Australian Teachers and the Law

How Australian Education Laws Affect Your Role and Responsibilities

One of the most overlooked aspects of being a teacher is knowledge of what is legally required.  Several Acts pertain to the education sector of which teachers need to be familiar.

Most teachers are oblivious to how the law affects their work as well as the implications of the law on their work. When I began teaching, I was informed that the roll was the only legal document I had to make sure was done and done properly… But that is no longer a reality.  Many elements of the law have demands and consequences for school staff.  They pertain to staff employment, student enrolment, privacy of information, curriculum planning and adjustments, safety (including building and fire codes) and risk assessments, and student protection matters.

When we think about law we need to look at both Commonwealth and State Law.

Education is not listed in the Australian Constitution as a responsibility of the Australian Parliament, which means it is a responsibility of state and territory parliaments. This means state and territory parliaments, particularly education ministers and departments, run schools and set education policy.

Here's where it gets more complex. The Australian Parliament is able to collect more taxes than states, so the Australian Government has more money than the states to spend on things like education. Although the state and territory governments run their schools, they may need to follow Australian Government policies to receive federal government funding. Section 96 of the Australian Constitution allows the Australian Parliament to give money—' tied grants'—to state governments based on certain terms and conditions.

In 2008, all Australian governments agreed a national curriculum was needed to deliver an equitable, quality education for all young Australians and the national curriculum was developed over a number of years.  Interestingly though, implementation of the Australian Curriculum is the responsibility of state and territory Government Authorities and may be implemented differently from state to state.

The Australian Education Act 2013 sets out the current federal funding arrangements for schools.  This has a profound effect on the non-public sector (independent or denominational schools) and what is requested as part of compliance matters.   When money is given to schools, it must be spent and accounted for, which has specific compliance evidence be provided.  

When it comes to applying to schools in Australia, there are a few relevant acts and policies to consider. Here's a brief overview:

1. Education Act (varies by state/territory) - These acts generally outline enrollment procedures for public schools.
   
   
2. Australian Curriculum, Assessment and Reporting Authority Act 2008 - Established ACARA, responsible for national curriculum development.
   
   
3. Disability Standards for Education 2005 - Ensures schools cannot discriminate against students with disabilities during the application process.
   
   
4. Racial Discrimination Act 1975 - Prohibits discrimination based on race, colour, descent, or national or ethnic origin in school admissions.
   
   
5. Sex Discrimination Act 1984 - Prevents discrimination based on sex, gender identity, or sexual orientation in educational institutions.
   
   
6. Equal Opportunity Act (varies by state) - Ensures equal opportunity in education, including admissions.
   
   
7. Privacy Act 1988 - Governs how schools collect, use, and disclose personal information during the application process.
   
   
8. Workplace Health and Safety Act (varies by state/territory) - Ensures the safety of workers.
   
   
9. Child Protection Act (varies by state) - Ensures children are kept free from harm.

Let’s have a look at these in a little more detail as they pertain to teachers in particular.

Education Act (varies by state/territory)

These acts generally outline enrollment procedures for public schools.

The impact for teachers here is the importance of accurate roll-keeping.  Remember that with digital rolls, the exact times when your roll is marked are recorded, which is a significant change from the old paper rolls that allowed for some leniency.

Rolls are often subpoenaed through the courts with family disputes and at times staff can be called as witnesses in such cases.  Your credibility can come into question in court (which is very uncomfortable) if your rolls have not been timely marked.

Queensland - Education (General Provisions) Act 2006
New South Wales - Education Act 1990 No 8
Australian Capital Territory - Education Act 2004
Victoria - Education and Training Reform Act 2006
Tasmania - Education Act 2016
South Australia - Education and Children's Services Act 2019
Northern Territory - Education Act 2015
Western Australia - School Education Act 1999

Australian Curriculum, Assessment and Reporting Authority Act 2008

Established ACARA, responsible for national curriculum development.

Planning and reporting are covered under this law.

Depending on State Education Authorities directives planning is to come from the designated National Curriculum on three levels - Yearly, Term and weekly/daily.  This planning needs to be documented with reference to the national curriculum.  This planning can be requested and audited.

Planning is required at three levels At present there is a legal requirement to report in writing twice yearly on a five-point scale in plain English.  In addition, two progress report interviews are required annually.

NAPLAN is a legal requirement for schools.  It has strict protocols that teachers must follow.  These are all listed in the handbook, which is essential reading before the tests.

