Association of Independent SchoolsSchools and the Law Seminar

March 22, 2012

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Legal Risk Strategic

Potential breach of enrolment contract

Breach of Disciplinary Policy

Breakdown in Relationship

Duties of care

Reputation Risks

Express terms of Enrolment contract

Exclusion from the school Serious breach of rules Relationship of trust No remission of fees

Express terms of Enrolment contract

Disclosure of informationrequired to deliver services

Implied terms of Enrolment contract

Must be reasonable Essential to contract Obvious Not contradictory to

express terms

Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR

Implied terms of Enrolment contract:

Procedural Fairness

Circulation of Policy Communication with parents Consideration of issues and circumstances Opportunity to respond Informed of potential consequences Reasonableness of response

Implied terms of Enrolment contract:

That school is safe for students

Violence not tolerated Policies implemented Reasonable care is taken to

avoid injury or harm

Allegation of Reportable Conduct…

Ill-treatment:

Is the punishment proportionate to the offence?Was it unreasonable in the circumstances?Was it excessive?Was it inappropriate?

NSW Ombudsman Guidelines: Practice Update 2011/1

Anti-Discrimination legislation

Known condition/disability?

Failure to adjust policies to meet needs of the student

Purvis v NSW DET (2003) HCA 62Disability Discrimination Act (Clth) (1992)

Talented History of violence Safety of others Threatens coach...

Knowledge of policies Right to respond Impartial decision-making Specific considerations Communication with parents Access to education Implications of decision Punishing Matthew or his parents?

Threat of violence to coach

Duty of care to students

Duty of care to staff

Risk of further violence

Angry Denial of Matthew’s rights Media Petition

s 4(1) Inclosed Lands Protection Act (NSW) (1901)

Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case.

Defamation Act (NSW) 2005

Publication of any false imputation likely to cause injury – must show that words have been publicised

Repudiation of the Enrolment Contract

Readiness and willingness to operate in accordance with thecontract

Klewer v Trustees of Roman Catholic Church for the Diocese of Lismore (2005) NSWSC 773

students

staff

reputation

media exposure

legal proceedings

t

Is this a matter for the board?

Why?

Why not?

I

Am I at risk?

Am I impartial?

Can I see the big picture?

What are my sources of advice and support?

What other risks do you see?

What is important here?

What do I want to achieve?

Why?

How do I get there?

What do I need?

W

L1, 299 Elizabeth StSydney NSW 2000

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