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).

The Queensland Government has recently announced significant developments within the Queensland early childhood education sector – with the Government committing an additional $645 million to its investment into kindergarten services to make kindergarten free for all Queensland families as of 1 January 2024. This is expected to save Queensland families around $4,600 per annum, and will allow over 50,000 more children to access kindergarten services for free. The newly-announced scheme details that the Queensland Government will cover the costs of a kindergarten-aged child enrolled in a government-approved educational program for up to 15 hours a week (or 600 hours a year). Accordingly, this means that funding will likely be accessible to all kindergartens to assist them in covering the costs of providing kindergarten education – provided that the kindergarten offers a “government-approved program”.[1]

Whilst we still await the full detail, the “government-approved program” limitation on accessibility to the scheme highlights that Schools offering kindergarten services and seeking to take advantage of the scheme will likely need to ensure that they are approved kindergarten program providers who offer approved kindergarten programs, and that they elect to opt into the scheme: [2]

1. The School should be an approved kindergarten program provider in that:[3]

a. The School operates a service that has a current service approval under the Education and Care Services National Law or the Education and Care Services Act 2013 (Qld);

b. The School is registered as an “approved kindergarten program provider” and has not had such status suspended or revoked;

c. The School has a rating of working towards the National Quality Standard (or higher);

d. The School provides a learning program that:

i. Is available for children who are in the year before Prep (i.e. the children must be at least 4 years of age before 30 June in the year they commence kindergarten);

ii. Is run for 15 hours per week for 40 weeks (or 600 hours per year); and

iii. Is delivered by a qualified early childhood teacher (i.e. a person qualified as an early childhood teacher under the Education and Care Services National Law (and Regulations) or the Education and Care Services Act 2013 (Qld)); and

e. For particular types of providers:

i. It is a member or affiliate of a central governing body (sessional kindergartens only); or

ii. It has the correct eligibility status to receive Child Care Subsidy payments on behalf of eligible families (long day care service providers only).

2. The School must provide an approved kindergarten learning program that is based on either:[4]

a. the Queensland Kindergarten Learning Guideline; or

b. an alternative kindergarten learning guideline accredited by the Queensland Curriculum and Assessment Authority (this accreditation requires, amongst other things, that the guideline meets the educational and social criteria under sections 5 and 6 of the Education (Queensland Curriculum and Assessment Authority) Regulation 2014 (Qld)).[5]

3. The School will be required to opt into the free kindergarten scheme. It remains to be seen what further implications may accompany an opt in decision.

Whilst Schools offering kindergarten services should continue to comply with the current eligibility and subsidy requirements in the Queensland Government’s Queensland Kindergarten Funding Essentials, it is expected that updated requirements will be introduced to take effect from 1 January 2024 to reflect the announced reforms.[6]

The full joint ministerial statement from the Queensland Premier, Treasurer and Education Minister announcing the scheme can be found here: https://statements.qld.gov.au/statements/97916

This Update is general information only, and is not Legal Advice.

This Update was written by Alistair Macpherson & Jackson Litzow.

[1] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindy; https://earlychildhood.qld.gov.au/early-years/kindergarten/what-does-kindy-cost/kindy-savings

[2] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[3] https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdf; https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-sessional-kindergartens.pdf; https://earlychildhood.qld.gov.au/fundingAndSupport/Documents/kindy-funding-essentials-long-day-care.pdf

[4] https://www.business.qld.gov.au/industries/service-industries-professionals/service-industries/child-care/approved-kindy-programs/requirements

[5] https://www.qcaa.qld.edu.au/kindergarten/accreditation-guidelines; https://www.qcaa.qld.edu.au/downloads/about/syll_accred_guideline_yrs1to12.pdf

[6] https://earlychildhood.qld.gov.au/early-years/kindergarten/free-kindy

Commonwealth Funding of Religious Schools is Constitutional

Hoxton Park Residents Action Group Inc v Liverpool City Council [2016] NSWCA is a recent New South Wales Court of Appeal decision which considered the constitutional validity of the Commonwealth’s Schools Assistance Act 2008 (Cth) and the Australian Education Act 2013 (Cth) (“the Acts”). The Acts provide the framework for substantial government funding to Australian schools, of which non-government religious schools substantially benefited.

