From 14 December 2021, 11 categories of Deductible Gift Recipients (DGR) will need to register as a charity or be operated by a registered charity.

What does the new requirement involve?

From 14 December 2021, affected DGRs will need to register as a charity with the Australian Charities and Not-for-profits Commission (ACNC) or be operated by a registered charity.

What is a DGR?

A DGR is an entity or fund that has been endorsed by the Australian Taxation Office (ATO) as a tax deductible gift recipient.

What DGRs are affected?

The new requirements applies to the following non-government DGRs (the affected DGRs):

• public fund for hospitals;
• public fund for public ambulance services;
• public fund for religious instruction in government schools;
• Roman Catholic public fund for religious instruction in government schools;
• school building fund;
• public fund for rural school hostel building;
• approved research institute;
• public fund for persons in necessitous circumstances;
• fire and emergency services fund;
• public fund on the Register of Environmental Organisations (REO); and
• public fund on the Register of Cultural Organisations (ROCO).

Public and Private Ancillary Funds and entities listed by name in the Income Tax Assessment Act 1997 (Cth) will not be affected.

How does this affect me?

My affected DGR is already a registered charity

• If an affected DGR is already a registered charity, there is no need to do anything.

My affected DGR is operated by a registered charity.

• If an affected DGR fund is operated by a registered charity (for example, a school building fund that is operated by a school that is a registered charity), there is no need to do anything.

My affected DGR is not a registered charity and is not operated by a registered charity.

• If your DGR entity or fund is not a registered charity and is not operated by a registered charity, you must apply to be a registered charity. The following transition arrangements apply:

Existing DGRs listed on the ROCO or the REO as at 14 December 2021 and any other affected DGR.	Your organisation has until 14 December 2022 to become a registered charity. The ACNC can take 6-8 weeks (occasionally longer) to consider an application for charity registration, so ensure you start the process with plenty of time to spare. Your organisation can apply to the ATO for an extension of up to three years (to 14 December 2025). When considering your application, the ATO may consider matters including: whether an application was made before 14 December 2022 and is still pending; whether material changes have been made to your organisation’s purpose or activities which will affect ongoing entitlement to DGR endorsement; and whether your organisation has previously been refused charity registration by the ACNC (further details can be found here: DGR – Extended Application Date Instrument 2021).
Organisations that have applied to the REO or ROCO but whose application has not been approved before 14 December 2021.	Your organisation is ineligible for any transition period or extension. Your organisation can contact the relevant register about the status of your application: REO: reo@awe.gov.au or (02) 6274 1467 ROCO: roco.mail@arts.gov.au or (02) 6271 7108 Your organisation should apply now for registration as a charity if it has not already done so.
Organisations that apply for DGR endorsement after 14 December 2021.	Your organisation must register as a charity before the ATO will consider DGR endorsement and before any application for listing on the ROCO or REO is progressed.

What does becoming and remaining a registered charity involve?

To become a registered charity, your organisation must be able to demonstrate that it meets the requirements of being a not-for-profit and has a charitable purpose. You may find the ACNC registration checklist helpful.

To remain a registered charity, your organisation must notify the ACNC of key changes, maintain up-to-date financial and operational records, submit an annual information statement to the ACNC and comply with the ACNC Governance Standards and External Conduct Standards.

How can we help?

Moores can help if you:

• have any questions about the requirement to register as a charity;
• need help with registering as a charity; or
• need help understanding or complying with your obligations as a registered charity.

Please contact us if we can assist you.

Reforms to the Equal Opportunity Act 2010 (Vic) (EOA) were passed in the Victorian parliament on 3 December 2021. Prior to the reforms, the EOA provided an exception for religious bodies and religious schools to engage in conduct which would otherwise be discriminatory under the Act.

General exception for religious bodies

The reforms add an additional limb to the existing general exception for religious bodies, which currently permits discrimination on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity that:

• conforms with the doctrines, beliefs or principles of the religion; or
• is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

The new limb also requires that the excepted discriminatory conduct must be ‘reasonable and proportionate in the circumstances’. The new limb requires a religious body to consider the consequences that the discriminatory conduct may have for a person or the organisation, and whether that action is harsh or unjust in the circumstances.

General exception for religious educational institutions

Under the reforms, religious schools are now referred to as religious educational institutions, which extends the reach of the exception to include all educational institutions conducted in accordance with religious doctrines, beliefs or principles, not just religious schools.

