Issue 5 | 13 November 2007 |
Editor Gaby Grammeno BA MPH
By Andrew Knott, Partner, Macrossans Lawyers
It is increasingly necessary for teachers and school administrators to be aware of some of the general principles relevant to ownership and exploitation of intellectual property. The topic is a vast one and an article as short as this can achieve no more than to alert teachers to the need to take advice and to do so before they invest substantial time and money and certainly before they have taken any irrevocable step such as publication.
Intellectual property, generally speaking, deals with ownership and exploitation of rights in property of an intangible nature (as distinct from land or physical goods).
The legal principles arise both from general legal principles developed by the courts and from (now quite substantial) statutory regimes such as the (Commonwealth) Copyright Act 1968. It is also important to be aware of the broader context.
The first issue arising here is whether the teacher is an employee, as is normally the case, or whether the teacher is truly (a situation which occurs fairly rarely) an independent contractor. That is an important threshold issue as ownership may depend on the distinction.
Secondly, there are many general legal principles such as the duty of fidelity owed by employees to the employer, and the notion of conflict between private interest and duty to the employer, and the law relating to confidential communications.
Thirdly, those employed in the public sector may be subject to quite strict statutory regimes relating to the use of information gathered in the workplace or as a result of the employment, conflict of duty and interest processes, and privacy and information.
Finally, the terms of employment agreements and other contracts between teachers and their employers, instructions issued by employers either generally (eg in manuals) or to specific employees, may influence the legal position.
Copyright is the most frequently occurring intellectual property area affecting teachers. Copyright arises in relation to works falling within the terminology such as literary, musical and dramatic works. These terms are very widely defined. In particular the concept of a literary work is much wider than poems, plays, and novels. When determining whether such a work attracts the protection of copyright, the concept of originality is of relevance.
It is very important to appreciate that original work carried out in computing, such as computer programs, is likely to attract the protection of copyright. In the case of employees the general rule is that copyright arises in the employers not in the employees if the work is created “in the course of employment”. This is probably the single most important principle for teachers in this entire area.
The vital feature of this principle of law is the concept “in the course of employment”. Whether or not copyright arises in the teacher or in the employer will probably be governed by whether or not the intellectual property was created “in the course of employment”. Critical to determining whether this occurred is the nature of the duties of the employee (which may be carefully documented or may arise from a combination of practice and documentation or merely from practice). The duties of teachers and school administrators are often very widely defined. Great care needs to be taken before a judgment is made that a teacher has definitely not acted in the course of their employment in creating such a work.
A person may be held to be acting in the course of employment even though the work they are doing is voluntary in the sense that they did not have to do that particular work, but where they have done that work (even in their own time and with their own resources) for the purposes of discharging their duties. A simple example would be a teacher who prepares a work book (that they have not been directed to and are not required to prepare) in order to discharge more effectively their duties in teaching a particular subject to a class. Copyright in such a document may well arise in the employer.
These judgments are not always easy to make and they often arise in the context of complex and disputed facts. For example, teachers are often stimulated to prepare a work by something that has occurred in the work place or by some document they have developed which assists them in discharging their duties. Legal questions sometimes arise as to the ownership of copyright where the teacher then works on, develops or modifies the particular work for the purpose of creating something quite unrelated to the employment.
These much more rarely become of concern to teachers. Rights will arise in the employer where an invention created by the employee in the course of employment will probably be regarded by the law as being held on trust for the employer with an associated obligation to transfer patent rights to the employer.
Similar complexities and difficulties may arise in determining whether or not a particular invention (and great specificity is often involved in defining the invention) has or has not been created in the course of employment.
Clearly there is a need for advice to be obtained at the earliest possible date and for appropriate documentary records to be kept to minimise the risk of disputes about relevant facts which may be critical to determining ownership issues.
Sometimes employers include clauses in contracts of employment, which employees are required to sign as a condition of obtaining a position, which confer on the employer greater rights than would otherwise arise. Legal advice should be taken on such contractual terms so that the teacher will at least be able to enter the employment relationship with an accurate understanding of their position and possibly may be able to negotiate a variation to the contract.
There may be some circumstances where teachers or school administrators may be able to negotiate a beneficial departure from normal principles of law when negotiating a position with a school. A senior teacher who publishes articles regularly may wish to ensure that those articles will be treated as the property of the employee and may well be in a position, where the school wishes to recruit them, to ensure that there is express acknowledgement that the teacher will be the owner of such materials. This becomes more critical in senior positions as the duty statements tend to be broader and thus more likely to widen the concept of course of employment.
Teachers are likely to be in a weak position against the employer in terms of resources, access to legal advice and representation in the event of disputes. Often the teacher’s primary motivation in commercially exploiting an invention is not financial and the financial awards may be very modest in relation to the legal costs that are likely to be incurred in determining legal rights. An application by an employer to the Federal Court for an injunction to restrain an employee from publishing material or exploiting an invention can very quickly result in very substantial legal costs, particularly when weighed against the level of teachers’ incomes. Litigation by the individual against a large organisation is always extremely problematic.
Teachers who have concerns about this issue should obtain competent legal advice at an early date. They should seek advice as to what appears to be the legal situation, and should then also investigate whether their employer has any processes or protocols which must be complied with (these are quite common in the public sector).
The teacher then needs to give consideration to a range of issues, including whether or not it would be desirable to make full disclosure to the employer at an early date and inquire as to the employer’s view. The teacher is not necessarily bound by the employer’s view, but knowing what that view is can be very useful in determining a course of action, particularly in the circumstances where there are uncertainties and the employer is much better resourced.
