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New child protection measures in NSW, such as employment screening and Ombudsman investigations, have caused serious concerns among teachers. The NSW Independent Education Union (IEU) and the Assistant Ombudsman have responded by holding meetings at schools to address those concerns. Journalist David West reports on the IEU’s and the Ombudsman’s response.
A trainee teacher recently received over $7 million in damages for injuries resulting in quadriplegia, sustained from a tobogganing accident during a school excursion. In Focus features Joydeep Hor’s discussion of the NSW Supreme Court decision. Joydeep is a senior associate at Harmers Workplace Lawyers.
In Safety in Action, Sheila Pooviah, Head Teacher – Science, at the prestigious James Ruse Agricultural High School in Sydney, describes the school’s continual efforts to make the classroom laboratory a safe educational and working environment for students and staff.
In Court features a recent Queensland case in which a school allegedly discriminated against a disabled student. Two complaints against the school of indirect discrimination were unsuccessful and one complaint of direct discrimination successful. Schools Alert board members Dr Doug Stewart and Andrew Knott describe the lengths the school went to in order to meet its legal obligations.
Carolyn Uyeda,
Editor
02
9857 1790
cuyeda@cch.com.au
www.cch.com.au/schools
by David West
A teacher's career and reputation hang in the balance during a child abuse investigation.
Sydney Grammar staff and teachers were addressed by Patrick Lee, Secretary of the NSW Independent Education Union (IEU) and Anne Barwick, the Assistant NSW Ombudsman on 30 April. This was just one of many similar meetings that have taken place across the state over the past 18 months to address teachers’ concerns about the new child protection laws.
A raft of child protection legislation has been enacted in NSW over the past few years in response to the findings of the Wood Royal Commission. The principal elements of the legislation are the Child Protection (Prohibited Employment) Act 1998, amendments to the Ombudsman’s Act 1974 and the Commission for Children and Young People Act 1998 which established a system of employment screening.
The Ombudsman’s role is to oversee investigations into child abuse allegations to ensure they are carried out fairly and according to guidelines. The Ombudsman is empowered to monitor and review all investigations into child abuse by agencies. It conducts complete audits of agencies to check their level of compliance with legal responsibilities and to scrutinise systems for preventing and responding to child abuse.
Concerns about the laws, however, are being voiced by teachers. A point of contention is the definition of child abuse in the Children (Care and Protection) Act 1987 and how it is interpreted by the Ombudsman.
The definition states: “Child abuse includes assault, sexual assault, ill-treatment or neglect of the child, or exposing or subjecting a child to behaviour that psychologically harms the child (with or without the child’s consent)”.
The IEU supports the definition, but is concerned that the broad interpretation by the Ombudsman may lead to investigations based on frivolous or vexatious claims, capable of damaging a teacher’s career and reputation.
“We have approached the Ombudsman and the Children’s Commission to consider the interpretation of the definition”, said Mr Lee.
Ms Barwick believes the interpretation is working as it should. “Our interpretation is based upon advice from senior counsel and has a firm basis in law”, she said.
Investigations
While an investigation is being undertaken, the employee’s career and reputation hang in the balance.
“There are cases where teachers have been suspended for long periods while there have been lengthy investigations, that have not been proved to be serious”, said Mr Lee.
Ms Barwick pointed out that the Ombudsman role was to ensure that investigations were carried out fairly, correctly and according to guidelines aimed at protecting employees from frivolous claims. In applying the guidelines, the Ombudsman found that during 1999/2000, 55% of child abuse investigations carried out by agencies were unsatisfactory. The NSW Ombudsman received 1,153 child abuse notifications during 1999/2000 and oversaw 554 completed investigations. Over 60% of notifications came from government schools, while 10.7% involved the police, 5.5% came from non-government schools and 4.0% were from childcare centres.
Excluding allegations involving the police, 65% of all notifications alleged physical abuse, 17% alleged sexual abuse and 5% alleged psychological abuse. The remaining 12% involved allegations of misconduct that may constitute child abuse.
“Justice Wood found that a great many allegations under the old system were not being investigated”, said Ms Barwick. “There are safeguards in the new system for both the alleged victim and the employee that protects those involved from frivolous claims. Our experience is that there have been very few claims that could be called frivolous.”
