On Wednesday 14 January 2026, the Department of Education (DOE) announced that a major cyberattack has compromised the personal information of students from all Victorian government schools.
This news is a timely reminder that all schools are required by law to keep personal information secure. Schools are required to report eligible data breaches to the Office of the Australian Information Commissioner, whether or not these are caused by the school or by a malicious actor.
According to the DOE, an unauthorised external third-party accessed a database containing information about current and past school student accounts, including:
Whilst there is no evidence that any non-government schools were impacted, privacy breaches (including from cyberattacks) do occur at non-government schools – both Catholic and independent. We often support schools in these matters.
In our experience, certain factors tend to correlate with breaches. These include:
Moores supports non-government schools with privacy compliance, data breach response and cyber incident management. In late January 2026, Moores will release its 2026 Privacy Toolkit, designed to assist organisations of all types to meet their obligations under Australian privacy laws.
Our team regularly advises not-for-profits, schools and education providers on privacy compliance, data breach response plans and proactive redesign of processes to implement privacy-by-design.
Please contact us for more detailed and tailored help.
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Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
A new bill concerning the Victorian education system passed in February 2025 and made amendments to the Education and Training Reform Act 2006 (Act).1
The Act aims to strengthen compliance and enforcement powers of the Victorian Registration and Qualifications Authority (VRQA). It seeks to make it more difficult for unregistered or non-compliant schools to escape scrutiny or consequences of non-compliance.
The changes demonstrate that the VRQA wants to have the ability to keep other bodies including the Commission for Children and Young People (CCYP), the Victorian Institute of Teaching (VIT) and the Fair Work Ombudsman (FWO) informed of developments, including in relation to to staff conduct.
In March this year, the VRQA released a statement about its regulatory focus for 2025, namely that:
A further announcement outlined an agreement with the FWO called an ‘Exchange of Letters’ whereby each body will inform the other of compliance investigations to increase their regulatory oversight.
Key Takeaway: Coupled with the increased powers in the Act, schools and other education providers can be in no doubt that the VRQA will be focussed on child safety, health and wellbeing as its top priority, from Board line of sight to the day-to-day operations. This includes a focus in relation to employee investigations.
Some of the reforms were enacted on the passing of the bill in February and therefore it is important to be mindful of these now. The following two reforms have already been enacted:
In practical effect, this will remove the show cause process involved in the cancellation of the registration of education providers that have ceased to operate. It will also allow the VRQA to share information with a prescribed person or body such as the VIT, CCYP or FWO without receiving express written request from education providers to do so.
This may occur in the process of assessing whether prescribed minimum standards have been met.
Along with the changes already enacted, the Act will implement changes that provide the VRQA with more investigative powers that will come into effect on 1 October 2025. These powers relate to:
In effect, this will allow the VRQA to issue a notice for an education provider to provide any documents that it believes are reasonably necessary.
The changes will grant the VRQA greater authority to proactively disclose information to relevant bodies such as the CCYP without awaiting a written request. It may also request information from such bodies to assist in compliance assessment.
They will also empower the VRQA to issues notices to comply to schools it believes are operating without registration. Non-compliance with these notices can lead to civil penalties outlined below.
It will increase the maximum penalty units for operating an unregistered school or school boarding premises from 10 penalty units to 120 penalty units for an individual and 600 units for a body corporate.
The new reform Act applies to schools and school boarding premises that the VRQA has reasonable cause to believe are required to be regulated from operating without registration or approval. From October 1, the VRQA will have the capacity to require such providers to produce information or documents that are relevant to the health, safety and wellbeing of students. This aligns with the specified regulatory focus of compliance with Ministerial Order 1359.
The Act has been introduced to provide the VRQA with more streamlined methods to assess whether education providers are meeting minimum required standards. The Act provides the VRQA with the power to require education providers to supply relevant documents.
It will allow the VRQA to:
Schools and Education providers may consider doing the following to prepare for the upcoming legislative changes in October.
Contact our Education and Training team for tailored advice on how the Reform Act may impact to your organisation. We can also help to review and develop policies as well as review third party arrangement contracts.
AI is already a central part of everyday life. When your call is answered by a chat-bot (“press ONE for reception”), that’s AI. When your streaming service recommends a new TV series for you, that’s AI. When your car suggests you avoid the freeway to shave ten minutes off your travel time? Yes, this is AI too. These kinds of AI operate largely in the background – and most of the time we probably don’t even notice that the AI is there, helping us. With the arrival of generative AI, the use of AI more generally has come rightly under scrutiny and required schools and other organisations to balance risk and opportunities inherent in the emerging technology and its ever-changing capabilities.
There is no doubt that AI has arrived, and it’s not going anywhere. Your staff and students are already using AI in every day school life, sometimes without knowing, and at other times knowingly but without adequate safeguards and guidelines.
As with any tool, AI can be used for good, or as a weapon to cause harm. Just last week, a Victorian school student was reportedly expelled for using AI to generate ‘deepfake’ nude images of female students in grades 9-12. A deepfake is a kind of image that takes a persons’ face (for example) and places it on a completely unrelated body. The result is an extremely convincing fake image a person in a situation that never occurred; often engaging in explicit or otherwise harmful activities. The technology can also create very convincing fake videos – recent news reports suggest that AI was used in the United States by an aggrieved school employee to frame a school principal with making racist remarks. The kind of AI that ‘creates’ content like this is called Generative AI. Generative AI can create images, write recipes, poetry, and even compose music. One of the scary things about generative AI is that practically anyone can use it: it is readily available and requires no special skills or training. Young people are increasingly accessing and being harmed by others using generative AI in the school environment.
AI can, on the other hand be used to help you streamline your school’s business operations, support student learning and help you draft documents by giving useful feedback on documents and suggest improvements. However, even when used with good intentions, AI can pose risks to you and your organisation. Schools have a duty of care to protect students from reasonably foreseeable harm. If the proper safeguards are not in place, the use of AI in your school could place your staff and students’ personal information and safety at risk, as well as expose your school to regulatory sanctions, or even legal action.