The general exception for religious educational institutions also adds the third limb requiring that the excepted discriminatory conduct must also be ‘reasonable and proportionate in the circumstances’. However, the general exception for religious educational institutions is narrower than that provided for religious bodies, as it only permits discrimination on the basis of a person’s religious belief or activity. This means that religious educational institutions may not discriminate against current or prospective students based on their sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

Employment exception

The reforms also introduce a narrowed employment exception, which provides that religious bodies and religious educational institutions may not discriminate against a person based on their sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in relation to employment.

Religious bodies and religious educational institutions will only be permitted to engage in discriminatory conduct in the context of employment on the basis of a person’s religious belief or activity if:

• conformity with the religious body’s or religious educational institution’s doctrines, beliefs or principles ‘is an inherent requirement of the position’; and
• a person cannot meet those requirements because of their religious belief or activity; and
• the discriminatory conduct is ‘reasonable and proportionate in the circumstances’.

The inherent requirements of a position is determined based on the nature of the religious body or religious educational institution and the religious doctrines, beliefs or principles in accordance with which it is conducted.

The provision of goods and services by religious bodies

Religious bodies which receive funding from the Victorian government to provide goods and services (including accommodation services) will only be permitted to:

• refuse to provide goods or services;
• determine the terms on which the goods or services are provided; or
• subject a person to a detriment in connection with the provision of goods or services;

based on a person’s religious belief or activity, and not on the basis of their sexual orientation, lawful sexual activity, marital status, parental status or gender identity.

The exception will only apply where the discriminatory conduct:

• conforms with the doctrines, beliefs or principles of the religious body; or
• is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion; and
• the discrimination is reasonable and proportionate in the circumstances.

General exception for religious beliefs for individuals

Importantly, the Act has removed the religious exception for an individual to discriminate against a person on the basis of the person’s religious beliefs or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, if the discrimination is reasonably necessary for the individual to comply with the doctrines, beliefs or principles of their religion.

What has not been affected?

The reforms will not affect the right of religious bodies and religious educational institutions to discriminate in relation to:

• hiring staff who hold the same religious beliefs of the religious educational institution or religious body, if having the same religious beliefs is an inherent part of the role, such as for a religious studies teacher or school principal; or
• training, ordaining or appointing priests, ministers of religion or members of a religious order; or
• selecting or appointing people to perform functions relating to, or participating in, religious observances or practices.

Religious educational institutions can continue to limit enrolments to students of a particular religion or sex, and enforce reasonable standards of dress, appearance and behaviour. Religious bodies will be able to set and enforce reasonable conditions and standards of conduct for their employees.

The enforceability of these amendments may also be subject to the Federal government’s Religious Discrimination Bill which was introduced in Federal parliament by Prime Minister Scott Morrison. For more information on the Federal Religious Discrimination Bill, see our recent article.

How Moores can help

The majority of the reforms will come into effect six months after the Bill receives royal assent, unless proclaimed earlier, so schools and organisations have some time to prepare. If you’re not sure whether your service arrangements, enrolment or employment practices are consistent with the reforms, please contact us.

Welcome to the fifth article in our series on Special Disability Trusts (SDTs), where we hope to demystify particular aspects of these trusts, and highlight the benefits, eligibility requirements and restrictions to look out for.

As discussed in our previous articles in this series, the two main benefits of establishing a SDT for a vulnerable person are:

1. Protecting the person from poor decision making and exploitation from others; and
2. Preserving the person’s receipt of the Disability Support Pension (DSP).

In this article we discuss the duty concessions and/or exemptions that may be available when transferring a dutiable asset to a SDT.

State Duty

Ordinarily, if a dutiable asset (most commonly real estate) is transferred to an individual or entity, duty will be payable by the recipient to the revenue office in the relevant State or Territory in Australia.

However, all States and Territories in Australia have introduced exemptions or concessions regarding stamp duty on transfers of dutiable property to a Special Disability Trust, with some differences between the jurisdictions.

In some jurisdictions the concessions or exemptions only apply to a transfer of real estate that is to be used by the Principal Beneficiary of the SDT as their Principal Place of Residence. Other jurisdictions require the transfer to be made for no consideration (ie as a gift) and only if the gift is from an immediate family member (which is defined as being a natural parent, adoptive parent, step parent, legal guardian, grandparent or sibling of the Principal Beneficiary). We note that South Australia has all three requirements but if these are met then there is a full exemption from stamp duty.