Employment screening
The Children’s Commission uses a points system for employment screening. The IEU also wants this reviewed. Applicants for jobs involving children must be screened by their employer using CrimTrack for assessing criminal records and the Children’s Commission database. Allegations that are not sustained may be recorded on the employment screening database maintained by the Children’s Commission.
“We are concerned
that a teacher who is teaching and well regarded in one school may not be allowed
to find work elsewhere because the screening process throws up an investigation
based upon a frivolous investigation that has not been sustained”, said Mr Lee.
Employment screening for child-related employment began on 1 May under the Commission for Children and Young People Act 2000. Employment screening under the Act does not apply to teachers registered by the Board of Teacher Registration, but deals with most other employees and others, who may come into contact with school children. Regulated employment and businesses under the Act include school employees other than teachers and parents, school boarding facilities, churches, clubs and associations involving children, counselling services, private teaching, coaching or tutoring, among other categories.
A Muslim
teacher, who was denied a position with the WA Education Department for refusing
to remove her veil, lodged a complaint with the WA Equal Opportunity Tribunal,
but the Department settled out of court in April for an undisclosed sum. Under
the Equal Opportunity Act 1984 (WA) religious conviction is a prohibited
ground of discrimination.
Victoria’s new homework guidelines came into force on 23 April. The guidelines recommend that Year 10–12 students spend up to three hours per weeknight and six hours on weekends; Year 5–9 students 45–90 minutes per night, and prep to Year 4 students up to 30 minutes per night.
Under Western Australia’s homework policy, released on 30 April, schools must have a “documented approach to homework”, but, unlike Victoria’s policy, the number of hours are not set. Homework assigned should not interfere with students’ family, recreation, cultural or employment activities.
Forty-six former students launched a case in the Supreme Court of Queensland on 27 April against Brisbane Grammar’s board of trustees and the Anglican Diocese of Brisbane for alleged sexual abuse by a school counsellor. The alleged abuse by former counsellor Kevin Lynch occurred between 1975 and 1997. The incidents took place during Mr Lynch’s counselling sessions with students at Brisbane Grammar and St Paul’s School at Bald Hills. The claimants are seeking over $18 million in damages.
ACT Education Bill before Parliament
The School Education Bill 2001 was introduced into the ACT Legislative Assembly on 1 May. The Bill’s purpose is to update and consolidate existing legislation, presently provided under four separate Acts, into a single Act. The Bill also provides legislative support for flexible and innovative schooling and covers both government and non-government school sectors.
Fifty-four schools in city and country NSW will get new tractors for their agriculture courses, vocational education and landscaping work as part of a campaign to improve tractor safety. The new school tractors will have roll bars and other safety features to reduce the risk of injury. The new tractors are part of a four-year $433 million program to upgrade school capital works across the state. Schools will receive the funding before 1 July 2001.
By Joydeep
Hor
A trainee teacher, left a quadriplegic after a tobogganing accident on a school excursion, has sued the State of New South Wales for negligence.
In 1995, David Beck was a trainee primary school teacher in the final year of his studies at Southern Cross University. Ballina Primary School, where Mr Beck was gaining practical experience, had organised a school excursion for two employee teachers, two parents and 56 children at the Kosciuszko National Park.
The excursion (at least for Mr Beck and the two other teachers) was fully subsidised by the school and, therefore, by the State of New South Wales.
The evidence presented in the case was that Mr Beck sustained an injury when he struck a rock positioned behind a small bush while riding on a makeshift toboggan (being an advertising sign for real estate) that had no rope or attachment to it.
Furthermore, tobogganing was prohibited in the area. As a result of the accident, Mr Beck was left a quadriplegic.
Mr Beck brought an action alleging negligence against the State of New South Wales (his employer) and Perisher Blue Pty Limited. The case was heard by Justice Timothy Studdert of the Supreme Court of New South Wales.
The decision
Justice Studdert had no difficulty, on the basis of existing precedents, in finding that the State of New South Wales owed Mr Beck a duty of care. The judge placed particular emphasis on the fact that Mr Beck had been asked to participate in the excursion and was provided with a number of incentives to do so.
Despite Mr Beck’s role as “a parent helper to help supervise the children and help out with any other duties”, the judge was of the view that the people in charge of the excursion were the two teachers. Also of critical importance to the judge in making this decision was the fact that Mr Beck was encouraged, and indeed expected, to participate with the children in the activity on the slope.
