This presentation aims to provide you with an understanding of laws relating to teenage sexual activity and pregnancy including: - What are the relevant laws; - Duty of care; - Confidentiality and privacy; and - Ethical obligations.

1. LawSense Conference 2016
Law for School Counsellors
Navigating Sexual Issues in Schools
Brett Wilson
Partner
26 July 2016

2. Objective … Provide an understanding of
Laws relating to teenage sexual activity and pregnancy:
• What are the relevant laws;
• Duty of care;
• Confidentiality and privacy; and
• Ethical obligations.

3. Objective … Provide an understanding of
Lesbian, Gay, Bisexual, Transgender and Intersex students:
• Common Issues;
• Discrimination;
• Duty of Care; and
• Confidentiality and Privacy.

4. Objective … Provide an understanding of
Practical approaches to managing the risk associated with
these issues:
• Common Issues;
• Discrimination;
• Duty of Care; and
• Confidentiality and Privacy.

5. Laws Applying to Sexual Activity …..
Some issues that arise:
• Intercourse between students;
• Sexual activity outside of school;
• Child abuse at home or other place; or
• Grooming a child for sexual activity.

6. Laws Applying to Sexual Activity …..
Crimes Act 1900
S66A Intercourse by any person with a Child < 10
• Crime
• Can’t give consent
• Life Imprisonment

7. Laws Applying to Sexual Activity …..
Crimes Act 1900
S66C(1) Intercourse by any person with a child
between 10 - 14
• Crime
• Can’t give consent
• 16 years imprisonment

8. Laws Applying to Sexual Activity …..
Crimes Act 1900
S66C(3) Intercourse by any person with a child
between 14 and 16:
• Crime
• 10 years imprisonment

9. Obligations regarding Sexual Activity ….
• Obligation to report offences;
• A person in authority has an obligation to protect
a child from abuse;
• Obligation to report a situation to relevant
authorities where a child may be at risk; and
• Protection of the child paramount consideration.

10. What is your ‘Duty of Care’ …..
A legal obligation which is imposed on an individual
requiring a standard of reasonable care, whilst doing
something that may have an impact on others.
Tort of Negligence
If a person suffers injury as a result of another’s
negligence the sufferer is entitled to compensation
from the negligent party.

11. Duty of Care …..
There are three elements of the tort of negligence
A duty of care to the plaintiff
A breach of that duty of care to the plaintiff
Actual Damage suffered by the plaintiff

12. Duty of Care …….
• Limits of School Counsellor’s duty of care to:
• The Student;
• Other students;
• The School;
• The Parent; and
• Other teachers.

13. Duty of Care …..
If you identify or are informed of a risk, your duty of
care increases to the extent of your knowledge of
the risk.
That is unless a court determines that a reasonable
person in the circumstances should have been
aware of the risk.

14. Duty of Care …..
Due to the nature of the work that a School
Counsellor does, there is a greater exposure to
issues, risks and a need to be mindful of your duty
of care
Reasonable Foreseeability

15. Duty of Care …..
Reasonable Foreseeability
In your work if you perceive that a risk exists or may
arise as a result of a decision you make do
something to manage that risk.

16. Conflict between …..
• Two students sexually active, keep their
disclosure to you confidential or report it;
• Duty of Care if any risk foreseen
• If not criminal or abuse, and risk not foreseen,
then may keep confidential;
• Explain to students the limits

17. LGBTI …..
• Lesbian;
• Gay;
• Bisexual;
• Transgender; and
• Intersex.

18. LGBTI Issues That Arise…..
• Enrolment;
• Name to be used;
• Uniform, clothing i.e. formal;
• Toilets;
• Sports;
• Functions and Excursions; and, or
• Relationships.

19. LGBTI Risk Issues…..
• Discrimination;
• Harassment;
• Bullying;
• Victimisation;
• Breach of privacy and confidentiality issues; and, or
• Vilification.

20. Discrimination Laws …..
Anti Discrimination Act 1977 (NSW)
and
Sex Discrimination Act 1984 (Cth)
Operate in much the same way so we will focus on
NSW

21. Discrimination Laws …..
Gender identity means:
• Identifies or has identified as a member of the
opposite sex by living or seeking to live as a
member of that sex; or
• Of indeterminate sex, and lives or seeks to live as
a member of a particular sex.

22. Discrimination Laws …..
Sexuality means:
• Heterosexual;
• Homosexual; or
• Bisexual.

23. Discrimination Laws …..
Discrimination can be:
Direct -
Treating someone less favourably that someone else
due to a characteristic they have.
Indirect -
Imposing a requirement or condition that has or is
likely to have the effect of disadvantaging persons
with a characteristic they have.