AI needs to be fed information in order to generate output. For example, AI can’t make a deepfake image without being given somebody’s photos to use and manipulate. It can’t write an article without being told what it is about and the kind of language to use (we assure you this article however is 100% human-authored!) This information in, information out process is where a lot (but not all) of the risk arises. AI is hungry for information, and you can never be sure what will happen to information once you feed it into the system. Some of the key risks that can arise from AI-use are outlined below.
Let’s say you want AI to help you generate a new and more efficient way to prioritise student enrolment offers. To do this, you feed the AI existing student applications and the current rules your school uses to prioritise offers. The AI might then sort through the information you fed it and suggest a new way to organise or use that information to your benefit – wonderful! However, unbeknownst to you, you have just ‘disclosed’ (per APP6) students’ personal information to the internet at large. AI systems could potentially be used to track students’ online activities, infer sensitive information, or make predictions about their future behaviours or outcomes. These scenarios could infringe on students’ privacy rights and autonomy. The second you enter information into AI, you lose control of that information. It is now ‘on the internet’ forever.
This inadvertent disclosure of information could constitute a Notifiable Data Breach and attract regulatory sanctions from the Office of the Australian Information Commissioner (OAIC); particularly as enrolment applications generally include information about the health, and religious, cultural or racial identities of prospective students. It could also lead to serious harm to the people whose information has been disclosed – not to mention the reputational damage to your school.
Imagine that you would like to use AI to improve your school’s suite of policies and procedures. AI could potentially give useful feedback on how to streamline and otherwise improve your operational documents. However, as with the above example, you can only get out of AI what you put into it. In order to have AI assess and critique your policies, it needs to read them. Once you have given that commercial information to the AI, it will use it again to help it ‘learn’ and respond to other users’ questions. Perhaps your school’s valuable intellectual property will be used by the AI the next time anyone asks it to write a policy. If you don’t want to share your commercial-in-confidence material or intellectual property with the entire internet, beware of feeding it into the AI.
The risk also presents in the other direction. Imagine the AI suggests you re-write your procedures a certain way and you implement that suggestion. Then, to your horror, your school is sued for using another organisation’s intellectual property without their consent. It turns out the AI had given you a copy of someone else’s documents to use, and you had no idea. Without knowing it, your school has now infringed on somebody else’s copyright.
AI can be used in schools to personalise learning, provide real-time feedback and create immersive educational experiences. It can be used to develop teaching and assessment tasks and streamline assessment and grading. Be wary, however, of relying too much on AI to help you grade and assess student work (or to perform any other tasks involving students). Although AI could help you to save time and create engaging materials, keep in mind:
There are countless benefits and risks associated with using AI. Below are some tips to help you prepare for, respond to and use AI, while minimising the risk to your school and community:
Our Education team is in demand for up-to-date, informative and entertaining staff PD on privacy matters including AI. We can prepare all policies and procedures and assist organisations to maintain best practice in privacy and data protection. If you have existing policies, our team can assist with reviewing and updating these policies to ensure your organisation continues to mitigate risks posed by new technologies – you might be surprised by the gaps which exist! We can also provide tailored, interactive training to your organisation on your obligations under the Australian Privacy Principles, and other regulatory schemes in your jurisdiction.
The Age has reported that Preshil in Kew is selling a section of its campus to help meet its payroll tax bill and other liabilities. Numerous independent schools we advise in Victoria are grappling with how to cover their payroll tax bill from 1 July 2024, on top of already increased operation costs in this high inflation environment. Preshil will not be the only school looking at a land sale to free up some cash. But while a sale of school land is a quick way to get some money, once the land is sold a school loses the ability to grow its student numbers at that campus as much as it otherwise could have. This article considers some of the other things schools could do with their (currently) surplus land to generate money while preserving their future ability to develop and grow.
If a school has unused land or space, selling is not the only way to put it to use. A lease can generate income while preserving the long-term options for the land. Long-term ground leases can work particularly well for vacant land with no foreseeable use for the school. A long-term ground lease can often justify a tenant undertaking building works, the cost of which can be amortised over a long period (typically 20+ years). A council, other education provider or retirement village operator may be happy to take a long-term lease and build a facility approved by the school. Following the expiry of the lease, the land and its improvements revert to the school for it to use as it sees fit.
Some schools may consider improving their surplus property before leasing. This approach requires the school to spend in order to obtain a higher rent from a commercial tenant than it would under a ground lease referred to above where the tenant undertakes the works. These developments could be ones where the tenant gets exclusive possession or ones for joint use between the school and the tenant. Examples of joint use developments include facilities that can be used for weekend tuition or sport facilities hired to clubs or leagues. For schools that are cash poor, which many are in 2024, the significant upfront investment required may make this option unviable.
This scenario is worth considering where a property has potential for multi-level development. The basic concept is for the school to retain facilities (either existing facilities or new facilities) at ground level but sell the right to develop above those facilities. While this option does involve the loss of long-term development potential, a new school building at the bottom of a multi-level development may sufficiently future proof the school such that the air rights above that building will never be needed. There are a range of considerations around this option, starting with what use is a suitable ‘neighbour’ for the school and whether the school should take the role of being the developer and sourcing the finance. Some schools may prefer just to be the landowner with oversight and rights required to protect its interests.
This article outlines just three alternatives to selling school land. There are other alternatives, including combinations of the ones outlined above. This article has done its job if it encourages a school thinking of a land sale to consider options which better preserve the school’s ability to grow. While it can be difficult for schools to fully understand and explore their options when it comes to dealing with their land, a school should not sell the family silver before it has done so.
Moores has a strong history of supporting the education sector, from independent and catholic schools, to early childhood providers, higher education and education governance and industry bodies.