A summary of the relevant provisions for each State and Territory is set out in the following table.

ACT S73B Duties Act 1999	Duty is not payable on a transfer or grant of a dutiable lease where: a) the transfer or grant is to an SDT; and b) the property is to be used as the PPR.
NSW s65(22) Duties Act 1997	No duty is chargeable on: a) a declaration of trust over property to be held by trustee of a SDT; b) a declaration of trust over property or an instrument executed for purpose of establishing a SDT; and c) a transfer or property to a SDT if there is no consideration.
NT Sch 2, 6(e) Stamp Duty Act 1978	Exemption from duty where: a) no valuable consideration for the conveyance; and b) the conveyance is made to an SDT.
Qld s126A Duties Act 2001	Transfer duty is not imposed in relation to: a) a transfer of property to a SDT; b) creation of a SDT to hold property; and c) a trust acquisition of dutiable property where that property is or will be used as the PPR by the Principal Beneficiary of the SDT.
SA s71CAA Stamp Duties Act 1923	The following are exempt from stamp duty: a) a declaration of trust to establish an SDT; and b) a transfer of land to an SDT provided that: • the declarant or transferor is an immediate family member of the Principal Beneficiary; • the property is or will be used as the PPR within 12 months; and • there is no consideration on the transfer.
Tas s54 Duties Act 2001	Duty is not chargeable on: a) a declaration of trust over property to be held by trustee of a SDT; or b) a transfer of property to a SDT provided that: • the property is land which has a dwelling that will be the PPR of the Principal Beneficiary; and • the property is goods that will be situated or used on such land that will be the PPR.
Vic s38A Duties Act 2000	No duty is chargeable on: a) a declaration of trust to establish an SDT; or b) a transfer of property to an SDT provided that: • the declarant or transferor is an immediate family member of the Principal Beneficiary; • there is no consideration on the transfer; and • the dutiable value of the property does not exceed $500,000 (if the value exceeds $500,000, duty is only payable on the excess).
WA s111 Duties Act 2008	Duty is not chargeable on a transfer or an agreement to a transfer of dutiable property to an SDT, if there is no consideration.

How we can help

If you (or someone you know) are considering gifting a dutiable asset (such as real estate) to a SDT, then this could be something to explore further. You should first seek advice from a licenced financial planner who has expertise in this area, to see if this would be suitable for your particular circumstances.

Look out for the next article in our series, when we discuss the Capital Gains Tax relief that may be available when transferring CGT assets to a Special Disability Trust. For more information or guidance, please do not hesitate to contact us.

As schools prepare for some well-deserved summer holidays, you perhaps should consider how your duty of care extends beyond the classroom and into digital spaces.

Student wellbeing has been a major focus in 2021, for obvious, ‘unprecedented’ reasons, and cyberbullying is a major consideration for students with ever increasing digital literacy skills.

The duty of care of schools extends to foreseeable harm that could occur in all environments – physical and digital – that are made available to students by the school. For information about how to help children struggling with mental health, see our recent article Duty of care and mental health for students.

According to the Australian eSafety Commissioner, 1 in 5 young Australians (aged 8 to 17 years) reported being socially excluded, threatened or abused online.

Cyberbullying

Cyberbullying is an increased risk over holidays, where schools have less visibility of student interactions, and students engage digitally in the absence of school hours to connect with each other. Many students are already struggling with the resumption of socialising and mental health issues, compounding the risk of students being exposed to – and being traumatised by – bullying.

Bullying normally requires a repeated behaviour, however, due to the propensity of cyberbullying to be shared and republished, a single instance of cyberbullying is often considered to be bullying itself. Cyberbullying can take many forms, including:

• posting mean comments or messages;
• excluding or ignoring someone;
• tricking or humiliating them through fake accounts; or
• sharing a photo or video that will make them feel bad.

Threatening to share an intimate image without the consent of the person in it, such as a naked selfie, is called image-based abuse.

The eSafety Commissioner has many, age-appropriate resources to educate young people about cyberbullying here. In addition, anyone can make a complaint to the eSafety Commissioner requesting the removal of cyberbullying material. This is a new function of the eSafety Commissioner introduced by the Online Safety Act 2021 (Cth).