Australian Curriculum, Assessment and Reporting Authority Act 2008

Disability Standards for Education 2005

Ensures schools cannot discriminate against students with disabilities during the application process.

This has significant implications for planning.  Students with disabilities require adjustments to be made.

There are support measures with this through schools in the creation of individual plans for such students.

NCCD (the funding mechanism) currently requires that at least 10 weeks of evidence relating to the degree of disability adjustments is evident and is collected and can be audited. The Act itself suggests that these adjustments are not just in the ten-week evidence period however but for the full school year.  It piggy-backs on the three-level planning mentioned previously.

This can be quite onerous but the legal implications are significant as are the financial implications to provide such ongoing support at the designated level.

Disability Standards for Education 2005

Racial Discrimination Act 1975

Prohibits discrimination based on race, colour, descent, or national or ethnic origin in school admissions.

This is fairly self-explanatory and is more for school administrators. It does pertain to the actions of staff which could affect a student’s ongoing enrolment. Usually, this is addressed in annual compliance professional development.

You may wish to consider how you address your curriculum delivery, especially in History And Social Sciences (HASS).  It would be wise to read the elaborations in the National Curriculum.

Racial Discrimination Act 1975

Sex Discrimination Act 1984 

Prevents discrimination based on sex, gender identity, or sexual orientation in educational institutions.

This is also fairly self-explanatory and similar in nature to the Racial Discrimination Act.  The general implications really are to treat all people with equal respect.

School sports where there have been non-gender specific teams (e.g. rugby league) cannot exclude anyone based on their gender unless a specified boys or girls competition has been specified.  For example, a Rugby 7s tournament is open and as such a team can comprise any gender.

Sexual orientation issues have been raised regarding school camps.  Issues where homosexual students have requested to be housed with opposite-gendered students as an example.  We would urge you to leave these decisions with school leadership which would be checked by the Department of Education.

Sex Discrimination Act 1984

Equal Opportunity Act (varies by state)

Ensures equal opportunity in education, including admissions.

This is also fairly self-explanatory.  Each individual must be given the same opportunities.  This means that schools cannot exclude the enrolment of a student based on a history at another school and are obliged to provide the same educational opportunities as other students.

This relates to the Disability Act.  In fact the National Curriculum states the Disability Discrimination Act 1992 and the Disability Standards for Education 2005 provide advice for teachers on how to meet their responsibility to provide students with disability the same opportunities as other students, including the right to education and training ‘on the same basis’ as students without disability.

'On the same basis', requires teachers to provide comparable learning opportunities and choices for students with disability to those offered to students without disability. The Australian Curriculum supports this by providing a curriculum framework that can be used flexibly to meet the needs of all students.

ACARA responds to ‘on the same basis’ through a curriculum that provides:

• equitable opportunities and choices for all students
• rigorous, relevant and engaging content
• age and/or year-level content to identify key concepts that align with students’ interests and abilities.

Privacy Act 1988 

Governs how schools collect, use, and disclose personal information during the application process.

The Privacy Act has impacted significantly on teachers and how they operate.  It comes down to the collection and display of student data, email communication, citing students in disciplinary matters and the storage of your hardcopy files.

Student data needs to be made private.  The use of achievement data, behavioural charts and the like being displayed in a public space (including a classroom) is a breach.  Schooling systems have gone to electronic, closed portals where student data is only accessible to people on a need-to-know basis.  At times this means that student specialist reports are not accessible to the child’s teacher.  This is important to discuss with parents early in the school year.  Ask if there are any reports that will assist in delivering their child’s program.  If you receive a copy, this must be kept secure (locked filing cabinet), not left on a desk with a pile of papers.

Email communication needs great care.  BCC emails are the best option as they do not share the email address of the recipients.  Be very careful with attachments in emails.  Double-check that they do not include other student’s details or mention students other than the one whose contacts with whom you are communicating.  Be very wary with class blogs not to disclose any personal information on students - keep them generic to what the class is doing and remember that posting of photos needs to be only of students who have had photo clearance provided by parents/guardians.

When meeting or communicating with parents, care needs to be taken NOT to mention the names of students other than the parent/guardian’s child.  Stick to the behaviour of the child in relation to ‘another child/ren’.  In interview settings, the parent/guardian will no doubt know who the other child/ren is/are but it is not for you to engage in this apart from assuring them that they are being followed through on the matter.

