School record keeping obligations are multifaceted and data retention remains an ongoing and complicated issue. Retaining data for too long raises the risk of data breaches being more damaging and significant for schools. However, we acknowledge schools are also grappling with retention requirements, particularly regarding child safety information.
But how long is too long? Schools are not at liberty to simply dispose of all information relevant to a student once they have ceased being educated by that school. For example, Victorian schools are obliged under the Ministerial Order 1359 (MO1359) to create, maintain and dispose of records relevant to child safety and wellbeing in accordance with the Public Records Office Victoria (PROV) Recordkeeping Standards, including minimum retention periods (clause 6.2(f)).
School recordkeeping obligations require schools to define their maximum retention periods for different categories of records and ensure these are applied across physical and digital information assets.
The reference to ‘child safety and wellbeing’ in MO1359 is broader than the PROV standard, PROS 19/08, introduced in response to the Royal Commission into Institutional Responses to Child Sexual Abuse. This standard requires organisations, in relation to records about organisational responses to child sexual abuse, to:
What about documents that are not ‘records about organisational responses to child sexual abuse’? This is where schools need to balance competing obligations, such as contractual and legal requirements, including under privacy law, which requires organisations to destroy records when they are no longer required. Student data may involve sensitive and health information and other detailed personal information which carry specific privacy obligations.
There are several matters to consider when balancing privacy and the MO1359 requirement to retain records relevant to ‘child safety and wellbeing’. We recommend all schools create a Data Retention Policy that outlines those considerations and identifies the retention periods for different categories of student data to have a clear understanding of their framework for data management and retention.
There is no ‘one size fits all’ document that will serve the school’s purpose in this regard. Each school will have to make decisions itself and develop its own policy.
The shift to digitised and digital records also means that Schools need to consider privacy and data retention in their systems and applications. Privacy and data security risks can be managed by undertaking a privacy impact assessment to consider how school requirements translate into new systems and processes.
Moores has helped a number of schools and other education providers with the creation of Data Retention Policy’s since MO1359 was enacted in July 2022.
We have also facilitated privacy risk assessments for new systems and processes that impact student data and records management.
We are more than happy to guide you through the steps required to ensure you are creating adequate retention periods, implementing new systems in alignment with your privacy requirements, and also advising how best to avoid a data breach in respect of such personal and sensitive information.
Please contact us for more detailed and tailored help.
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This article was originally published October 2022. Updated December 2023.
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.
Uniform and dress codes have commonly found themselves in the media, often when found to be at odds with changing societal expectations and values. Since 2017, female students at Victorian government schools have been allowed to wear shorts and trousers.1 Independent schools have a choice. Here we discuss what factors may influence your school’s choice over uniforms and dress codes.
There is mounting pressure on schools to ensure that their uniform policies promote equal participation and are tailored to the needs of different students, including on the basis of their sex, religion, culture, disability and gender identity.
Students must not be discriminated against on the grounds of personal characteristics such as gender identity, religious beliefs or sexual orientation (among others). These characteristics may impact how a student responds to a uniform requirement, and this could result in indirect discrimination. Indirect discrimination is when treating everybody the same way disadvantages someone because of a personal characteristic.
Example: Arora v Melton Christian College2
VCAT found the College had contravened the Equal Opportunity Act 2010 (Vic) because:
The Equal Opportunity Act 2010 (Vic) (the Act) contains an exception that permits schools to set and enforce reasonable standards of dress, appearance and behaviour for students (the Exception).3 A standard of dress will be ‘reasonable’ if the school has taken into account the views of the school community in setting the standard. This means, if community views are changing, your standards may also need to change. The more extensive, engaging and collaborative the consultation process, the more likely it is to be considered reasonable. When did your school last review its uniform policy?
Could elements of the school uniform put students at risk? Consider the risks of:
Ministerial Order 1359 requires schools to pay particular attention to the needs of students with a disability, students from culturally and linguistically diverse backgrounds and LGBTQIA+ students – who may be disproportionately impacted by uniform policies.
You can find broader information about transitioning to a more gender inclusive school environment here. We also talk about associated topics of bathrooms and events regarding gender inclusion here.
Setting a dress code can promote a shared sense of identity and pride, allow students to feel equal and enhance the profile of the school in the wider community. Whilst there can be many benefits associated with a dress code, they should be sensitive to the needs of different students and sufficiently flexible to promote equal participation. Schools must achieve a balance between imposing standards of dress and behaviour with their obligation not to discriminate against students on the basis of a protected attribute; one being sex where the questions of trousers for girls arises again.
Pants and trousers are less common options for girls under the dress codes in non-government schools. However, advocates for uniform reform argue that forcing girls to wear dresses and skirts reinforces rigid gender stereotypes, limits physical movement and makes girls less inclined to exercise or participate in sporting activities.
