When is recording permitted?

1.1 - Generally, a recording should only be made if an individual’s consent has been obtained.¹ This is because images and sound recordings may contain personal information about an individual (for example, the sound of someone’s voice) which should be safeguarded to protect an individual’s privacy.

1.2 - There are certain limited exceptions to obtaining consent that are outlined in paragraphs 1.10 and 1.11.

1.3 - Students are not allowed to use mobile phones at NSW public schools, however principals may allow students to use mobile phones in specific circumstances. For example, for an educational purpose, to achieve student health and wellbeing outcomes, or as part of a reasonable adjustment to enable students with specific needs to participate in education on the same basis as other students. Refer to the Student Use of Mobile Phones in Schools Policy.

1.4 - Further guidance about the law and recording can be found at Technology in schools (nsw.gov.au) and Photographs and recordings (nsw.gov.au).

Consent to record

1.5 - Before a recording is made, consent should be obtained. Express consent can be obtained by asking an individual for their permission to record. The individual can respond with either ‘yes’ or ‘no’, verbally or in writing.

1.6 - Express consent is preferred but in limited circumstances implied consent² may be sufficient. Various matters should be considered when relying on implied consent, such as prior knowledge that a recording device will be used and a choice to opt-out before the recording starts.³ Relying on implied consent is risky and not recommended. For example, implied consent would apply if a Zoom meeting was organised and the convenor told the participants that the meeting was going to be recorded and a participant did not object and remained in the Zoom meeting.

1.7 - Consent should be obtained regardless of whether the recording will take place on department premises (for example, at a school) or outside of department premises (for example, on excursions or school camps).

1.8 - The following table provides guidance for staff, students and parents about obtaining and providing consent to record:

1.9 - Further guidance about staff and parents photographing or videoing students can be found at Photographs and recordings (nsw.gov.au).

Exceptions

1.10 - Below is a list of exceptions where the use of a recording device may be permitted without consent:

1. Disability.¹¹ Schools may make reasonable adjustments for students with disabilities including the use of assistive technologies that may have recording capabilities. For example, speech-to-text tools that allow students to dictate their writing, but which may also record the speech of other students or teachers in a classroom. In this context, knowledge and consent of the individuals being recorded may not always be required.
2. Maintaining the safety and welfare of students and staff.¹² The department may collect information, including recordings or videos, about a student without their consent in circumstances where it is considered necessary to promote and maintain a safe and disciplined learning environment, provided the recording is not done secretly.
3. Protection of legal rights.¹³ A person may make a recording of a conversation without getting the permission of the other person if the recording is made for the protection of their own lawful interests and they are one of the parties to the conversation. The term ‘lawful interest’ is relatively broad. Some examples of when the exception may apply include recording a threatening telephone conversation or recording a conversation forming part of a blackmail attempt.
4. Consent. A recording of an individual can be made if there is specific, current, informed consent that has been given voluntarily by an individual who has capacity to understand and communicate their consent.¹⁴
5. The use of CCTV by the department at schools provided:
   • at least 14 days’ notice is given to staff before any new camera is activated ¹⁵
   • CCTV cameras are clearly visible
   • clear warning signs are installed near each camera¹⁶
   • cameras do not film any change room, toilet facility, shower or other bathing facility.

1.11 - Application of the exceptions in paragraph 1.10 should be assessed on a case-by-case basis. It is preferred that express consent is still obtained. Please contact Legal Services for further advice if you consider that an exception may apply.