The Excursion Management Problem - Balancing Legal Risk and Practical Realities – Part Three

Published
01 August 2019

There is a multitude of laws and guidelines that schools are required to factor in when planning an excursion. 

The Legislative Minefield and Wilderness Regarding School Excursions

Policies and Guidelines

There are no federal, state or territory laws that specifically relate to the planning, development and conducting of any camp, tour or excursion in any Australian school although each state and territory offers their own policy/ guidelines for government schools. Each state and territory government school policy/guidelines document can be found here:

  1. ACT  
  2. NSW
  3. NT
  4. QLD
  5. SA
  6. TAS 
  7. VIC 
  8. WA 

These policies or guidelines, although not mandatory for non-government schools, could be cited by the courts as common or best practice. Alongside the government school requirements are local government by-laws and regulations, the requirements of the state or territory registration body and any systemic requirements for systemic schools.  Of course, in addition to this plethora of jurisdictional documentation is the ever-present common law concept of duty of care and the state and territory civil liability laws. 

 

Federal and State or Territory Legislation

Most schools are regulated by federal legislation such as the Privacy Act 1988 (Cth) (Privacy Act), as well as state and territory acts and regulations.  For example, all non-government schools in Western Australia are required to abide by a detailed list of legislation as well as the relevant Standards within the Department of Education Registration Guidelines (2018), and, if they are a systemic school, any system wide policies and procedures that may apply. 

However, there is a level of commonality in all states and territories regarding legislation that relates to schools and off-campus activities covering the following areas:  

  • education/schools management and registration
  • workplace, health and safety
  • early learning or pre-school requirements
  • child protection
  • disability and discrimination.

 

The Privacy Act

One piece of legislation that is missing from the above list of commonalities between government and non-government schools is the federal Privacy Act.  Most state and territory government schools are not required to abide by the terms and conditions of the federal Privacy Act.  However, non-government schools are required to abide by all 13 Australian Privacy Principles (APP), provided they have an annual turnover of more than $3 million or they provide a health service.

School camps/tours and excursions are likely to involve parents, volunteers and third party providers in addition to school staff, some or all of whom may need to know students’ (and volunteers’) personal information, including sensitive health information, to satisfy student duty of care and health and safety obligations. It is in these circumstances that personal information is most at risk of being inadvertently shared, misused, lost or inappropriately accessed or disclosed.

Also, it should be borne in mind that when sending students overseas additional precautions to protect personal information may be required where the host country does not have equivalent privacy protection legislation (see Australian Privacy Principle 8). 

The key to protecting data so that a breach does not arise is for the school to plan what reasonable steps must be taken to protect the personal information it holds from misuse, interference and loss, as well as unauthorised access, modification or disclosure. In order to discharge its obligations under the Privacy Act, the school should consider additional training, clear policy guidance, and contractual undertakings in relation to protecting privacy.

 

Child Protection and Risk Management

The majority of states and territories require some type of formal enterprise risk management (ERM) process in relation to child protection. If any school wishes to deliver on a child protection culture, especially regarding off campus activities, this would require the establishment and communication of a clear and comprehensive integrated governance, risk, compliance & policy management (GRC&P) framework within the school.

The majority of regulators now require non-government schools to implement formal risk management programs in relation to child protection both on and off campus. Teachers and principals simply cannot be expected to intimately know all the relevant legislation nor be able to ascertain which legislation applies in each particular situation. This is where having an external provider of up-to-date documentation that incorporates all local legislation and any legislative changes, immediately reduces the burden of compliance on both principals and teachers.


In summary, schools must be mindful of the specific requirements of all relevant federal, state or territory laws that may be invoked if there is a claim made against the school for failing to provide suitable duty of care during a camp, tour or excursion. They also need to be aware that the jurisdictional government school policy or procedure may be cited as a 'best practice' example if a matter is brought before the courts.

 

Change Management

Schools recognise the need to develop practices that will enable them to better manage the risks associated with excursions. They also see the need to invest in modern technologies to help reduce the largely paper-based compliance burden on teachers, who want to take children on excursions, that has grown almost exponentially over the last 30 or so years. In addition, schools are also aware that planning an excursion is costly and time consuming.

Anecdotal evidence still points to teachers relying on a ‘common-sense’ approach to student safety while on excursions.  There is no doubt that many almost automatically engage in child safe pedagogical practices. In fact, experienced teachers often do this without thinking about it.

For example, they will count children onto and off a bus, they will never send children to a public toilet on their own but always in twos or threes and they will regularly check the toilets both before and during the excursion time. More often than not, they do all this without recording that they are identifying a risk and putting mitigation practices in place.  When teachers are asked if they practise child-safe strategies on excursions and if these strategies are documented, a common response is usually "Yes, but it's in my head “.

The safest approach for schools is to have a structured and documented online planning process where the lead teachers can assess all reasonably foreseeable excursion risks and conduct due diligence in relation to vendors used.

Therefore, solving the excursion management problem involves:

  • standardising the creation, planning and implementation of an excursion
  • identifying and managing any non-standardised risks
  • ensuring that activities are properly documented and archived
  • identifying an appropriate balance between manageable risk and educational benefits
  • where excursion elements are being provided by third parties, then adopting a due diligence approach to vendor selection.

By taking these steps, schools can minimise their potential liability and cut bureaucratic red tape, enabling them to focus more on their core educational purpose and student duty of care obligations.

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.