Bulletin 57 - Responding to anti-social and extremist behaviour

Legal Issues Bulletin 57 - Responding to anti-social and extremist behaviour

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Legal obligations of schools responding to a student, staff, parent or other school community member exhibiting anti-social and extremist behaviour

We live in a vibrant, culturally diverse State. Building social cohesion and inclusion and a culture of harmony, tolerance and acceptance in partnership with students, staff and other school community members is a key objective of our schools.

Executive Summary

The purpose of this bulletin is to define anti-social and extremist behaviour and outline the responsibilities of schools (including reporting requirements) and the support available when responding to this type of behaviour.

On rare occasions, students, parents, staff or other members of the school community may exhibit anti-social and extremist behaviour that poses a risk to the school community. Any response to this behaviour must be consistent with relevant legal responsibilities of / legal obligations owed under the duty of care and work health and safety, criminal, child protection, education, family, privacy and discrimination law.

It is important schools work cooperatively with the police, members of the school community and other agencies when responding to an incident and recognise that this may be an ongoing requirement for some time.

The body of this bulletin deals with the general issues that may arise when dealing with anti-social and extremist behaviour including reporting requirements, communication strategies and record keeping. Guidance about the specific response provided to:

  • Students who exhibit anti-social and extremist behaviour is at in Schedule A of this bulletin below.
  • staff, parents or other members of the school community who exhibit anti-social and extremist behaviour is in Schedule B to this bulletin below.

Key concepts

  • Anti-social and extremist behaviour is a term that has been developed by the NSW school’s sector and applies when a student, staff member, parent or other school community member is exhibiting a combination of anti-social and extremist behaviour;
  • Anti-social behaviour is behaviour which threatens the safe and secure atmosphere of the school and includes but is not restricted to behaviours such as bullying, harassment, discrimination, racism, illegal or criminal behaviour, physical violence or damaging school or other property. (When students engage in this kind of behaviour it is ordinarily dealt with under the school discipline policy);
  • Extremist behaviour is demonstrated when a person believes that fear, terror and violence are justified to achieve ideological, political or social change. It is important to remember that while someone may have extreme views, it does not mean he or she wishes to commit an act of violence harming others.
  • The Case Management and Specialist Support unit has been established to work with schools to assess and strengthen systems in schools to provide a safe and supportive working environment and to provide a holistic approach to the management of anti-social and extremist behaviour that impacts on the school. More information about this unit is available from the School Communities Working Together Management Guidelines for department of Education Executive Staff. (PDF 2060.04KB)
  • Parent is a reference to parent or carer;
  • Incident Report and Support Hotline (IRSH) – this unit is part of the Health and Safety directorate and is staffed by departmental employees and seconded police officers; and
  • School community member is a reference to anyone who regularly comes onto the school site including volunteers, persons doing work experience or practicums, contractors and other visitors to the site.

Examples of this behaviour

The fact someone is of a particular gender, culture, nationality, religion, descent, ethno-religious or national origin is not of itself an indicator of anti-social and extremist behaviour.

The context of the behaviour (for example the difference between a rational debate in the classroom or staffroom about passionately held views and a heated exchange in the playground) is important. Some examples of anti-social and extremist behaviour could include but are not restricted to someone:

  • expressing support for an extremist group and/or encouraging someone else (e.g. another student) to engage in anti-social and extremist activity;
  • saying they want to leave the country and fight for an extremist group committed to terrorism and violence;
  • wearing paraphernalia which supports an extremist group for example the Nazi party;
  • threats made to a school via the school’s website or social media site;
  • threatening other persons because of their different practices or beliefs; or
  • telling someone an extremist group is coming to kill them.

Should schools investigate allegations?

No. It is not the role of schools to investigate this type of allegation. Instead, schools must notify an appropriate authority (for example the police or IRSH) once an allegation of this nature has been received.

Who should staff notify if someone is exhibiting such behaviour?

Staff must immediately notify the principal (or if the principal is absent the senior officer present at the school) if they are concerned someone is exhibiting anti-social and extremist behaviour. The next step depends upon whether or not there is a situation of imminent risk.

Situations of imminent risk

In situations where a life is in imminent danger, a crime is taking place or the situation requires an immediate police response the principal (or nominee) should immediately contact the Police on Triple Zero (000).

