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Transcript of © The Association of Independent Schools of NSW ICT Conference Canberra Legal Ramifications Cathy...
© The Association of Independent Schools of NSW
ICT Conference CanberraLegal 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 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.
© The Association of Independent Schools of NSW
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
© The Association of Independent Schools of NSW
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)
© 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
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.