© The Association of Independent Schools of NSW ICT Conference Canberra Legal Ramifications Cathy Lovell Senior Advisor Employment Advisor 31 May 2013

© The Association of Independent Schools of NSW

ICT Conference CanberraLegal Ramifications

Cathy Lovell

Senior Advisor Employment Advisor

31 May 2013


Outline

Legislative Regime Legal Compliance and Accountability Stakeholders Risks

Students Staff Parents School Community

Legal Ramifications


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


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)


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


Legal Compliance and Accountability

Contract of Employment Position Descriptions Delegation of responsibility Monitoring and gate keeping


Stakeholders

School Board

School Executive

Students

Staff

Parents

Community


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


Risks

Staff

Inappropriate conduct resulting in employment action

Bullying and harassment

Discrimination

Racial vilification

Breach of contract


Risks

Parents and Community

Breach of privacy

Advocacy sites

Defamation


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


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


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


Managing ObligationsInternet, 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.


Managing ObligationsPrivacy 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


Managing ObligationsChild 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)


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


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


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


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?


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?


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?


Questions?


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

Thank you

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.