We are more than happy to guide your school through the process of determining how to best utilise any surplus land.
Suppose a parent calls your office and requests their child’s counselling records? Or a court order lands on your desk seeking access to counselling notes? Or perhaps, your school counsellor raises concerns about a student’s wellbeing and wants to discuss information shared in a counselling session? When can you disclose a student’s counselling records and when should you not? This is a question that is becoming increasingly problematic for schools. The answer lies in balancing the duty of care with confidentiality and privacy requirements. This article will set out your legal obligations and answer some common questions in this space.
Schools owe a duty of care to their students and all children under common law and state-based legislation. The duty is generally to take reasonable care to protect students from harm which is reasonably foreseeable. Several states including New South Wales, Victoria, South Australia and Queensland have reversed this onus in relation to child abuse caused by an individual associated with the organisation.
To help facilitate student wellbeing, most schools have a counsellor, psychologist or pastoral care available to students. In these sessions, personal information will be collected by the school including medical information, relationship status, familial issues, disclosure of bullying or mental health concerns and other sensitive information.
Schools are required to handle this information in accordance Privacy Act 1988 (Cth) (Privacy Act), the Australian Privacy Principles (APPs) and state-based legislation. For example, the information collected can only be used for the primary purpose (in this case being the provision of counselling services) unless a permissible secondary purpose exists. Permissible secondary purposes include those related to the primary purpose, where consent is provided, the disclosure is authorised under Australian law or a court order or a permitted health situation exists. The Australian Psychological Society takes the position that a psychologist is obliged to release information when “required by law”, which includes the law which imposes a duty of care on schools.
Do I need the student’s consent to disclose their counselling records to their parents?
It will depend on the age of the student. The Office of the Australian Information Commissioner (OAIC) recognises that a child’s capacity to consent to the handling of personal information needs to be determined on a case by case basis depending on the maturity and ability to sufficiently understand what is being proposed. As a general rule, schools can presume that students aged 15 and over have capacity to consent. While the Privacy Act doesn’t currently specify a specific age, predicted amendments may define a child as 15 or 18. For Victorian schools, the Victorian Privacy and Data Protection Act 2014 (Vic) defines a child as someone under 18 years of age, but does not specify the age when individuals can make their own privacy decisions.
Many secondary schools state in their policies or counselling intake or permission forms that all students from year 7 will be required to give consent for the release of their counselling records (unless an exception applies). We recommend that schools decide what their policy will be and embed this into their documents to ensure there is clarity amongst students and parents.
What if one parent is requesting the information but the other parent or student does not agree?
Schools can be caught in a tricky situation where parents disagree on the disclosure of counselling records, especially if the parents are separated or in the process of separating. First and foremost, if the student is able to consent, the school should seek the student’s consent. This rings true with other child safety obligations for the empowerment of children. If the student does not, or is unable to, consent, schools should seek consent from both parents before disclosing any records. This is particularly where the records contain sensitive information. If the parents cannot agree on the disclosure, the school should request a court order before disclosing any records.
What about requests from third parties?
Schools should be careful about releasing counselling records or information to third parties without the proper consent from the student or their parents. Schools should always require any such request to be in writing. If the student or their parents do not consent, it may be that the school requires further advice on whether or not they are required to provide the records. Most states (Victoria, NSW, Queensland, South Australia) have introduced information sharing schemes, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, which permit the sharing of confidential information to organisations in limited circumstances for the purpose of safeguarding children. We explain the Victorian Child Information Sharing Scheme here. In the absence of an applicable information sharing scheme or court order permitting a disclosure to a third party, refer to APP 6.
What about requests from former students about their own records?
We have received queries from schools concerned about providing former students with their own counselling records, especially where the former student may be considering a historical child abuse claim or other claim against the school. APP 12 requires organisations give individuals access to their own information on request. While there are some exceptions to this, they are limited. One such exception is if the record includes personal information belonging to other individuals and the sharing of that information would have an unreasonable impact of those other individuals. If an exception applies, the school may have grounds to refuse or redact information. More information about handling information access requests is here.
The counsellor, psychologist, wellbeing officer or chaplain is concerned about a student – what should we do with this information?
Where a staff member is concerned about a student’s wellbeing, that staff member can share that information within the school with other limited and appropriate staff for the purpose of the student’s safety or the discharge of the duty of care. Always share information in accordance with your policies and procedures. While the privacy obligations under the Privacy Act apply to the school not the individual, internal sharing of the information should be on a need to know basis. At the same time, the school needs to ensure that it is fulfilling its duty of care. Where concern for a student’s wellbeing rises to the level of needing to make a report to an external organisation such as Child Protection, this should be done and is an exception to obligations under the Privacy Act (see below).
When do I have to provide counselling records?
There will be situations when the school is required to disclose the information held in counselling records. This includes:
The above situations (amongst others) are exceptions under the Privacy Act and the disclosure of information without consent is permitted.
Managing requests and disclosures of counselling records is a difficult topic and often requires decisions to be made in short timeframes. Where records are incorrectly disclosed, schools could find themselves at risk of various claims including breach of privacy (with increased significant maximum penalties) or negligence. To mitigate these risks, we recommend that schools:
At Moores we have a specialised team that supports the education sector on a variety of areas including privacy and data security. This makes us well placed to assist schools in the careful balance of duty of care with confidentiality and privacy requirements.
We are more than happy to guide you through the process of determining your obligations in disclosing a student’s counselling or pastoral care records.
This article was originally published November 2019. Updated June 2024.
Under work health and safety (WHS) laws, employers must eliminate or reduce psychological hazards or psychological harm.
This is particularly relevant for schools because there are many unique features of school environments which present psychosocial hazards. For example, safeguarding obligations, which have increased dramatically in the last decade, create an increased risk that staff will be exposed to child abuse and experience vicarious trauma. In this article we address how schools can ensure they are taking due care of staff to meet workplace health and safety obligations when the school environment and legal obligations require staff to regularly engage with difficult topics such as child abuse.
