Legal compliance for schools in the age of COVID-19

Legal compliance for schools in the age of COVID-19

In March 2020, as the COVID-19 pandemic dragged a long tail of chaos, confusion and fear across the nation, each state was making its own decision on whether to close its schools based on the advice of its chief medical officer.

For teachers, this was an incredibly stressful time, as they were forced to plan the delivery of their curriculum in an atmosphere of uncertainty and danger while adapting to rapidly shifting policies as health advice changed. In essence, they were being asked to build the plane while they flew it.

Nearly two years on, Australia’s resilient and hard-working educators have managed to do a stellar job of helping students navigate, emotionally and academically, through the pandemic and its lockdowns.

However, while teachers have been supporting students in every way they possibly could during this difficult time, support for principals – particularly in the important areas of law and compliance in light of shifting policies and guidelines – have been few and far in between.

Recognising this, the Australian Council for Educational Research (ACER) recently published ‘Teachers, Students and the Law: A quick reference guide for Australian teachers’ – a comprehensive, plain language guide to the legal rights and responsibilities of educators working in Australian schools – now comprehensively revised to bring it fully up to date.

Below, The Educator speaks to the book’s author, Vivien Millane, about legal compliance for schools in the age of COVID-19.

TE: Drawing from your work with schools, what appears to be the main area of legal compliance in which educators have the hardest time navigating, and why?

It has long been established that teachers have a legal duty of care to their students; and schools have a legal duty of care to their students and their staff. What started as a simple set of principles has been expanded over time to cover a wider and wider area of school life. A degree of legal responsibility for the care of the student has gone outside the school gates and outside school hours. Schools now have to consider their duty of care in the classroom, in the playground, online, on the sports field, on excursions, in the canteen, and in any school organised event. The school’s duty of care cannot be delegated. Compliance requires the completion of paperwork. Risk assessments must be done, parental consent obtained, reports made, minutes of meetings kept. There is a wide area of compliance that must be covered. The requirements of Ministerial orders must be met. Schools have a duty to provide for students with special needs. The NCCD annual collection of information must be provided. Children and staff must be protected against discrimination and bullying. Health and Safety requirements must be met. New legislation, Ministerial Order or court decision can bring change or expand the duty further. These are all hard area for schools to cover in addition to their teaching obligations.

TE: The COVID-19 pandemic has certainly added a new layer of complexity to the job of school principal. Following on from the above question, is there a particular area of COVID-19-related compliance that schools are having difficulty in maintaining? And what can be done to ensure that leaders have more success in complying in this area?

Meeting operational guidelines during the pandemic is often difficult. Guidelines from the Departments of Health and Education may change from week to week. Schools must meet cleaning and hygiene requirements, ensure adequate supplies of personal safety equipment, meet density limits and health requirements for those staff and children attending onsite as well as meeting the educational needs of children studying in a remote setting. Staffing becomes a central issue. Sufficient staff must be provided to supervise those students who must attend onsite as well as providing online learning for those at home. Shortage of staff becomes a critical issue if a staff member becomes sick or has to isolate. Health and welfare of staff becomes a central issue with overworked staff in danger of burnout. Leaders can assist by providing good technical support and counselling where needed. Leaders should take on the task of communicating the school’s expectations to the parents and help the parents to understand their role in remote learning and how to comply.

TE: Cyberbullying has long been a major challenge for schools. What impact has lockdown and remote learning had in this respect, and are there any signs that schools and communities are finally starting to get on top of this serious issue?

Cyber bullying has increased during lockdowns and remote learning. Children are not just completing their schoolwork online. Children are operating over multiple platforms for entertainment and social connections. They are gaming using avatars where bullying may become a feature of the game. Social media platforms, apps and sites allow chats with friends but may lead to bullying if others join the conversation. Children “buddying up” sounds harmless but can lead to bullying if a child is excluded from the group. Parents want the school to do something if their child is being bullied. But who has the responsibility for monitoring what children are doing in their spare time at home? The Alannah and Madeline Foundation has produced some good initiatives including the eSmart Digital Licence and the eSafety Commissioner is a good resource but cyberbullying remains a serious challenge.

TE: Privacy in the digital age is taking on increased importance. In your view, how can schools and their communities effectively balance the controversial aspects of digitisation (data collection, data sharing, third party access, etc) with the important responsibility of ensuring robust protections of student and staff privacy?

The centralisation of data has increased efficiency but also created problems. Schools need to ensure that sensitive data is securely stored and access restricted on a need-to-know basis. Problems arise when it is unclear what can and cannot be shared with third parties. There are rules and guidelines but issues will arise when staff share information when they shouldn’t. Schools need to provide time for professional learning covering privacy requirements. Schools also need to ensure that staff have completed their mandatory reporting training.

Vivien Millane is the author of Teachers, Students and the Law: A quick reference guide for Australian teachers (5th edition) ACER Press, 1 October 2021.