There is no substitute for early investigation of these issues.
In recent years the Commonwealth parliament has created, particularly in relation to copyright, additional rights which arise by statute and which confer rights which did not previously exist at law. In general terms the rights are a right to be recognised as the author of the work that is created (even though the ownership is with the employer), a right to object to any derogatory treatment of that work (eg the mutilation or damaging of a painting), and other similar rights which recognise that, even though the ownership lies with the employer, the law confers some benefits on the employee.
The importance and complexity of these issues necessitate early legal advice. Hopefully the general comments in this article will be of assistance to alerting teachers and school administrators so that fewer people experience the difficult situation of genuinely believing that their work is their own, only to find a claim by the employer at a point of time where they have invested a great deal in the creation of the relevant work.
A teacher was stabbed outside a school in Maryborough, south-east Queensland, on the evening of 19 September. He had just returned from a school excursion with a group of staff and students, who were unpacking the bus.
A 15-year-old boy, who does not attend the school, allegedly started going through a student’s bag. When he was approached and confronted by the manual arts teacher, he stabbed the teacher in the head and chest, according to reports on the ABC’s website.
The teacher said later that he and his co-worker “carried out the school’s lockdown procedure”, with the teacher, parents and students retreating into a nearby building. Police said that the boy then smashed a glass window in an attempt to get into the room.
The teacher who had been stabbed praised the efforts of the bandmaster, saying he was the one who stopped the boy from coming into the administration building, and adding that the bandmaster got glass in his eyes and in his face.
The principal of the school later praised the actions of both teachers, who “basically put other people’s safety first,” he said.
Police arrived at the school and it is alleged that the boy punched a police officer, breaking his nose. It was reported that he then ran off and hid in a nearby house until officers arrested him with the help of a police dog.
The boy was remanded in custody on six charges relating to the incident — unlawful wounding, attempted theft, assault occasioning bodily harm, serious assault on police and two counts of wilful damage.
Failure to make an overcrowded teachers’ lunchroom safe resulted in an $8000 fine for the Victorian Department of Education, according to a media release from WorkSafe Victoria. The department was issued with the fine on 15 August in the Magistrates Court after it failed to comply with a provisional improvement notice (PIN) issued by a health and safety representative in 2004, and an improvement notice issued by WorkSafe in 2005.
The Magistrate noted that despite the school principal having made the department aware of the PIN and the improvement notice, the department did not seek a review or comply with the notices.
WorkSafe Victoria General Manager Eric Windholz said it was the first time an employer had been found guilty for ignoring a PIN placed by an employee. He said the fine sent an important message “that WorkSafe Victoria and the courts will act against employers who do not respect the role of HSRs and WorkSafe inspectors”.
“Health and safety representatives are a crucial element in making Victorian workplaces safer and when they raise issues of safety, employers must listen and act,” Mr Windholz said.
The PIN issued in December 2004 by a health and safety representative at Altona Primary School, in Melbourne’s southwest, alleged that the Department of Education had failed to provide adequate facilities for the welfare of the workers. The notice related to the school teachers’ lunch room which the court heard was too small for the number of teachers using it. These claims were later supported by Department of Education OHS consultants.
The risk to employees was reported to include scalding from hot beverages, trips and slips and stress and low morale resulting from a noisy and overcrowded environment.
In September 2005, nine months later, a WorkSafe Inspector issued an improvement notice to the department for failing to remedy the breaches of the Occupational Health and Safety Act 2004 identified in the PIN.
WorkSafe’s improvement notice required the provision of a portable classroom, which would allow an existing classroom to be refurbished to provide appropriate space for all staff.
Mr Windholz said failing to obey the directions of inspectors was an extremely serious offence.
The department was prosecuted for failure to comply with a provisional improvement notice (under the Occupational Health and Safety Act 1985), and failure to comply with an improvement notice (under the Occupational Health and Safety Act 2004).
The department pleaded guilty to the offences.
WorkSafe was commended by the Victorian Trades Hall Council for initiating the prosecution. The original issue, according to the VTHC, was the lack of seating in the staff room of a school, where only 13 chairs were supplied for a staff of 25.
It was reported in September that a number of schools across western Sydney and regional NSW were found to have elevated levels of lead in their rainwater tanks.
The contamination was revealed after testing was carried out at the 330 schools in NSW that have had rainwater tanks installed. The schools affected were advised by the Department of Education and Training (DET) to stop using tank water for drinking or washing food, and supply students with bottled drinking water instead, according to a report in a Sydney newspaper.
Lead levels higher than the guidelines were found at 42 schools, and while there was no immediate health risk to students, the finding caused concern, as long-term exposure to lead can cause intellectual impairment.
A spokesman for the DET was reported to have said the government would announce a $3.5 million water filtration program for all schools with rainwater tanks.
Tanks have been installed at a number of schools through the federal government’s Community Water Grants program, as part of a water conservation scheme to ease the pressure on dwindling water supplies.
Health department guidelines state that rainwater is generally safe to drink, provided that certain precautions are taken. Rainwater can be collected from most types of roof, including asbestos roofs, as long as they have not been painted with lead-based paints or coated with bitumen-based material. Some types of new tiles and freshly applied acrylic paints may affect the colour or taste of rainwater and the first few run-offs may need to be discarded.
Chemically treated timbers and lead flashing should be not be used in roof catchments, and if possible, rainwater should not be collected from parts of roofs incorporating flues from wood burners.
Although rainwater collected in tanks generally contains few chemicals, airborne contaminants from heavy traffic or industrial areas may cause some pollution, and use of rainwater for human consumption (drinking and cooking) in areas affected by very heavy traffic, industry, incinerators and smelters is not recommended.