Workplace health and safety regulators are increasingly turning their attention to how employers are managing psychosocial health in the workplace.
Two recent cases concerning psychosocial health have attracted significant attention and demonstrate the increasing importance of this topic. In Kozarov v Victoria, the High Court of Australia found the employer had breached its duty to take reasonable steps to mitigate the risk of psychiatric injury inherent to Ms Kozarov’s position. Ms Kozarov was a prosecutions lawyer working on cases involving sexual offences. The High Court accepted there are some roles where the nature of the work performed is inherently and obviously dangerous to the psychiatric health of the person holding the role, such as Ms Kozarov’s. The High Court clarified that in these cases, an employer must proactively take steps to reduce the risk of psychological injury. In October 2023, Court Services Victoria (CSV) was fined $379,157 after it admitted it had failed to conduct any adequate process to identify risks and undertake an adequate risk assessment of the risks to the psychological health of employees. During the period December 2015 to September 2018, workers had been at risk from a number of hazards including high workloads and work demands, poor relationships in the workplace, inappropriate behaviour and exposure to traumatic materials.
Proactively considering and addressing psychosocial hazards will stand schools in good stead, and therefore the Kozarov and CSV decisions should not be viewed with alarm. In Bersee v State of Victoria, a secondary school was found not to have breached its duty of care to a teacher because it took appropriate steps to address the risk of harm. As with any duty to students or staff, the law requires schools to take reasonable steps, not all steps sought or every possible step.
With new regulations expected soon in Victoria, now is the time to act.
Psychosocial hazards may cause psychological and physical harm. Broadly, they can arise from or in relation to:
Psychosocial hazards are hazards that arise from workplace interactions, behaviours or culture that cause a stress response. When the hazard is frequent, prolonged and/or severe this can result in psychological and/or physical harm. Particularly relevant examples for schools are:
Understanding the stressors for school staff is important to be able to address those which might amount to psychological hazards. The Australian Principal Occupational Health, Safety and Wellbeing Survey 2022 reports that the top two stressors for school leaders are:
In 2022, the highest percentage of school leaders reported being subject to physical violence (44%) since the survey began in 2011. This is 11.3 times more prevalent than the general population. Over 40% of that violence was by students. The full survey report is here.
Employer obligations regarding psychosocial hazards vary across states and territories in Australia. We set out the general legislative landscape for WHS in our article about Directors’ Duties. In summary, all jurisdictions except Victoria have enacted workplace health and safety legislation that mirrors the provisions of the Work Health and Safety Act 2011 (Cth). Most jurisdictions in Australia have implemented state-based regulations requiring employers to identify and manage psychosocial hazards.
Identifying a psychosocial hazard means turning your mind to parts of your employees’ roles which could cause psychological harm, such as continued exposure to child abuse by virtue of mandatory reporting obligations or dealing with violence and aggression towards staff by students and/or parents.
Safe Work Australia recommends the following four-stage approach to manage psychosocial risks:
At each stage of the process, employers must consult with workers who are, or likely to be, directly affected by a work health and safety matter, and any workplace Health and Safety Representatives.
To determine control measures for psychosocial hazards related to psychosocial hazards, consider:
It is important schools turn their attention to if and how they are meeting their obligations relating to psychosocial hazards. Regulators are placing an increasing focus on enforcing employers’ legal obligations and responding to reports about potential non-compliance.
In Victoria, the principal legislation governing workplace health and safety is the Occupational Health and Safety Act 2004 (Vic) (OH&S Act). There are no specific psychosocial safety regulations in place. However, the definition of ‘health’ in the OH&S Act includes ‘psychological health’ meaning Victorian employers are still required to identify and manage psychosocial hazards.
Victoria has proposed the Occupational Health and Safety Amendment (Psychological Health) Regulations. If passed, those Regulations will require employers to identify and eliminate psychosocial risks and, where that is not practicable, reduce the risk so far as is reasonably practicable. In a diversion from the national status quo, the proposed Victorian reforms will introduce a reporting requirement: employers with more than 50 employees would be required to provide to WorkSafe Victoria half yearly reports on ‘reportable psychosocial complaints including bullying and sexual harassment’.
Employers must take reasonable steps to manage psychosocial health risks inherent to an employee’s job, regardless of whether an employee has shown warning signs of mental illness. We recommend employers:
With technical and practical knowledge of workplace, safeguarding and education law, Moores has a unique strength to be able to bring together these legal topics to provide tailored legal advice about setting up frameworks to identify, assess and control psychosocial risks tailored to the school environment. We can also assess your current frameworks against best practice and to ensure compliance. Our child safeguarding experience means we have a deep understanding of the psychosocial hazards staff working in schools can experience. With cross-industry professionals we can support you to best support your staff, meet regulatory requirements and create a health culture of safety in your workplace for staff as well as students.
The Family Law Act 1975 has recently been amended with effect from 6 May 2024.
The amendments place additional emphasis on safety as well as simplifying and converting to “plain English” the framework in which the court allocates parental responsibility and determines what is in a child’s best interests.
This article discusses what the key amendments mean for schools, focusing on the amendments to parental responsibility and the assessment of the “best interests” of the child.
*Whilst this article refers to “parents” for sake of simplicity, it is noted that by court order a non-parent (including grandparents and other non-parent carers) can be allocated parental responsibility and/or an order made in their favour for a child to live with, spend time with, or communicate with them.
Schools regularly have to navigate complex and separated family arrangements. This can involve the school needing to interpret court orders, parenting plans and letters from the parents’ lawyers.
Not infrequently, the court orders are ambiguous and the school may be confronted with parents arguing about what the orders mean.