The judge was satisfied that the area chosen by the school was not suitable for tobogganing and that the use of the signs was altogether inappropriate for tobogganing purposes.
Perisher Blue, at the time of the incident, was the lessee of the Blue Cow Mountain Ski Centre. Since Perisher Blue had accepted “for reward” the plaintiff as a passenger in the ski tube that took him to the relevant ski fields where the accident took place, there was also a duty of care established between Perisher Blue and Mr Beck.
The judge rejected a number of arguments put by lawyers for the defendants that there was somehow a “voluntary assumption of risk” by the plaintiff. The judge, however, did agree that the plaintiff contributed to the negligence himself.
Given the serious nature of the injuries resulting, the judge awarded Mr Beck a total of $7,058,000, with 60% of that sum to be paid by the State of New South Wales and the remaining 40% to be paid by Perisher Blue.
Implications
Leaving aside the implications of the decision from a lessee’s point of view (although they are serious), the case presents a number of practical difficulties for school administrators in the manner in which excursions are sanctioned.
The decision clearly highlights the need, first and foremost, for anyone designated as responsible for the supervision of a school excursion to be fully briefed and aware of the safety risks attendant with any activities proposed during the course of that excursion. Furthermore, these supervisors cannot rely (as they may mistakenly think they can) on written acknowledgments by would-be participants that they are voluntarily taking on the risk. This is because the duty of care is an absolute duty.
The manner in which schools and administrators discharge their duty of care in relation to excursions is not a matter which can be articulated with precision. Suffice it to say, venues need to be carefully chosen and even when a venue may be regarded as notionally safe, the specifics of that venue also need to be considered safe. This involves a process of ongoing assessment and monitoring by anyone in a supervisory role.
Another important implication of the decision relates to the role of trainee staff within a school environment. The inevitable perception (perhaps from students) that such trainees are members of staff is unlikely to be a view shared by the courts. Rather, trainee teachers are more likely to be classed as students (from the perspective of the school’s duty of care) than as teachers.
Beck v State of NSW & Anor [2000] NSWSC 278
By Sheila Pooviah
Though the laboratory safety record at James Ruse is exemplary, the science staff allow no room for complacency.
At James Ruse Agricultural High School, the aim is to make safety a part of students’ basic approach to the laboratory. In the science classroom, it is impossible to anticipate all of the specific hazards that might arise. It is not necessary to eliminate creativity in the interest of safety. It is important that teachers temper creativity with a constant alertness to potential dangers. Common sense can go a long way toward maintaining a safe environment.
The ultimate responsibility for safety in the science classroom lies with the school administration, in general, and the school principal, in particular. Teachers and students, however, bear the day-to-day responsibility for safety. A safety program can be effective only if all parties carry out their responsibilities. We acknowledge that it is essential for the safety program to be fully supported by the entire school, as well as by parents.
The school administration is responsible for providing laboratory areas for science activities that are functional and safe. Each laboratory is equipped with safety items in good condition. Regular inspections are carried out and documentation of safety equipment is maintained. There are seven well-equipped laboratories, two of which are new, located in four different areas of the school. One of these laboratories is quite small.
The preparation and storage areas are accessible only through the laboratories in almost all cases. This makes access very inconvenient. The preparation areas are of standard size, which is far from adequate for the large numbers of students studying science at this atypical high school. All the laboratories are general-purpose laboratories. Each of the laboratories has a different furniture arrangement.
Teachers
At James Ruse, teachers are responsible for:
Teachers endeavour to set a good example by observing all safety rules, wearing proper protective equipment and being enthusiastic about safety.
All teachers know or have access to resources that describe the properties and hazards associated with each material used in their laboratory activity before students carry out the procedure. Teachers provide students with eye protective equipment when required.
The teachers are required to ensure that all containers are properly labelled with their contents and hazards. The school aims eventually to have teachers maintain a written record of student safety instruction.
Each science teacher provides comprehensive safety instruction for all students at the start of each school year. Such instructions include the location of all classroom safety equipment and safety procedures in a science classroom. We have students sign a safety rules agreement, and their parents are required to sign as witnesses to the agreement.
Students and parents
The students have the following responsibilities. They must:
Parents are to read the safety rules and discuss these rules with their child. Then they sign the Safety Rules Agreement indicating that they have read and understood the rules.
