The use of mobile phones

The use of mobile phones in schools should not automatically be of concern. It is only if a mobile phone is used inappropriately that action may be necessary.

Inappropriate use of a mobile phone includes:

• using it in a way that disrupts or is likely to disrupt the learning environment or interfere with the operation of the school
• bullying, intimidating or otherwise harassing others through SMS or text messaging or through photographic, video or other data transfer system available on the phone
• recording of conversations, including lessons, without the knowledge and permission of the teacher or those involved in the conversation [refer also to the separate section on Recording and Other Listening Devices]
• downloading or otherwise accessing inappropriate material on the internet such as child abuse or pornographic or other offensive material
• filming of fights or other criminal behaviour involving students that occur at school, during school activities or while on the way to or from school
• using it in a way that threatens or is likely to threaten the safety or wellbeing of any person
• use that is in breach of any law.

Students bringing mobile phones to school

Mobile phones may provide students travelling to and from schools with a degree of security. For this reason, a student bringing a mobile phone into the school is usually not of itself enough to justify any action against the student.

It is important that all schools have an acceptable use of mobile phone policy that is clearly communicated to students and parents. Details of the potential consequences for students arising from inappropriate use of mobile phones should be included as part of the policy.

Defining “sexting”?

This involves sending sexually explicit or suggestive pictures to mobile phones or posting them on individual or inter-active websites such as Facebook. It is a popular practice among teenagers.

Legal ramifications for students engaging in sexting

If the image is of a person under the age of 16 engaged in sexual activity or in a sexual context, it is likely to be regarded as child abuse material for the purposes of the Crimes Act. Any person who produces sends, transmits, disseminates or possesses child abuse material is guilty of an offence and is liable to a maximum penalty of 10 years imprisonment.

Engaging in this behaviour is also likely to be a breach of the Commonwealth Criminal Code and carries a maximum penalty of 3 years imprisonment.

Students using mobile phones inappropriately

If students use mobile phones inappropriately, principals have the right to take action.

Depending on the circumstances, action can include:

• banning students from using mobile phones during the course of the school day
• confiscating mobile phones from individual students
• in the case of schools, requiring students to hand in their mobile phones to designated school staff at the beginning of the school day for collection when students go home
• applying student disciplinary provisions
• reporting the matter to the police.

Discovering students are sexting each other

Principals need to use their judgement based on the nature of the material in question. In some cases, it may be necessary to report the matter to the local police for further investigation. It may also be appropriate to confiscate mobile phones which have images on them and secure them until the police are able to view the material. In other instances, it may be more appropriate to have the student(s) involved delete the material from their phones.

If the offenders are school, principals should also take appropriate action under the relevant student discipline policy.

If unsure about what action to take, contact should be made with the Safety and Security directorate on 1300 363 778 or Legal Services on 9561 8538.

Confiscating a student’s phone

If school staff have reasonable grounds to suspect that a student has inappropriate material on his or her phone, they may confiscate the phone for the purpose of confirming the existence of the material. Any viewing of the material should be undertaken in the presence of the student and should be limited to establishing that inappropriate material is on the phone. Staff need to be sensitive to other personal information of the student that may also be present on the phone.

It is appropriate to confiscate phones from students when:

• it is necessary to examine the phone when there are reasonable grounds to suspect inappropriate material may be on the phone
• material that falls within the meaning of sexting is found on the phone
• the phone has been used to record fights or other criminal activity involving students occurring at a school, during school activities or on the way to, or from, the school.

If video recordings of fights or other criminal or potential criminal activity are located on a student’s phone, principals need to consider whether the nature of the material recorded warrants reporting to the police in addition to any potential action under the school student discipline policy. Further advice on this issue may be sought the Safety and Security directorate on telephone 1300 363 778 or Legal Services on 9561 8538.

Storing confiscated devices

Action must be taken to securely store any mobile phone confiscated from a student. Under no circumstances should mobile phones be left in unlocked desk drawers, on teachers’ tables or in staffrooms.

Generally, arrangements should be made to return the mobile phone to the student at the conclusion of the school day. If this is not possible, it should happen as soon as practicable.

If the confiscation of the phone has resulted in the matter being reported to the police, the phone should not be returned until police confirm this can occur. In these circumstances, parents should be advised of the confiscation and police involvement and provided with the name of the investigating police officer if known.

Schools requiring phones to be handed in each day

Principals must consult with parents before bringing in a policy requiring students to hand in mobile phones to staff at the start of the school day. The circumstances of individual students also need to be taken into account when implementing such a system. Students may sometimes need to make or receive phone calls of an urgent nature during the course of the day. Providing access to a designated phone in the school may be one way of addressing such issues.

Liability for damage

Students and parents should be reminded on a regular basis that students bring mobile phones to the school at their own risk – schools will not accept any responsibility for loss or damage to mobile phones.

Once confiscated, however, responsibility for the security and safekeeping of the mobile phone does rest with the school. If a confiscated mobile phone is lost or destroyed while not having been properly secured by staff, the school may be liable to compensate the student.

Principals should also refer to legal issues bulletin 8 – Claims for loss of or damage to personal property and use of private motor vehicles by staff, parents and students .

