Private Schools – Your Rights as a Landowner Still Exist

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How are you, as a private school, permitted to deal with a problematic parent entering the school premises? Is there a way in which this person can be lawfully excluded from the school? The law provides a number of avenues, some of which are more advisable than others.  A recent decision of QCAT referred to in the Courier Mail on 18 March 2014 discusses the rights of a School (in this case a state school) to exclude a parent from school premises (where the parent had assaulted the Principal) under the Education (General Provisions) Act 2006 (Qld). However, for the reasons that follow, we would usually suggest this particular course as a last resort when regarding private school landowner rights.

Rights under the common law

As the legal owner (or lessee) of land, you have the right to exclude all others from entering or using that land. You must be able to establish that:

  1. You, as the school, are the current landowner (or lessee);
  2. The person has intentionally or negligently entered or remained upon your land;
  3.  The person has done so without your permission or other legal justification or excuse.

It is presumed that a parent or student has permission to enter upon the school premises on account of their child’s enrolment in the school. However, if you direct the person to leave, this implied permission is revoked and should the person remain on the property beyond a reasonable time for departure, the person’s actions are likely to constitute trespass to land.

You could therefore direct a person to not re-enter the school, and if they do they would be considered a trespasser. You may take action to seek an injunction restraining the person from entering the school premises, even if no harm resulted. If harm did occur to the land however, you may also seek monetary compensation.

Rights under legislation

Pursuant to section 11 of the Summary Offences Act 2005 (Qld) “a person must not unlawfully enter, or remain in, a place used as a yard for, or a place used for, a business purpose” as this constitutes an offence. Conducting a School from the premises is a business purpose. “Unlawfully” means without authorisation, justification or excuse by law.

The Education (General Provisions) Act 2006 (Qld) (‘the Act’) also provides you with a right to specifically exclude a person from the school premises, provided particular criteria are met. However, these rights are considerably narrower than the common law right, as these directions cannot be given to students or employees, and are only valid for a specified duration.

Direction about conduct or movement – section 346 of the Act

The principal may restrict and dictate a person’s conduct on school grounds for a period of up to 30 days (starting on the day that the direction is issued), so long as the principal is satisfied that giving such a direction is necessary:

  1. To ensure the safety and wellbeing of other people on the premises;
  2. To prevent or minimise damage to the premises or its property;
  3. To maintain good order; or
  4. For the proper management of the School.

The directed person has a right to apply for a review of that direction by the School’s review body within 7 days of that direction.

Direction to leave and not re-enter for 24 hours – section 348 of the Act

A principal may give a person a written direction to leave and not re-enter the School premises for 24 hours (starting at the time the direction is given), so long as the principal reasonably suspects that the person:

(a)   has committed, or is about to commit, an offence at the premises;

(b)   has used or will use abusive or threatening or insulting language towards another person at the premises;

(c)    has or will engage in threatening or violent behaviour towards another person at the premises;

(d)   has disrupted or will disrupt good order at the premises; or

(e)   does not have a good and lawful reason to be at the premises.

Prohibition from entering premises for up to 60 days – section 349 of the Act

A principal may issue a written direction excluding a person from the School premises for up to 60 days after the direction is given. This power is to be exercised in more serious circumstances than the above, where the principal is reasonably satisfied that the person is likely to:

(a)   cause physical harm to, or apprehension or fear of physical harm in, another person on the School premises;

(b)   damage the premises or its property; or

(c)    disrupt the good order and management of the School.

Prohibition from entering premises for up to one year – section 350 of the Act

The School’s governing body may apply to the Queensland Civil and Administrative Tribunal (“QCAT”) to obtain an order that prohibits a person from entering the School premises for longer than 60 days and up to one year. However, QCAT must be satisfied that unless the order is made, the person is likely to:

(a)   cause physical harm to, or apprehension of physical harm in, another person on the School premises;

(b)   damage the premises or its property; or

(c)    disrupt the good order and management of the School.

Using the provisions under the Act would be a costly and tedious process and generally difficult to satisfy as the case law suggests. QCAT recently made an order under the state school equivalent section in Department of Education, Training and Employment v CZ [2013] QCAT 739. In that case, CZ’s son was a student at Pimpama State Secondary College. CZ’s behaviour towards to the school’s administrative staff was described as aggressive and abusive. She called the principal some obscene names, shoved him in the chest with both her hands and punched the principal in the head three times.CZ ignored a direction to not enter school premises. She then struck the principal in the mouth and made a threat that her partner would come to the school and kill the principal. This threat and assault occurred in front of many students. A direction was made by the Department of Education, Training and Employment that she not enter the school premises for 60 days and then it sought from QCAT an order to prohibit her entrance for one year.

At the time of the QCAT application being made, CZ’s son had been withdrawn from the school. However, there was a possibility that CZ’s son would return to school, given that the student could return from Mackay where he was expected to live with his father if things did not work out there. It was reasonable to infer that her relationship with the school was not yet finalised and that she could attend again unless QCAT had made this order. Therefore, an order to prohibit CZ from entering for the maximum period of 1 year was made.

Limitations of the legislation

However, our view is that there are real limitations to using the Education (General Provisions) Act 2006 (Qld) provisions, in particular:

  1. In making any of the above directions or seeking an order, there are strict criteria that must be satisfied and not all situations are as severe as in the case above;
  2. The direction made or order obtained is valid only for a limited period of time;
  3. Students and employees cannot be the subject of such directions or orders;
  4. There are rights of appeal for the affected person; and
  5. Applying to QCAT for an order is expensive particularly if the other party contests the application. QCAT is ordinarily a no-costs jurisdiction. This means that even if you are successful, QCAT is unlikely to order that the other party pay your costs.

Reconciling the common law with the legislation

The well established legal principle is that legislation does not override common law rights, unless the legislation uses clear words, or expresses an intention, to restrict the application of the common law. Our view is that the legislation does not do this, and the common law right of preventing a trespass remains.

Given the wider protection that the common law provides, we would usually prefer the following alternatives:

  1. Consider terminating the contract of enrolment, if  the contract so allows and the conduct is sufficiently serious;
  2. Allow  the parent to enter on the basis that they behave properly;
  3. Giving the parent a direction to leave the premises and revoking their invitation to re-enter (but still allowing for the student to remain).

Obviously, these steps can be complex and problematic and legal advice should be sought when necessary. However, private schools should not, in our view, assume that their only option is to follow the course adopted by Pimpama State Secondary College.

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For more information regarding Private School Landowner Rights

Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our specialist Education Lawyers today.