The Enrolment Contract and Disciplinary Issues
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Transcript of The Enrolment Contract and Disciplinary Issues
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Association of Independent SchoolsSchools and the Law Seminar
March 22, 2012
f
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Legal Risk Strategic
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Potential breach of enrolment contract
Breach of Disciplinary Policy
Breakdown in Relationship
Duties of care
Reputation Risks
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Express terms of Enrolment contract
Exclusion from the school Serious breach of rules Relationship of trust No remission of fees
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Express terms of Enrolment contract
Disclosure of informationrequired to deliver services
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Implied terms of Enrolment contract
Must be reasonable Essential to contract Obvious Not contradictory to
express terms
Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR
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Implied terms of Enrolment contract:
Procedural Fairness
Circulation of Policy Communication with parents Consideration of issues and circumstances Opportunity to respond Informed of potential consequences Reasonableness of response
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Implied terms of Enrolment contract:
That school is safe for students
Violence not tolerated Policies implemented Reasonable care is taken to
avoid injury or harm
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Allegation of Reportable Conduct…
Ill-treatment:
Is the punishment proportionate to the offence?Was it unreasonable in the circumstances?Was it excessive?Was it inappropriate?
NSW Ombudsman Guidelines: Practice Update 2011/1
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Anti-Discrimination legislation
Known condition/disability?
Failure to adjust policies to meet needs of the student
Purvis v NSW DET (2003) HCA 62Disability Discrimination Act (Clth) (1992)
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Talented History of violence Safety of others Threatens coach...
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Knowledge of policies Right to respond Impartial decision-making Specific considerations Communication with parents Access to education Implications of decision Punishing Matthew or his parents?
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Threat of violence to coach
Duty of care to students
Duty of care to staff
Risk of further violence
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Angry Denial of Matthew’s rights Media Petition
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s 4(1) Inclosed Lands Protection Act (NSW) (1901)
Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding: (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case.
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Defamation Act (NSW) 2005
Publication of any false imputation likely to cause injury – must show that words have been publicised
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Repudiation of the Enrolment Contract
Readiness and willingness to operate in accordance with thecontract
Klewer v Trustees of Roman Catholic Church for the Diocese of Lismore (2005) NSWSC 773
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students
staff
reputation
media exposure
legal proceedings
t
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Is this a matter for the board?
Why?
Why not?
I
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Am I at risk?
Am I impartial?
Can I see the big picture?
What are my sources of advice and support?
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What other risks do you see?
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What is important here?
What do I want to achieve?
Why?
How do I get there?
What do I need?
W
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L1, 299 Elizabeth StSydney NSW 2000
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