Accident prevention
With most classes filled to capacity, teachers are aware that safety cannot be compromised. Teachers emphasise safety practices on the first day and reinforce the concepts at the start of each experiment.
Our experience shows that students will not take safety rules seriously unless the teacher obeys and strictly enforces these rules. Teachers circulate among students to monitor students’ work and ensure that they can respond to emergencies quickly. All supervising teachers are required to stay in the laboratory at all times when students are working and not let students work alone or unattended.
Teachers ensure their students understand instructions before the students begin work and inform them about the hazards and precautions associated with specific experiments. Teachers aim to allow sufficient time for students to conduct experiments because rushing them often causes accidents.
Chemical safety
The Chemical Safety in Schools (CSIS) policy was introduced in NSW schools in 2000. CSIS was developed as a resource to assist all schools in:
In the implementation of CSIS, it was mandatory for all school staff to undertake training. The science department has continued with that training and, currently, various parts of the resource are being implemented.
Some sections still need further attention. These include the completion of the chemical register, and the labelling and colour-coding of all chemicals in the school according to the guidelines. With limited resources and the demands on the time of the laboratory assistants, the implementation of the CSIS will take longer than is desirable.
Teachers must be familiar with the chemicals, equipment, and procedures they are using. As required by the CSIS policy, a file of Material Safety Data Sheets must be kept in alphabetical order. Teachers should have a thorough understanding of the potential hazards of materials, processes, and equipment used in their laboratories.
General safety
Teachers are encouraged always to perform classroom experiments prior to assigning them to a class. Such preparation allows teachers to break down the experiment into stages, determine the hazards for each stage, and establish precautions to avoid these hazards.
Posters highlighting the safety rules are effective reminders to students and to all who enter the laboratory.
Seating in the laboratories is arranged to allow safe and quick exiting in the event of an emergency. Aisles are not to be obstructed, and access to safety equipment, such as fire extinguishers or safety blankets, must not be blocked.
Good housekeeping
Insisting on proper laboratory cleanup from the first laboratory session sets the scene. Proper cleanup includes keeping all laboratory areas, sinks, and implements clean, neat, and orderly. Teachers make sure that wastes are deposited in appropriate receptacles.
No room for complacency
The laboratory safety record at the school has been very good but the science staff is aware that there is no room for complacency. The provision of a safe learning environment is a primary goal of the science faculty.
# # #
James Ruse Agricultural High School is a highly academic selective school in Sydney. All of its 500 junior school students study science as one of their core subjects. Most of the 317 senior school students study two science subjects.
The popularity of the sciences as courses of study in the senior school is evident by the number of science classes being run at the school. There are five biology classes, 13 chemistry classes and 10 physics classes. In addition, the science department offers enrichment courses in junior science, senior biology, chemistry and physics.
The science department is staffed with 11 highly experienced teachers and two laboratory assistants, one of whom works part-time. A member of the science department is the chairperson of the School Occupational Health and Safety Committee.
By Dr Doug Stewart and Andrew Knott
In an earlier edition of Schools Alert (Vol 1, Issue 3) the issue of direct discrimination was addressed in relation to I v O’Rourke and Corinda State High School and Minister for Education for Queensland, in which the defendants were found to have directly discriminated against a student. In this article, two complaints concerning indirect discrimination are discussed in reference to the same case. The complaints of indirect discrimination were unsuccessful.
# # #
A recent case shows the lengths a school must go to avoid discriminating against disabled students.
“I” was born in 1979, and has spastic quadriplegia and severe intellectual disabilities. She attended Corinda State High School from 1992 until 1997. Two incidents involving the complaints of indirect discrimination – attendance at the school formal/ball and a graduation dinner – occurred in her last year at school.
Formal/ball
In July 1997 “I” attended the Year 12 formal/ball at a local Brisbane club. This is a major event in the school’s calendar as all students undertake dancing as a tutorial subject throughout their five years at the school. “I’s” parents were not satisfied that the venue, which had been used in previous years, was appropriate for their daughter. They had discussed their concerns – that there was a lack of wheelchair access to the venue as well as an accessible toilet which would provide privacy and safety for “I” – with the principal on at least two occasions prior to the event and had recommended a number of alternative sites for the school’s consideration. The principal set up a committee to check these sites and provided clear criteria that had to be considered including security and safety for the students, non-accessibility to liquor outlets, a dance floor adequate to take up to 300 students at any one time, reasonable cost and accessibility for those with disabilities.
