for example, laws to try to address coercive control were passed on 6 March 2024 and will come into force in 2025 (click here for more information).

It is very important for schools to be aware of any Domestic Violence protection orders that may exist between parents, to ensure that they do not accidentally enable a breach or otherwise expose children and other adults to domestic and family violence.

It is important to remember, however, that it is not the responsibility of a school to enforce the requirements of a protection order or otherwise protect a victim-survivor from abuse.

Schools should have specific policies for dealing with protection orders and violent incidents on-campus to ensure that they are meeting their obligations to protect students and staff.

Next Steps

We regularly provide advice to schools about how to interpret family court orders, how they interact with domestic and family violence orders, and the school’s obligations generally when dealing with separated families. We can also assist to prepare formal family law and domestic and family violence policies.

If you require advice in this area, or would like one of our family lawyers to give a presentation to your school on any of the matters raised above, please contact us.

This article was written by Tabitha Gulley.

Schools are home to students from a wide variety of cultural, social and economic backgrounds. A particular challenge for schools associated with having such a diverse student base is keeping track of students’ familial arrangements, particularly in circumstances where a Court has made a Parenting Order under the Family Law Act allocating parental responsibility.

Schools should be aware of how the provisions of the Family Law Act 1975 (Cth) (“the Act”), especially as they relate to Parenting Orders, may apply to the provision of the school’s services. Some key reasons why a school should keep track of any parenting orders include the following:

• schools must ensure that a person enrolling a child has the legal standing to do so;
• knowledge of Parenting Orders assists a school to fulfill its duty of care to a particular student;
• school staff are likely to find themselves placed under pressure by a parent/guardian to enforce a Parenting Order; the school will need to be aware of the orders to fulfil its workplace health and safety obligations;
• a school, even as a third party and not being bound to comply with a Parenting Order, may be held to have contravened the Parenting Order if the school intentionally prevented compliance with the order by, or aided/abetted a contravention of the order by, a person who is bound by the order. While this may be an unlikely situation, schools should be aware of this possibility.

With a wide range of recent amendments to the Family Law Act about to come into effect, schools should take note of these amendments and consider what they might mean for their own ongoing operations.

What are the amendments?

The Family Law Amendment Act 2023 (Cth) (the “Amendment Act”) was passed by both Houses in October 2023, outlining some significant changes to the current Family Law system. Many of its key provisions are set to commence on 6 May 2024.

Whilst the majority of changes will impact upon how parenting decisions will be made by the Court, there are a number of points that may be relevant to schools.

“Parental responsibility” refers to the duties, powers, responsibilities and authority which parents have in relation to their children. From 6 May 2024, Courts will no longer make decisions based on the presumption that it is in the child’s best interests for both parents to have equal shared parental responsibility. Instead, the Courts will use a simplified set of criteria to determine what is in a child’s best interests and will allocate parental responsibility accordingly.

The simplified list of criteria will allow the Court to consider the unique circumstances in each parenting matter in a way that places the best interests of the child at the forefront of decision making. The amendments also require consideration of family violence orders, past family violence, abuse, and neglect in determining future parenting arrangements. The factors the Court will base decisions on are as follows:

1. what arrangements would promote the safety (including safety from family violence, abuse, neglect, or other harm) of the child and the safety of each person who has care of the child (whether or not a person has parental responsibility for the child);
2. any views expressed by the child;
3. the developmental, psychological, emotional and cultural needs of the child;
4. the capacity of each person who has, or is proposed to have, parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
5. the benefit to the child of being able to have a relationship with the child’s parents, and with other people who are significant to the child, where it is safe to do so; and
6. anything else that is relevant to the particular circumstances of the child.

Schools should note that the definitions of ‘relative’ and ‘member of the family’ will be expanded to include Aboriginal and Torres Strait Islander concepts of family.

Schools should be attentive to the fact that Parenting Orders are likely to become less uniform and more tailored to the needs of individual families. This will mean that schools will need to look more carefully at Parenting Orders and parenting arrangements when considering issues of enrolment, or when seeking authorities and permissions from parents. There will still be allocations of parental responsibility, however, it is likely that there will be a higher proportion of Parenting Orders that generally allocate parental responsibility to one parent only, or allocate parental responsibility to one parent only in relation to education and/or healthcare matters.

How can Schools prepare for the new system?

Schools best equipped for dealing with the changing family law landscape are schools that have the following in place:

• systems which ensure that the school has copies of all relevant and up-to-date court orders;
• systems for ensuring that the school is aware of which parent has been allocated parental responsibility for education (and possibly religion and/or healthcare matters);
• systems which ensure that the school is made aware of any changes to the allocation of parental responsibility;
• an updated enrolment contract that sets out how the school will deal with parents who provide Parenting Orders with their child’s enrolment;
• a Separated Parents Policy which sets out what will happen if the school is notified during the child’s time at the school that their parents have separated;
• a thorough understanding of the school’s, and its staff’s, duties of care towards the school’s students; and
• processes by which school decision makers can seek advice about specific situations.

WE CAN HELP

Do you need assistance drafting school policies?

Contact our School Law team on (07) 3252 0011.

Article written by Eustacia Yates and Jackson Litzow