24. Discrimination Laws …..
Section 31A(1) - Discrimination Sex
Unlawful for a school, on the basis of sex, to:
• Refuse or fail to accept a persons application for
admission; or
• Impose unfair terms on that persons admission.

25. Discrimination Laws …..
Section 31A(2) - Discrimination Sex
Unlawful for a school, on the basis of sex, to:
• By denying or limiting access to any benefit;
• By expelling or imposing any other detriment.

26. Discrimination Laws …..
Section 38K(1) - Discrimination Transgender
Unlawful for a school, on the basis of a person being
transgender, to:
• Refuse or fail to accept a persons application for
admission;
• Impose unfair terms on that persons admission.

27. Discrimination Laws …..
Section 38K(2) - Discrimination Transgender
Unlawful for a school, on the basis of that student
being transgender, to:
• By denying or limiting access to any benefit;
• By expelling or imposing any other detriment.

28. Discrimination Laws …..
Section 49ZO(1) - Discrimination Homosexuality
Unlawful for a school, on the basis of a person being
homosexual, to:
• Refuse or fail to accept a persons application for
admission;
• Impose unfair terms on that persons admission.

29. Discrimination Laws …..
Section 49ZO(2) - Discrimination Homosexuality
Unlawful for a school, on the basis of that student
being homosexual, to:
• By denying or limiting access to any benefit;
• By expelling or imposing any other detriment.

30. Discrimination Laws …..
Section 38S - Transgender Vilification
Unlawful for a person to incite hatred, contempt, or
ridicule of a person because:
• That person is transgender; or
• A group of persons are transgender.

31. Discrimination Laws …..
Section 49ZT - Homosexual Vilification
Unlawful for a person to incite hatred, contempt, or
ridicule of a person because:
• That person is homosexual; or
• A group of persons are homosexual.

32. Privacy & Confidentiality …..
Privacy Act 1988 (Cth)
• Collection of information limited to what is
necessary for management of the school;
• Sensitive information only collected if student
consents;
• Can not use or disclose sensitive information without
consent; and
• Students sexual orientation or gender identity is
sensitive information.

33. Privacy & Confidentiality …..
Privacy Act 1988 (Cth)
• Safety and well being of student and others,
outweighs privacy and confidentiality in just
about all circumstances.
• If information necessary to meet the needs of
student, it can be collected.

34. Bullying …..
• Fundamental and positive duty owed by schools
to students is protection from the conduct of
other students, bullying.
• In school environment LGBTI students are more
likely to be bullied.
• US Study found, 82% of LGBTI students reported
bullying, compared to 27.3% of students overall.

35. Bullying …..
Oyston v St Patricks College [2011] NSWSC 269
• Vulnerable individual.
• Schools care extended to prevention of bullying.
• Impairment issue, student suffered psychological
harm after years of bullying.
• Non action by staff despite notice and policies in
place.

36. Duty of Care …….
• Consequences of breaching your duty of
care:
• Vicariously;
• Professionally; and
• Personally.

37. Consequences …. Personal
• Criticism
• Disciplinary action by your employer
• Suspension with or without pay
• Termination of Employment

38. Consequences ….. Professional
• Termination of employment and inability
to gain further work
• Cancellation of right to practice by
regulatory body
• Involvement in legal proceedings as a
witness in defending an action

39. Consequences ….. Legal
• Involvement in legal proceedings as a
Defendant
• Being required to pay damages and legal
costs to a Plaintiff as a Defendant
• Being required to indemnify your employer
for any damages payable to a Plaintiff

40. Managing Risk …..
• Get used to it, it’s how it is.
• AHRC says 11% of the population is of
diverse sexual orientation.
• Be proactive not reactive.
• Be prepared, identify issues and solutions.

41. Managing Risk …..
• Establish the rules with students and their
parents early on.
• Compromise and be flexible where
possible.
• Look for practical, left of field, solutions.
• Involve stakeholders at all stages.

42. Manage your Risk Profile …..
• Be consistent in your dealings.
• Be prompt, address matters quickly.
• Be confidential when required.
• Document the process, the reason why.
• Seek advice when uncertain.
• Use outside authorities to assist when
required.

43. Always be Consistent …..
Apply standard practices consistently:
• Develop standard practices that exhibit
consistency and impartiality;
• Both personally; and
• Across the Organisation.

44. Maintain Confidentiality …..
• Keep information confidential when asked
to.
• Only if someone may suffer damage
should you breach confidentiality or under
direction from an authority.
• Set out the terms of confidentiality at the
start with all stakeholders

45. DISCLAIMER
Please note that this Power Point and
Presentation is not legal advice and
the material has been altered to simplify
the presentation and should not be
relied upon in the provision of
legal advice or for any other purpose.