New statistics released by Victorian Education Minister Bronwyn Pike on 19 September show a large increase in reports of assaults, damage and personal injuries on the grounds of public schools from 2004 to 2006, according to a report in The Age. The period also showed improvements in some areas, for example, there were fewer reports of syringes and non-prescribed drugs found on school grounds, and bomb threats as well as police emergency calls to schools had also dropped.
The negative trends attracted more media attention, however. Reports of personal injury on school grounds rose from an average of 33 per month in 2004 to about 67 per month in 2006. A total of 609 personal injuries were reported in the first nine months of 2006.
An average of nine sexual assaults each month were reported to the department in 2006, up from an average of two a month in 2004. A total of 81 were reported in the first nine months of 2006.
The figures include complaints from students, teachers and all other people involved with schools, where the incidents were linked to their involvement with the school.
More incidents of vandalism were also noted, with reports of broken windows rising from 8 per month in 2004 to 22 per month in 2006. Reports of graffiti on school grounds in 2006 were nearly triple the 2004 rates.
The minister pointed out that while the statistics showed an increase in the number of incidents reported, this did not necessarily represent an increase in the number of confirmed offences or criminal acts.
Recent state government campaigns urging schools to report all incidents could well have boosted the number of reports, she said.
Nevertheless, the government is said to be preparing a new advisory manual on the handling of sexual assault claims, to be issued to all state schools.
The release of the statistics coincided with reports of an incident which occurred the previous week at Ballarat, involving an assault on teachers by former students. Media coverage of the incident highlighted both the vulnerability of teachers, and the measures schools can take to improve security on school grounds.
The Herald Sun reported that three teachers at Ballarat Secondary College were pelted with metal objects and assaulted after school hours on 10 September . They were not seriously injured.
The incident was described as having occurred when the deputy principal approached three former students, aged 15 and 16, and asked them to leave the school grounds.
The teenagers allegedly refused and began verbally abusing him, before two other teachers intervened.
The principal said the group then ended up in the metalwork room, where the teenagers allegedly threw metal objects at the male teachers. Another teacher was also reported to have received minor injuries when he was pushed over after trying to break up a fight outside the school gate. Police were called and arrested the teenagers.
Two 16-year-old boys have been charged with more than 10 offences, including assault with a weapon, recklessly causing injury and reckless conduct endangering serious injury. A 15-year-old boy faces assault charges and a charge of recklessly causing injury.
As a result of the incident, the school has made a number of improvements to security.
Teachers on yard duty, who previously carried mobile phones, will henceforth be carrying walkie-talkies which make communication with other teachers instantaneous.
This and other changes were announced in a college newsletter, according to Ballarat’s Courier. The other measures include:
• the reorganisation of campus entrances and exits
• the locking of the campus’ southern gates, enabling staff to more easily monitor people entering the grounds, and
• consultations with staff members on changes to some campus practices to better support staff and student safety.
The school also held two assemblies informing students of the incident and offered counselling to staff and students.
Police have expressed concerns about school adventure excursions where safety was threatened by bad weather, following incidents in South Australia, Western Australia and New South Wales.
The latest incident occurred in WA, when a Perth school canoeing trip on 12 September led to an overnight emergency search, according to an ABC report. A group of 17 students and two teachers from a senior high school spent the night on the banks of the Blackwood River sheltering under their canoes, after failing to reach their intended camping site by nightfall. Though the group was reported to have been carrying GPS equipment and satellite phones, they were not able to make contact.
The emergency search failed to find the group during the night, but the teachers and students paddled back to camp the following morning and continued with their cycling and caving activities.
Police subsequently raised concerns that the trip had started in bad weather, and the group had underestimated the time it would take. Parents also criticised the school, for taking too long to notify them that their children were missing.
The school principal noted that there had been no panic, that the group had received appropriate training, and that it was supervised by experienced organisers.
This followed an incident in South Australia on 2 July, when a group of 17 students and instructors on a sea kayaking expedition had to be rescued in swells of up to five metres near Granite Island, south of Adelaide, after several kayaks capsized.
According to a report in The Advertiser on 7 August, a subsequent investigation found that planning for the excursion, risk management and communication had been below-standard. It noted that there was a severe weather warning issued after the group had set off, and that there was no documented risk management process, as required by the Education Department and Australian canoeing standards.
The school employed a consultant to help them review the incident and learn what they could from it.
In NSW, two teachers and 12 students on a trek in the Blue Mountains on 17 June found their path blocked by rising flood waters in the Megalong Valley. The group, which was taking part in the Duke of Edinburgh Awards, was winched to safety after being located by rescue helicopter, according to a report in The Daily Telegraph.
Police and government officials reportedly criticised them for putting their lives at risk by setting out in bad weather conditions. The NSW National Parks Association, however, said there was no evidence to suggest the group had been irresponsible.
The school’s principal said that while the school should have been more aware of the possibility of rising creek levels, the group had been well prepared and had checked the meteorological forecasts during the week. According to the report, he said they had sent detailed route maps both to the local police and the National Parks service, and that neither of those had advised them not to go.
A Melbourne man was given a suspended jail sentence on 18 September, after making a series of abusive phone calls to his daughter’s teacher, according to articles in The Australian and The Herald Sun.
The father of a 5-year-old school student at Oakleigh South Primary School, Joseph Moldrich pleaded guilty in the Melbourne Magistrates Court to 19 charges, including stalking and threats to kill. The prosecution said that Moldrich, 48, had harassed up to 10 people, including school staff and other parents.
