Education Law Notes – Term 2, 2021
Published on June 9, 2021 by David Ford
While cases of COVID-19 continue to pop up around Australia, it was great to be able to speak at two conferences in the past month where both I and the attendees were physically in the same room! At the first of these conferences, I spoke about student discipline with an emphasis on what procedural fairness entails when considering expulsion. At the second, a governance training day for the Board members and senior leadership of several schools, I considered how schools ought to respond to the risks to the mental health of students as a result of bullying, cyber bullying, child sexual abuse, and peer-to-peer sexual abuse. I also talked about the particular issues arising in relation to transgender students. Copies of my papers, as well as past issues of these Notes, are available on our website.
In this issue, my partner, Martin Slattery, writes about a recent case which reached the High Court of Australia. It was about a man who, as a student almost 40 years ago, was sexually assaulted by a staff member. The man settled his claim against the school 20 years ago but was seeking to reopen the matter.
The other two articles in this issue are by my colleague, Stephanie McLuckie. One deals with a claim by a student with a disability against his school. There are good lessons for us all in how the school handled his needs. In our final article, Stephanie looks at proposed changes to the child protection legislation in New South Wales, following the earlier lead of Victoria.
Enjoy the read!
Setting aside a settlement of a claim re child sexual abuse
Between 1986 and 1989, a boy (let’s call him Tom) was a student at a Brisbane school. Kevin Lynch had been employed at the school since the beginning of 1973. When Tom attended the school, Lynch was the full time school counsellor. Tom experienced difficulties at home and at the school when he was 12 and 13 and in grades 8 and 9. He was counselled by Lynch. Subsequently, Tom reported that, in the course of purportedly counselling him, Lynch sexually assaulted him on numerous occasions. Lynch resigned his employment at the school towards the end of 1988 and was then employed at a different school. He committed suicide after being charged with sexual offences against a student at that school.
With assistance from lawyers, Tom brought a claim against the school which was settled in 2001. Tom received compensation of $47,000 plus costs of $12,000.
In June 2018, Tom applied in the Queensland Supreme Court for an order under subsection 48(5A) of the Limitation of Actions Act 1974 (QLD) that the settlement agreement between him and the school be set aside on the ground that it was just and reasonable to do so.
Student’s Disability Discrimination Claim Fails
Beau was a student at a Queensland state school from January 2011 to August 2015. He had a number of disorders, including autism spectrum disorder, attention deficit hyperactivity disorder, oppositional defiance disorder, depression and anxiety.
Beau was frequently disruptive, sometimes physically assaulting teachers and other students. When this happened, staff physically restrained Beau and confined him in a room. He was frequently suspended from school.
Beau sued the State of Queensland (Department of Education and Training), alleging unlawful disability discrimination in the provision of education, in contravention of section 5 and section 22 of the Disability Discrimination Act 1992 (Cth) (the DDA).
A New Child Safe Scheme for NSW
The Children’s Guardian Amendment (Child Safe Scheme) Bill 2020 has been introduced to the NSW Legislative Assembly and debate has been adjourned following the second reading speech. We expect the Bill to be passed by the end of the year.
If passed, the Bill will amend the Children’s Guardian Act 2019 (NSW) to create a regulatory framework requiring child-related organisations in NSW (including religious bodies) to comply with the Child Safe Standards, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.
Read more to find out how this Bill will affect you and how it compares with the situation in Victoria.
David Ford will be presenting on Enrolment and Transgender Students at the EducatePlus NSW/ACT Chapter online event (open to all Chapter members, and to non-members for a $35 fee) at 11:00am on 19 July 2021.
David will also be speaking at the 3rd Annual Law for Religious Institutions Conference in Melbourne (or online if need be) on 12 August 2021. His topic is Process and Procedural Fairness in Investigations for Religious Institutions.