For many schools in Australia, there is almost a ‘rite of passage’ for their students to be offered the opportunity to attend at least one or more national or international tours as a component of their school learning experiences as part of the ‘value adding’ that schools promote. For many, this could be the annual Year 8 or Year 9 trip to our nation’s capital, perhaps the opportunity to have a ‘student exchange’ with students from a school’s interstate campus or maybe the opportunity to represent their school at a national sporting or arts event.

Of course, international tours are still off the table for the time being, despite the recently commenced COVID-19 vaccine programs in many countries and the recent commencement of the vaccination rollout in Australia, particularly as the first recipients will not be school children or most of their teachers (unless they are over 70). In any case, what school would want to travel on an international tour until they feel that their duty of care for their students, staff and volunteers would not be compromised in any way by exposure to COVID-19? As we stated in an earlier School Governance article this year “The risk of having students or staff infected with COVID-19 in a foreign country would simply make most of us shudder”.

However, let us for a brief moment set aside the current COVID-19 environment and look at school excursions and tours as very much a part of what schools do on a very regular basis. In other words, what would a school usually need to consider for any interstate travel under non-COVID-19 conditions?

Schools are very aware that the duty of care and child safety standards vary considerably in other countries and that some have no requirements at all. Schools are also aware that their responsibility and accountability for the duty of care of their students does not diminish because they are in a less- regulated country. If anything, we would argue that their level of duty of care increases considerably.

However, how many schools are aware of the differences among the requirements of the Australian states and territories for many of the activities that they may propose to do while they are on a tour? Are they aware that their state/territory-based requirements may be considerably different to the requirements of the state or territory that they are visiting?

Anecdotal conversations with several school principals and compliance officers in recent times have highlighted the apparent lack of knowledge and clarity in this area. We have all heard the statement “you don’t know what you don’t know”. However, that is not an acceptable risk control and it would not stand up in court.

The bottom line is that, as a minimum, the school must comply with the laws that apply in the location where they are operating at that time – so e.g. on a visit to Canberra, the ACT laws apply to the tour group as soon as the tour group crosses into the ACT. However, what about any compliance obligations because the school is registered in Victoria?

Schools that intend on taking students on interstate events for any reason need to know exactly what jurisdictional requirements there are in the state or territory that they intend to visit that relate to duty of care issues for their students, staff and volunteers, before they book their tour.

Differences in Cross-border Requirements 

There are a number of instances where duty of care obligations may vary from one jurisdiction to another.

School Governance has in the past discussed the Working with Children requirements for each state or territory. In our article “Who in a School Needs (or Can Get) a WWCC?” we noted that there is a focus on harmonising Working with Children Check (WWCC) or equivalent background check systems across Australia. Several states and territories have now amended their WWCC requirements to meet the National Standards for Working with Children Checks and to enable the sharing of WWCC databases and information across Australia. However, as we noted in our article, there are still significant differences between jurisdictions regarding who needs to have a WWCC (particularly in relation to whether teachers and certain categories of volunteers, such as parent volunteers, must have one), and schools need to be aware of and mitigate for any risks associated with these differences.

In a similar situation, who would be considered to be a mandatory reporter in the state or territory that you are visiting? For example, in the Northern Territory every adult (over 18 years) is a mandatory reporter. Therefore, it is likely that any parent volunteer who accompanies a school trip from Sydney to Kakadu National Park is a mandatory reporter during that trip. Given this, your school would need to consider a number of issues such as:

• Do your volunteers know this?
• Did they consent to having this responsibility before they signed up to attend?
• What training is required?
• Was this considered as part of your overall risk assessment for this tour?

Finally, schools must also be aware of other duties imposed by differences in legislation including those relating to workplace health and safety, such as which workplace safety regulator needs to be notified if there is a serious incident and what actually constitutes a “serious incident”.

Management of These Excursion Risks

In a recent School Governance article, Jamie Bobrowski asked schools the following questions in relation to operational risks regarding staffing:

• What staff to student ratios do we need to ensure that we can run the activities that we are intending to run? 
• What qualifications do the venue staff have and what qualifications do our own staff have and need? 
• Is there any professional development training that we need to consider before we take students on this experience? 
• Have we checked the availability of some of the staff and will the relevant/preferred staff be available for the relevant excursion?

Basically, schools have a variety of both strategic and operational risks that they need to consider for every incursion, excursion, camp or tour that they offer.

However, when dealing with interstate travel, schools must also recognise that, just as they do for international travel, the laws and regulations regarding the duty of care for students can, and do, vary and these must be taken into account in the planning process.

What Should Schools Be Doing?

Before setting out on any excursion or tour that extends beyond your ‘own backyard’, schools need to ensure that their child safe requirements and other duty of care requirements either meet or surpass the requirements in the state or territory that they are visiting. As a risk management strategy, they should also investigate and be aware of any other school-based standards that apply in the location that they will be visiting.

Furthermore, where a school is using external providers at that interstate location, they need to investigate those providers with a thorough due diligence process to ensure that they meet the requirements of both the school’s home jurisdiction and that of the provider’s location. Where the law at the provider’s location sets a lower standard, the school may consider, as it would with overseas providers, developing contractual obligations to raise the provider to the required standard.

The duty is to take such measures that are reasonable in all the circumstances to protect students from risks of harm that reasonably ought to be foreseen. This requires not only protection from known hazards but also protection from harm that could foreseeably arise and against which preventative measures can be taken. The duty of care must be based on individual circumstances and situations and staff need to assess and mitigate the risks associated with whatever class, activity or experience is taking place whenever a duty of care ‘relationship’ has been established - be that in class, on the oval, on an excursion, online or, in certain circumstances, outside school hours.