by Christopher Brohier
News Weekly, July 1, 2017 http://www.newsweekly.com.au/issue.php?id=477
Let me introduce Emily. Emily is not her real name, but she is a real person, and the issue of Safe Schools became real to me in a new way when I met Emily.
She sat across my chambers table with her mum, and she told me what it was like being in a classroom, in a Safe Schools sex-education class, where you’re taught differently. Because when she was in a Safe Schools sex-education class, talking about gender issues, one of her classmates who knew she didn’t agree with what was being taught told the teacher this. The teacher said: “Well, let’s see if we can change her mind by the end of this.”
In the history class, the teacher was teaching about the civil rights movement and drew parallels with the current issue of same-sex marriage. In her school they have lunch meetings for the Safe Schools program, and many of her friends go to that. She said she feels alone and depressed, and is sometimes even afraid that she’ll be beaten up for her views. And that impressed me as to what it was like being a person with a biblical or true worldview living in a Safe Schools environment today.
Five issues of defence
I want to consider some legal issues about how we can resist this imposition. I will review five related issues and suggest possible remedies: the bullying of children who oppose the Safe Schools program; discrimination against teachers and students who oppose the program; the duty of care of educational authorities as to the use of cross-gender toilets; the liability for education authorities who are complicit in transitioning of children; and the duty of care for educational authorities in cases of gender dysphoria.
Let’s look first at the issue of the duty of care of a school. A school holds what the law calls a “non-delegable” duty of care to its students. That means that it’s not enough for a school to employ competent teachers and say they’ve discharged their duty, but a school has to take reasonable care even while those teachers are taking care of the students.
So, the education authority is responsible to care, and this responsibility exists whenever the schoolmaster/pupil or school teacher/pupil relationship exists. Nor is the responsibility limited to school hours. In the case of the Catholic Church v Koffman, a 12-year-old boy was injured by the conduct of other students about 20 minutes after school, and the court held that the relationship between schoolmaster and pupil was still existing: it didn’t end when the bell went.
The court has said that, where there is a relationship of power and intimacy between students and teachers, and these cases are usually in cases of sexual abuse, the duty of care holds. In a Safe Schools class there is a power relationship between the teacher, who’s communicating certain doctrine, and the students, and this is an intimate relationship because in this program the teacher is talking about the most intimate details of life.
Late last year, my wife and I sat with a group of concerned Chinese mothers. They have primary school children, and one of them said that in their classrooms, students are not just taught about sexual issues, but are taught to experiment in the areas that give them pleasure. This is actually occurring in Australia’s classrooms.
A difficulty rises where there’s exercise of statutory power. Recently the High Court heard a case where the hospital let a man out who had been admitted with mental issues. He was released and then he murdered his friend. The hospital was not held liable because it had exercised its statutory duty, which required it to keep a person under its protection only for a minimum amount of time. But the education acts contain nothing that voids the deposition of duty of care.
Another difficulty arises in negligence claims, as negligence is not actionable without proof of damage. Actual physical or psychological damage must be demonstrated, the trouble being in these cases that harm may not show up immediately.
In a recent paper on issues of school liability, the director of Legal Services at the South Australian Department of Education and Child Services spoke of what it was like in schools these days. She said as soon as a parent was dissatisfied with a site leader’s response, they rushed off to engage the services of a lawyer. Now that was put in a negative context, but in my view, this is something we may have to adopt.
If a parent is worried, they should send a warning letter – preferably through lawyer – to say “this is happening, we are concerned, we believe you are breaching your duty of care, if there is loss we will sue you”. An early-warning epistle may cause some concern and consternation, and hopefully, the headmaster will do something!
Next is the question of action for assault and battery. Now an assault, in law, is where one person causes another person to have a reasonable apprehension of harm; there doesn’t need to be any physical injury. That is battery, where there is physical interference. These are both criminal offences. That might be an avenue of redress, if there’s actual physical bullying at school.