In this presentation we aim to provide an understanding of enrolment issues, contractual issues and record keeping. We explore aspects such as: - Who are the parties to an Enrolment Agreement; - When is the contract formed; - Variations to the contract, what and how; - Australian Consumer Law; - Discrimination; and - Breach of the Enrolment Contract - Fees

1. Legalwise
School Law
Conference 2016
Brett Wilson
Partner
22 November 2016

2. Objective … Provide an understanding of
Enrolment, contractual issues and record keeping:
• Who are the parties to an Enrolment Agreement;
• When is the contract formed;
• Variations to the contract, what and how;
• Australian Consumer Law;
• Discrimination; and
• Breach of the Enrolment Contract - Fees.

3. Law of Contract …..
How is a contract formed ?
• Agreement;
• Consideration;
• Intention;
• Capacity; and
• Legality.

4. Law of Contract …..
How is the Agreement made …..
• An offer is made by one party (the OFFER); and
• Is accepted by the other party (the ACCEPTANCE).

5. Law of Contract ….. Capacity
Enrolment Contract – who are the Parties?
• The School;
• The Student;
• The Parent/s, and or Guardian/s.

6. Capacity …..
Minor (Property and Contracts) Act 1970
Generally age of majority is 18 years …. but
• A contract to the benefit of the minor may be
presumptively binding on the minor section 19;
• However must have the requisite understanding
and the intention to enter into a contract.

7. Capacity …..
Generally the Enrolment Contract is between ......
• The School; and
• The enrolled students parents, or guardians.
But …..
• Instances where schools include the student as a
signatory, normally at an age where the student
understands what is going on;
• Arguably not enforceable but may be used to encourage
compliance by students with conduct and attendance
requirements.

8. Express terms of an Enrolment Contract …..
Express terms are those written into the document
• Cost
• What is offered by the School
• Each parties obligations
• Variation
• Termination
• Complaint processes

9. Implied terms of an Enrolment Contract …..
Implied terms are not expressly stated but a court
will assume into a contract for purposes of efficacy.
• So obvious it goes without saying;
• Capable of clear expression and does not
contradict an express term;

10. Implied terms of an Enrolment Contract …..
Three types of implied terms:
• Implied in fact;
• Implied in Law; and
• Implied in Custom.

11. Implied terms of an Enrolment Contract …..
• Fact – Presumed intention of the parties;
• Law – Implied due to the type of the contract;
• Custom – what is the norm in the industry

12. Implied terms of an Enrolment Contract …..
• Provide a safe school environment;
• Loco parentis;
• Student to follow reasonable directions;
• Fairness;
• Follow school policies and procedures;
• Offer an education.

13. Variations to the Enrolment Contract ….
• How a variation can be made is usually an
express term of the contract;
• Usually must be in writing;
• Depending on contract may be unilateral;
• Often relates to fees or changes to services or
course or subject availability; and
• Can be in issue check the variation clause..

14. Australian Consumer Law …..
Does the Australian Consumer law apply to Schools,
Colleges and Universities?
• Fee paying Courses;
• For Services to consumers;
• Operating in competitive markets; and
• Engaging in conduct in ‘trade and commerce’.

15. Australian Consumer Law …..
Who is a consumer?
• Any person who acquires goods or services; and
• Cost doesn’t exceed $40,000; or
• The goods or services are those ordinarily
acquired for personal, household or domestic
consumption.

16. Australian Consumer Law …..
In trade and commerce could include:
• Promoting or marketing the School or Courses;
• Selling teaching or educational materials;
• Statements made about the quality of services,
class ratio’s and results;
• Course study advice, i.e. credits to graduate.

17. Australian Consumer Law …..
Section 18 Misleading and Deceptive Conduct …
• Engage in conduct;
• That is misleading or deceptive, or likely to
mislead or deceive ;
• That may lead a consumer into error;
• Examples – Brochures, promises made by
recruiters, advertisements.

18. Australian Consumer Law …..
Section 20 & 21 Unconscionable Conduct …
• Engage in conduct that is unconscionable;
• Relative bargaining position of each party;
• Consumer required to comply with conditions
that were unreasonable and not legitimate;
• Undue influence or coercion.

19. Australian Consumer Law …..
Section 23 Unfair Contract Terms …
• Unfair contract terms void;
• If cause significant imbalance in the rights and
obligations of parties;
• Not reasonably necessary to protect interests;
• Causes detriment.

20. Australian Consumer Law …..
Section 34 Misleading Conduct as to nature of
Services …
• Enage in conduct liable to mislead the public as
to;
• Suitability for purpose;
• Characteristics of goods or services;
• Penalty may be imposed.

21. Australian Consumer Law …..
Section 60, 61 and 62 Consumer Guarantees …
• Services rendered with due care and skill;
• Services reasonably fit for purpose;
• If a consumer makes known what the consumer
wishes to achieve from the services, there is a
guarantee of that if supplied; and
• Provided in a timely fashion.

22. Discrimination Laws …..
Anti Discrimination Act 1977 (NSW)
and
Sex Discrimination Act 1984 (Cth)
Racial Discrimination Act 1975 (Cth)
Disability Discrimination Act 1992 (Cth)
Operate in much the same way so we will focus on
NSW

23. 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.

24. Discrimination Laws …..
Where do most problems arise
• Student admission or not;
• Treatment by school, staff and students; and
• Reasonable variations to rules and procedures;
in relation to disability, sexuality or race.

25. 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.

26. 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.

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

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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.