From 1 July 2024 amendments to the School Education Act 1999 (WA) (Act) will come into force, providing legislative guidelines for how to deal with complaints relating to children with harmful sexual behaviours. The Act, which has been amended by the School Education Amendment Act 2024 (WA) (Amendment Act), allows the Chief Executive Officer (CEO) to suspend or exclude a student charged or convicted with a sexual offence from a government school. A new Subdivision 3 (sections 96A to 96I) has been inserted into the Act which provides the CEO with a range of powers in relation to children who have been convicted of a sexual offence.
The newly inserted section 96C, defines a conviction as ‘a court making a formal finding of guilt in relation to a sexual offence; a court convicting the person of the sexual offence, if there has been no formal finding of guilt before conviction, [or] a court accepting a plea of guilty from the person in relation to the sexual offence’.
The legislation aims to foster better protection to students and alleged victims by students who display harmful sexual behaviours.
Suspension and Exclusion Provisions
Under the new legislation, the CEO may direct the Principal of a government school, in writing, to wholly or partially suspend a student if:
- a student is charged or convicted of a sexual offence,
- the complainant attends the same school, and
- the CEO ‘forms an opinion that the continued attendance of the student at the school is likely to adversely affect the complainant’s safety or welfare or ability to learn’.
Prior to making an order excluding the student from attending school, the CEO is required to give notice to the student, the complainant and their respective parents, provide reasons for the decision and invite the parents to respond.
When considering whether an order to exclude a student from the school is justified, the CEO must give consideration to:
- any written or oral submissions provided by the student and their parents, and complainant and their parents,
- the effect the exclusion will have on the student and complainant,
- the school’s capacity to minimise the risk to the complainant’s safety and welfare, and ability to learn, and
- the availability of alternative learning options for the student.
The legislation also provides the CEO with powers to make a range of orders and powers to revoke or amend an order should a student be acquitted, or charges be otherwise dismissed.
What This Means for Schools
Government schools in Western Australia need to be aware of the legislative changes which have commenced. Principals must understand the legal obligations that the new provisions place on them to follow the written direction of the CEO if the CEO directs them to suspend a student convicted of a sexual offence.
In addition, schools have a duty of care to ensure the safety of students under their care, supervision or authority. A school’s duty of care extends to both the student who has been convicted, the complainant and other students attending the school. While a school has an obligation to consider the impact that the student attending school will have on the complainant, they also have an obligation to ensure that the learning needs of the student will continue to be met if they are excluded from school. Schools also have a duty of care to ensure the emotional and psychological wellbeing of their students and therefore will need to consider the impact these new legislative provisions will have on not only students who have been convicted and complainants, but also the wider student community if a student is excluded from attending school.
How can Safe Space Legal Help?
The team at Safe Space Legal have extensive child safety and safeguarding experience. We work with schools across Australia to ensure they are meeting their legal obligations when working with children and frequently conduct independent child safety investigations. Safe Space Legal provides the following services to ensure organisations meet their legal obligations:
- Drafting legally sound child safety policies, procedures, and codes of conduct.
- Supporting organisations to recognise gaps in policy and/or practice which put it at risk of non-compliance with legal obligations through thorough root cause and gap analyses.
- Delivering child safety training to ensure organisations are aware of their legal obligations and duty of care obligations.
- Conducting child safety and safeguarding investigations which are compliant with relevant state and territory Reportable Conduct Schemes.
- Ensuring that complaints handling and reporting processes are compliant with legal obligations and relevant Reportable Conduct Schemes.
- Assistance and support to respond to allegations of child abuse including notifications under Reportable Conduct Schemes.
- Provide sound legal advice on risk mitigation.
Email us here or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.