Finally, do not leave material on your desk when you leave a room.  Assessment papers, student reports, hard copy correspondence and the like should be locked away.

Privacy Act 1988

Workplace Health and Safety Act (varies by state/territory)

Ensures the safety of workers.

Nothing brings more groans from teachers than the term WHS!  It has certainly taken what was simple and taken for granted to a whole new realm.  Just don’t forget that the safety of people is the intent of the Act.

Unfortunately, the foolish actions of a small few have impacted on the sensible majority!

As it pertains to teachers, the Act has become largely about compliance with regulations.  This has manifested in clothing policies, excursion requests and risk assessments, science experiment risk assessments, use of tag and tested electrical appliances.  As annoying as it may seem, compliance with policies in this matter is a legal matter and not a choice.

Schools now have dress codes for staff.  Most of this is based on sun safety.  Due to the number of slips and falls recorded through Work Cover, directives have been made regarding suitable footwear.  Even though it might seem unfashionable, it is something you must adhere to.

Excursions have become a significant paper trail. I personally believe excursions are extremely valuable learning experiences when related directly to the curriculum.  However, heading off-site has been regarded as high risk due to a number of societal factors, including the self-discipline levels of many students.  If you intend to go on an excursion, knowing where you are going is a priority.  That is knowing the layout, content and mode of travel.  Relate how your students will respond in such circumstances.  And don’t forget the equal opportunity and discrimination acts, mean students can’t be excluded.  It’s one in all in!

Excursions/camps where high-level physical demands and safety equipment need to be carefully considered. Consideration of the capacity of the students as well as staff well-being is paramount.  Sufficient staffing needs to be allowed so that sufficient sleep is achieved.  Drivers have regulated, in a day, a maximum of 12 hours of work with 7 hours of continuous stationary rest time and they are not supervising students for three days or more.  And remember camps, in the main, are honorary and voluntary.

Child Protection Act (varies by state)

Ensures children are kept free from harm.

The Child Protection Act has several implications for school employees.

It includes working with children checks and this varies from State to State.  It is largely a school leadership employment concern.  However, it is the responsibility of the employee to ensure they comply with the requirements when working with children.  This process is usually done through teacher registration or through applications for non-registered teachers (such as school officers) to work with children check (often referred to as a Blue card).

It also incorporates mandatory reporting requirements by teachers where there is suspected harm occurring to students in their care.  This involves documentation of facts through system protocols and given the nature of harm either a report to the police or the Department of Children’s Services/families.  Each sector has mandatory annual training in this sector of the law.

Teachers Award

And let’s not forget your Award!  The conditions of your employment and wages are listed in this.  This lists a range of legal requirements of the employer regarding your employment which include hours of work, wages, leave conditions, non-contact time, duties, compliance, and training.  This is a document you should familiarise yourself with.  Most union enquiries tend to be based around this.  The depth of your role would mean that it is too exhaustive to deal with generally here.

So as you can see there is a large amount of law that applies to your job as a teacher.  You must remember your legal obligations as breach of these can end up in disciplinary matters, loss of job, legal proceedings against you or even fines and jail.

In a profession where legal obligations and responsibilities are ever-evolving, being a member of TPAA provides teachers with the essential support and protection they need.

Professional Indemnity Insurance
Covers your legal liability for a breach of your professional duty and means legal costs and damages that come out of negligence claims are taken care of. For teachers and training consultants, this type of cover is essential.
The TPAA PII Policy: provides cover for up to $10 million, has unlimited retroactive cover, and has run-off cover for a period of 84 months. Including civil liability for loss arising from any negligent act, error or omission.

Workplace Protection
TPAA's expert industrial support team are considered to be some of Australia's best. TPAA guarantees expert industrial support to ensure you're represented for a variety of workplace issues including Enterprise Bargaining, pay disputes, internal disputes, bullying and more. Most importantly, we guarantee a resolution to your issue. RUSH will pay for a lawyer to act on your behalf for matters that require one.

The TPAA is here to support you throughout your journey, we are committed to protecting the rights of our members and ensuring that they have a safe and healthy workplace.

Why is the TPAA different? We believe that real change in education STARTS with empowering teachers, not bureaucrats.

We invite you to experience the support, protection, and advocacy of TPAA yourself.

Want to find out more or have a question? Get in touch with us:
Phone: 1300 252 777
Email: hotline@tpaa.asn.au
Or book a meeting

Best of luck in your teaching career!