In this case, the Hoxton Park Residents Action Group (“the appellants”) sought the cessation of government funding pursuant to the Acts to an Islamic school in the residents’ area (and consequently all religious schools). They claimed that the funding was unconstitutional pursuant to sections 96 and 116 of the Australian Constitution. Under the Acts, the Malek Fahd Islamic School received an annual payment of $17, 589, 958.

The Impugned Acts and the Australian Constitution

Section 96 of the constitution allows the Commonwealth parliament to make laws which provide financial assistance to the States. Section 116 prohibits the parliament from creating laws which establish any religion, impose any religious observance or prohibit the free exercise of religion.

The appellants argued that firstly the Commonwealth Parliament could not pass the Acts under section 96 as the Acts indirectly regulated education and religion. Education and religion are matters which only the States can pass laws on. As such, the Commonwealth could not rely on section 96 as a head of power.

The appellants also argued that the Acts funded religious schools, and therefore helped establish religion and impose religious observance (activities prohibited in the Constitution). The appellants argued that the public should not be forced to pay taxes for such purposes.

The Purpose of the Acts

The Commonwealth Government passed the Schools Assistance Act and the Australian Education Act in 2008 and 2013 respectively for the purpose of elevating Australia’s education ranking internationally. The Acts operated by providing for financial grants to the States under the condition that the money was applied to eligible schools under the schemes.

It was found that 88.7% of the schools which received funding were affiliated with a particular religion from a variety of denominations. One of the schools which benefitted from the Acts was the Malek Fahd Islamic School in Hoxton Park, Western Sydney. The school adhered to the Islamic faith, and participated in compulsory rituals in line with their ethos. Comparisons could be drawn to Christian based schools where students participate in daily prayer or weekly chapel services, or where students are required to wear modest uniforms.

In 2015 the case was dismissed from the New South Wales Supreme Court. The appellants appealed to the New South Wales Supreme Court of Appeal.

Issues before the Court of Appeal

While the Court addressed a number of issues (including whether the appellant had standing to bring the action), the two main issues considered in relation to the Acts were:

• • Whether the Acts were invalid because the States have exclusive power over matters of religion and education? On the proper construction of section 96 could the Commonwealth create laws which incidentally affected these matters?

• • Whether the Acts were invalid because they contravened section 116 of the Constitution?

Held

The New South Wales Supreme Court of Appeal dismissed the appeal with costs.

Did the Acts have a Head of Power?

The appellants argued that the Acts did not have a head of power because section 96 only allows for the funding of States in so far as the Act has a purpose which the Commonwealth can legislate on (for example, education), and in so far as the Act does not infringe on explicit restrictions outlined in the constitution (religion).  Here is was argued that creating laws which granted financial assistance to the States for the purpose of affecting education was not within the scope of power of section 96; creating funding laws which indirectly affected matters which were the exclusive jurisdiction of the States – education and religion – was unconstitutional.

The Court rejected this argument.

Section 96 of the Constitution allows the Commonwealth Parliament to “grant financial assistance to any State on such terms and conditions as the Parliament thinks fit”. The Court held that this section should be construed in light of case law and other provisions of the Constitution. Particularly, Beazley P and Macfarlan JA held that section 96 be read in conjunction with sections 51 (xxxvi) and 51 (xxxix) to uphold the funding Acts. Section 51 (xxxix), in particular, states that the Parliament can pass laws on matters incidental to the execution of a power under the Constitution. Therefore, in this instance the parliament could create laws which indirectly affected education as the affect incidental to the execution of section 96. The Commonwealth can pass laws under section 96 whether or not the object of the Act (education) is outside the Commonwealth’s legislative power, as long as this law does not encroach on explicit restrictions in the constitution. This was explained to mean that:

“The Commonwealth may enact laws that provide for the payment of grants to the states on specific conditions and, provided that the conditions do not contravene an express or implied limitation on Commonwealth power, there is no limit on the subject matter or type of conditions that may be imposed.”

Her honour Beazley P cited the decision of Mason J in Ex rel Black in affirming that section 96 could therefore be used to “make the State a conduit pipe in channelling the fund to the intended recipient.” Here, the State could be used as a means to channel funds for the purpose of education.

Did the Acts offend Section 116?