Moores can help your school with:
1 http://www.theage.com.au/victoria/girls-win-right-to-wear-shorts-and-trousers-to-all-victorian-state-schools-20170912-gyfwf9.html
2Arora v Melton Christian College (19 September 2017 – VCAT)
3 Equal Opportunity Act 2010 (Vic) s 42.
The school year is coming to a close. Many students are already on summer holidays. We are certain teachers are looking forward to the holidays as well. Before you depart, we have some recommendations for our school clients to consider in your planning for priorities in 2024.
Our Education team can help with any of the above recommendations to help your prepare for the summer holidays and the 2024 school year.
We know term three means schools start thinking about next year’s enrolments and many schools have already set their budget and approved the 2024 fees. For the 2024 school year, there will be changes to the Australian Consumer Law which may cause you to update the documents which constitute your Enrolment Agreement with families. We take a look into these changes, scheduled to come into effect on 10 November 2023, for the perspective of independent schools. Here’s what to know:
A term in your enrolment agreement may be unfair if it:
Whether a contract term is ‘unfair’ depends on the particular circumstances of that contract and ultimately can only be determined by a Court. There is a recent decision from the ACT Civil and Administrative Tribunal about an Enrolment Agreement: Brindabella. We wrote about this here.
Brindabella found:
The use and application of, or reliance on, unfair contract terms is prohibited. Previously, unfair contract terms could be deemed void and unenforceable by the Court. Now that unfair contract terms will be prohibited, the Court can impose financial penalties for breaches of this prohibition. This change is a stronger protection for consumers.
For the Australian Consumer Law to apply, and the possibility of an unfair contract term to be relevant, a contract must be considered a “standard form contract”. The changes are expanding the definition of “standard form contract”, and therefore the application of the Australian Consumer Law.
More information from the Australian Competition and Consumer Commission is here.
In the current economic climate, and with many schools increasing fees in response to the payroll tax, there is a commonly felt “pinch” in the industry and among parents. This increases the risk that parents may (among other things):
In July 2022, we recorded a webinar which you can watch for free to get you started on any updates that may be needed, both in response to Brindabella, and these amendments to the law.
Another risk is that the Australian Competition and Consumer Commission (ACCC) may prioritise enforcement of these new laws, and proactively take legal action against organisations who are in breach of the Australian Consumer Law.
Enrolment Agreements can be complicated. You are providing a service to the students you are educating, but you are contracting with parents. You are entering into an agreement for Prep and seeking to enforce that agreement years later. We can help update or redraft these contractual documents in a manner that reduces the risk of any breaches of the Australian Consumer law, but also to give you strong contractual rights to collect fees critical to ongoing operations. We also work in disputes when there are termination or withdrawal or enrolments, or other disputes with parents.
1Competition and Consumer Act 2010, Sch 1 “Australian Consumer Law”, s 24(1).
The September school holidays are around the corner, and summer holidays will be here before we know it. With holidays can come students going to parties, drinking, taking “compromising” photos and spending many more hours than usual on social media. As part of our work for National Child Protection Week (3 to 9 September 2023), we’ve reflected on the key risks to young people heading into school holidays and the extent of the school’s duty of care in that holiday period.
It is the duty of schools and teachers to take reasonable steps to reduce the risk of reasonably foreseeable harm occurring.
The extent of the duty of care has steadily been increasing in recent years, both through legislative tools (Ministerial Order 1359) and case law. We’ve previously explained the expanding “school environment” and decision of PCB v Geelong College [2021] VSC 633. The key takeaway from this case was that schools can be responsible for the acts of third parties, who are volunteers, or members of community groups, when the school facilitates the introduction or connection with students, and risks are reasonably foreseeable but not addressed.
Discharging the duty of care means understanding what reasonably foreseeable risks students are facing. Over school holidays, we have seen risks of:
Schools cannot, and are not expected, to prevent any harm occurring. Instead, the duty is to take reasonable steps to mitigate the risk of these harms occurring. Schools may well have a duty of care to students even on term break, particularly where behaviour involves another student from the school. Once the school is informed of any issues, it needs to act and take reasonable steps to investigate. Whilst general reminders are insufficient to discharge the duty of care with respect to known incidents, a reasonable step towards discharging the duty of care will often be education. With the reduced level of supervision and oversight over school holidays, providing students with information about their rights, responsibilities and how to seek help and support can prevent harm occurring, and/or escalating. It is a requirement under the Ministerial Order 1359 that schools:
Schools should use end of term assemblies and communications to reiterate:
We offer training for school staff about the duty of care, online safety and how to respond to identified risks of harm to students. We also offer information sessions and seminars for students to informed students about their rights and responsibilities, both in terms of the affirmative consent model and being a digital citizen to students as part of our Safeguarding and Child Safety work.
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 your organisation.
1eSafety, Digital Lives of Aussie teens (2021) page 5. You can download the full report here: https://www.esafety.gov.au/research/digital-lives-aussie-teens
2 eSafety, Digital Lives of Aussie teens (2021) page 11. You can download the full report here: https://www.esafety.gov.au/research/digital-lives-aussie-teens