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School discovers inappropriate material on former teacher’s computer: What's on a hard drive?

24/05/17
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Two Victorian non-government schools have been praised for their responses to the recent discovery of inappropriate material involving children on a teacher’s hard drive. The teacher in question has been charged and proceedings are due to commence in August.  The potential criminal actions by the teacher are fairly clear on the facts but his liability is ultimately a matter for a court.

There are only brief facts available in media reports but, despite the brevity of information available, the facts involved raise several interesting questions for schools in terms of how the two schools in question discovered the teacher’s behaviour and the steps they took to notify the authorities.


The facts and the law

The teacher in this case was previously employed by a school in Hawthorn. The school’s IT Department recently conducted an audit into defunct computer equipment in storage.

The inappropriate material in question was discovered on an old hard drive allegedly used by the teacher, but not used since his departure. The material included both erotic content and surreptitiously taken images involving minors. Under the Crimes Act 1958 (Vic), the production, procurement and possession of erotic material involving a minor is an indictable offence.

The images also suggested that a number of ‘up-skirting incidents’ took place between 2014 and 2017. Under the Summary Offences Act 1966 (Vic), it is a summary offence for a person to intentionally visually capture another person’s genital or rectal region in circumstances in which it would be reasonable for that other person to expect that these regions could not be visually captured.

The school notified the Victorian Police, the Victorian Institute of Teaching (VIT), as well as the teacher’s current employer, a school in Burwood. Victorian Police detectives subsequently commenced an investigation and on 4 May, the man was charged with the production and possession of erotic material involving a minor.

On the same day, the Burwood school suspended the teacher until further notice and has notified all staff, parents and alumni of the arrest and investigation. Both schools have released public statements regarding the incident.

The teacher has been bailed and is due to appear before Melbourne Magistrates Court on 10 August 2017.


What should schools do?

The facts available raise several serious issues relating to child protection laws, criminal offences and occupational health and safety matters.

This is not the first time that these same issues have arisen in a similar factual context.  A teacher in WA recently appeared before the District Court, charged with 57 counts of indecently recording children and two counts of possessing child exploitation material. The teacher secretly filmed students using his mobile phone and hidden cameras and was only discovered after he left his phone at school, which was subsequently handed to police. The similarity in the misconduct (teacher leaves/loses incriminating material at school) and subsequent actions taken by the schools in these two cases suggests it may not be an isolated issue.

Focussing on the facts available in the Victorian case, we have compiled a list of key considerations which would apply to schools that may be faced with similar circumstances.


Computer audits

A computer with internet and other digital access would generally be regarded as a type of ‘facility’ or ‘equipment’ in use by a school for the provision of an educational program.

The Hawthorn school is most likely registered with the Victorian Registration & Qualifications Authority (VRQA), meaning it would be governed by the Guidelines to the Minimum Standards and Other Requirements for Schools including those offering senior secondary courses. A key piece of evidence under the Guidelines for meeting requirements related to facilities is for a school to have a maintenance schedule in place (sch 2 clause 13 under the Victorian Registration Standards).  Reviewing spare computer equipment would typically be part of a maintenance schedule for internal technology systems (ICT) facilities.

In Victorian Government schools, staff are required to comply with the Department of Education and Training's ICT Security policies, including the Acceptable Use of ICT Systems policy. Under this policy, a Principal (potentially with assistance by a systems administrator) may access or monitor ICT resources (including computers) for several purposes, including maintenance, auditing, investigation or other legal/security purposes. Similar policies also exist in other jurisdictions including NSW.

Most employers will already have ICT policies in place setting clear standards for employee’s computer use, especially those owned by the employer and compliance with these policies would ordinarily form part of an employment contract. The routine checking of an employee’s downloads would likely fall within the scope of such a policy.

For the purposes of monitoring the condition of a school’s facilities, including computer equipment, a school should undertake regular audits in order to monitor their standard and state of repair. This will not only uncover an impermissible use of the school’s facilities, it will also ensure that computers and other equipment are utilised effectively and do not become defunct. As a logical corollary, any IT staff undertaking such an audit should be trained to recognise any inappropriate content and make an internal report on their discoveries.


Notifying the Victorian Police

In Victoria, any adult who forms a reasonable belief that a sexual offence has been committed by an adult against a child has an obligation to report that information to Police (section 327(2) of the Crimes Act 1958 (Vic)). From the facts, the Hawthorn school may have suspected the teacher had engaged in unlawful activity or misconduct of a serious nature, it likely relied upon this legal obligation to report the matter.


Notifying Victorian Institute of Teaching

A school must immediately notify the VIT if it becomes aware that a registered teacher has been charged with a sexual offence, which includes the production and possession of erotic material involving a minor. As the Hawthorn school was no longer the teacher’s employer, and the teacher had not been charged at the time of the notification, it appears to have exceeded its legal duty in notifying the VIT.

However, the VIT’s website states that in the interests of public protection, a school is required to notify the VIT of any allegations of serious misconduct if the teacher leaves the school’s employment before any action is taken. This suggests that schools should report on any relevant investigation into the behaviour of former employees.


Notifying another school

Under recent amendments to the Child Wellbeing and Safety Act 2005 (Vic), a school Principal is permitted to disclose information in relation to an allegation of reportable conduct to the Principal of another school. Reportable conduct includes sexual offences committed against a child, which is defined under the Act as covering the possession and production of erotic material involving a minor. These same amendments also require schools to investigate reportable conduct and notify the Commission for Children and Young People.

However, because the amendments do not take effect until 1 July, the Hawthorn school would also have considered the requirements under the Crimes Act 1958 (Vic) which imposes duties on schools to take steps to protect students (which apply in addition to the reportable conduct laws).

Under section 49C, a person in a position of authority at a school (including a Principal or a School Board member) is required to take such steps to reduce or remove a substantial risk if they know that a student or students may become the victim of a sexual offence committed by someone associated with the school. On the facts available, notifying the teacher’s current employer (in addition to notifying the Police and the VIT in accordance with due process) would be in accordance with meeting the obligations under section 49C – in order to protect students at the other school.

Any such steps would unlikely have any legal repercussions, since employee records are exempt from legal obligations under the Privacy Act 1988 (Cth) and any possible defamation would be covered by qualified privilege and the defence of justification.


Update child protection policies and procedures

As discussed in a recent CompliSpace briefing paper, Victoria’s rapid legislative reform will cause a number of new laws to take effect in the coming months, including the ‘reportable conduct’ amendments.

The Hawthorn school said in its statement that the discovery of the inappropriate material was due to its “proactive child protection policy and procedures in place that includes robust screening, induction and monitoring processes.”

A proactive school with a child protection culture will be best placed to adapt to the upcoming legislative changes, and the actions of the two Victorian schools in these circumstances present practical examples for how schools should adapt their policies and procedures. This includes developing clear procedures for monitoring, investigating, and reporting on incidents and allegations of reportable conduct.


This article was updated on 29 May to clarify the steps a school should take to notify another school.

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Kieran Seed

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