Basten JA discussed that there needs to be a balance between the pubic interest of not imposing religion on the public (the first limb of 116) and the private interest of protecting the free exercise of religion (the third limb); to say that the State has no concern in this private interest of religion “or should have no interest in them, is to assume that tolerance and harmony are more likely to prevail where the state maintains secular neutrality and intervenes only at the margins.”

Basten JA cited Black J in the New Jersey case of Everson to highlight that while the public should not be forced to pay a tax which will directly or indirectly fund a religion, the state should not deprive the religious sector of neutral services such as “ordinary police and fire protection”. In the same way, religious schools should not be deprived of funding of neutral services such as for core educational subjects. For this reason the Supreme Court has “upheld numerous schemes whereby government funds are distributed to schools for secular non-religious purposes”.

Both Beazely P and Basten JA (with Macfarlan JA agreeing) concluded that on the construction of the Acts, the purposes were for these secular and not religious purposes. Namely, the objects were all directed to the “education of Australian children in what I will describe as the core secular disciplines such as reading, mathematics, science, writing and numeracy.” For this reason, the Acts did not infringe on the restrictions outlined in s116.

Our Comments

Hoxton Park illustrates the Australian Constitution’s and the Court’s recognition of the role that religious bodies play in Australian society. The Constitution strikes a balance between the public and private realms, and serves to protect religious bodies from being deprived of being the delivery vehicles of education (albeit from their worldview).

If you would like further information on Commonwealth Funding of Religious Schools

Please contact our Client Engagement Team or call us on (07) 3252 0011 to book an appointment with one of our Educational Lawyers today.

This article was written by Andrew Lind (Director).

Other related article

https://corneyandlind.com.au/resource-centre/the-effective-use-of-public-ancillary-funds-and-other-dgr-funds-by-schools-to-fund-recurrent-and-capital-expenditure-with-deductible-giving/

School Ordered to Pay $1.1M to Ex-Student for Sexual Abuse by Teacher

The Victorian case of Erlich v Leifer concerned the liability of a school for the criminal actions of its headmistress.

The School in this case existed within the Ultra Orthodox Jewish Community whereby the members were subject to an exceptionally strict code of behavior. Members were denied access to television, radio, internet and magazines, and were essentially isolated from anything beyond the community.

Hadassa Sara Erlich (‘the Plaintiff’) had attended the School from kindergarten until grade 12 and was also employed by the School for a period of 8 months in her first year out of school (2006). The Plaintiff claimed that she had been sexually abused by the School headmistress, Mrs Malka Leifer, on uncountable occasions between 2003 – 2006. The Plaintiff subsequently sought compensatory and exemplary damages for the severe psychiatric injures which she now suffered as a result of the abuse.

The occurrence of the abuse was not in dispute at trial, as judgment had already been entered against Leifer (who had left the jurisdiction after the allegations had surfaced). Instead, the trial focused on the proper appropriation of liability, and whether Leifer’s conduct could be attributed to the School.

Direct Liability

Whilst the School admitted to owing the Plaintiff a non delegable duty of care, the School denied that they were directly liable for Leifer’s misconduct.

The Plaintiff was successful in arguing that the School was directly liable, on the basis that Leifer’s role, function, conduct and scope of authority was such that she could be regarded as the ‘mind and will’ of the School. The evidence demonstrated that Leifer operated in her capacity without any meaningful oversight or governance.

Further, it was the case that the School Board had ‘no role in receiving any reports or in any way overseeing Leifer’s performance as headmistress’. Leifer had vast amounts of authority to act as she pleased, being free to  pull girls out of class for ‘private chats’ and even take students to her own home without question. Matters were worsened by the fact that there ‘was no mechanism within the School through which a teacher could complain or raise a concern about the conduct of another teacher’.

Additionally, there was no education provided for teachers (or students) regarding sexual misconduct by teachers. The court viewed that the combination of these circumstances created a situation where Leifer’s ‘power, control and authority’ within the School was ‘unrestrained and unrestricted’. As a result, the School was found to be directly liable for the Plaintiff’s injuries, as the acts of Leifer were viewed as the acts of the School itself.

Vicarious Liability

Although the School was found to be directly liable for Leifer’s misconduct, the court went on to consider whether the School was also vicariously liable. An employer can only be vicariously liable for the criminal acts of an employee when there is a sufficient connection between the employment and the wrong.