Once the Police are called, the IRSH must be advised as soon as possible on 1800 811 523. This hotline is operated on a 24 hour, 7 days a week basis.  The relevant Director Public Schools NSW must be notified by the principal (or nominee) once the notification to the IRSH has been made.

All other circumstances

Contact is to be made as soon as possible with the IRSH by the principal (or nominee) on 1800 811 523. The relevant Director Public Schools NSW should also be promptly advised the notification to the IRSH has been made. If the principal (or nominee) has any doubt as to whether a notification should be made they should contact the IRSH for advice.

What other notifications may need to be made?

Depending on the circumstances other notifications (e.g. to Family and Community Services or SafeWork NSW) may need to be made. Further information about potential additional notification requirements is provided later in this Bulletin.

What will the IRSH do?

The IRSH will notify the Police (if this has not already occurred) and other partner agencies. They will also notify relevant areas of the department as required including the Executive, the Case Management and Specialist Support unit and the Media unit.

Are schools required to call the National Security Hotline?

No. Schools are not required to call the National Security Hotline once a report has been made to the IRSH on 1800 811 523.  The IRSH will contact NSW Police who are responsible for making contact with their Commonwealth counterparts.

What if the Police want to interview someone at school?

The procedures set out in Legal Issues Bulletin 13 – Interviews of students and staff by police and officers from Community Services – should be followed. Bulletin 13 indicates amongst other things that unless there are compelling reasons to do so, interviews of students by Police or Community Services must not take place at school.

If the Police wish to interview a staff member legal advice can be obtained from Legal Services on 9561 8538 unless that staff member is a person of interest in the police inquiries. In such circumstances, Legal Services is unable to assist and he or she may wish to seek independent legal advice.

Responsibilities under the criminal law

Requirement to notify appropriate authorities about serious indictable offences

If employees are aware of information that might be of material assistance in securing the apprehension of a person who has committed a serious indictable offence (an offence punishable by a maximum term of 5 or more years imprisonment) they are obliged to bring that information to the attention of the Police or other appropriate authority. This duty will be satisfied when the information is provided directly to the Police in an emergency or by notifying the IRSH on telephone 1800 811 523.

When could a person exhibiting anti-social and extremist behaviour potentially be committing a criminal offence?

Depending on the circumstances (including what has occurred and the person’s age and capacity), there may be a number of situations in which someone who engages in anti-social and extremist behaviour could also be committing a criminal offence under, for example:

  • NSW Crimes Act 1900 -  section 31 (documents containing threats), section 203C (threaten sabotage), section 310J (membership of a terrorist organisation)) or section 60E (assaults at schools) and/or·
  • Commonwealth Criminal Code 1995 - section 101.5 (collecting or making documents likely to facilitate terrorist acts), section 474.15 (using a carriage service to make a threat) and section 474.16 (use of a carriage service for a hoax threat).

All of these offences have a maximum term of 5 or more years upon conviction. Advice about whether someone may have potentially committed a serious criminal offence while exhibiting extremist behaviour is available from the IRSH on telephone 1800 811 523.

Legal obligations under work health and safety law

Amongst other things, the department is required to do what is reasonably practicable to ensure the safety of its staff, students and other people who enter its worksites. Further information about legal obligations under work health and safety laws can be obtained from the Health and Safety directorate (HS directorate).

Defining ‘reasonably practicable’

Assessment and treatment of risk

To meet legal obligations under the duty of care and work health and safety law it is necessary to identify the risk posed to schools by the anti-social and extremist behaviour, assess identified risks for likelihood and seriousness and implement strategies to eliminate or minimise the risk. Schools will be assisted in their preparation and response to the risks posed by anti-social and extremist behaviour by:

  • Fostering and maintaining positive and resilient school communities to help lessen the opportunity for extremist organisations to groom young people for their cause. Resilience is also essential for helping school communities respond to tragic events.
  • Identifying and supporting young people who require additional assistance to help protect them from becoming vulnerable to extremist influences.
  • Having effective incident management and support systems to manage anti-social and extremist behaviour that impacts on the school.

Further information about these strategies is available from the School Communities Working Together webpage (staff only) on the HS directorate’s website. Further information about the risk assessment and management process can be obtained from the Case Management and Specialist Support on 9707 6297 or from the HS directorate website (staff only).