It was reported that the problem began with a playground dispute with another family because their little boy had called his daughter a liar.
Moldrich then allegedly made a series of phone calls in a fake accent to try to frame the Russian parents of the little boy, the court heard. It was alleged that he had phoned his daughter’s teacher at home and screamed abuse at her in a fake Russian accent as well as threatening to kill her.
The court was told Moldrich made the phone calls from various public phone booths from 12 to 29 June. On 29 June, he was arrested by police as he made a call from a public telephone box while wearing gloves.
In sentencing, Magistrate Gerard Bryant labelled his actions as completely irresponsible and utterly divisive.
“You subjected the parents and teachers of this suburban primary school to 17 days of terror and anxiety … people have had to install security systems in their homes and one person has had to move,” Mr Bryant said.
He sentenced Moldrich to six months’ prison, suspended for two years, and ordered him to undertake 125 hours’ community work.
The court noted he had already spent 82 days in prison.
The role of schools and teachers in promoting nutrition for the next generation was a key focus of the Brisbane conference of the Home Economics Institute of Australia (Queensland) in July, according to a report on the ABC’s website. In the report, nutrition expert Dr Fiona Rowe, of Griffith University’s School of Public Health, discussed the issues raised at the conference, including how to encourage a whole-of-school approach to promote healthy eating habits.
Dr Rowe tackled the thorny issue of the potential loss of school revenue from the abolition of unhealthy food. She noted that in some school communities, the income from snack food vending machines has paid for swimming pools, sports centres and other facilities, undermining the will to banish unhealthy foods from the school premises.
This is especially relevant to schools in socio-economically disadvantaged areas with scant financial resources and limited capacity to generate these resources, she said.
A useful strategy to deal with this problem is to work through a whole of school approach that includes teachers, students, parents and the broader school community, according to Dr Rowe. This entails involving the students in action-oriented curriculum activities that can generate student demand for healthy food choices. This in turn can bring about huge changes in the school and broader community environment, she said.
Dr Rowe claimed that such approaches conducted with schools and tuckshops previously in south-east Queensland have allowed them to tailor specific solutions to their community.
She cited a school case study in which curriculum activities involved students in creating their own Kids Café — creating vegetable fried rice, healthy burritos and fruit jelly cups.
“The huge demand of orders threatened the tuckshop profits so much that the tuckshop then took on preparation of these items and sold them on their menu. This is just one story, but the message is that students are a powerful resource and when guided in the right direction through action,” Dr Rowe said.
She noted that the Queensland government has started tackling the complex issue of childhood obesity through its Smart Choices healthy school food guidelines, but that more can be done. She also emphasised the need for funding and support to kickstart healthy changes in schools communities.
A judgment by the Victorian Civil and Administrative Tribunal (VCAT) in August has sparked a war of words about how teachers should respond to schoolyard fights, and whether guidelines are needed.
The VCAT judgment overturned a decision by the Victorian Institute of Teaching to cancel a teacher’s registration after he was sacked by the Education Department for failing to intervene in a student brawl.
The incident, which occurred on 23 July 2002 at a Victorian secondary school, concerned a group of girls aged around 16. According to reports in The Herald Sun and The Age, up to 100 students were in a yard, crowding around eight girls who were arguing. The girls first started yelling at each other and then engaged in a vicious fight lasting about 30 seconds in which they threw punches and pulled out clumps of hair. Though no weapons were used, no bones broken and no blood drawn, one girl had her head pushed into an iron railing and was later taken to hospital.
The incident was caught on a security camera, which revealed that the teacher, who was standing about six metres from the fracas, just out of sight of the camera, did not enter the fray. He said later that he had shouted and waved his arms, telling the students to “break it up” and “go, leave”.
The teacher told the VCAT hearing that, fearing to inflame things, he had been waiting for the teacher rostered on yard duty to arrive, and was standing back so he could see the two entrances to the area. It was subsequently revealed that due to an administrative error, no teacher was assigned to the area that day. When no teacher appeared, he said he had asked two boys to get the vice-principal.
In a separate inquiry in May 2004, the teacher stated that the school principal had previously instructed teachers not to touch students under any circumstances. He also said the crowd of students was threatening and that he was fearful of intervening.
In February 2006, the teacher told a hearing by the Victorian Institute of Teaching that he could have been accused of assault if he had touched a student.
Despite the reasons the teacher put forward for his lack of intervention, friends of the girl who was hurt complained that he should have taken action to stop the fight. It was reported that he also failed to check on the injured girl after the incident or offer to help her. She was taken to the sick bay by her friends.
The school principal also criticised the teacher for failing to intervene. He expressed his expectation that the teacher could and should have broken up the fight.
He was reported to have said: “Most teachers would ... get in there or would start raising their voices, you know, pointing fingers and that sort of thing, where there was nothing like that.”
The VCAT judgment noted that as a result of the incident there was “significant ill-feeling” between the teacher and other members of staff. It was reported that some of the school parents were furious, a community meeting was held and the teacher’s failure to act was roundly condemned.
The principal then contacted the Education Department’s conduct and ethics branch, maintaining the teacher had failed in his duty of care. As a result, the teacher was dismissed by the Education Department, which was later supported by the Industrial Relations Commission. The Victorian Institute of Teaching then cancelled his teacher registration.
It was this decision which was overturned by VCAT, which ruled that “There is no immutable rule that a teacher should physically intervene in a fight between students”.
The VCAT judgment noted out that there are many occasions when intervention “would be physically dangerous to the teacher or to one of the students”.
“A teacher is not required to risk his physical safety or that of another student in the discharge of his professional responsibility,” it stated.
