LEGAL DIVISION

Who are we? • Kate Rattigan, Executive Director, Legal• Elly Gay, Manager Workplace, Discrimination and

Disputes Unit• Elena Totino, Manager Children Families and Education

Law Unit• Terrie Benfield, Manager Commercial and Property Law

Unit• Melanie Hodge, Manager Legislation and Government

Law Unit

People and Executive Services Group: PESG

EXECUTIVE DIRECTOR

Frequently asked questions

– What is the role of the new Legal Division? – When should a principal involve the Legal Division as

opposed to local police/own solicitor/union/professional organisation?

– How does the Legal Division work with Employee Health, Conduct & Ethics, Infrastructure, HR?

– What can I expect from the Legal Division? – Where do I go if I am not happy with the services of the Legal

Division? – What are the most common requests for legal advice from

school principals?

NEW LEGAL DIVISION RESOURCES FOR PRINCIPALS

1. Dedicated Legal edugate page

2. Service Catalogue

3. Newsletter for schools

4. Each Unit developing own resources for schools (fact sheets, templates etc)

“Focus on Legal” Newsletter

• Focuses on legal issues relevant to schools• Published on the Legal Division eduGate site

eduGate > Services > Legal > Focus on Legal• Direct link available from the DEECD Schools Bulletin

First issue:– Legal advice on students with disabilities– Legal advice on school purchasing arrangements

*Look out* for second issue:– Complying with a witness summons / subpoena– Legal advice on part-time enrolment for a student with a

disability– Legal case on student bullying

Legal Division “Service Catalogue”

• Inappropriate Behaviour on School Premises

• Page 33 • Child Protection and Mandatory Reporting • Page 34 • The Roles and Responsibilities of Parents,

Guardians and Carers • Page 35 • Duty of Care for Schools • Page 36 • Subpoenas & Witness Summonses • Page 32 • Australian Human Rights Commission

Complaints • Page 22 • Victorian Equal Opportunity Commission

Complaints • Page 22 • Conciliation and Mediation in Litigation • Page 24 • Students with Disabilities Legal Advice • Page 25

• Personal Injury and Property Damage Claims (negligence or ‘liability’ claims)

• Page 26 • Fair Work Investigations, Notices and Disputes • Page 27 • Employment and Occupational Health and

Safety Legal Advice • Page 29 • Court, Board and Tribunal hearings • Page 30 • Ombudsman and Coronial investigations,

Inquiries and Inquests • Page 31• School Councils General Property and

Commercial Matters • Page 16 • Procurement Legal Support for School Councils • Page 17 • Shared Use of Facilities for School Councils • Page 19 • Leases, Licences and Joint Use Agreements • Page 20

New Legal Division “eduGate Page”

How to find us

eduGate >

Services>

Legal

EXECUTIVE DIRECTOR

Top Tips for Principals1. Good decision-making

• Parent may not like the outcome but if you have followed a proper process and formed a belief on reasonable grounds, you will be in a good position to defend the complaint.

• Demonstrate that you have taken into account competing interests – perspective of student, parent/guardian, costs, impact on others (staff / students), safety, duty of care, rights of those with legitimate interests. Document reasons for decision.

2. Good communication• Effective management of the relationship can prevent escalation of the issue.• Communicate decision with confidence but demonstrate proper consideration of

relevant interests. • Consult and listen but stand ground on vexatious complainants.

3. Good documentation• Take a file note to record reasons for decision and consultation process, write a

follow up letter, take down a chronology of events and keep records in order (FOI, subpoenas, discovery in litigation).

WORKPLACE, DISCRIMINATION AND DISPUTES UNIT

• We provide legal advice and representation to principals in Commissions, Tribunals and Courts in relation to employment law, discrimination law, human rights, negligence claims, inquests

• Some key areas of service to schools:– Discrimination law, sexual harassment and human rights legal advice,

complaints and litigation management (claims by parents/students and staff)

– Students with disabilities, serious medical conditions and challenging behaviour

– Fair Work Commission applications and disputes (including unfair dismissals and adverse action)

– Assisting principals to respond to correspondence drafted by lawyers and advocates relating to students with disabilities or employment issues

– Management of litigated and non-litigated negligence claims (personal injury and property damage)

WORKPLACE, DISCRIMINATION AND DISPUTES UNIT

• Top 5 Tips for principals:1. Make reasonable adjustments for all students with disabilities, not just

those eligible for additional funding under the PSD

2. Hold regular SSG meetings, keep good minutes of them, consult experts (internal and external as necessary), parents/guardians

3. Develop and follow detailed ILPs and BMP/BSPs where necessary, with input from experts where necessary, review and update regularly

4. Adverse action – don’t treat staff members who have exercised their workplace rights any differently (eg staff who have asked for part-time employment, taken sick leave, actively engaged in union activities etc)

5. OHS and liability for personal injury – undertake regular safety checks of playgrounds and classrooms. Use EduSafe and check updates/hazard alerts etc. Have comprehensive bullying policies and follow them!

WWD Resources available !