Reporting an incident or injury to Health and Safety

Reporting Incidents and injuries arising from or related to anti-social and extremist behaviour to the HS directorate on 1800 811 523 is an important part of doing what is reasonably practicable to ensure safety. Depending on the circumstances this could include staff wellbeing being impacted by managing the response to anti-social and extremist behaviour. The HS directorate will provide information and advice about the management of such issues.

Reportable incidents

Depending on the circumstances a duty could arise to report an incident to SafeWork Australia. Where this is necessary the required notification will be made by the HS directorate once the school has reported the incident to them.

What should employees and the broader school community be told?

Staff

The department is required, so far as is reasonably practicable, to consult with staff who are, or are likely to be, directly affected by a matter relating to work health or safety. Consultation requires sharing relevant information and giving employees a reasonable opportunity to express their views and contribute to the decision-making process.

This may include situations where a student is exhibiting anti-social and extremist behaviour. There may be limits to the information it is reasonably practicable to provide to employees (for example information provided on a confidential basis by the Police may not be able to be shared).

Communicating with the broader community

This is dependent on the circumstances including the extent to which the broader school community is already aware a student is exhibiting anti-social and extremist behaviour. The Police must be consulted before the broader school community is provided with information about the anti-social and extremist behaviour and agreement reached about what information should be disclosed.

Developing a media plan

Communicating essential information effectively to people needing it most is also a critical consideration, and this may involve development of a media plan.

Sources of advice about communication strategies

The Media unit can be contacted about media and other communication strategies on (02) 9561 8117. Advice about communication strategies is also available from the Case Management and Specialist Support unit on 9707 6297. Legal advice about this issue can be obtained from the department’s Legal Services on 9561 8538

Record keeping requirements

It is important to maintain appropriate records when responding to a student who is exhibiting anti-social and extremist behaviour.  This includes:

  • Information about the student’s anti-social and extremist behaviour;
  • School-wide activities to support students who may be vulnerable to extremism;
  • Information provided to parents, staff and the broader community; and
  • The process followed to respond to anti-social and extremist behaviour (including consultation undertaken, risk assessments and strategies to eliminate or minimise risk).

Employees should contact Records Management (staff only) if they have specific records-related queries.

Schedule A

This schedule deals with issues that specifically relate to students. There is also a checklist that supports this that can be found here. If you need information specifically relating to staff, parents or other school community members please refer to Schedule B.

What should the student’s parents be told about their child’s anti-social and extremist behavour?

Parents must be promptly notified the school has become aware their child is exhibiting anti-social and extremist behaviour unless exceptional circumstances apply (for example where NSW Police advise notifying a parent could impact on an ongoing investigation). The police must be consulted before a parent is notified their child is exhibiting anti-social extremist behaviour and agreement reached as to whether the police or school will advise parents of this and, if the school are to make the contact, what information should be provided to parents. If school staff are unsure who in the police should be contacted advice can be obtained from the Case Management and Specialist Support unit on 9707 6297.

What impact can Family Court and other orders have on contact between the school and the student’s parents?

A Family Court order, a parenting agreement or an Apprehended Violence Order can have an impact on the information that can be provided to a parent about their child or the extent to which that parent should be consulted about their child’s education. Advice should be obtained from Legal Services on 9561 8538 about the impact of these orders on a particular situation.

How does the common law duty of care apply when a student exhibits anti-social and extremist behaviour?

The department has a common law duty of care to its students which it meets through the actions of its employees. The exercise of the duty of care requires any known (or reasonably foreseeable) risk to students (including the student exhibiting anti-social and extremist behaviour) to be identified and reasonable strategies implemented to protect students from related harm.

Principals should complete the online module that has been developed to build awareness of the response that should be made to anti-social and extremist behaviour and consider whether their employees should also complete the module. Principals should also use the other resources that have been developed to support their response to anti-social and extremist behaviour – called School Communities Working Together - and implement those strategies in their schools as required.

Further information about the School Communities Working Together strategies can be found on the HS directorate website. Advice is also available from the Case Management and Specialist Support unit on 9707 6297.

What responsibilities arise under discrimination law?

It is not a breach of discrimination law to notify the IRSH or the police that a person of a different race or with a disability has engaged in anti-social and extremist behaviour provided the notification is prompted by the person’s behaviour and not their race or disability.