“Teachers have a responsibility to protect students. However, we do not consider that extends to placing himself or herself physically in harm’s way or taking the risk of harming another child,” VCAT said.
VCAT ruled that suspension until 1 January next year was more appropriate than deregistration.
“It is conduct that took place during only a few minutes of this teacher’s career,” the tribunal said.
The VCAT judgment said the teaching profession needed guidelines on how to handle fights and that teachers needed education on appropriate strategies.
It was reported that despite VCAT’s decision, the teacher is still unable to work in the state school system due to his earlier dismissal by the Education Department. Unemployed since his dismissal in 2002, he now will be able to apply for teaching jobs in the private sector.
The case has attracted considerable attention, especially in Victoria, where it has been the subject of an editorial in a major newspaper, several feature articles and letters to the editor, as well as a good deal of commentary from members of the public who have posted their reactions on websites where the issues have been discussed.
Many teachers have expressed the view that the teacher was harshly treated by the system, given the dilemma teachers face when confronted with a fight in the playground.
Commentators have pointed out that many schools have strict “hands-off” policies for teachers.
“A teacher only has to touch a child in passing and a formal investigation can be launched,” claimed one correspondent, who stated that the teacher had good reason to fear getting involved in the fight.
Another noted that in his 33 years as a teacher, he had very occasionally had to intervene physically to stop fights, and that he had done so “knowing that I could be charged with assault, injured and then blamed for my own injury, and that if I did not intervene I could be regarded as failing in my duty of care”.
Others have pointed to the school’s responsibility to provide a safe working environment for the teacher, and raised questions such as whether the school had provided teachers on duty with the means to call for assistance, such as a mobile phone or a personal alarm, and whether the teacher had been given any training in how to respond to student fights.
Claims have also been made that the reaction should have focussed on the students’ behaviour, rather than the teacher’s failure to intervene.
In a similar vein, outrage has been expressed over the teacher’s career having been derailed by a 30-second fight between 16-year-old girls, and by the subsequent situation in which the Education Department “seems even now unwilling to re-employ [the teacher] and to give him back pay for the five years since he was unjustly sacked”.
Other commentators, however, have supported the original decision to sack the teacher and cancel his registration, claiming the teacher ought to have separated the brawling girls. They have also questioned whether guidelines could substitute for the judgment of experience, insisting that when confronted with a fight, “a teacher consults his gut, not a handbook”.
A new report has called for more support for school principals, including employer-funded counselling services, according to an AAP article with commentary on the www.badapplebullies.com website.
The report, which was released on 14 August, was commissioned by the Australian Primary Principals Association. It surveyed more than 2,600 principals around the country at government, independent and Catholic schools, and found that the health and well-being of Australian primary school principals are often neglected by their bosses.
The report’s author Dr Kathy Lacey described the role of a primary school principal as “relentlessly intense” and said it was important that principals be given the opportunity to “mentally refuel”.
According to Dr Lacey, the principals who took part in the survey indicated they needed employer-funded counselling services and those services should be better publicised because principals were turning to private counselling services for help.
“Where counselling does exist, most principals say they don't use it because it is not independent and either staff or their direct supervisor will see them undertaking it, and thus the rumour mill may start,” Dr Lacey said.
A number of principals also reportedly said they wanted employer-paid sabbatical leave to study new trends in education rather than increased annual or long-service leave.
Comments posted on the website noted that teachers, too, need more support and mentoring, especially when they first take the role of acting principal.
The report showed Catholic primary schools provided the most support for principals, followed by government schools, with independent primary schools offering the least help.
Seatbelts are to be installed on up to 375 regional school buses each year for the next four years, with federal funding paid directly to private bus operators, according to an announcement on 19 September.
The announcement, made jointly by Gilmore MP Joanna Gash and Eden Monaro MP Gary Nairn, came after the death of a year 12 student from Coffs Harbour’s Toormina High School, on New South Wales’s mid-north coast, in a bus crash earlier in the month.
The government’s $40 million commitment to introduce seatbelts on school buses has met with a variety of reactions. While the NSW Parents Council president, Malcolm Pound, expressed approval for the federal government’s initiative, others have criticised the sum as too small, according to a series of ABC news reports.
A spokesperson for the Riverina Bus and Coach Association, in southern New South Wales, noted the high cost of retrofitting old buses, and the acting NSW Transport Minister David Campbell reportedly said the cost of putting seatbelts in each school bus in NSW would dwarf the federal government’s contribution.
“The Prime Minister’s talking about $40 million over four years for all of Australia. That’s $10 million per annum, and to put seatbelts in each school bus in NSW alone would cost $2 billion,” he said.
The Bus Industry Council of Queensland’s president Justin Ward reportedly said that while he welcomes the government’s funding commitment, he has concerns with retrofitting seatbelts to vehicles that aren’t built to accommodate them. He pointed out that the seatbelts have to be connected to the floor anchorage points, and the structural integrity of the vehicle must be preserved.
“What we’re really aiming at … is to get these old buses off the road and then if we can phase in seatbelts over a number of years, well that would be great,” he said.
Just hours before the announcement, 10 children and two adults were reported to have been injured in a school bus rollover near Gympie in Queensland’s south-east.
New South Wales Transport Minister John Watkins said in March that he would push for seatbelts to be fitted to school buses, after a government review recommended the measure. The review also made recommendations about safe luggage storage, child-proofing of emergency mechanisms, safer pick up and drop off points, and standards for security and supervision in the transport hubs, particularly at interchanges, Mr Watkins said. However, he said the review did not recommend retrofitting existing buses with seatbelts.