Why is the school involved?

If cyberbullying occurred on platforms made available to students by the school, the school could be considered to be responsible for not removing the bullying statements of content. As we explained in our article, Taking responsibility for your social media accounts, defamation laws have been extended by the High Court of Australia for organisations where they can be held responsible for third party comments on a website they control, for “facilitating and encouraging” the comments.

Through 2020 and 2021 you may have introduced various online platforms or programs to help your students connect with each other through lockdowns. We know peer support is critical to the social development of young people and have been amazed by the passion and creative ideas of schools to keep children connected through the pandemic. Nevertheless, schools do continue to have obligations to protect students from reasonable foreseeable harm – in the digital world – and may want to consider what controls or protections can be implemented to ensure cyberbullying does not go undetected.

The value of friendships

The new Victorian child safe standards, which come effect on 1 July 2022, have introduced a requirement that child safe organisations promote and value friendships and peer support in creating and maintaining child safe environments. The Commission for Children and Young People wants child safe organisations to recognise the important of friendships and encourage support from peers to help children and young people feel safe and connected.

How we can help

Moores’ education and child safety teams can help you update or develop Acceptable Use Policies, or Student Codes of Conduct. We can also offer tailored training in this space of digital safety, including up-to-date training information on digital trends, popular apps and emerging cyber security risks for young people.

The role of members of not-for-profit incorporated associations and companies limited by guarantee includes holding the Board members[1] accountable for the exercise of their powers. This is consistent with ACNC Governance Standard 2, which provides that those not-for-profits that are registered charities must take reasonable steps to be accountable to their members and must allow their members adequate opportunities to raise concerns about how the charity is run.

Members who have concerns about how a not-for-profit is being run or have a grievance with the Board may request the governing body call and hold a general meeting. The request will often include motions for consideration at the general meeting. Common motions proposed include removing one or more members of the Board or amending the Constitution.

Ascertaining the rights of the members (and the obligations of the Board) in relation to members’ resolutions and requests for general meetings requires a careful review of both the relevant legislation[2] and the organisation’s governing document[3]. Registered charities should also be aware of section 111L of the Corporations Act 2001 (Cth), which provides that registered charities are exempt from a number of provisions of the Corporations Act, including the provisions which relate to member requests for meetings.

While it is important to ensure the Board is accountable to the members, not every member request will be valid. It may not be in the interests of the members as a whole for the Board to entertain an invalid request.

A not-for-profit or charity Board that receives a request for a general meeting should give consideration to the following matters.

Timing of notice and meeting

Be aware of any requirements set out in the governing document or legislation in relation to the time within which notice of the meeting must be sent or the meeting held. In some cases, if the Board fails to act on a valid request within the required timeframe, the members may be able to convene the general meeting themselves at the organisation’s cost.

Validity of the request

Assess the validity of the member’s request itself. Key considerations include whether:

• the prescribed form (if any) for the request was used;
• the request was submitted correctly (for example, the governing document may require that the request be submitted to the secretary);
• the request was signed by the required number of individuals – this may be either a fixed number of members or a proportion of members (in which case the organisation should ensure its member register is up to date and the proportion has been properly calculated);
• the individuals who signed the request are in fact all current members of the organisation (if membership fees are levied, are any payments outstanding);
• it is evident from the face of the document that the members knew what they were signing. For example, a Court has found that pages of signatures should not be counted in circumstances where each page signed did not contain the wording of the request and the motion[4]. In this case, it is not possible for the Board to confirm the members knew the purpose for which their signature was being provided.

If the request is invalid, the Board should notify the requesting members that it will not proceed to convene a general meeting and give its reasons.
How the Board must respond to valid request for a general meeting will depend on the governing document and legislation. In some cases, the Board is required to act on a valid request and proceed to convene a general meeting. In other cases, the Board is not required to act on a valid request, but failing to do so will enliven the requesting members’ right to convene the meeting themselves.

Validity of any motion

The second matter for assessment is the validity of any motion(s) that the requesting members want considered at the general meeting. Key considerations include whether the motion conflicts with the governing document or relevant legislation. A motion must not go beyond the legal powers of the body or its purposes. For example, the members may not, in general meeting, pass a resolution requiring the organisation to do something that is inconsistent with the organisation’s governing document – instead, they must first pass a special resolution (and comply with any statutory process) to amend the governing document itself.