Portable Tablets, Computer Games, iPods and similar devices

The procedures applying to the inappropriate use of mobile phones apply equally to the inappropriate use of tablets, portable computer games, iPods and similar devices, including the need to have a school policy regarding their inappropriate use.

The law and recording private conversations

Sometimes people being interviewed on school premises seek to record the interview. Subject to certain exceptions,it is an offence for a person to use a listening device to record or listen to a private conversation to which the person is not a party or to record a private conversation to which the person is a party.

The Surveillance Devices Act 2007 applies in this situation and defines a “private conversation” as anything said by one person to another or others in circumstances where it can reasonably be assumed that any of the persons involved desire the conversation to be heard only by those present or, with the consent of all present, some other person or persons.

It is not an offence to record a private conversation if:

• everyone involved in the conversation agrees either explicitly or impliedly
• any person involved in the conversation consents to the recording being made provided the recording is reasonably necessary for the protection of the lawful interests of that person
• any person involved in the conversation consents to the recording and it is not made for the purpose of disclosing the conversation to others not involved.

Generally, if a person who has been involved in a private conversation records the conversation (with or without consent), he or she is prohibited from later communicating or publishing any record of the conversation to another person.

There are a number of exceptions to this rule, namely:

• the communication or publication is made to another person who was involved in the conversation or it is made with the consent of all people  involved in the conversation
• the communication or publication is reasonably necessary for the protection of the lawful interests of the person making the communication or publication
• the communication or publication is made to a person who has or can reasonably be said to have such an interest in the private conversation as to reasonably justify the communication or publication being made.

Breaches of the Surveillance Devices Act attract penalties of up to $11,000 or 5 years imprisonment or both.

Consent to an interview being recorded

It is a matter for discretion in deciding whether to consent to an interview being recorded. There is no general requirement to consent to the request but refusal may result in adverse perceptions as to why the consent is not being given.

Any consent given should be subject to the other person agreeing, preferably in writing, to provide a copy of the recording made at the conclusion, or as soon as practicable after the conclusion, of the interview.

Recording interviews

Generally, principals should not seek to record interviews held with parents, students or others. Such requests can appear heavy-handed and may result in a reluctance to fully participate in the interview. If special circumstances exist which justify recording the interview, principals should ensure the other person is aware the interview will be recorded and that a copy of the recording can be provided.

School video-conferencing facilities

Video conference facilities are now commonplace in schools. In many instances, they will be located in rooms which are used for multiple purposes. If it is not possible or practicable to turn off the video-conferencing facilities or lock them away when not in use, users of the room should be advised.

Cameras and Video Cameras

Is it legal to take photos or film without consent?

Generally yes, though it is an offence to film for indecent purposes. The Crimes Act 1900 provides that a person will be guilty of an offence if he or she films or attempts to film, for the purposes of sexual gratification:

• another person who is engaged in a private act knowing the person being filmed does not consent to be filmed for that purpose
• another person’s private parts knowing the person being filmed does not consent to be filmed for that purpose.

“Private act” means a state of undress, using the toilet, showering or bathing or engaged in another like activity in circumstances where the person would reasonably expect to be afforded privacy. “Private parts” means the genital or anal area of someone whether or not it is bare or covered by underwear.

It is also an offence to install a device to facilitate filming for indecent purposes. The indecent filming provisions of the Crimes Act also apply to mobile phones with image capabilities.

Incidents of this nature that occur in schools should be reported to the police. If a staff member is involved, it should also be reported to the department’s Employee Performance and Conduct directorate.

Principals should also refer to privacy bulletin 7 – School photographs and videos and other media for related issues involving the use of cameras and videos on school sites.

Taking photographs or videos in schools

Sometimes people want to take photographs or videos in schools. Generally, taking photographs or videos on departmental premises should not occur unless the principal is satisfied there is a good reason. Where applicable, staff and parental or student permission should be obtained.

Photos or videos taken from outside the school

Principals have no power to prevent people from taking photographs or videos from outside the school.

If concerns are held, inquiries should be made with the person involved and, where appropriate, he or she should be asked to stop. If the person refuses the request and the principal has continuing concerns, the police should be contacted. While there is no general law against taking photographs, such behaviour may, depending on the circumstances, be considered harassment, intimidation or threatening. It may also be possible, again depending on the circumstances, to make a complaint to the Federal Privacy Commissioner for a breach of Commonwealth privacy legislation.

Inappropriate use of cameras in the school

If students bring cameras or video cameras into the school and use them:

• in a way that interferes with the learning environment or the efficient operation of the school
• in a way that threatens or is likely to threaten the safety or wellbeing of any person
• to bully, intimidate or otherwise harass others
• to record lessons without the knowledge and permission of the teacher
• to film fights or other criminal behaviour involving students that occur at school, during school activities or while on the way to or from school
• in breach of any law,

the school student discipline and welfare policy should be invoked and the procedures and issues referred to in relation to the inappropriate use of mobile phones should be applied. Principals should ensure that inappropriate use of cameras and video cameras is clearly spelt out in any student welfare and policy documents.

Confiscating a student's camera

The same issues and procedures as outlined previously in relation to the confiscation of mobile phones apply.

Liability for damage to a student’s camera

The same issues and procedures as outlined previously in relation to mobile phones apply.