After considering the alternatives, the principal decided that the original site was the only one that met the relevant criteria. To overcome the parents’ objections concerning dignified and safe accessibility for “I” the principal arranged to have a stair climber for wheelchairs made available. “I’s” parents had also stated their desire to have their daughter’s personal carer, attend to “I” at the formal. This was considered inappropriate by the principal on the grounds that the carer was an ex-student of the school who, while attending to “I” at previous school events, had questioned school staff decisions to do with “I’s” safety. Instead the principal appointed two members of staff, one with skills and experience in managing children with disabilities, to look after “I” for the evening.
On the evening of the formal “I” accessed the venue by way of a side door and managed the stairs by way of a stair climber. She was assisted at meal times by the two staff members who also aided her in her toileting.
Graduation dinner
The second complaint of indirect discrimination arose out of “I’s” attendance at the school graduation dinner that was held on a converted barge – “the Island” – on the Brisbane river.
This had been the selected venue in previous years as it met the criteria considered necessary for such functions, namely controlled access and no alcohol. The complainant’s parents also considered this venue inadequate and inappropriate on the grounds of access, safety, and accessibility and privacy of toileting, and had recommended a number of alternative venues.
These were explored but none was found to meet the established criteria. To make “I’s” access to the vessel more comfortable, the school provided, at its expense, additional ramps and also transported a portable lift to “the Island” for use by disabled students. Two staff members were on hand to assist “I” when she arrived and left “the Island” as well as throughout the evening. Two members of “the Island’s” crew were also on hand to assist, and one of them, specially trained in shipboard safety, was personally detailed to assist “I” in the event of any emergency. In addition, a portable toilet was made up by the manual arts section of the school and taken to and erected at the venue by staff and students. Privacy was ensured by the provision of screens around the toilet.
Relevant legislation
The Queensland Anti Discrimination Act 1991 (the Act) states that:
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.
The Act also provides that “an educational authority must not discriminate by denying or limiting access to any benefit arising from the enrolment that is supplied by the authority and by treating a student unfavourably in any way in connection with the student’s training or instruction” (sec 39).
The Act, however, states that “subject to the Education (General Provisions) Act 1989, it is not unlawful for an educational authority to discriminate on the basis of impairment” where a person requires special services or facilities which impose an unjustifiable hardship on the authority (sec 44(1)). Provisions also exist which make it unlawful to discriminate in the supply of goods and services, although exemptions are allowed where the supply of the goods and services would incur an unjustifiable hardship.
It was submitted by “I’s” counsel during the hearing that indirect discrimination took place in relation to accessing both the formal/ball and graduation dinner venues as well as there not being access to toilets on the same basis as students without impairments. It was also claimed that “the Island” lacked safety emergency procedures which placed “I” in a situation not faced by those without her impairments.
The decision
The President found that on the balance of probabilities, there has been no unlawful indirect discrimination in relation to either the school formal/ball or the graduation dinner.
In addressing the issue of “reasonableness” the President noted that any “negative consequences of the failure to meet with the terms” of sec 11 were “significantly diminished” and “minor and should not override all of the other considerations the respondents had to take into account”.
In relation to the supply of special services and facilities, the President stated: “The respondents are not the owners of the venues and therefore are not in a position to install the special facilities. The only alternative for the respondents was to arrange the formal functions at venues which would be at considerable cost and disruption to all of the other students. The evidence … was that [the school] is always on the lookout for more suitable venues but these have not been found to date. In weighing up the benefit to the complainant against the detriment to the respondent and all others concerned in relation to the school formal/ball and the graduation dinner I am of the view that the supplying of special services and facilities would impose unjustifiable hardship on the respondent”.
Implications
The hearing clearly shows the measures schools must take to meet their obligations under anti-discrimination legislation. Corinda State High School has for many years made provision for students with severe physical and intellectual disabilities. Their care and concern for these students is exemplified by the actions they took to meet one student’s needs and her parents’ wishes, while ensuring the needs of the rest of the school community were appropriately considered. Above all, principals must have a working understanding of the legislation and be proactive in ensuring they have adequate policies and procedures in place to meet the legal requirements.
I v O’Rourke and Corinda State High School and Minister for Education for Queensland [2001] QADT 1 (31 January 2001).
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