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The Enrolment Contract and Disciplinary Issues

The Enrolment Contract and Disciplinary Issues. Association of Independent Schools Schools and the Law Seminar March 22, 2012 f. Issues identified. Legal Risk Strategic. Overview of Issues. Potential breach of enrolment contract Breach of Disciplinary Policy

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The Enrolment Contract and Disciplinary Issues

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  1. The Enrolment Contract and Disciplinary Issues Association of Independent Schools Schools and the Law Seminar March 22, 2012 • f

  2. Issues identified Legal Risk Strategic

  3. Overview of Issues Potential breach of enrolment contract Breach of Disciplinary Policy Breakdown in Relationship Duties of care Reputation Risks

  4. Legal Issues

  5. Legal Issues Express terms of Enrolment contract Exclusion from the school • Serious breach of rules • Relationship of trust • No remission of fees

  6. Legal Issues Express terms of Enrolment contract Disclosure of information required to deliver services

  7. Legal Issues Implied terms of Enrolment contract • Must be reasonable • Essential to contract • Obvious • Not contradictory to express terms Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR

  8. Legal Issues Implied terms of Enrolment contract: Procedural Fairness • Circulation of Policy • Communication with parents • Consideration of issues and circumstances • Opportunity to respond • Informed of potential consequences • Reasonableness of response

  9. Legal Issues Implied terms of Enrolment contract: That school is safe for students • Violence not tolerated • Policies implemented • Reasonable care is taken to avoid injury or harm

  10. Legal Issues Allegation of Reportable Conduct… Ill-treatment: Is the punishment proportionate to the offence? Was it unreasonable in the circumstances? Was it excessive? Was it inappropriate? NSW Ombudsman Guidelines: Practice Update 2011/1

  11. Legal Issues Anti-Discrimination legislation Known condition/disability? Failure to adjust policies to meet needs of the student Purvis v NSW DET (2003) HCA 62 Disability Discrimination Act (Clth) (1992)

  12. All about Matthew… • Talented • History of violence • Safety of others • Threatens coach...

  13. All about Matthew… • Knowledge of policies • Right to respond • Impartial decision-making • Specific considerations • Communication with parents • Access to education • Implications of decision • Punishing Matthew or his parents?

  14. What about other stakeholders?

  15. What about other stakeholders? • Threat of violence to coach • Duty of care to students • Duty of care to staff • Risk of further violence

  16. Matthew’s Dad… • Angry • Denial of Matthew’s rights • Media • Petition

  17. Matthew’s Dad… s 4(1) Inclosed Lands Protection Act (NSW) (1901) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case.

  18. Matthew’s Dad… Defamation Act (NSW) 2005 Publication of any false imputation likely to cause injury – must show that words have been publicised

  19. Matthew’s Dad… Repudiation of the Enrolment Contract Readiness and willingness to operate in accordance with the contract Klewer v Trustees of Roman Catholic Church for the Diocese of Lismore (2005) NSWSC 773

  20. Its about…..managing risk….

  21. Its about…..managing risk…. students staff reputation media exposure legal proceedings • t

  22. Its about…..managing risk…. Is this a matter for the board? Why? Why not? • I

  23. Its about…..managing risk…. Am I at risk? Am I impartial? Can I see the big picture? What are my sources of advice and support?

  24. Its about…..managing risk…. What other risks do you see?

  25. A Strategic Approach

  26. A Strategic Approach What is important here? What do I want to achieve? Why? How do I get there? What do I need? • W

  27. L1, 299 Elizabeth St Sydney NSW 2000 Ph.: 02 8251 0030

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