All too often, each parent adopts a self-interested interpretation, and, in the absence of a further court ruling, the school is often left in the invidious position of having to make sense of the orders in the context of its legal duties to the student, its contractual arrangements with the parents, and its responsibilities under education regulations. At Moores we regularly advise schools navigating such issues.
The changes to the law resulting from the recent amendments are significant, and we expect that schools will be impacted by matters such as changes in terminology in orders, changes to the content of new orders, and parents misunderstanding the effect of the new laws.
Importantly, at the outset we note that existing court orders will not be affected by the amendments. The amendments will only apply to orders made in cases (including Application for Consent Orders) that are determined by the Court on or after 6 May 2024.
Before diving into the key amendments, we will take a moment to provide a refresher on the concept of parental responsibility.
Parental responsibility primarily relates to long-term decision making. It is a separate concept to where the child lives, who the child spends time with, and who the child communicates with.
For example, court orders can provide for a child to live in a shared care arrangement but with one parent having sole parental responsibility. Conversely, the orders can provide for the child to spend limited time with one parent yet still provide for equal shared parental responsibility.
Specifically, parental responsibility is concerned with the making of decisions about “major long-term issues”, which is defined in the Act as meaning:
“…issues about the care, welfare and development of the child of a long – term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Examples of major long-term decisions that are relevant to schools include:
Examples of non-major long-term decisions (for simplicity, we will refer to these as “day-to-day decisions”, although that terminology is not used in the Act) include:
However, the line is not always clear-cut. For example, consider a student ordering food from the canteen, which is ordinarily a day-to-day decision. However, it is not difficult to imagine major long-term issues arising, for example, if the student suffered from allergies, or had received medical advice to adhere to a certain diet due to serious health issues, or if the student’s religion mandated certain dietary requirements.
If there is no court order in place allocating parental responsibility, the Act provides that by default each parent has parental responsibility for their child, and this can be exercised either jointly (together) or severally (individually). This has not been changed by the removal of the “presumption” of equal shared parental responsibility (explained further below) which only affects cases where a court is making parenting orders.
The family law courts have power to make orders allocating parental responsibility. Most commonly, this will be dealt with in the first order in a suite of parental orders.
Broadly speaking, there are three main ways parental responsibility can be allocated by court orders:
In line with the wording of the new amendments, we expect this will likely be referred to as “joint decision-making” in orders made after 6 May 2024**.
Parents who have equal shared parental responsibility are required to consult each other about decisions relating to major long-term issues (see further above) and make a genuine effort to come to a joint decision about such issues.
There is no obligation to consult for day-to-day decisions.
Importantly, the obligation to consult is an obligation between the parents, and any failure by a parent comply with that obligation does not make their unilateral instructions ineffective or unauthorised. This is confirmed by section 61DAA(2), which states:
“To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.”
Notwithstanding that, when parents are separated and have equal shared parental responsibility, it may still be prudent for schools to endeavour to obtain joint instructions from parents about major long-term issues, depending on the circumstances. Issues also arise when parents who both have parental responsibility give conflicting instructions.
Increasingly, schools are needing to take a more nuanced approach to such issues, particularly where there is also a Family Violence Intervention Order (FVIO) or other form of state-based protection order in place. Whilst it is beyond the scope of this article to discuss such cases, we note that there is a complex interaction between FVIOs and family law orders, and which order prevails requires a case-specific analysis. In addition, the school has an independent duty of care to it students and staff – and a duty to protect health and safety so far as is reasonably practicable under OHS laws – which also need to be taken into account in addition to considering what is provided for by the orders.
This can and does mean that schools need to exercise an independent assessment of risk and make a decision. Seeking to ignore court orders, or taking no action, may not be sufficient to discharge the duty. And taking no action because there are no court orders may also be insufficient, as the exercise of the duty of care requires independent judgment. It is also not acceptable to expect parents in the context of family violence to “sort it out”, particularly as encouraging contact might be a breach of the order and could endanger family members.
In line with the wording of the new amendments, we expect will likely be referred to as “sole decision-making” in orders made after 6 May 2024**.
When the court orders allocate sole parental responsibility to one parent, it has the effect of making that parent solely responsible for making major long-term decisions. The other parent is however still able to make day-to-day decisions for the child whilst in their care.
Some orders specify that a parent with sole parental responsibility must still inform the other parent of their decision. This is an obligation between the parents and does not create an obligation on schools to inform the other parent of the relevant decision.
A hybrid order allocates sole parental responsibility to one parent in relation to defined matters, with all other matters being subject to equal shared parental responsibility.
**Pending any emerging case law, we presume that the difference between the terminology “decision-making” and “parental responsibility” is largely semantic and in line with the policy of the new amendments to adopt a plain English approach, particular in court orders. The concept of “parental responsibility” still remains in the Act as amended, however we expect to see the terminology “decision-making” used more commonly in court orders.
Perhaps the most important change brought in by the new amendments is the removal of the presumption of equal shared parental responsibility.
The presumption meant that when making a decision about parental responsibility, the court’s default position was to order equal shared parental responsibility unless a specified reason applied. Whilst family violence, child abuse, and the best interests of the child were all reasons by which the court could not apply the presumption, in practice sole parental responsibility was the exception rather than the rule.
The new law now means that the court will make a decision about parental responsibility based on the child’s best interests alone, with no “default” position. We expect that this will have two main consequences:
Again, we note that in a situation where there are no court orders in place in relation to parental responsibility, the law remains the same that both parents have parental responsibility, which can be exercised by them either jointly or individually.
As part of the amendments, sections of the Act have been also repealed that provided that when the Court made orders for equal shared parental responsibility, that it had to consider whether an order for “equal time” or “substantial and significant time” was in the child’s best interests and reasonably practicable.
These provisions had been misunderstood by many members of the community as creating a right for parents to spend equal time with their children, which was never the intention.
It is now abundantly clear that parenting arrangements are determined by a court having regards to the “best interests” of the child as the most important consideration, and that there are not any other starting points or presumptions.
