We have previously written about Adass Israel School (School) being ordered to pay $1.1 million to a former student for the sexual abuse she suffered at the hand of headmistress Malka Leifer during her time at the School.
Victorian Police had initially ruled out an investigation into the involvement of the Adass Israel School Board in Ms Leifer’s abrupt departure from the country just days after she was stood down as headmistress.
However this week the Police have advised that they are now investigating the possible criminal actions of board members who helped Ms Liefer leave Australia to avoid detection for the alleged child sexual offences.
This update to the case is a reminder to school board members that they have legal obligations under various pieces of legislation and that they need to understand and comply with their obligations.
While The Australian reported last week that there would be no police probe into the actions of members of the School Board for ‘squirrelling headmistress and serial sex abuse Malka Leifer out of Australia to avoid investigators’, this week the Victorian police have sent a different message.
A Victorian Police spokeswoman has said that ‘police will be looking at this as a broader part of the investigation to determine whether an offence has been committed.’
Legal experts have said that the actions of the School Board were a clear case of criminal behaviour. The Australian quoted Rob Melasecca, a former head of the criminal law section of the Victorian Law Institute saying ‘that at a bare minimum the actions of individual board members in helping Leifer out of the country in the middle of the night warranted a serious investigation.’
Mr Melasecca told The Australian that individuals who helped a person escape an investigation and potential prosecution were ‘without a doubt’, under Victoria’s criminal code, an accessory to a crime.
Section 325 of the Crimes Act 1958 (Vic) provides that any person who, knowing or believing that another is guilty of an offence, does any act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the offender is guilty of an offence. The offence carries the possibility of a jail term of at least five years in Victoria.
Similar accessorial offences exist in the criminal laws of other States and Territories.
While the application of this offence to the School Board members in question is purely speculative at this stage, the Board could be facing serious criminal liability for their attempts to hide the criminal acts of one of the School’s employees.
Earlier this month, in his judgment, Justice Rush was extremely critical of the actions of the Board members that helped Ms Leifer flee the country, despite knowing she might have sexually abused more than eight female students at the School. For example, as was discovered during the Supreme Court case, the School had paid for Ms Leifer’s and her family’s urgent plane tickets to Israel.
Although it is important for schools to understand that the Adass Israel School factual scenario is rather unique, all schools should be aware of how the acts or omissions of their board members can lead to criminal or civil liability.
In addition to having common law obligations, board members of non-government schools are subject to a variety of statutory obligations under Federal Acts such as the Corporations Act 2001 (Cth)and under State and Territory Acts such as workplace health and safety legislation.
For example, under the Corporations Act 2001 school board members are subject to the same duties as directors of corporations, including the duties to:
See our earlier articles on the governance obligations that school board members need to be aware of to avoid liability for a breach of their fiduciary or legislative obligations.
Due to the sheer amount of legislation which applies to the actions of school boards, there is a heightened risk for board members of incurring liability for breach of their duties. Accompanying this risk is also the possibility of reputational damage for the school as the acts of the school board members are often seen as the acts of the school as a whole by the public and the media. However, by utilising compliance and risk management systems, being aware of the various legislative obligations and performing their duties in a balanced and well-informed manner school boards can mitigate this risk.