ICT Conference Canberra
Legal Ramifications
Cathy Lovell
Senior Advisor Employment Advisor
31 May 2013
© The Association of Independent Schools of NSW
Outline
 Legislative Regime
 Legal Compliance and Accountability
 Stakeholders
 Risks
 Students
 Staff
 Parents
 School
 Community
 Legal Ramifications
© The Association of Independent Schools of NSW
Legislative Regime
 Child Protection
 Children and Young Persons (Care and
Protection) Act 1998
 Risk of significant harm
 Ombudsman Act 1974
 Reportable conduct
 Commission for Children and Young People
(CCYP)
 Pre employment checks
© The Association of Independent Schools of NSW
Legislative Regime
 Common law – negligence
 Civil Liabilities Act 2002 (NSW) or other
 Privacy Act 1988
 Workplace Surveillance Acts
 Crimes Act
 School Registration bodies (i.e. Board of Studies in
NSW)
© The Association of Independent Schools of NSW
Legal Compliance and Accountability
 Schools must have a proactive approach
 Policies and Procedures
 Grievance Policy
 Staff Code of Conduct
 Student Code of Conduct
 Disciplinary Policies
 Privacy Policy (collection, use and disclosure)
 Child Protection Policy
 Workplace Surveillance
 Email, Internet and Mobile Phone policies
 Social Networking Policy
© The Association of Independent Schools of NSW
Legal Compliance and Accountability
 Contract of Employment
 Position Descriptions
 Delegation of responsibility
 Monitoring and gate keeping
© The Association of Independent Schools of NSW
Stakeholders
 School Board
 School Executive
 Students
 Staff
 Parents
 Community
© The Association of Independent Schools of NSW
Risks
 Students
 Inappropriate interactions with students
 Grooming and other inappropriate interactions with adults
 Bullying and harassment
 Exposure (selfies) or distribution of child porn
 Breach of privacy
 Breach of copyright
 Identity theft
 cheating
© The Association of Independent Schools of NSW
Risks
 Staff
 Inappropriate conduct resulting in employment action
 Bullying and harassment
 Discrimination
 Racial vilification
 Breach of contract
© The Association of Independent Schools of NSW
Risks
 Parents and Community
 Breach of privacy
 Advocacy sites
 Defamation
© The Association of Independent Schools of NSW
Risks for the School
 Consequences
 BOS Registration (lack of policy and procedure)
 Human Rights Commission
 Fair Work Commission
 Common law negligence claim
 Privacy Act – fine
 Work Health and Safety Act – failure to provide a safe
place of work (students and teachers)
 Reputation
 Loss of enrolments
 Breach of copyright
© The Association of Independent Schools of NSW
Expectations of you?
 Implement and abide by policies and procedures
 Monitor and gate keep and REPORT
 Proactive innovation and Strategy
 Management of resources
 Seek to eliminate or minimize risks
 Constantly update skills and legal awareness
 Collection, use and disclosure of information
 Investigation
 Collection of evidence
 Confidentiality
© The Association of Independent Schools of NSW
Legal Liability
 School is vicariously liable for the actions of its
employees
 Unless
 You are blatantly negligent
 Failure to follow and implement school policy despite
knowledge of them
 Purposefully acting outside of policies
 i.e. Inappropriate contact with students
 Failure to report criminal act
© The Association of Independent Schools of NSW
Managing Obligations
Internet, Email and Mobiles

The School has authority to:
 Monitor email and internet activity with notice
 Inspect school property (computers and mobile phones)
 Owns the copyright in emails
 Block access to websites

The School should:
 Report breaches to authorities
 Community Services,
 Police
 Conduct regular audits to ensure compliance with policies and
procedures by staff and students.
© The Association of Independent Schools of NSW
Managing Obligations
Privacy and Confidentiality
 Managing Obligations
 Storage of personal/sensitive/health information
 Access to personal, sensitive and health information.
 Software security
 Network security
 Data breaches & rectification
 Personnel training
 Regular monitoring and review
 Back up
© The Association of Independent Schools of NSW
Managing Obligations
Child Protection
 Responsibility of staff
 Duty of care
 Report concerns around safety, welfare and wellbeing of
students
 Report in accordance with school policies or protocols
 All teachers are mandatory reporters via Principal (NSW)
© The Association of Independent Schools of NSW
Record Retention
 School should retain:
 Business records
5 years > ATO
 Employment Records
7 years > FWA 2009
 Contractual Documents
6 years > after relationship
 Business Records
7 years > Corporations Act
 Student records
depends?
 BOS attendance
7 years (NSW)
 Managing Obligation
 Record Retention Policy
 Disaster Recovery Plan
 Business Continuity Plan (testing and back up)
 Breach can result in fines from ATO or FWC
© The Association of Independent Schools of NSW
Consider
 Internet, Email and Mobile policy
 Privacy Policy and Management of Personal Information
 Social Media Policy
 IT and Management Engagement Plan
 Child Protection Policies
 Staff and Student Codes of Conduct
 Record Retention Policy
 Disaster Recovery Plan – Testing and Backup
 Business Continuity Plan – Testing and Backup
© The Association of Independent Schools of NSW
Scenarios
The Federal Police arrive at the School because a
teacher has been linked to a child porn ring on the
internet.
What might you be required to do?
 Stop access to internet, email, network
 Retrieve historical information
 Search your network for images and/or data
 Review data in phones and laptops
 Maintain absolute confidentiality
© The Association of Independent Schools of NSW
While monitoring internet and email activity you
become aware of some inappropriate exchanges
between a student and a senior member of staff to
whom you report.
The information in the emails is not excessively
inappropriate but borderline and you are concerned
because the student is using the teacher’s private
email address.
Your responsibility?
© The Association of Independent Schools of NSW
You are aware that your colleague was off sick on
Friday.
However, when you check your facebook page on
Saturday you notice that she has posted photos of
herself at a food and wine festival on Friday.
Further, it is clear she has been making derogatory
comments about the school and the Principal on
facebook
Your responsibility?
© The Association of Independent Schools of NSW
 You become aware that two members of staff are
having an affair. Do you have an obligation to
disclose?
 You become aware of an email between a staff
member and her partner that is sexually explicit.
Your obligation?
 You system traps an email which has been
forwarded by a staff member to some of his friends
outside the network. It contains offensive racist
material. Your obligation?
© The Association of Independent Schools of NSW
Questions?
© The Association of Independent Schools of NSW
Thank you
Level 12, 99 York Street, Sydney NSW 2000
Phone: (02) 9299 2845 Fax: (02) 9290 2274
Web: aisnsw.edu.au
ABN 96 003 509 073
The Smarter Schools National Partnership (on Improving
Teacher Quality) is a joint initiative of the Australian and NSW
Governments and The Association of Independent Schools of
NSW.
© The Association of Independent Schools of NSW