We expect that this will have the consequence that there is likely to be a greater diversity in the content of the orders made after 6 May 2024.
In particular, for the past nearly two decades, a very common type of arrangement outside of shared care arrangements was for the non-residential parent (more commonly, though not always, the father) to spend time with the child on alternate weekends with perhaps another night in the off-week, along with half of school holidays and special occasions. This reflected the concept of “substantial and significant time” in the Act.
This concept sometimes worked in favour of the “spend time” parent, for example there was often a good argument that “substantial and significant time” was the “baseline” when parents lived in proximity and there were no significant risk issues. At the same time, in many cases, the “spend time” parents found it difficult to negotiate more time once the residential parent offered the bare minimum that met the definition of “substantial and significant time”.
However, with the concept and terminology of “substantial and significant time” now completely removed from the Act, this dynamic is likely to change.
In contested proceedings, the court is required to tailor the arrangements for the children in a “bespoke” fashion, having regards to their best interests without any pre-conceived notions about what that may look like. Likewise, in negotiated matters, parents can no longer use “substantial and significant time” as a legislative “baseline”. Hopefully, this will lead to parents taking a more child-focused and case-specific approach to considering what arrangements are appropriate rather than with reference to arbitrary standards.
Schools can expect to see orders in the future taking a more nuanced and less “boilerplate” approach to parenting arrangements.
Another key change brought in by the new amendments is the simplification of how the court assesses what is in the best interest of a child.
The previous law set out in section 60CC contained two “primary” considerations and 14 “additional” considerations (many containing sub-provisions) that had to be taken into account by the court. These provisions, some of which substantially overlapped, were often criticised as being cumbersome and inconvenient to address in submissions and judgments.
The amendments have simplified the section 60CC considerations to six matters, as follows:
It is beyond the scope of this article to dive into what the considerations that were removed and whether this rewording has a substantive impact with an added focus on safety, or whether the new section is better thought of as simplifying and consolidating the previous considerations. We are aware of family lawyers with views both ways and will need to await emerging information to clarify the issue.
We do note however that “safety” is the key theme of the new amendments, and we expect to see orders following 6 May 2024, particularly those made in contested proceedings, paying even more attention to this aspect.
There are many people online and on social media making a variety of claims about the effect of the amendments.
In closing, here is a list of four claims about the amendments that are NOT correct:
The removal of the presumption is a matter only effecting the process by which the court makes a determination about parental responsibility in cases before it on or after 6 May 2024. As discussed above, when no court orders are in place, each parent still has parental responsibility by law and this can only be altered by a family law court order (and/or restrained by the effect of a Family Violence Intervention Order). When family law court orders are in place, the orders will almost always set out how parental responsibility is allocated.
The amendments will not disrupt any existing orders. They will only effect cases (including Application for Consent Orders) determined by the court on or after 6 May 2024.
There was never any presumption of shared care in the law and it was not even the starting point. However, shared care is no longer a mandatory consideration if the court orders equal shared parental responsibility. Instead, the court is simply required to consider what arrangements are in the best interests of the child, which may or may not be shared care, depending on the circumstances of the case.
On balance, we consider that the emphasis on safety in the new amendments and removal of the concept of “substantial and significant time” may result in some cases where the non-residential parent’s time is limited further than would have been under the previous law. However, the “best interests” of the child remains the test for what is appropriate, with gender not being a relevant consideration in the court’s assessment. We expect that cases where “no time”, “supervised time”, or very restricted time arrangements are ordered will remain where the child is assessed as being at an unacceptable risk in the care of the relevant parent.
Get in touch with the Education Team at Moores if you would like support with interpreting court orders or navigating complex parenting arrangements for your school.
You may also like to consider whether any upcoming staff PD days should contain a refresher and update on family law as it applies to schools.
Exclusionary discipline is under the spotlight as being too punitive an intervention, particularly for certain student cohorts. As well as exclusionary discipline being criticised by the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royalty Commission), significant changes are occurring in Queensland.
In March 2024, parents and students in Queensland have recently ‘won’ the right to be able to successfully appeal against suspensions and have be reinstated to attend school, as the Queensland government is moved to introduce an appeal right for suspensions in public schools. The Bill to amend the Education (General Provisions) Act 2006 aims to:
School behaviour management frameworks are critical to how Schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities. Our recent work with clients underscores the ongoing fraught tension which Schools are grappling with. For example, often we are called to assist clients with student discipline matters, only to find behaviour management frameworks are inadequate. Sometimes the behaviour management frameworks have been updated but not implemented through fatal flaws in the process.
Many Schools continue to be challenged by balancing behaviour concerns that can put the school community at risk and ensuring its disciplinary process does not expose it to discriminatory practices or fall short of its duty of care obligation to students.
In this article, we explore the trends and tensions in a dynamic landscape and how Schools should be prepared to respond to the challenges of rethinking exclusionary disciplinary practices.
Definition: Exclusionary discipline refers to the actions by an educational authority or institution that result in students’ withdrawal of education or training, including suspensions and expulsion.
The Organisation for Economic Co-operation and Development (OECD) has revealed that Australian “learning environments are comparatively less favourable in terms of disciplinary climate, intimidation or bullying, and student truancy” than other OECD countries.1 We also now know that extended social disruption such as the Melbourne lockdowns sowed the seeds for ongoing challenges schools are experiencing in today’s learning environment.
Research into the impacts of exclusionary discipline conducted by the Centre for Inclusive Education and the Queensland University of Technology advocates that exclusionary discipline “should only ever be used as a last resort” because it is:
The Disability Royalty Commission also made findings that schools inappropriately use exclusionary discipline against students with disabilities, recommending a review of all regulations and other instruments regulating exclusionary discipline.3 We explore this in more detail in our article: ‘What schools should know about the recommendations of the Disability Royal Commission’, which lists a range of mechanisms schools can adopt without waiting for regulatory intervention in their state.
