How long is a piece of string? Any extended off-campus activity, particularly one that involves overseas travel, requires careful planning and considered decision-making. Preparation must be meticulous, and every effort made to ensure that the management of the school’s duty of care to students is both comprehensive and sufficient.

The School’s Legal Obligations

Supervision and Duty of Care

Schools owe a duty of care to take such measures as 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 standard of care required is that of a 'reasonable' teacher. This means that the duty of care owed is the duty one would expect from a hypothetical teacher with normal skills and attributes exercising their professional judgement. The duty owed to students is not an absolute duty to ensure that no harm will ever occur, but a duty to take reasonable care to avoid harm being suffered.

The Duty Owed by Schools is “Non-Delegable”

Schools have a non-delegable duty of care. They cannot avoid duty of care responsibilities by delegating the duty to others such as contractors, volunteers, or, in the context of this article, homestay families.

In the case of Introvigne (Introvigne v Commonwealth of Australia (1980) 32 ALR 251) a boy was injured after playing with a flag pole at the school. A piece of the pole fell on his head. The school was run by the New South Wales Government on behalf of the Commonwealth. In other words, one of the questions in the case was whether the Commonwealth was liable for the negligent acts or omissions of the contractor – in that case the State of NSW. The High Court said that the Commonwealth could not discharge their duty of care by arranging for the State of NSW to run the school. The court said that it had a responsibility to see that adequate supervision was provided; and the absence of adequate supervision meant that it had not fulfilled its responsibility and was in breach of its duty of care.

The decision in the Introvigne case was discussed and approved by the High Court in New South Wales v Lepore [2003] HCA 4. Gleeson CJ said:

What was decided in Introvigne was that, …… the Commonwealth was under a duty to provide reasonable supervision; it could not discharge that duty by arranging for the State of New South Wales to conduct the school; it had a responsibility to see that adequate supervision was provided; and the absence of adequate supervision meant that it had not fulfilled its responsibility and was in breach of its duty of care. That produced the same practical result as would have followed if the Commonwealth had employed the teachers.

Whenever a school tour involves overnight accommodation, the onus lies expressly on the school to ensure that the duty of care for each student is met, regardless of the type of accommodation that is used.

Overseas Tours and Activities and Homestay Accommodation

Many independent schools have reciprocal arrangements with a ‘sister school’ in another country. When they arrange for students to attend, or ‘go on exchange’ to, a sister school, they choose to use homestay accommodation. Some schools conduct large group tours to visit sister schools and house students in homestay accommodation arranged by the sister schools as a ‘cultural immersion’ activity as part of the tour.

The school’s duty of care, being non-delegable, means that it extends to all the activities including the host family stay.

When using host families overseas schools need to carefully think through issues such as:

• cultural differences in meeting special dietary and student health requirements, differences in household sleeping arrangements, house sizes, sharing of bedrooms and toileting and bathing
• alcohol consumption in the house and in social situations, especially the cultural norms in some locations for older students (under 18) to consume alcohol, for young people to be served alcohol at cafes and bars, and for young people to go out without supervision often coming home quite late
• the inability to enforce the same child protection standards as would apply in Australia in relation to the vetting and suitability of homestay families
• the reliance on overseas-country host organisations or schools to ensure the suitability of host families.

Guidance Documents for Student Accommodation – Are they Relevant Overseas?

There are numerous Australian documents that schools could refer to in determining the suitability of overseas homestay accommodation. These, of course, do not apply to overseas homestay arrangements and should be used as reference documents when schools consider overseas homestay arrangements. If a school insisted on these requirements being met when the school has students staying in homestay accommodation overseas, there may be situations where it would be unlikely that the homestay could proceed.

Examples of these documents include:

1.  The Association of Independent Schools of NSW provides an online guidance document in relation to the use of external overnight accommodation. It outlines the risks, and provides a general guide, for schools to use when planning any overnight event that requires student accommodation. For example, it says that the venue should have as a minimum:

• installed and operating smoke detectors
• well-maintained and sufficient toilets and bathing facilities
• clean and well-ventilated sleeping facilities
• clean and well-ventilated food preparation areas (if required)
• illuminated exit points
• a fire evacuation plan and rally points
• appropriate security measures.

According to Australian Government Schools International, Homestay Standards, homestay accommodation standards (specifically for international students coming to school in Australia) are critical to the wellbeing of students who come to study in Australian schools and use homestay arrangements because they recognise the importance of ensuring the safety and welfare of under 18 school students. However, these Homestay Standards are arguably also suitable for domestic students or international, intrastate and interstate tours.

The Homestay Residence Standards (which are part of the Homestay Standards) are that there is:

• a safe, secure, private bedroom for the student’s sole use with suitable storage space for clothes and personal effects and suitable facilities
• a clean home with appropriate furnishings suitable for a family and students
• access to a shared or private bathroom, with reasonable time allowed for showers
• access to the kitchen, living areas, laundry facilities and shared areas of the home
• access to heating in winter and cooling in summer
• household facilities and appliances that comply with government regulations regarding safety standards.

Proceed With Caution

Many schools continue to use homestay accommodation for overseas tours and activities on the basis that the cultural experiences of students in homestay accommodation is unique and worthwhile. Managing the risks associated with overseas homestays is challenging. Detailed planning is required which includes ensuring that there is a range of policies and guidelines that are communicated to students attending the overseas tour.

As a starting point schools should:

• have detailed policies as to student behaviour requirements while in homestay accommodation
• provide students with clear information about permitted host family activities and what to do if the host families undertake activities that are not permitted or outside the guidelines that host families have been given
• have in place written agreements with sister schools in relation to the vetting of families, accommodation minimum requirements and behaviour standards
• ensure that the sister school has provided detailed information to the host family in relation to the standards required, emergency contacts, the code of behaviour for host families and clear guidance on what is allowed and not allowed (e.g. alcohol consumption, going out at night etc)
• ensure all students have access to 24 hour emergency contact numbers of teachers.

Conclusion

In summary, the duty of care to all students while on an extended overseas tour cannot be abrogated to a secondary provider, including the parents in a homestay situation. The duty of care rests with the school and the staff who are in attendance at the event.

This means that regardless of the chosen accommodation, the school must make every reasonable effort to identify all risks and to develop and implement risk mitigation strategies that ensure that their duty of care is maintained for the full 24 hours of each day.

Tour organisers need to ask themselves, “Would I be happy for my own child to be housed in another person’s home for this overseas tour?”

About the Authors

Craig D'cruz

With 37 years of educational experience, Craig D’cruz is the National Education Lead at CompliSpace. Craig provides direction on education matters including new products, program/module content and training. Previously Craig held the roles of Industrial Officer at the Association of Independent Schools of WA, he was the Principal of a K-12 non-government school, Deputy Principal of a systemic non-government school and he has had teaching and leadership experience in both the independent and Catholic school sectors. Craig currently sits on the board of a large non-government school and is a regular presenter on behalf of CompliSpace and other educational bodies on issues relating to school governance, school culture and leadership.

Jonathan Oliver

Jonathan is a Senior Consultant working with CompliSpace education clients. He has more than 10 years experience in the school sector as a teacher, compliance and legal adviser and more recently as a Business Manager.

Jonathan has been a solicitor for nearly 30 years and worked in both private practice and community legal centres.