If the motion is invalid (and the meeting request discloses no other residual valid purpose for the meeting), the governing body is not required to convene a meeting[5]. If the governing body does not convene a meeting in these circumstances, the requesting members’ right to convene the meeting themselves (if any) is not enlivened.

If the Board resolves not to call a meeting

The Board may resolve not to call a meeting. If the Board does so because the meeting request or any motion was not valid, the requesting members will often seek to fix any identified issues and again request a meeting be convened. The Board should consider engaging with the requesting members in this interim period in order to ascertain whether their concerns can be addressed without convening a general meeting. This may reduce the potential for a disruptive and divisive general meeting and ensures the Board is giving members a fair opportunity to raise concerns.

If the Board resolves not to call a meeting in circumstances where it is choosing not to respond to a valid request, the Board should prepare for the possibility of a member convened general meeting. The members will ordinarily be entitled to access the member register in order to enable them to send out a notice of meeting. While the Board is not responsible for convening the meeting, it will usually be in the organisation’s best interests for the Board to ensure (if possible) that any procedural requirements for a properly convened meeting are met. This is because the organisation may be placed in a legally uncertain position if the meeting is improperly convened but seeks to pass resolutions that are binding on the organisation.

If the Board proceeds to call and convene a meeting

If both the request and the motion(s) are valid, the Board may call and hold a general meeting. Practical considerations for holding a meeting at the request of members include:

• the Board’s recommendation (if any) on the motion. Boards are not required to remain neutral on member-proposed resolutions. It is appropriate for the Board to form a position based on the Board’s assessment of the organisation’s best interest and to communicate this to the members;
• how the Board will communicate with the members regarding:
  • the requesting members’ position – the relevant legislation or governing document may require the organisation to distribute a statement in support of the meeting or motion; and
  • the Board’s position – the Board is free to communicate with its members in any way it deems appropriate regarding a proposed meeting or motion. This includes social media, email and face to face engagement. The quality of the Board’s communication can have a significant influence on the outcome of a member-convened general meeting. Clear, succinct and balanced communications which focus on the organisation’s purpose and the best interests of all members can be highly persuasive.
• whether it is appropriate to engage an independent chair or returning officer;
• protocols or standing orders for the efficient and orderly conduct of the meeting – if there are none in place, the Board might consider inviting the requesting members to agree to a set of appropriate protocols;
• the requirements in the governing document and relevant legislation regarding how the meeting and vote will be conducted. Proxy voting provisions may be particularly important.
• If a meeting is being held by technology the features of the relevant technology should be carefully reviewed and ideally tested before the meeting. Consider also the new Corporations Act Chapter 2G.5 meeting technology provisions for companies limited by guarantee.

How we can help

For more information or guidance regarding responding to member requests for general meetings, please contact us.

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[1] In incorporated associations the governing body may be referred to as the ‘Committee’ – we have used the term ‘Board’ in this article to refer to both Boards and Committees.
[2] For a company limited by guarantee the Corporations Act 2001 (Cth) applies. For an incorporated association, the associations legislation in the relevant State or Territory applies.
[3] For a company limited by guarantee, this will be a Constitution or Memorandum and Articles of Association. For an incorporated association, the entity may operate according to Model Rules or may have adopted its own Rules.
[4] Gratton v Carlton Football Club Ltd (2004) 51 ACRS 29
[5] National Roads & Motorists’ Association v Parker (1986) 6 NSWLR 517, Queensland Press Ltd v Academy Investments No 3 Pty Ltd [1988] 2 QD R 575

Moores is currently taking bookings for December 2021 and January 2022 School Professional Development days.

Available slots are limited. If you are still wanting to book a session and/or decide on topics, we are currently experiencing high demand for the following sessions:

• Child Safety – general staff, including the new Child Safe Standards. (Meets the requirements of the Minimum Standards);
• Child Safety for Child Safety Officers. Intensive with case studies (including the Child Information Sharing Scheme);
• Challenging parents and students, including the new Safety Order legislation;
• Disabilities and reasonable adjustments – school obligations through the lens of the latest cases;
• Separated families – managing information, pick-ups, court orders and IVOs;
• Mental health in focus – supporting students and staff, including best practice support and return-to-school plans;
• Vaccination mandates for staff – ongoing challenges for heads of school;
• Supporting Diversity – carrying out your duty of care to LGBTQIA+ students and staff;
• Understanding your obligations through the lens of faith and discrimination, including new laws on suppression practices;
• Safety and risk in the COVID era, including managing students and parents (including unvaccinated) and the latest on Rapid Antigen Testing;
• Privacy and Avoiding Data Breaches – includes COVID and vaccination information and interactive scenarios.