A program to teach students about driver safety and the dangers of street racing has been introduced in 30 schools in western Sydney, according to an ABC news report.
The Rotary Youth Driver Awareness (RYDA) Program, which targets year 11 students, is reported to have the support of the New South Wales Department of Education and the Roads and Traffic Authority.
Rotary Youth Driver Awareness Limited is the entity which operates Rotary’s Road Safety Education Program for Youth. Its Chief Executive Officer, Ian Robertson, said that young people make up a high number of road deaths and there is community concern about accidents caused by street racing.
The program was established in 2000 to provide a platform for Rotary to offer schools a standardised, best practice road safety program. RYDA’s Annual Report for 2006 states that the program targets “awareness” and “attitude” and is designed to encourage students to take a more responsible attitude towards their road use.
As part of the course, students meet with people injured in car accidents. Ian Robertson said the program aims to teach students about safety when they first get their licence or ride as a passenger in a car driven by one of their peers.
“Really [it’s about] trying to ensure that everyone in the car understands they all have responsibilities and to develop the correct attitude to reduce death and injury for young people on the roads,” he said.
The program is being rolled out nationally, and tens of thousands of students have already taken part in it.
The Australian Safety and Compensation Council (ASCC) has declared the new National Standard for Manual Tasks (2007) and the National Code of Practice for the Prevention of Musculoskeletal Disorders from Performing Manual Tasks at Work (2007).
The revised standard and code of practice aim to prevent injuries caused by performing manual tasks at work.
In a media release in September, ASCC Chairman Mr Bill Scales said that the workplace should be a place where everyone can feel safe when performing their daily duties.
“The national standard and code of practice will be adopted by all states and territories as soon as possible. It will apply to workers in almost every industry and ensure that all workers performing manual tasks at work will have the same safety protections across Australia,” Mr Scales said.
While a manual task can be any physical activity requiring a person to use part of their body to perform their work, the standard and code of practice focus on tasks which have a greater likelihood of causing an injury. These activities are referred to as hazardous manual tasks in the standard and code of practice.
A hazardous manual task can involve repetitive or sustained awkward posture, movement or application of force. It also includes the application of high force or exposure to sustained vibration and handling unstable or unbalanced loads.
In the educational environment, hazardous manual tasks can include lifting and moving sports equipment, rearranging seating or other furniture, getting equipment out of awkward storage spaces, handling loads in canteens, tuckshops and kitchens, helping disabled students into vehicles and a wide range of other activities.
The duties of employers and employees under the new standard and code are essentially the same as those that currently apply across Australia — employers must identify, assess and control the risk of injury from manual tasks, in consultation with staff, and they must monitor and review the effectiveness of the measures they have implemented.
The revised documents are more comprehensive than the previous standard and code. In particular, part 6 of the code or practice describes in detail the procedures that should be used to identify and manage risks, including the circumstances under which training and information should be provided. It should be remembered that schools are likely to have duties towards contractors and others, as well as to teaching staff.
The revised standard and code of practice are written in plain English, and provide easy to read guidance on the risk management process in relation to manual tasks.
The requirements of the new standard and code will not have the force of the law until the states and territories incorporate them into their legislation.
For more detail or to view the new standard and code, visit the ASCC’s website at www.ascc.gov.au.
No school wants to be the centre of media attention for unwelcome reasons, but from time to time school personnel are plunged into the glare of publicity, as they try to deal with an untoward event of one kind or another. A recent report in the UK’s Guardian newspaper describes the stories behind a number of school scandals in England and how head teachers rode out the media storm.
Dealing with a crisis in the media spotlight while trying to keep the school on an even keel is no doubt an unenviable task, but BBC education correspondent Mike Baker distilled some advice on how to manage it through consideration of a range of real life experiences.
One case mentioned in the report concerned a school known as The Ridings, in Halifax, West Yorkshire, which was dubbed “the school from hell” by newspapers. The intense media coverage began when the teachers threatened industrial action unless some 60 “almost unteachable” pupils were excluded. The teachers appealed to their union’s leadership because they felt they had not been getting adequate support from either the governing body or the local authority as they struggled to keep discipline.
The list of 60 pupils was leaked, unleashing huge interest from a media already preoccupied with school discipline. The school tried to restrict media coverage by denying access or interviews, which resulted in camera crews, radio cars and reporters camping opposite the steps to the school’s main entrance.
The media fell back on whatever they could get: exterior shots of pupils, often playing up for the cameras, and interviews with disgruntled parents and neighbours. A “cherry-picker” crane was commissioned by one program to take long-lens shots inside classrooms, teachers were caught unawares and semi-secret filming of apparently chaotic classrooms was open to misinterpretation, because no one could explain that these were not normal lessons but pupils waiting to go home just after they had been told the school was closing temporarily.
It was later argued that if the principal had given interviews and allowed controlled access, the media would not have been camped outside and the embarrassing images would not have reached the nation’s television screens.
A similar lesson was drawn from the other cases described in the report — shutting the media out is not advisable, however unfair a story may be. Negative publicity can be defused to some extent by maintaining a position that is honest, open and transparent. Staff should be ready for obvious questions. By holding a news conference and inviting the media to come to the school, the principal and other staff will have an opportunity to explain the school’s position, correct misinformation and dampen any likely furore.
A university review released in August of the April shooting of 32 students and staff at Virginia Tech has recommended a range of measures aimed at preventing similar incidents in future, according to articles in The Washington Post and The Guardian. The review reportedly called for improved building security, an enhanced campus-wide alert system and better monitoring of troubled students.
The three review committees that presented the report were formed by Virginia Tech President Charles Steger after South Korea-born Seung Hui Cho killed fellow students and staff in separate events over two hours on 16 April.
