Mitigate and manage: The legal risks you must be aware of

The Educator asked two experts – David Ford of Emil Ford Lawyers and Alex Kohn of Makinson d’Apice Lawyers – to identify some of the most important emerging legal risks facing school leaders.

1. Sexual misconduct
Continuing publicity surrounding the Royal Commission into Institutional Responses to Child Sexual Abuse is likely to result in more former school students coming forward with claims of past abuse by teachers, aside from those schools already named and shamed. Emil Ford Lawyers’ David Ford said that, at the same time as more students are likely to remember their own circumstances at school, state laws are progressively being changed to remove previous time limits that had barred abuse victims from lodging civil claims. For example, NSW removed time limits for historical claims this year, following Victoria in 2015.

Sexual misconduct claims usually come down to a claim of negligence, either because a school did not supervise a teacher properly, or when they found out about something, they did not do anything about it, which allowed it to continue or become more aggravated.  

Ford said many schools have already been through their existing records in respect of potential historical claims, so that, within the context of the Royal Commission, they are able to know where they stand or are able to defend claims if they do come forward. To protect against possible future incidents, Ford said schools need to continually educate their teachers on child protection laws and school policies, so that they are able to be observant and report anything untoward within the school and inform the appropriate authorities.

2. Cyber bullying
Claims for damages arising out of cyber bullying are on the rise, as the explosion of electronic communications finds online bullying activity increasingly crossing over with school activities.

Makinson d’Apice partner Alex Kohn said any cyber bullying between students offsite with no connection to a school does not result in liability. However, there are an increasing number of grey areas on that spectrum, with many student cyber bullying situations tying into schools in some manner, or blatantly spilling over into playgrounds, classrooms, or sports fields.

While most claims are covered by insurance, they do reach into the hundreds of thousands of dollars. They also have the added risk of causing psychological injury or the resignation of a teacher or staff member, who might be accused failing a student. “In extreme cases I’ve seen teachers subject to such criticism take it so badly they’ve quit the profession,” Kohn said.

Schools are urged to set up a system that makes it easy for victims to come forward and report, even anonymously. This should be communicated at assemblies, in newsletters and on their website, to ensure there is the highest chance of mitigating cyber bullying problems.

Issues surrounding LGBTI students or employees are likely to become a growing issue for management at schools, as school cultures – for example, faith-based schools – intersect with a matrix of Commonwealth and state and territory anti-discrimination legislation.

In the case of students, Ford said the issue is often working out how to deal with them once they’ve already been enrolled. “It’s a live issue, for example when a boy begins identifying as female gender and wants to use female toilet facilities. Or in a coeducational school, if a student identified as Tom last year and this year it’s Tonya, and there is a school camp with a bunk room, does Tonya go in the boys rooms or the girls rooms? There are child protection and duty of care issues to grapple with,” he said.

For employees, schools need to watch the variety of anti-discrimination laws at different levels of government, which could trip up a faith-based school during the hiring process.

Ford said that while schools are playing ‘catch up’ to an extent in this area, they need to think through the issues and come up with policies that ensure they know what their approach is going to be before it happens. They also need to educate the right people – enrolment staff, or HR staff – and ensure they know what the law is in their own state or territory.

A further three legal risks will be revealed on The Educator tomorrow. Also check the June issue of The Educator magazine for the full list of potential legal threats facing schools