The Australian has reported that, according to lawyers, 'South Australia’s schools should brace themselves for a 'wave' of lawsuits amid a string of failing anti-bullying policies'.

It reports on a case lodged in the District Court of South Australia, against an SA non-government school. The case concerns an autistic man who, according to the report, claims that he was bullied. This bullying is alleged to include:

• an incident in which a ball was repeatedly thrown at him, breaking his index finger; and
• an incident where he was burnt using a cold aerosol spray.

The school has yet to file a defence in relation to this case. The article goes on to quote lawyers as stating that there will be a 'wave' of bullying suits in the next 5-10 years.

A South Australian lawyer, Mal Byrne, is quoted as saying bullying 'is definitely on the increase, there are children as young as eight coming to us with reports of being isolated, psychically hurt, having food stolen and receiving threats'.

The article goes on to refer to two separate incidents. In one incident reported by Adelaide Now, a page was set up on Facebook that allowed students to post bullying remarks, rumours and gossip about students. In another incident, also reported by Adelaide Now, a female year 9 student was allegedly taped to a tree and sexually assaulted.

These cases are on-going, or subject to investigation, and have not yet been finalised.

SA independent schools still not subject to specific registration requirements

These incidents, which focus on not only the actions of school administrators and teachers, but also their policies and procedures, will undoubtedly raise questions about a school's duty of care.

Currently South Australia is the only jurisdiction in Australia where non-government schools are not subject to specific registration requirements. This means that non-government schools do not have to meet requirements about policies, procedures and governance, despite all non-government schools being automatically registered on the SA Register of Schools since 2012, in accordance with the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) (the Registration Act).

Although the Registration Act states that a non-government school may be registered if the Education and Early Childhood Services Registration and Standards Board (the Board) is satisfied that:

• the nature and content of the instruction offered... is satisfactory;
• the school provides adequate protection for the safety, health and welfare of its students; and
• the school satisfies any other requirements set out in the regulations for the purposes of this subsection;

no such requirements have been enacted by regulation. Section 54 of the Registration Act states that a school's registration must be reviewed 'in accordance with any requirements set out in the regulations'. The Regulations, which came into effect on 2012, contain no such requirements.

The upshot of all of this is that non-government schools continue to be registered without having to comply with any registration requirements because they have not yet been enacted. It has now been almost 3 years since this registration scheme came into effect. In the Board's 2013-2014 Annual Report, the uncertain state of affairs is acknowledged by the reference that 'the Board will also be required to review the registration of schools in a manner yet to be determined'.

This is in contrast to other states where discrete, specific policies and procedures are mandated as part of a school's ongoing legal obligations. In New South Wales, for instance, specific anti-bullying policies are required. Such policies are also required in Western Australia and Victoria.

A recipe for disaster?

Although a lack of registration requirements does not mean that a school does not still need to fulfil its common law duty of care to students, and other legal obligations, it is troubling that non-government schools can continue to operate without this additional level of regulation.

The policies and procedures which a school has in place at any time, and the question of whether these policies are followed or implemented, can be a central question in legal proceedings.

Comment has been sought from the South Australian Department for Education and Child Development, as well as the Minister for Education and Child Development. At the time of publication no response had been received.