How to book

We will have a discussion on tailoring, pricing and scheduling based on your individual School’s requirements. To make an enquiry please call Caryn Fitzsimons on 9843 0418 or email cfitzsimons@moores.com.au.

The Federal Court has set aside an Australian Taxation Office (ATO) decision that revoked the deductible gift recipient endorsement of a school building fund operated by a Buddhist society (The Buddhist Society of Western Australia Inc v Commissioner of Taxation (No 2) [2021] FCA 136) (Buddhist Society (No 2)). This decision may assist non-traditional schools and faith based organisations co-locating with schools that are seeking to fund (or partially fund) the acquisition, construction and maintenance of buildings with tax deductible gifts.

The Commissioner’s current position on school building funds is set out in Taxation Ruling 2013/2 (TR 2013/2). In Buddhist Society (No 2) the Federal Court found that TR 2013/2 had inappropriately elevated factors referred to in case law to the level of “prerequisites or inherent requirements” for school building funds and that a more holistic approach was required. The Court preferred the broad ‘ordinary meaning’ of the term ‘school’ set out in dictionary definitions and in case law and cited with approval Barwick CJ’s statement that:

“…a ‘school’ is ‘a place where people, whether young, adolescent or adult, assemble for the purpose of being instructed in some area of knowledge or of activity”[1] (emphasis added).

Importantly, in Buddhist Society (No 2) the Court found that:

• The adoption of ‘factors’ including a set curriculum, instruction by qualified persons, enrolment, assessment and provision of a recognised qualification in TR 2013/2 as prerequisites for a school was ‘misplaced’;
• A school could provide both recreational and non-vocational instruction;
• A school is not required to provide certificates or other recognition or to conduct formal examinations or tests; and
• Whether a building is to be ‘used’ as a school should not be determined simply by comparing the proportion of time for which a building is used for ‘school’ and ‘non-school’ activities. Regard must also be had to the purpose for which a building is established and the importance of the activities to that purpose.

While these factors might be considered when considering whether a set of factual circumstances met the ordinary meaning of ‘school’, they are not requirements in all cases.

The matter was referred back to the Commissioner for further consideration and determination.

TR 2013/2 is applied by the ATO when assessing new applications for the endorsement of school building funds. It has also been used in recent years as the basis for an audit of pre 2013 approved faith based school building funds. Buddhist Society (No 2) suggests that new applicants and the operators of existing school building funds may have grounds to argue for a broader, more holistic application of the ordinary meaning of school rather than the strict application of the indicia set out in TR 2013/2. This may improve the ability of non-traditional schools and faith based organisations co-locating with schools to fund (or partially fund) the acquisition, construction and maintenance of buildings with tax deductible gifts.

The Commissioner may yet appeal the Federal Court decision. If the decision is not appealed, TR 2013/2 will likely require review to reflect the decision.

How we can help

Moores regularly supports clients to establish and ensure the ongoing compliance of school building funds (as well as other deductible gift recipient funds and entities). Please contact us if we can assist you further.

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[1] Cromer Golf Club Ltd v Downs (1973) 47 ALJR 219

On 26 October 2021 we invited Maree Dellaportas, a leading clinical psychologist to join us for a discussion about how best to support students moving from remote learning to face-to-face teaching on school premises.

We’re aware that the mental health and wellbeing of students is a focus of the Victorian Government at this time of transition. With the introduction of rapid antigen testing for students, additional stresses may be introduced to their lives.

The Commission for Children and Young People took a snapshot of what young people and children said about their experiences of Victoria’s lockdowns. It included their reflections on mental health and wellbeing, education, the impacts of remote learning, safety and security at home and the future.

