However, features of a good music education can include students being placed in situations where they are in close proximity to adults—often outside of school hours and on a one-to-one basis with tutors who may not be employees. The risk is further magnified by physical contact during instruction and the emotional intensity of working in a coaching relationship towards shared goals. This presents clear child safety and liability risks for schools and other organisations that facilitate instrumental music tuition.. 

ABS data from 2021-22 indicates that 620,700 Australian children aged between 5 and 14 sing or play a musical instrument. In light of the clear benefits of music education and the extent to which it is practised in schools, the fundamental question to which proactive educators must turn is how this important and worthwhile activity can be dispensed in a child-safe manner with safeguards for children, teachers and institutions. 

Generally, schools owe a non-delegable duty of care to students to take reasonable care to avoid foreseeable risks of harm. Non-delegability operates such that child-safety remains the school's responsibility where the school-pupil relationship is operative - which would likely encompass musical tuition not withstanding it may take place before or after standard school hours. 

Were a child to be harmed in the course of the activity, the institution may be found to have breached its duty of care if it were negligent in failing to take precautions against a foreseeable and not insignificant risk of harm. There is now enshrined in legislation a mandatory duty for an organisation that has responsibility for a child to take reasonable precautions to prevent an individual associated with the organisation from perpetrating child abuse in connection with the organisation's responsibility for the child. The organisation is presumed to have breached its duty unless it can prove that it took reasonable precautions to prevent the abuse. This "reverse onus" is significant and was introduced post the Royal Commission into Institutional Responses to Child Sexual Abuse.  

Separate to a claim in negligence that arises from a breach of duty, an educational institution may also be held vicariously liable for the actions of its employees. This is a strict liability that requires no evidence of fault or negligence.

Music tutors, however, may operate as directly employed teachers, contractors, sole traders, or in another self-employed capacity. The Royal Commission's Final Report on Sports, Recreation, Arts, Culture, Community and Hobby Groups Volume 14 noted that many instructors are accredited as 'sole traders', not formally connected to any institution or governing body and the attendant oversight that would provide. 

Harm to a child caused by a music tutor can therefore lead to civil liability for the institution and/or the teacher as well as criminal liability. A proactive approach to prevention ought to be paramount. 

Lessons can be learned from examining past instances of child abuse in a musical context. In Re W, TJ [2018] SADC 97, a music teacher carried out sexual abuse in "private partitioned rooms for practise" through an "informal arrangement [for] extra singing tuition at lunchtime". Similarly, in HWC v Corporation of the Synod of the Diocese of Brisbane (2008) 220 FLR 92, it was found that a music teacher perpetrated abuse by "conduct[ing] tuition alone, for long periods, in soundproof rooms without supervision". This led to allegations against the employing institution regarding failure to "take proper care in selecting persons to carry out music tuition", and failure to "properly supervise" that tuition.

Case studies in the Royal Commission's Final Report follow this same pattern. A piano teacher perpetrated abuse predominantly by "[teaching] students music privately in a studio in his home", but also at the Australian Institute of Music by "[taking] advantage of concealed parts of the classroom", with one survivor noting that abuse always took place in "one particular corner…you could not see that corner…from the door…[the teacher] must have felt safe there". In a separate case study, another student was sexually abused in soundproof rooms, which she described as being "in like the most unsafe place it could have been".

Extra-jurisdictionally, the UK Report of the Independent Inquiry into Child Sexual Abuse from October 2022 examined instances of child sexual abuse at specialist music schools and similarly found physical seclusion and one-to-one tuition especially problematic. A new finding was the intersection between child sexual abuse and bullying through racism, sexism, and homophobia which made victims feel lesser than. In addition, the UK Report raised the spectre of intimidatory cultures in institutions creating an "ideal breeding ground for abuse to flourish", and of schools prioritising their reputations by suppressing allegations. 

It is evident that there is a clear need for schools and similar organisations to explicitly provide for and regulate musical tutoring with respect to child-safety. 

The UK Report recommends institutions develop proactive safeguarding policies which limit children's exposure to high-risk environments. Incorporating this recommendation practically would require drafting policies which explicitly address musical tuition, provide for regular refresher training ensuring familiarity, and mechanisms for internal and external review. A Code of Conduct for staff would be prudent to ensure all staff clearly understand expectations (see, for example, the Musicians Union UK Safeguarding Code of Conduct).

The Royal Commission recommended ten Child Safe Standards to provide tangible guidance to institutions, which could be incorporated into the music education context as shown below:  

• Child Safe Standard 5: People working with children are suitable and supported;

(a)    Recruitment, supervision, and people management must emphasise child safety, with all staff and volunteers receiving an induction encompassing child safety responsibilities; 

(i)    Applicably, institutions should clearly classify music tutors as employees or contractors, such that obligations and oversight can be explicitly imposed upon any individual with access to children, and there is a clear understanding of potential liability risks. 

• Child Safe Standard 8: Physical and online environments minimise the opportunity for abuse to occur; 

(a)    In light of patterns in the case law, design and construction of musical facilities must foreground child safety, eliminating concealed spaces and windowless practise rooms to prevent physical isolation.  

(b)    Online risks could be mitigated by imposition of electronic communication requirements preventing issuance of any personal contact details, such that all communication with students must be via the school email system. 

While the benefits of music education should be encouraged, aspects of instrumental tuition can present elevated child safety risks. A proactive approach to managing these risks is not only a statutory requirement but also essential to safeguarding students, protecting staff, and supporting the ongoing success of music programs. For guidance on how to ensure your organisation is properly covered, please reach out to our insurance team.