In determining whether such a connection existed in this case the court cited the comments of Gleeson CJ in Lepore when he stated that:

…where the teacher-student relationship is invested with a high degree of power and intimacy, the use of that power and intimacy to commit sexual abuse may provide a sufficient connection between the sexual assault and the employment to make it just to treat such conduct as occurring in the course of employment.

In this case, the School was an integral part of the community.

Further, Leifer’s role as the Head of Jewish Studies coupled with the paramount importance given to religious studies throughout the community meant that Leifer was held in high esteem by all and was thought to be entirely trustworthy.

It was held that Leifer’s preeminent position of power within the School and the community generally, created a teacher-student relationship that was ‘invested with a high degree of power and intimacy’, which was used by Leifer to perpetuate the abuse. Leifer’s sexual abuse therefore occurred during ‘the course of her employment’, and the School was held to be vicariously liable for the abuse.

The court ultimately found that the School was both directly and vicariously liable for Leifer’s misconduct and was ordered to pay the Plaintiff:

1. $300,000.00 for Non-economic Loss;
2. $551,780.00 for Past and Future Economic Loss; and
3. $172,648 for Past and Future Medical Expenses.

Exemplary Damages

The Plaintiff also sought exemplary damages against Leifer and the School. Such damages are not designed to compensate a Plaintiff, but are awarded to punish a defendant and to deter the defendant and others from similar conduct.

After Leifer’s misconduct was brought to the attention of the School’s board, they hastily terminated her employment and organised flights for Leifer and her family to leave the jurisdiction that same evening. It was acknowledged that the board’s behaviour was most likely motivated by a want to conceal Leifer’s misconduct from those outside the community.

The actions of the board were described as ‘disgraceful’, demonstrating a total disregard for due process and Leifer’s victims. The court went on to award exemplary damages against the school of $100,000.00.

The question of whether a school will be liable for the criminal actions of it teachers, either directly and/or vicariously, will be a question of fact and degree. Courts will examine the entirety of the circumstances, including whether a school has appropriate accountability mechanisms and policies in place to monitor staff and protect students.

School Enrolment Contracts 101

Enrolment is a legal process that most schools don’t think too much about. It is however a legal arrangement where the school is entering into a contract with the parents or guardians for the provision of services. At it’s heart, it is a purely contractual transaction, and so it is helpful to consider the basics of contract formation.

Essential relationship is that of contract

A contract is much more than an agreement between two people. There must be an offer made and acceptance of that offer. Both parties must intend to create a legally binding agreement, and pay a price (not necessarily money). The must have a legal capacity to enter a contract of their own free will, and proper understanding and consent of what is involved. Any duress, false statements, undue influence or unconscionable dealings could make a contract illegal and void.

By virtue of payment in the enrolment process there is generally a contractual relationship brought into existence between the school and the parents regarding the provision of education services to their child or children. Hence, all of these elements apply to an enrolment contract in much the same way as any other type of contract.

Offer and acceptance

A contract is formed when an offer by one party is accepted by the other party.

Offer

An offer must be distinguished from mere willingness to deal or negotiate. An offer need not be made to a specific person. It may be made to a person, a class of people, or to the whole world.

An offer is a definite promise to be bound, provided the terms of the offer are accepted. This means that there must be acceptance of precisely what has been offered.

A person can withdraw the offer that has been proposed before that offer is accepted. For withdrawal to be effective, the person who has proposed the offer must communicate to the other party that the offer has been withdrawn.

An offer is not to be confused with an “invitation to treat” which is a legal phrase that has existed for hundreds of years. An invitation to treat is like a Vase in a store with a price tag – in some circumstances, the Vase for sale may be an invitation for the purchaser to make an offer to purchase – or an invitation to treat. There are no terms of the contract of purchase stated, it is a mere statement of price.

There are excellent reasons to structure Applications for Enrolment as an Offer, and everything before that as an invitation to treat.

Acceptance

Acceptance occurs when the party answering the offer agrees to the offer by way of a statement or an act. Acceptance must be unequivocal and communicated to the offeror. A person has not accepted an offer merely because they have not expressly rejected it!

Intention to create legal relations

A contract does not exist simply because there is an agreement between people. The parties to the agreement must intend to enter into a legally binding agreement. This will rarely be stated explicitly but can usually be inferred from the circumstances in which the agreement was made. It would be highly unusual for an enrolment agreement not to evidence an intention for the parties to be legally bound by its terms.