Some common issues faced by students in returning to face-to-face learning include:

• Students are anxious about recommencing friendships.
• Older students are worried about their future job prospects and impact on their schooling.
• Younger students may experience separation anxiety when leaving the family home.
• Students who thrived during remote learning may not relish returning to school.

Duty of Care and Mental Health

The school owes a non-delegable duty of care to their students to take reasonable measures in the circumstances to protect students from risks of harm that are reasonably foreseeable. The duty extends beyond the scheduled school day. Schools also owe a similar duty of care to their teaching staff.

Ways to assist schools in meeting their duty of care obligations include:

• conducting surveys to see determine the needs of students and staff – this also helps meet the empowerment requirements of Ministerial Order 870;
• scheduling activities to help students bond with each other;
• having ‘screen free’ time to allow students to be in the moment;
• being flexible during classes and taking more breaks if required;
• being creative with tasks as a way to understand the issues students are facing;
• utilising rapid antigen testing to ensure a safe school environment;
• ensuring staff concerns are catered for.

Key Takeaways from Maree Dellaportas

“As a Clinical Psychologist supporting children and adolescents throughout the COVID-19 pandemic, I have had many conversations with teachers around supporting their student’s mental health. Prior to the pandemic approximately 1 in 5 youth struggled with a mental health disorder. We know this incidence has risen over the past 19 months as students have had to pivot and adapt to the ever changing new normal.

My message to educators and to students is to be kind to yourselves and allow time for adjustment to in-person learning. Students may have issues reconnecting to peers and managing classroom and learning expectations. When students feel supported by teachers, they are more likely to feel like the classroom is safe and will engage in learning. Teachers can help by providing a space for calm and a space for being perfectly imperfect.”

Contact Dr Maree Dellaportas via email at mareedellaportas@gmail.com

How we can help

Moores recommend schools consider implementing the two key documents to equip staff to manage and promote the well-being of students returning to campus:

1. Safety management plan.
2. Return to school plan.

Please contact us for further assistance.

In a recent High Court case – the Voller case[1] – the High Court affirmed that organisations can be liable in defamation law for comments made by a third party. This means schools need to closely monitor their social media accounts and take responsibility for the information that is shared via their platforms.

The media organisations had created a Facebook page, and posted content about Mr Voller. Members of the public (third parties, unrelated to the media organisations) had then commented and posted defamatory comments on that Facebook page. The High Court found that the organisations, by running the Facebook page, had facilitated and encouraged the defamatory comments, and were therefore legally responsible.

What does this mean for schools?

This decision highlights the risks in facilitating and encouraging the posting of comments by third-party users on webpages that an organisation controls. Simply allowing comments – or not removing them – may be seen as “facilitating and encouraging” the publication of those comments.

Other issues relating to social media use

There is an increasing scope of activity for which schools need to take responsibility as our world becomes increasingly digital.

Ministerial Order 870 considers the ‘school environment’ as any place made available to students by a school. This likely includes digital spaces. Social media blurs the line between home and school life, and means schools may need to take additional steps to ensure its students are safe and protected from risks presented in the online space, such as bullying or grooming.

Bullying online via social media can have significant impacts on students’ mental health. Also, moving digital for education by using social media and other software platforms can increase the risks of data breaches, causing harm to and interfering with the privacy of students and other community members.

If harm occurs via school platforms, like the Voller case, the school could also be liable for defamation.

How we can help

Our experienced education team can help you review Codes of Conduct to ensure online bullying or defamation is addressed in your acceptable standards of behaviour. We can also help with a Social Media Policy. It is important to ensure that enrolment documents and any grievance procedures link to codes of conduct and acceptable standards of behaviour so your school is empowered to take action.

We also offer duty of care training for schools specifically addressing social media and digital environments.

Please contact us for further assistance.

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[1] Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.

From Monday 15 November 2021, Victorian schools will be able to offer at-home rapid antigen tests to students who are primary close contacts of a positive case at school.

The rapid antigen tests will be offered to unvaccinated and partially vaccinated students, primarily those aged under 12. The aim will be to allow them to return to school after seven days of quarantine, rather than 14.

Fully vaccinated students who are primary close contacts of a positive case at school will not be offered at-home rapid antigen tests, as they are already only required to quarantine for seven days.

The move has been welcomed by educators and parents, who are concerned about the many months of interrupted learning in Victoria and the impact on young people’s wellbeing and learning.

