Education and the law : school councils, boards and constitutions

Authors

N Stevens-Warton, Cornwall Stodart Lawyers

Abstract

A school's constitution is an important foundation document for both the operation and culture of the school, especially when it comes to school boards or councils. School councils, in the case of government schools, and school boards, in the case of non-government schools, are generally charged with the responsibility for setting the direction of the school and for overseeing its operations and expenditure. As education falls within the purview of state and territory control, there is separate legislation in each Australian jurisdiction that regulates the way in which school councils for government schools operate. This legislation also sets out the powers and responsibilities of councils within the relevant state or territory. By contrast, most non-government schools are established as companies, the majority of which are incorporated as companies limited by guarantee, and they are therefore subject to the provisions of the Corporations Act 2001 (Corporations Act) which is Commonwealth legislation. All companies governed by the Corporations Act must have a constitution. The constitution may contain rules tailored specifically to the company or may comprise generic 'replaceable rules' provided under the Corporations Act. In the case of private school boards, it is this constitution that will establish the powers and responsibilities of the board. It is beyond the scope of this article to review the individual requirements under each piece of state and territory legislation for school councils, however the article does cover some points that schools may find worthy of consideration when drafting or amending their constitutions. These recommendations are drawn from legislative requirements for companies under the Corporations Act and also from matters raised under certain state and territory legislation relevant to school councils, where their application may also be of practical assistance to school boards. [Author abstract, ed]

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