Consideration

Consideration is the price paid for the promise of the other party. The price must be something of value, although it does not have to be money. For example, it might be part money, and part volunteering special skills or experience. So long as “consideration” of some sort exists, the court will not question its adequacy, provided that it is of some value.

Legal capacity

Not all people are completely free to enter into a valid contract. Some groups of people lack the legal ability to consent to contractual terms in one form or another, including:

• • people who have a mental impairment;
  • young people (minors); and
  • some categories of prisoners.

By way of example, that means that Enrolment Contracts need to be signed by parents – not the students themselves, who are minors and not able to enter into contractual arrangements (except in specific circumstances).

Consent

The consent of each of the parties to a contract must be genuine. If one party is forced to sign a contract, the contract will not be binding.

Proper consent may be affected by any of the following matters:

• • mistake;
  • false statements;
  • duress; and
  • undue influence or unconscionability.

Terms of Contract

The “express” terms are terms that are clearly set out in the Contract, and are generally found in written form. Other terms can be implied in some circumstances where the contract doesn’t work unless those terms are implied. However, it is unusual to successfully argue that terms should be implied, and it is much safer to have the terms included in the Contract in the first place.

We recommend that schools have a review of their enrolment process and enrolment documents regularly – perhaps every few years unless a specific piece of legislation is enacted that requires it sooner. An example that forced many schools to review their enrolment documents was the Privacy Act amendments in 2014 (detailed later). Regular review of contracts ensures they reflect the current legislative requirements and best practice considerations from time to time.

Contracting Parties

In our experience it is sometimes difficult to identify the correct contracting parties to the contract of enrolment.

The College Contracting Party

In some cases the party named as the college or school should reflect the legal name of the college operating entity.

Parent Contracting Parties

Where the child to be enrolled comes from a home with two natural parents living together then, quite obviously, both parents would be party to the contract.

In circumstances where the parents have separated, it is important to ensure that the parent’s that have decision making responsibility are the parent/s who sign the enrolment contract. Documents that you should look at to make sure that the right people are parties to the contract include Court Orders made about parenting matters, or Parenting Plans.

It is unusual for a Court to order that 1 parent has sole parental responsibility for a child – but if they do, that is the ONLY parent that can make a decision about a major long term issue like education or health. In those circumstances, the school MUST have that parent as a party to the enrolment contract (and usually, the only party).

Where the Court makes an Order that the parents have equal shared parental responsibility, it is a requirement that decisions about major long term issues for the children must then be made JOINTLY. This means the parents should be sharing information with each other relevant to the decision, consulting with each other and making a genuine effort to agree[1].

Additionally, where there is an Order for Equal Shared Parental Responsibility, there can be no decision made about a major long term issue unless both parties agree. However, section 65 DAC(4) states that:

“To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly”

This means that it is not a responsibility of an organization to ensure that the decision is joint –an organisation is entitled to rely on a parent’s decision as communicated as if it is a joint decision of the parents.

Despite this, if one parent makes a decision that is not communicated to the other parent, or that the other parent expressly opposes, the organisation may be caught in the cross-fire. The best practice is that if the parents both communicate conflicting instructions in relation to a major long term issue, the College cannot pick a side – they must require the parents to resolve the dispute between them.

If there are no orders, or the orders do not make mention of parental responsibility, you must be especially cautious. If the Orders are old (pre July 2006) you may find that they use old terminology. If in doubt – get some advice about that.

If there are no Orders, or the Orders do not make mention of parental responsibility, then each parent has all of the responsibility to make decisions in relation to a child jointly and severally. Practically speaking, both parents can make decisions. It is possible for both parents, for example, to enroll a child in 2 different schools!

Other special circumstances sometimes arise – for example where a child has a guardian appointed by a Will, or where the child is in the care of the Department of Communities (Child Safety). Again, if in doubt, get some advice about it.

Copies of all documentation that establishes the right to make decisions for the child, including Wills, Court Orders, Parenting Plans and the like, should always be retained on file with the signed enrolment contract documents.

As always, if you identify a potential issue early, it is usually easier to resolve. If you are not sure, I strongly recommend that the school gets individualized advice.

