Education Law Notes – Term 1 2021
Published on March 2, 2021 by David Ford
Term 1 of 2021 is halfway through and what a relief it is that all our students are currently learning in the classroom rather than at home. This allows us to focus in these Notes on a couple of important issues that can become lost in the midst of a pandemic. First, you may wish to review your practices in relation to Incident Reports after reading our article. Second, it may be time to contact your financial supporters with a plea that they check their Wills to reduce the chance that the generous bequests to you do not fail. Our article comments on a case where a school almost missed out!
Enjoy the read!
Kasey, a student, sued his school alleging that he was injured in an incident at the school and seeking damages for both physical and psychological injuries. In the course of the proceedings, Kasey’s lawyer served a subpoena on the school seeking access to incident reports, investigation reports, statements, meeting notes and teacher notes relating to the incident. The School claimed “legal privilege” over three documents.
The Court found on the basis of the facts and the existence of the school’s incident report policy that all three documents were prepared for the dominant purpose of the school being provided with professional legal services relating to anticipated court proceedings.
What’s in a name?
Many schools established foundations in the 1970s and 1980s to handle school fundraising. These foundations also kept funds off the school’s balance sheet which maximised the Commonwealth financial assistance received. The funding formula has long since changed and a good number of schools have wound up their foundations and brought their fundraising in-house.
An unintended consequence of this is that bequests made by school supporters in their Wills when the school foundation still existed may fail if the foundation ceases to exist before the supporter dies.
Company Director Resignations
From 18 February 2021, if notification of the resignation of a director to the Australian Securities and Investments Commission (ASIC) occurs more than 28 days after the resignation, the director will be deemed to have resigned on the notification date. ASIC will no longer accept “back-dated” resignations.
This means that a director who has resigned but whose resignation has not been notified to ASIC for more than 28 days may have had no decision-making power after resignation but may still have personal liability under the Corporations Act for events occurring after the resignation date. It is, therefore, important to act quickly where a director resigns.
A resignation notified to ASIC within the 28 day period will still be recorded by ASIC as occurring on the resignation date and not on the notification date.
A resigning director does not have to rely on the company to notify ASIC. The director may lodge a Form 370 (Notice by Officeholder of Resignation or Retirement).
The new rule does not apply where a director has died, where a person did not provide their consent to act as a director, and where the company is being wound up or under external administration.
COVID-19 Temporary Company Law Measures to become Permanent
For most of the past 12 months, companies have been given short-term regulatory relief from the Corporations Act provisions relating to meetings and signatures. However, that relief is to end on 22 March 2021. It now seems likely that the Federal Government will make this permanent. In other words, companies will continue to be able to hold their general meetings, including annual general meetings, and directors meetings virtually and company officers will continue to be able to sign documents electronically. Similarly, minutes will be able to be recorded, kept and distributed electronically.