Racial discrimination

No student is to be subjected to unlawful discrimination on the basis of their race. (Race includes colour, nationality, descent and ethnic, ethno-religious or national origin). Accordingly, no action should be taken against a student simply because they are, for example, of a particular ethno-religious or national origin.

Racial vilification

It is an offence under section 20D of the NSW Anti-Discrimination Act 1977 to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of their race. Acts of potential racial vilification by a student should be reported to the Police.

Disability discrimination

No student is to be subjected to unlawful discrimination on the basis of disability. When dealing with a student with disability consideration must be given to legal obligations under Commonwealth and State discrimination law which both define disability broadly. These obligations include where relevant, making reasonable adjustments to student’s learning program and/or learning environment in consultation with the student and/or their parents (to the extent this is practicable).

If an adjustment would result in an unjustifiable hardship to the school (for example an adjustment that would put staff or students at serious risk of harm) it should not be made.

Further advice

If legal advice is required about the application of discrimination legislation to a particular situation contact should be made with Legal Services on 9561 8538.

What responsibilities may arise under privacy law?

The Privacy and Personal Information Protection Act 1998 and the Health Records Information Privacy Act 2002 (privacy legislation) set out the basis upon which a student’s personal or health information is collected, used, disclosed and secured by government agencies including the department and the Police.

Information about when information can be shared between the department of Education and NSW Police is found in the Memorandum of Understanding for Information Exchange Between Schools and NSW Police.

Information about a student exhibiting anti-social and extremist behaviour can also be exchanged with other agencies: *

  • with the consent of the student/their parent; *
  • to assist decision making regarding the safety, welfare or wellbeing of a student under the age of 18 (Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998) – see Legal Issues Bulletin 50 Exchanging information with other organisations concerning the safety, welfare or wellbeing of children or young people; *
  • to manage health and safety risks related to a student’s violent behaviour (Part 5A of the Education Act 1990); or *
  • where an exception to privacy legislation applies (for example where there is a serious and imminent threat or an exemption is found in the department’s Privacy Code of Practice)

If legal advice is required about the exchange of information between schools and other agencies or organisations in other circumstances contact should be made with Legal Services on 9561 8538.

What responsibilities potentially arise under child protection law?

The fact a student is exhibiting anti-social and extremist behaviour could give rise to a reasonable suspicion a child or young person or class of children or young people is at risk of harm. This may relate to an actual incident, but other risk factors may also be present. School staff should inform their principal of any concerns a student may be a risk of harm. Principals need to consider whether a report to Community Services, contact with the department’s Child Wellbeing unit (staff only) or some other action is required.

The Mandatory Reporter Guide can help with this decision (see for example the psychological harm decision tree deals with underage marriage and the child/young person is a danger to self/others deals with violent threats to others). If in doubt or if assistance is required the Child Wellbeing unit can be contacted on (02) 9269 9400.

The department’s Protecting and Supporting Children and Young People Policy and Procedures also provide guidance about responding to child protection issues.

What responsibilities may arise under education law?

The Education Act 1990 states a high standard of education is to be provided in government schools without discrimination on the grounds of sex, race or religion. A child has a right to enrol in their local school provided he or she is eligible to attend that school. Any action taken under the Education Act 1990 (including decisions about the enrolment, suspension or expulsion of a student) must be consistent with the requirements of the Act and accord the student procedural fairness.

SCHEDULE B – PARENTS, STAFF MEMBERS AND OTHER SCHOOL COMMUNITY MEMBERS

This schedule deals with issues that specifically relate to staff, parents or other school community members. There is also a checklist that supports this that can be found here. If you need information specifically relating to students please refer to Schedule A above.

How does the common law duty of care to students apply when a parent, staff member or other school community member exhibits anti-social and extremist behaviour?

The department has a common law duty of care to its students which it meets through the actions of its employees. The exercise of the duty of care requires any known (or reasonably foreseeable) risk to students to be identified and reasonable strategies implemented to protect students from related harm. It is reasonably foreseeable that harm to students could arise from contact with a staff member or other school community member who exhibits anti-social and extremist behaviour.