This article was written by Fiona Manderson (Senior Associate) and delivered as part of a presentation for Associated Christian Schools (Jan 2016).

Footnotes

[1] Section 65DAC Family Law Act 1975

The Effectiveness of Waivers in Schools

A parents ability to waive their children’s rights has not been extensively considered in Queensland. Queensland appears to be one of the only States where there has been a failure to legislate the authority for parents to waive their children’s rights in a liability waiver. For example, in New South Wales under s 5M (2)(b) of the Civil Liability Act 2002 (NSW):

(2) If the person who suffers harm is an incapable person, the defendant may rely on a risk warning only if—

(b) the risk was the subject of a risk warning to a parent of the incapable person (whether or not the incapable person was under the control of or accompanied by the parent).

Section 5M(12) defines ‘incapable person’ to mean a person who, because of the person’s young age or a physical or mental disability, lacks the capacity to understand the risk warning.

However, the effect of parental authority to waive children’s rights was mentioned in the Voluntary Assumption of Risk Bill, which failed its second reading on 28 November 2002 (this was mentioned in a Research Brief into the draft Civil Liability Bill 2002). The intention of the Bill was to enable individuals who were taking part in recreational activities to waive their right to sue organisers for injuries received during those activities, provided they have been properly warned of inherent risks. It would not remove the ability to make a claim against the organisation if the equipment was faulty or the service provider was negligent with respect to the participant’s health or safety. The Attorney-General, Rod Welford MP, articulated his apprehension towards the Voluntary Assumption of Risk Bill. Rod Welford stated that the Bill applied to a wide range of activities and would have a significant impact upon rights of children as it would allow parents to sign liability waivers on behalf of their children, effectively disallowing children to claim for injuries sustained through an organisations negligence.

The Civil Liability Act 2003 (Qld) has not explicitly legislated the ability for parents to waive children’s rights. Therefore, an assumption can be made, given the comments made by Rod Welford, that Queensland Courts will favour the rights of the child.

Age of Majority

The age of majority for children to have capacity to enter into contracts is the age of 18 (s 17 Law Reform Act 1995). Additionally, a person under the age of 18 cannot sue another person without a litigation guardian. The litigation guardian is usually the child’s parent in this instance (s 94 Uniform Civil Procedure Rules 1999 (Qld)). The definition of ‘person under a legal incapacity’ is contained in Schedule 5 to the Supreme Court of Queensland Act 1991 (Qld). According to that definition, a person is under a legal incapacity if they are under 18 or, more relevantly, they are a ‘person with impaired capacity.’ Unless the child was over the age of 18 they do not have the capacity to sue.

Contracts with children and others who lack capacity at law to contract are generally only binding if for the child’s benefit, and it is unlikely that a contractual term excluding liability for personal injury is for a child’s benefit, on its own or in the context of the overall agreement.

A liability waiver, signed by a child, would essentially form a contract. A contract with a Queensland minor participating in a dangerous recreational activity which contains a waiver may not be binding on the minor because it is not a contract for necessary goods or services and therefore is not for the benefit of the minor.

Where children are involved, a defendant service provider of recreational services in Queensland may seek a signed consent by a parent or guardian, but even that may well not be binding on the child as it may not carry with it any power to act on behalf of the minor. In the event a contract of service is not binding on the minor, the minor may still be able to sue for breach of that contract, but it may be unlikely that a court would allow a minor to avoid a waiver clause but continue to enforce the protection of the contract. Joachim Dietrich in his article “Duty of care under the ‘Civil Liability Acts’” points out that recreational service providers may well endeavour to require parents to sign an indemnity agreement in respect of minors taking part in recreational activities. Under such an indemnity agreement parents would indemnify the provider against damages or loss arising from a claim by the minor against the provider. He argues that it would be contrary to public policy to deprive minors of their legal rights by allowing parents to sign liability waivers on behalf of their children. Dietrich predicts that it would be unlikely the courts would enforce such an agreement.