Cho, who had been treated for mental health problems, was clearly a troubled student. Investigations after the massacre revealed that in 2005, Cho had frightened teachers and classmates with macabre and violent writings. It was reported that he seemed very depressed, had a fixation on earlier killings at Columbine High School, referred to himself as Question Mark, never made eye contact and rarely took off his sunglasses or spoke.
Several of his professors referred him to the student counselling centre after talking with him in private meetings. But it wasn’t until two undergraduate women complained about messages Cho had sent them that he came to the attention of police. Although the girls decided not to press charges, police met with Cho and warned him to leave the women alone.
He was committed to a mental institution in December 2005 after one of two stalking incidents, but was released the next day for outpatient treatment after he was deemed not to be a danger to others.
Despite the psychological warning signs, however, he apparently had no trouble legally purchasing a 9mm Glock pistol and a .22 Walther semi-automatic, which he used to attack his fellow students.
In the disturbing videos recorded before his bloody spree and broadcast on national television, a clearly unbalanced Cho brandishes the murder weapons and paints himself as a long-suffering martyr.
The university’s report on the incident states that faculty and staff members must be more attuned to student writings, particularly if they are violent, and that staff must be better trained to deal with students who are resistant to outreach, as Cho was.
Officials also said that university employees must do a better job of understanding privacy laws so that records could be shared when students pose a danger to themselves or others.
It has subsequently emerged that university officials were not made aware of Cho’s troubled psychological history.
The report found that the university can play a more robust role in monitoring students who have been hospitalised or evaluated for a mental illness by community health-care centres, as Cho had been. The director of the school’s counselling centre said that his staff will take a more active role in tracking students in the mental health system. Cho is thought to have been referred to the student clinic after he was released from an overnight stay at an outside mental health clinic. Police sources have said that he never received treatment.
According to the Washington Post article, the report found that “a new structure is needed to complement the work of mental health counselling teams”, especially for students who may pose a threat to others. It also recommends that a system be designed to address complex cases such as Cho’s.
“The team would be charged with conducting a comprehensive fact-based description of a distressed student and empowered to act with authority,” the report said.
The report recommends that classrooms be equipped with electronic banners that would alert students to emergencies, that message boards be placed in hallways to provide critical information and that an electronic “people locator system” be created so that students and others could inform people of their whereabouts. Soon after the massacre, the university was criticised for not better alerting students and others to the potential dangers they faced.
The report also says that the university should add locks on the inside of classroom doors to help prevent another killer from bursting in.
“A lockdown is simply not feasible on a campus the size of a small city,” university president Steger said. “However, it is feasible to harden or secure individual buildings and other facilities. Our review addresses this approach.”
The Virginia Tech report does not assess the actions of police, university officials or others, but rather focuses on how the university could prevent similar tragedies.
A separate investigation into the shootings was ordered by Virginia’s Governor, Timothy Kaine and led by a former state police superintendent. Its report, which was released shortly after the university’s own report, found that more lives could have been saved if officials at the university had acted sooner.
The report argues that officials should have issued an alert immediately after the gunman, Cho Seung Hui, killed his first two victims. (There was a two-hour gap between the two initial killings and the second part of the rampage.)
Virginia Tech president Charles Steger has accepted the findings of both reports, and said that the recommendations will be evaluated and implemented based on cost and other factors over the coming months.
School principals have joined in the general expression of shock at the recent spate of rock-throwing incidents, often involving teenage boys, that have seriously injured a number of people in New South Wales and elsewhere.
The principal of the school attended by a recent victim told the ABC the school was shocked by the attack. The boy hit by the rock is a year 12 student at the school. He was reported to be still in a critical condition several days after the incident, which occurred on the evening of 18 September in northern Sydney.
The boy was hit on the head by a rock that was originally said to have been thrown through the open window of a car in Allambie Heights. Four boys who had been in the car with him that night reported the incident to police the following afternoon. By the next day, however, they had presented themselves with lawyers and changed their story, saying they had been at Curl Curl throwing eggs when someone retaliated with a rock.
The three 18-year-olds and a 19-year-old were charged by police with obstructing their investigation, and were granted bail to appear in Manly Local Court on 17 October.
The driver had taken the 17-year-old Brookvale boy to Manly Hospital but he was transferred to the Royal North Shore Hospital for emergency surgery after a scan showed brain haemorrhaging.
The school principal said he had been in touch with the boy’s family and that students had been offered counselling, which many of them had accepted, and the staff were informed and briefed on the matter.
Other recent incidents include the injury of a 10-year-old boy in a rock-throwing incident south of Wollongong. The boy was reported to have been on a bus with other school children early this morning at Dapto when three teenagers on small motorbikes threw rocks at the bus. The rocks shattered windows, causing glass to fall onto the boy.
On 21 September, a 32-year-old man, his wife, and a six-month-old baby escaped injury when a rock was thrown from an overpass through the windscreen of their car on the F6 freeway at Unanderra.
Earlier in the same month, two Goulburn teenagers were arrested for allegedly throwing rocks at cars on the Hume highway near Goulburn. Police were reported to have said that four vehicles were hit by rocks thrown from the side of the road and one driver who was showered with glass from a smashed window almost lost control of his car.
The boys who were arrested in relation to the incident are aged 13 and 14. They have been charged with malicious damage and intent to cause injury.
On August 16, police charged two teenage boys over a rock throwing attack at Saint Clair in western Sydney. A 16-year-old and a 17-year-old were accused of hurling rocks at trucks on the M4 motorway near Mamre Road. Two trucks had their windscreens broken and another truck sustained panel damaged.
