Legal Compliance

Barrister

When teenagers hear the words “High School Formal”, they think of music, dancing, limo rides and making out.

When teachers, parents, government and media hear the words “High School Formal”, they also think of all of the above, but also think about thinks like…

  • Public Liability Insurance
  • Health & Safety Issues
  • Evacuation & Emergency Procedures
  • Senior First Aid Certification & Practice
  • Responsible Service of Alcohol Accreditation
  • Property Damage Liability Cover
  • Licensing & Permits
  • Security & Protection Procedures
  • Working with Children Check laws
  • APRA, AMCOS & PPCA Music Royalties & Licensing
  • Trade Practices Legislation
  • Search & Seizure Procedures
  • Substance Abuse
  • Contraband Withholding
  • Civil Liberties Infractions
  • Legal Reporting Requirements
  • Work Cover
  • Electrical Contract Lead Safety Tagging
  • Duty of Care
  • Loco-Parentis & Associated Restrictions & Permissions
  • Curfews & Time Restrictions
  • Minor’s Function Authorisations

…And a host of other issues that would normally not cross the mind of untrained formal
organisers, schools, venues or even lawyers.

If any of these issues, or a range of others, is not addressed properly during the planning and execution of a formal, the event can be deemed illegal and this immediately nullifies all insurances covering the night.

Once this happens, the liability, both legal and financial, falls directly and jointly at the feet of the organisers and, if a non-state school, the school. Yes! The school too. In the case of state schools, the D.E.T. can be claimed upon, and the blame rolls down the line.

I hear you ask…

“But what if the school doesn’t permit the event? Surely we’re out of the firing line if
that’s the case.”

No! This may serve to shock you but read this next section very carefully…

These scenarios are commonly accepted as reasons why the school cannot be held responsible if something goes wrong at a formal…

  • The school was aware of the event but no teachers or staff members attended.
  • The school was aware of the event but did not participate in any part of the planning or running of it.
  • The school was aware of the event but strongly opposed any involvement, and even forbid the use of its name in any mention of it.
  • The school took steps to prevent the event from going ahead.
  • The school was not even aware that the event took place.

The plain fact is that even if any (or all) of the above describes your school’s position on any school formal that a significant number of your students attended, then your school was exposed to liability.

Here are 2 statistics that will catch your attention…

  • 86% of all formals that are disallowed by the school go ahead anyway and use the
    schools name in the booking process.
  • Up to 92% of all formals that take place in the greater Sydney area, every year, are
    non-compliant in one form or another, and often uninsured for that reason.

So – if your choice is clearly defined as “Forbid Formals and we’re safe from harm” you need to embrace the concept that you couldn’t be further from the reality of the  situation.

I’ve prepared a simple checklist for you (following pages) to go through for your formal plans. If you have an existing formal under way, this will quickly identify holes in your plans that you can action well before they become real problems for you. Alternatively, if you have not yet started planning, this can serve as a great guideline of what you need to address before you begin.

There is a simple “Yes” or “No” answer required for each section. If you can answer “No” to even one of these questions, or cannot answer either way, then you must consider your formal to be potentially non-compliant and uninsured. Steps must be taken to  rectify the problem; else liability falls with the organiser and the school, (even if they’re unaware).

Formal Checklist Yes No:

  • Is the venue a bona-fide function facility?
  • Is the venue easily accessible by patrons seeking to use public transport?
  • Does the venue accommodate disabled patrons?
  • Can the venue produce proof of Public Liability Insurance to the value of $20M
    cover?
  • Can the venue produce proof of subscription to APPRA, AMCOS & PPCA for the
    performance of recorded or live music?
  • Does the venue have updated & checked fire fighting equipment & fire & smoke
    alarms?
  • Does the venue hold a Permanent On-Site Liquor License?
  • Does the venue hold the appropriate permit to undertake formals? (See Guide
    Below)
  • Is every manager or supervisor of your formal over the age of 21 years?
  • Has every adult working at your formal passed the “Working with Children”
    Check?
  • Do the venue and its staff have a tested fire & evacuation procedure?
  • Can every supplier of consumable (Non-Food) items produce a “Safety Fact
    Sheet” on what they’re supplying?
  • Can every person plugging any electrical item into mains power produce proof of
    “Safety Compliance” with each power lead appropriately tagged by licensed
    electrical inspectors?
  • Does every piece of electrical equipment carry the “Australian Manufacturers
    Standards Compliance” marking?
  • Can every supplier of any item rigged or fixed above the heads of guests
    produce a valid “Riggers Certificate”?
  • Can the venue, or the rigger of any heavy item overhead produce a “Stress &
    Weight Rating” certificate for such rigging?
  • Has every item or substance being provided been checked so as to eliminate
    any slip or trip hazard?
  • Has every food item being provided been prepared handled and served by
    licensed & certified food preparation entity?
  • Has the event been promoted as being only accessible by pre-sold ticket, and
    have such tickets been produced?
  • Has the event been promoted explicitly without any reference to alcohol that may
    be available?
  • Have sufficient steps been undertaken to ascertain whether guests have been
    consuming alcohol prior to attendance?
  • Have sufficient steps been undertaken to ascertain whether guests are carrying
    alcohol into the premises?
  • Have you prepared the mandatory signage relating to alcohol that must be
    displayed at the entrance to venues?
  • Has the local area Police Command been notified in writing as to the details of
    the event?
  • Has a written register been kept of every person issued a ticket that can be
    checked against those who attend?
  • Have sufficient steps been undertaken to ensure that minors are not sharing any
    public areas with unauthorised people?
  • In circumstances that require minors to be in the presence of loco-parentis, has
    this been sufficiently addressed?
  • Has the formal been scheduled to start and finish between 7 pm and Midnight?
  • Have sufficient steps been taken to satisfy “duty of care” for guests arriving and
    leaving the formal?
  • Has catering been done with special provision for food intolerances, vegetarian
    preferences or religious restrictions?
  • Has all business pertinent to the formal complied completely with Trade
    Practices Legislation?
  • Are those undertaking supervisory or security role licensed and bona-fide
    security officers?
  • Can the security staff produce Security Licenses (non provisional) for the
    protection of both persons and premises?
  • Can the security staff produce separate proof of Public Liability Insurance?
  • Can the security staff produce “Responsible Service of Alcohol” accreditation?
  • Can the security staff produce current Advanced or Senior First Aid certification?
  • Can someone in a supervisory role at the event show proof of current certification in the use of Epipen and Anapen for Anaphylaxis?

Guides…

Guide for formal permits on venues – If a Hotel or Club License, there must also be a “Minor’s Functions Authorisation” and all guests must be over 15 years of age.

Guide for alcohol restrictions – If a Hotel or Club License, with a “Minor’s Function Authorisation” no alcohol is permitted whatsoever – regardless of age.

Guide for security restrictions – Teachers & Parents may not undertake any supervisory or security role on licensed premises with formals. Even standing post on an exit, or checking toilets is considered security-related duty and may only be conducted by licensed personnel.

So – how did you go with your answers?

You may be thinking “some of these are ludicrous questions” and in the environment of everyday life, they may seem so BUT when we’re talking about Insurers, Government Regulators and Parents, you won’t have much success arguing about any of these points when something goes wrong.

Imagine this scenario…

You follow this checklist to the letter and everything appears to be in order. The formal is under way and everything is going just fine. Suddenly a young girl trips over her own high-heels (not too hard to imagine) and breaks her nose on the floor. “A promising modelling career has just been destroyed” says her mother. “You’ll be hearing from my lawyers”. The incident is assessed by investigators representing the venue’s insurer and it is found that within a metre of where the girl tripped, there was a power lead taped to the carpet for safety.

Upon closer inspection, it is found that the tape is of a cheap and inferior quality than that which is recommended for such use because it has insufficient adhesive on the underside.

This is sufficient for the insurer to argue that there was a breach of Occupational Health & Safety protocols, which may have inadvertently contributed to the accident, and therefore they refuse to honour the claim.

Now there is a lawsuit looking for the next available exposed entity to land on. The school and the organiser of the event. There’s no point even calling the schools insurers because the school’s policy won’t cover off-site events.

“Far-Fetched?” This is precisely the kind of scenario that has for years frightened school
administrators. Incidents not unlike this occur every season.

Of course I don’t mean to frighten you away from the prospect of helping plan a great formal for the kids however, fire extinguishers, smoke alarms, emergency services and insurance policies are all a part of every day life. We never question the motivation for surrounding ourselves with them. “Just in case – you never know” is the adopted attitude, and the right one. Why should applying all of these expectations to formals be any different?