Cases

Ohlstein BHT Ohlstein v E & T Llloyd t/as Otford Farm Trail Rieds [2006] NSWCA 226 at [170]. In this case the judge considered whether there was a contractual relationship between a 5 year old girl and the Horse Riding Company:

The existence of duty of care and the question whether there was a breach are to be decided according to considerations which affect the respondents, Tali Ohlstein and the relationship between them; that relationship was not contractual, and could not be having regard to the child’s age and understanding. The terms and the circumstances of the contractual relationship between the child’s mother and the respondents do not in my opinion have any significant bearing on either the existence or on the breach of the duty of care owed to Tali Ohlstein. The child’s mother was not in a position to alter, by contract or by any other arrangement, the considerations affecting whatever it was reasonable for the respondents to do with respect to risk of injury to Tali Ohlstein. Warnings given to Ms Duncan, by the display of signs at the respondents’ premises or in other ways, could not in principle have any impact on the duty of care owed to Tali Ohlstein; nor could knowledge of risks involved in the activity which was given to Ms Duncan in any other way, or should otherwise have been obvious to her. There is no reason in principle why what Mrs Duncan accepted in the exercise of her parental responsibility should alter what was required by the respondents’ duty of care to Tali Ohlstein; the respondents could not depute any part of their duty to Ms Duncan. The display of a sign disclaiming responsibility, upon which the respondents sought to rely in a Notice of Contention, can in a similar way have no effect on their duty of care to Tali Ohlstein, who cannot have had any understanding of the sign.

Gillick Competence

The Gillick competence principle may be worth mentioning in this instance, although it relates to medical authorisation., Australian case law in various other areas follows the Gillick competence principle that a child’s capacity to make a decision depends upon the child having ‘sufficient understanding and intelligence to make the decision and is not to be determined by reference to any judicially fixed age limit’. ‘A child is, according to this principle, capable of giving informed consent when they achieve ‘a sufficient understanding and intelligence to enable him or her to understand fully what is proposed’. Prior to an individual reaching the age of eighteen, she or he possesses legal capacity in a variety of different areas the capacity to commit (and to be liable to be punished for) crimes requiring criminal intent; within limits, the capacity to make a contract and to be guilty of a tort; subject to any necessary authorization (Browne 2018).

However, the principles of contract law will still come into play and in the event a minor did sign a waiver, it is unlikely it will be legally enforced, as it is not for their benefit.

Conclusion

As the law currently stands in Queensland, it is unlikely that a liability waiver, either signed by the child or the adult will be legally enforceable. It will not be legally enforceable against the minor, as a liability waiver does not benefit the child. As noted in the Research Brief into the draft Civil Liability Bill 2002, the discourse seems to suggest that Queensland is against parents signing waivers of liability on behalf of the children as this effectively deprives a child from claiming for injuries sustained through a provider’s negligence. In the event an adult signs a liability waiver on behalf of a child, it seems as if this will also be unenforceable as it would be contrary to public policy to deprive minors of their legal rights. However, this presumption is not clearly legislated and thus there is grey area in this part of the law. Due to recent and dated case law, the courts will most likely favor the rights of the child.

To speak to one our lawyers, contact our business development team today.

You can find more information about children’s rights at the following websites:

Face the Facts: Children’s Rights – provides accurate and easy to understand information about children’s rights.

Lawstuff – Know Your Rights

References 

Ancliffe, Shiva, “The Separate Representation of Children: Part 1” (2002) Family Law Week.

Browne, Darryl, “Mental Capacity: The tests and assessment” (2018) 18 Australian Lawyers Alliance 12.

Civil Liability Act 2002 (NSW)

Civil Liability Act 2003 (Qld)

Civil Liability Bill 2002 (Qld)

CS v SBH & Ors [2019] EWHC 634

Dietrich, Joachim, “Duty of care under the ‘Civil Liability Acts’” (2005) 13(1) Torts Law Journal 17.

Healey, Deborah, “Warnings and Exclusions Post Personal Responsibility” (2006) 1 Australian and New Zealands Sports Journal 7.

Ipp, David Andrew, Cane, Peter, Sheldon, Don and Macintosh, Ian, “Review of the Law of Negligence Final Report” (2002) Law of Negligence Review.

Law Reform Act 1995 (Qld)

Ohlstein BHT Ohlstein v E & T Llloyd t/as Otford Farm Trail Rieds [2006] NSWCA 226

Supreme Court of Queensland Act 1991 (Qld)

Uniform Civil Procedure Rules 1999 (Qld)

Voluntary Assumption of Risk Bill 2002 (Qld)

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.