Queensland is the latest to introduce legislation that essentially provides for greater checks and balances on school practices and requires the use of supportive interventions. The Education (General Provisions) and Other Legislation Amendment Bill 2024 (Bill) introduces an appeal right for suspensions that are:
The Bill also formalises requirements for schools to implement student support plans for students that have been suspended or are at risk of being excluded. These student support plans must include:
The Queensland Government is taking submissions regarding these proposed amendments until 25 March 2024. More information about the consultation process is here.
Assessing the use of exclusionary discipline through a human rights lens raises the bar on what appropriate use looks like. There is increasingly greater willingness, through research and the Disability Royal Commission, to point to human rights concerns related to the practice of exclusionary discipline.
Schools are often faced with needing to balance multiple obligations, such as ensuring exclusionary discipline is not unlawful or discriminatory, with obligations to address health and safety risks in the school community. We are noticing a trend whereby this balancing exercise alone may soon no longer be enough to justify exclusionary discipline as a type of behaviour management response. In fact, it is possible that exclusionary discipline as a type of behaviour management response may become discriminatory: the Disability Royal Commission proposed the exemption to unlawful discrimination (i.e., the allowance for lawful discrimination) on the grounds of health and safety under equal opportunity law in Victoria be repealed.
In an evolving landscape of policy making and legislative change, the misalignment between exclusionary discipline and human rights remains a question for policy makers. As stated in the Victorian Charter of Human Rights and Responsibilities Act 2006: “Every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.”4. With the expansion of the school environment, how this looks in practice for schools is relevant.
As mentioned earlier, we consider school behaviour management frameworks are critical to how schools prevent and respond to behaviours of concern without inadvertently creating other breaches, issues or liabilities.
Schools should look at their behaviour management frameworks holistically and what is in their toolkit when it comes to disciplining students. Codes of conduct, disciplinary management and response policies and procedures, mechanisms for assessing reasonable adjustments, handling complaints and grievances all fall within the framework, complemented by the enrolment agreement and other tools available to Principals. There is no one size fits all approach to student behaviour management and, as we recently explored at our Moores Schools Legal Agenda on 27 February 2024, how to implement disciplinary responses that are acceptable within the school community and balance school’s legal requirements is an ongoing area of focus.
We recommend schools look at:
Get in touch with the Education Team to discuss how we can help you with your school’s behaviour management framework review needs, and support you to respond to challenging disciplinary matters. We support schools both proactively and reactively in this space: implementing procedures and training for staff to respond to serious breaches of student codes of conduct and navigating the disciplinary (and possible expulsion) process with families, students and schools.
1 Organisation for Economic Co-operation and Development, Education Policy Outlook In Australia (10 April 2023).
2 Queensland University of Technology, What does exclusionary discipline do and why should it only ever be used as a last resort? (12 March 2024) https://research.qut.edu.au/c4ie/2020/10/15/what-does-exclusionary-discipline-do-and-why-should-it-only-ever-be-used-as-a-last-resort/.
3 Final Report – Volume 7: Inclusive education, employment and housing, p13
4 Charter of Human Rights and Responsibilities Act 2006 (Vic) s17 (Protection of Children and Families).
In NSW, the Not-For-Profit Guidelines for Non-Government Schools (2019) (the ‘NFP Guidelines’) were launched to assist schools to understand their not-for-profit obligation with reference to common transactions schools experience.
The NFP Guidelines recently underwent Ministerial review and public consultation of the exposure drafts and was completed in late 2023, together with a proposed draft Regulatory Framework for the Oversight of Assistance provided to NSW Non-Government Schools.
The NFP Guidelines provide a useful reference point on the types of common transactions schools face and the records they are expected to maintain and make available to the Minister to make determinations of compliance with section 83C.
They are extremely useful to schools in Victoria as a further reference in relation to considering potentially prohibited arrangements.
Non-government schools must operate for a not-for-profit purpose. In NSW, this is required to be eligible for financial assistance from the NSW government. In Victoria, the not-for-profit requirement is a condition of school registration. Regulations in both states establish the not-for-profit obligation and a requirement to only enter into not-for-profit transactions “for the conduct of the school” (Vic) or for the “operation of the school” (NSW) or otherwise risk being deemed to be for-profit and non-compliant with financial assistance or registration conditions.
In Victoria, the ‘not-for-profit’ criteria for schools are set out in regulation 7 of the Education and Training Reform Regulations 2017 (“ETR Regulations”).
In brief,
Section 83C of the NSW Education Act 1990 operates in a similar way, drafted from the position of when a school would be deemed to operate for-profit in relation to its use of “income” or “assets”, and “payment” for property, goods and services.
The NSW requirements are broadly mirrored in Victoria by the ETR Regulations with explanatory guidance provided in the Guidelines to the Minimums Standards for School Registration (2022) (‘Minimums Standards Guidelines’).
Whilst not binding in Victoria, The NFP Guidelines offer a useful external reference for Victorian registered schools particularly in relation to measures that can be taken to avoid PAAs or demonstrate that transactions are not made for-profit.
We have provided a summary analysis of the proposed changes to the NFP Guidelines that support schools to comply with s83C, and the equivalent Victorian PAA requirements. View our summary table.
The exposure draft NFP Guidelines incorporate both examples of common transactions and provide further explanatory guidance to distinguish when a school “will likely be operating for profit” or “may be operating for profit”. Although they do not set a precedent, they are useful to understanding where we have seen or are likely to a similar interpretation to “reasonable market value”, and what is “reasonably required” adopted for Victorian schools.
Characteristics of transactions that can be considered as not for the operation (or conduct) of the school or otherwise considered as operating for a profit can arise where:
New examples include:
The NSW Department of Education is currently considering feedback on the exposure drafts and has not provided a release date. Schools should consider the proposed updated Guidelines as part of their 2024 business planning, reflect on the records requirements as a tool to assess the maturity of their operating practices and recordkeeping to identify any areas for improvement or rectification.