The boys were charged with using an instrument to commit an indictable offence and causing malicious damage.
A week earlier, police charged three teenagers over a rock-throwing incident at Laverton in Melbourne’s west. The panels of several cars were reportedly damaged and a windscreen smashed by rocks thrown as the vehicles travelled along the Princes highway. Two 13-year-olds and one 17-year-old, all from Laverton, were charged with several offences, including conduct endangering life, criminal damage and discharging a missile.
In July, a 22-year-old woman was critically injured in a similar attack on the New South Wales south coast.
In June, bus drivers refused to travel through the western Sydney suburb of Willmot, saying they fear for their safety and the safety of their passengers, after a rash of rock-throwing attacks.
A series of such incidents has prompted the New South Wales state government to announce new legislation, saying it will push ahead with plans to increase the maximum jail term for people who throw rocks at cars to 14 years.
A spokeswoman for the Premier told the ABC that the government has been developing the tougher legislation for some time.
The New South Wales Opposition called for an education campaign about the consequences of throwing rocks at cars.
The Australian Government’s internet filtering scheme is part of a $189 million package of measures announced in August. The NetAlert — Protecting Australian Families Online program combines education, parental support and the offer of free internet content filters to help protect children from illegal and offensive material online. The program includes publicity campaigns, such as a $22 million awareness scheme to inform parents and carers of children about online safety issues, and 10 new Australian Communications and Media Authority Internet safety officers who will visit schools to talk about online dangers.
When a 16-year-old Melbourne student took only 40 minutes to circumvent the filtering software within days of its release, however, questions were naturally raised about the credibility and usefulness of the national scheme to protect children from net predators and inappropriate material.
Peter Marks, who regularly reviews technology on ABC radio, commented on the free internet filters during an interview on Radio National’s Breakfast program on 3 October. Once installed, he said, the filtering software typically operates in a number of ways. It has a blacklist of sites it will prevent the user from visiting, and blocks searches including certain key words such as “sex”. This, of course, has unintended consequences in that it may limit a search that has no relation to pornography or danger from online predators, eg a search for information on “sexually transmitted diseases”.
According to Mr Marks, however, many young people are familiar with online “tricks” to get around this type of limitation, such as using deliberate misspellings like “s3x” instead of “sex”.
The 16-year-old credited with circumventing the filtering software in 40 minutes reportedly did so by re-booting the computer from another disk, though various online commentators who posted comments on websites featuring newspaper articles on the subject claimed to have defeated the filter a week earlier than the boy who publicly got the credit for it.
The Minister for Communications, Senator Helen Coonan, said the government had anticipated children would find ways to get around the NetAlert filters, and that suppliers were contracted to provide updates, according to an article on ZDNet Australia.
“Unfortunately, no single measure can protect children from online harm and ... traditional parenting skills have never been more important,” Senator Coonan said.
The other main disadvantage of the filtering software is reported to be that it slows down the user’s access to the internet. And of course, it does not protect children from cyber bullying from their peers or stop them from accessing chat rooms or other such venues where they may be exposed to danger from internet predators.
For example, according to an article in The Age on 26 July, around a quarter of Australia’s 3.8 million MySpace users are under 18, and US authorities have revealed that more than 29,000 convicted sex offenders have profiles on MySpace.
The NetAlert booklet sent to all households acknowledges the limitations of the software, and emphasises the importance of parents and carers talking to children about what they are doing online, and educating them about the potential dangers.
In the most recent update of the School Principals Legal Guide, new commentary has been inserted on:
• Bullying — a case in which the AIRC held that it could not order attitudinal and behavioural change in a school environment.
• Enrolment: Students — the Education Legislation Amendment Act 2006 (NSW) which facilitates the identification of violent students at the enrolment stage.
• Dismissal — amendments to the Workplace Relations Act 1996 prohibiting dismissal because an agreement does not pass the Fairness Test.
• Enterprise bargaining — amendments to the Workplace Relations Act introducing the Fairness Test.
• Negligence — article on the duty of care and causation.
• OHS risk management — new commentary on the use of cleaners in schools.
• Privacy — recent amendments to the Victorian Surveillance Devices Act 1999 making it an offence to place workers under surveillance in workplace toilets, washrooms and change rooms.
• Violence and harassment — a case in which the NSW Department of Education and Training was fined $220,000 for the post-traumatic stress disorders experienced by three teachers as a result of a student’s violent behaviour; and the Education Legislation Amendment Act 2006 (NSW) which facilitates the identification of violent students at the enrolment stage.
• Work Choices — amendments to the Workplace Relations Act introducing the Fairness Test.
Your articles and comments are always welcome. Articles for Schools Alert should be between 750 and 1,000 words. Contributions should be presented in electronic form and include your name, address and phone contact numbers.
Please send your correspondence to ggrammeno@bigpond.com. Alternatively, you can send mail to Gaby Grammeno, Editor, Schools Alert, CCH Australia Limited, GPO Box 4072, Sydney 2001.
Mr David Ford, senior partner, Emil Ford & Co, Solicitors, Sydney
Mr Drew Hopkins, lecturer in law, Australian Catholic University, Melbourne
Ms Gaby Grammeno, OHS consultant and writer
Mr Andrew Knott, partner, Macrossans Lawyers, Brisbane
Dr Joan Squelch, lecturer in law, Curtin University, WA
Ms Reeta Verma, lecturer in law, La Trobe University, Bendigo
Dr Grahame Wagener, principal, Oak Flats High School, NSW
Ms Vernita Zigouras, principal, Westall Secondary College, Vic.
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