Principals should complete the online module that has been developed to build awareness of the response that should be made to anti-social and extremist behaviour and consider whether their employees should also complete the module. Principals should also use the other resources that have been developed to support their response to anti-social and extremist behaviour – called School Communities Working Together - and implement those strategies in their schools as required.

Further information about the School Communities Working Together strategies can be found on the HS directorate website (staff only). Advice is also available from the Case Management and Specialist Support unit on 9707 6297.

What strategies can be implemented against parents, employees or other school community members in order to what is reasonably practicable to ensure safety met?

Where appropriate, potential strategies could include excluding a school community member from the school site under the Inclosed Lands Protection Act 1901 or obtaining an Apprehended Violence Order against them. Information about these processes is available from Legal Issues Bulletin 44 Apprehended Violence Orders respectively and further advice can be obtained from Legal Services on 9561 8538.

Information about options for employees being required to undertake alternate duties or being suspended can be obtained from the Employee Performance and Conduct directorate on 9266 8070.

Further information about the risk assessment and management process can be obtained from the Case Management and Specialist Support on 9707 6297 or from the Health and Safety website (staff only).

What responsibilities may arise under discrimination law?

It is not a breach of discrimination law to notify the IRSH or the police that a person of a different race or with a disability has engaged in anti-social and extremist behaviour provided the notification is prompted by the person’s behaviour and not their race or disability.

Racial discrimination

No employee or other school community member is to be subjected to unlawful discrimination, harassment or victimisation on the basis of their race. (Race includes colour, nationality, descent and ethnic, ethno-religious or national origin). Accordingly, no action should be taken against a staff member simply because they are, for example, of a particular ethno-religious or national origin.

Racial vilification

It is an offence under section 20D of the NSW Anti-Discrimination Act 1977 to incite hatred towards, serious contempt for, or severe ridicule of a person or group of persons on the grounds of their race. Acts of potential racial vilification by an employee or other school community member should be reported to the Police. LEGAL SERVICES REVIEWED MARCH 2018 WWW.EDUCATION.NSW.GOV.AU

Disability discrimination

No employee or other school community member is to be subjected to unlawful discrimination, harassment or victimisation on the basis of disability or because they are an associate of a person with disability. When dealing with an employee or other school community member consideration must be given to the requirements of Commonwealth and State discrimination legislation incluidng the requirement to consider and consult about making reasonable adjustments.

If an adjustment would result in an unjustifiable hardship to the school (for example an adjustment that would put staff or students at serious risk of harm) it should not be made.

Further advice If legal advice is required about the application of discrimination legislation to a particular situation contact should be made with Legal Services on 9561 8538.

What responsibilities may arise under privacy law?

The Privacy and Personal Information Protection Act 1998 and the Health Records Information Privacy Act 2002 (privacy legislation) set out the basis upon which an employee or other school community member’s personal or health information is collected, used, disclosed and secured by government agencies including the department and the Police. This does not mean information about a staff member exhibiting anti-social and extremist behaviour cannot be exchanged with another agency.

There are three circumstances in which information can be shared: *

  • with the consent of the staff member; * *
  • to assist decision making regarding the safety, welfare or wellbeing of a student under the age of 18 (Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 – this could relate to the staff member or community member’s own children or other children with whom they have contact; or * *
  • where an exception to privacy legislation applies (for example where there is a serious and imminent threat or an exemption is found in the department’s Privacy Code of Practice)

Information about when information can be shared between the department of Education and NSW Police is found in the Memorandum of Understanding for Information Exchange Between Schools and NSW Police.

If legal advice is required about the exchange of information between schools and other agencies or organisations in other circumstances contact should be made with Legal Services on 9561 8538.

What responsibilities potentially arise under child protection law?

The fact a staff member or other community member is exhibiting anti-social and extremist behaviour could give rise to a reasonable suspicion a child or young person with whom they have contact is at risk of harm. This may relate to an actual incident, but other risk factors may also be present. School staff should inform their principal of any concerns a student may be a risk of harm. Principals need to consider whether a report to Community Services, contact with the department’s Child Wellbeing unit (staff only) or some other action is required.

The Mandatory Reporter Guide can help with this decision (see for example the carer concerns decision tree). If in doubt or if assistance is required the Child Wellbeing unit can be contacted on (02) 9269 9400. The department’s Protecting and Supporting Children and Young People Policy and Procedures also provides guidance about responding to child protection issues.

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