• Workplace, Discrimination and Disputes Unit:– General information on claims for personal injury or

property damage (made by students, parents, visitors to schools)

– Information sheet on discrimination law and making reasonable adjustments for students with disabilities

– FAQ on part time attendance of students with disabilities

– General information on discrimination law (relevant to staff and students)

– General information on Human Rights obligations of schools

CHILDREN, FAMILIES AND EDUCATION LAW UNIT

– This Unit provides legal advice and assistance in many areas of law which include the following:

• Family law and the responsibilities of parents, guardians and informal carers

• Child protection and mandatory reporting• Trespass • Intervention orders • Duty of care eg. supervision; management of medical conditions; and

planning for school activities, excursions and camps• Criminal law investigation and procedures• Student discipline esp. suspension and expulsion • Coronial inquests• Privacy • Subpoenas / Witness Summons

– Due to the high level of demand, the Unit has a duty lawyer service to respond to the day to day enquiries received from clients.

CHILDREN, FAMILIES AND EDUCATION LAW UNIT

TOP TIPS for School Principals:

1. School staff should be mindful of the family arrangements for each student as this can impact on the everyday decision making at the school - Consider the child’s living arrangements and any DHS involvement - Obtain copies of any relevant Court Orders eg. Family Law Orders, Intervention

Orders and Protection Orders

2. School staff should be cautious about using and disclosing personal information and health information belonging to students and staff

3. School staff have a duty of care to their students. This requires that school staff take active and reasonable steps to prevent injuries that are reasonably foreseeable.

4. You have the right to feel safe at your school. There are a number of strategies that can be used to manage the behaviour of students, parents/guardians and others.

CHILDREN, FAMILIES AND EDUCATION LAW UNIT

Resources Available:• Decision making for students

– NEW SPAG page that explains the concepts of parental responsibility, guardians, carers and mature minors.

– It also explains the different types of Court Orders that can impact on decision making for students.

• Intervention Orders– NEW SPAG page that explains intervention orders and how they may impact on a

student, parent or staff member.– It also summarises these Orders can impact the school

• Trespass Notices– NEW SPAG page that explains the authority that Principals have to permit and deny

entry on to the school premises.– It also summarises the process for denying entry and the potential consequences for a

person who fails to comply with a Trespass Notice

CHILDREN, FAMILIES AND EDUCATION LAW UNIT

Resources Available - Continued• Subpoenas & Witness Summons

– NEW SPAG page and Information Sheet that explain the concepts of subpoenas and witness summonses and the legal obligation to comply with them. 

– It also explains the need to be mindful about the content of the documents and oral evidence to be provided

Coming Soon:• Reporting children in need of protection:

– REVISED SPAG page that explains mandatory reporting obligations as well as other reports that can be made to DHS Child Protection.

– It summarises how a report should be made. – It summarises indicators of harm.

COMMERCIAL AND PROPERTY LAW UNIT

• The Commercial and Property Law Unit provides advice on a wide range of DEECD Corporate and School Council commercial and property matters.

• Key areas of service for Schools include:• agreements for the third party use of surplus school premises

(particularly hire agreements and licences)• contracts for the purchase of goods and services• legal issues associated with school council agreements such as:

• conditions of occupation and use• further terms and extensions• payment obligations• releases and indemnities• disputes with licensees and contractors • contract management issues (such as termination rights)

• disputes with school neighbours (for example, fencing and noise complaints)

COMMERCIAL AND PROPERTY LAW UNIT TOP TIPS• General

– Agreements tend to be biased toward the party that drafted them - Use a Department template document wherever possible

– Make sure the School Council is the party to the contract, not the School itself.

– Know the other party – What is their “legal” name? Are they experienced?– Read the contract, the whole contract. If you are in doubt, contact the

Legal Division.

• Procurement:– Pricing and Delivery Issues – How much will it cost? When will you have

to pay? What will you be getting?– Getting out of the Contract – Poor performance, poor delivery, change of

mind?– Renewal of the Contract – Be wary of automatic or limited periods for

renewal– Default – Does non performance (by the contractor) give you a right to

terminate

C&PL - Resources available!

• Commercial and Property Law Unit:– Purchasing goods and services

• Request for quotation• Purchase of goods and services agreements (short and long form)• Purchasing school uniform agreements

– Shared use of facilities• Hire agreements• Stall holder agreements• Licences (including canteen, polling place, OHSHC, pre-school, community

gardens, uniform business)• Joint use agreements

– Cleaning contracts• Checklist for cleaning contracts• Cleaning agreement

– FAQs: polling place licences, cleaning, insurance, purchasing, fences.– Information sheets: chasing up bad debts, contracting tips, trademarks,

invoice scams

More resources and how to contact us

• Schools Policy and Advisory Guide: http://www.education.vic.gov.au/school/principals/spag/Pages/spag.aspxHR Web

• Be mindful of Legal Professional Privilege (keep legal advice confidential)

Legal.Services@edumail.vic.gov.au• Phone: 9637 3146• Hours: 8.30am until 5.30pm