To optimise students’ learning and limit the spread of COVID-19, schools will need to ensure they have a policy and procedure for rapid antigen testing. Requirements need to be clearly communicated to parents as well, to ensure testing and attendance is done properly. Schools will also need to consider the feasibility of dual-stream teaching – that is to students at school, and remotely to students in quarantine. If this is not feasible, then alternatives for students in quarantine need to be implemented and communicated.

How will testing work?

At present, unvaccinated and partially vaccinated students who are primary close contacts of a positive case at school are required to quarantine for 14 days before returning to school. From Monday 15 November, they will only need to quarantine for seven days before returning to school, provided they:

• return a negative PCR test on day six of their quarantine; and
• return a negative rapid antigen test at home on each school day before school on days eight to 14 of their quarantine.

They will also need to return a negative PCR test on day 13 of their quarantine in order to conclude their quarantine on day 14 and return to school on day 15.

PCR tests are free of charge and can be obtained from a COVID-19 testing site. Rapid antigen tests will also be provided free of charge and are able to return a test result within 15-30 minutes. Whereas PCR testing results must be provided directly to schools, rapid antigen testing results must be provided to schools via the Department of Education and Training’s web-based form.

How can students participate?

The Victorian Government has secured 200,000 rapid antigen tests for schools, and more are expected to arrive each week. Once received by schools, they will be distributed free of charge to unvaccinated and partially vaccinated students who choose to opt-in to undertake rapid antigen testing. Students who choose not to opt-in must quarantine for 14 days and return a negative PCR test on day 13 of their quarantine in order to return to school from day 15.

What are the advantages and disadvantages of rapid antigen testing?

Rapid antigen tests are relatively low cost and can determine whether an individual is likely or not to have COVID-19 within a short space of time. For these reasons, they will be suitable for daily use by students prior to their school day and able to maximise school attendance for students who return negative results. Ultimately, the provision of free rapid antigen testing is likely to:

• minimise the spread of coronavirus throughout school communities;
• allow unvaccinated and partially vaccinated students to spend more time in class and less time in quarantine;
• promote students’ mental health and wellbeing;
• enable schools to meet their duty of care to take reasonable measures to protect students from reasonably foreseeable risks of injury; and
• provide peace of mind to school staff when teaching younger students who are not eligible to be vaccinated.

However, there are likely to be a number of challenges associated with rapid antigen testing. In particular:

• there will need to be sufficient stock of rapid antigen tests to enable students to undertake daily tests between days eight and 14 of their quarantine period;
• rapid antigen tests are not as accurate as PCR tests and are only able to determine whether an individual is likely or not likely to have COVID-19;
• rapid antigen tests are susceptible to returning a false negative or false positive result;
• rapid antigen tests may return invalid results, and students who return two successive invalid results will not be able to return to school until they return a negative PCR test;
• there is a risk that rapid antigen tests will be improperly administered; and
• there is a risk that rapid antigen testing results will be improperly reported by parents or guardians.

There are also industry calls for further reliance on rapid antigen testing, so that students can “test and stay” at school and avoid a quarantine period altogether. The seven day period is considered too long by many in circumstances where remote learning may not be offered to quarantining students, given the challenges of providing “dual-stream” learning. If implemented, there will be further requirements for schools in relation to the physical environment at school, perhaps similar to the VCAA guidelines in place at present for senior exams.

Rapid antigen testing pilot in schools

The Department of Education started piloting the use of rapid antigen tests in 20 schools affected by COVID-19 outbreaks from Monday 8 November. The pilot program aims to determine:

• how students and their families will respond to rapid antigen testing in their homes; and
• how schools will manage the receipt of testing results from students and their families.

The Department of Education is yet to publish the results of the pilot. The results will be used to inform the rollout of rapid antigen testing to all schools from Monday 15 November.

How we can help

We can help you to:

• prepare and adopt policies and procedures for rapid antigen testing and COVID-19;
• review your existing policies and procedures to ensure that they are in line with current public health advice;
• effectively communicate your school’s policies and procedures on COVID-19 to your school community and respond to any queries or concerns raised;
• manage student attendance and absence if students at your school become primary close contacts and are required to quarantine; and
• minimise the impact on students’ learning when they are required to quarantine, including by implementing dual-stream teaching which meets your duty of care without unnecessarily burdening staff.

Please contact us for further assistance.