Our Education team can work with you to assist with:• Advice on the application of the regulations for specific transactions.• Review of existing arrangements that pre-date the regulations in both NSW and Victoria.• Policy and procedure review or development to enable compliant transactions.• Board and key personnel training on NSW S83C and Victorian PAA requirements
The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability (Disability Royal Commission) has released its extensive final report which describes aspirations for an inclusive society. The final report seeks to inspire significant reform to remove multiple barriers to access and enable meaningful inclusion. As with the final report of the 2017 Royal Commission into Institutional Responses to Child Sexual Abuse, we predict the Disability Royal Commission’s recommendations foreshadow significant legislative and regulatory reform. For this reason, we set out here the recommendations of the royal commission likely to have the biggest impact on how schools provide education for disabled students; being:
Beyond responding to compliance obligations, Moores is proud to work with value-aligned clients who aim to provide the best educational opportunities for students, often above and beyond the law. The Disability Royal Commission provides a blueprint for how schools can improve their work with students with disability, ahead of legal reform. Our education clients tell us there is an increasing number and proportion of students with disability in our schools and increasing demand for adjustments. This is confirmed by the Disability Royal Commission. We want to work with our clients to support disabled students now, instead of waiting for legal reform.
As noted in our early article on the findings of the Disability Royal Commission, a key theme arising from the Disability Royal Commission was a shift away from segregated education. The commissioners were split on what form this should take. Three commissioners, including the two commissioners with lived experience of disability, recommended that the Australian Government and state and territory governments should recognise that inclusive education as required by article 24 of the Convention on the Rights of Persons with Disabilities is not compatible with sustaining special/segregated education as a long-term feature of education systems in Australia. In practical terms, they recommended the phasing out of all specialist schools by 2051, with no new enrolments of students with disability in specialist or segregated schools by 2032.1 As an alternative approach, the other three commissioners recommended a more conservative approach of co-locating non-mainstream schools alongside mainstream schools to facilitate partnerships and greater interchange between disabled and non-disabled students, and facilitate the transition of disabled students into mainstream school environments.2 Irrespective of any reform adopted in legislation or regulations, these recommendations indicate that mainstream schools must be cognisant of the need to facilitate inclusive education, including their existing obligations regarding reasonable adjustments, and may suggest a shift away from enabling schools the option of proposing enrolment exclusively at a specialist school on the basis that mainstream schools do not have the means to support disabled students.
The Disability Royal Commission recommends that state and territory governments amend education Acts to provide that the right to enrolment is subject only to ‘unjustifiable hardship’ in the sense used in the Disability Discrimination Act 1992 (Cth).3 This would require amendments to the Equal Opportunity Act 2010 (Vic) which currently permits a school to discriminate against a person on the basis of their disability in the enrolment process if the adjustment is not reasonable or the student could not participate in or derive any substantial benefit from the educational program even if adjustments were made.4
The Disability Royal Commission’s proposed amendment would reduce the need for schools to apply both state and federal laws to determining enrolment obligations and rights – thereby simplifying the law – but also perhaps reduce the ability for schools to turn away prospective students based on their inability to “derive any substantial benefit from the educational program”.
The Disability Royal Commission wants regulators to adopt the principle that schools should avoid the use of exclusionary discipline on students with disability unless exclusion is necessary as a last resort to avert the risk of serious harm to the student, other students or staff.5 Schools don’t need to wait for regulators to enact change. Instead, you may choose to reconsider disciplinary processes for students with disability and educate staff on how to avoid the use of exclusionary discipline. For example:
What is exclusionary discipline?
The Disability Royal Commission defines exclusionary discipline as actions by an educational authority or institution that results in the withdrawal of education or training from students with disability, including suspensions and expulsion.
The national and state-based Child Safe Standards already recognise student empowerment and parental and community participation as critical to a child safe organisation. The Royal Commission draws on this to recommend schools develop or update policies to include requirements for student and parental communication to be clear and accessible, be “co-designed with people with disability and their families” and indicate the type of decisions where the school will seek formal parental agreement, such as approaches to behaviour management.6
There is also a focus in the Disability Royal Commission’s recommendations for intersectional engagement, particularly with First Nations students and parents.
Another recommendation is that school registration requirements should include oversight by regulators of:
In Victoria, this would assumedly form part of the Victorian Registration and Qualifications Authority’s regular reviews of independent and Catholic schools. Similarly, the NSW Education Standards Authority, Non-state Schools Accreditation Board or other relevant regulators would take on this responsibility.
We often help clients navigate reasonable adjustments for students, but often this is at the end of a long process of behaviour management plans and various adjustments that haven’t supported the student as intended. We consider the Disability Royal Commission provides schools with a timely reminder (as the quiet, summer period may allow respite for policy review), that there is much they can do proactively to support both disabled students and their staff in providing an inclusive and accessible school environment.
Both our Education and Safeguarding teams can help by working with you through consultation, policy review, implementation of new practices through tools and training to implement systems that work in your specific school community, reflect the values and beliefs of the Disability Royal Commission and ultimately seek to improve the experience of education of disabled children. If you want to get started, we recently published a few tips for schools to ensure child safety for disabled students and comply with their legal obligations.
For a broader perspective on the Disability Royal Commission from our Safeguarding team, we have also published:
1Disability Royal Commission, Recommendation 7.14.
2Disability Royal Commission, Recommendation 7.15.
3Disability Royal Commission, Recommendation 7.1.
4Equal Opportunity Act 2010 (Vic) s 41.
5Disability Royal Commission, Recommendation 7.2.
6Disability Royal Commission, Recommendation 7.6.
7Disability Royal Commission, Recommendation 7.11.