Home' Teacher : June-July 2011 Contents leadership 59
which a reasonable person would antici-
pate would be offensive, humiliating or
intimidating for the person harassed.
It’s easy to see that, especially when
accompanied by some other writing or
conduct making an unreciprocated sexual
advance, a sext may amount to sexual
The current Sex Discrimination Act
makes it unlawful for a member of staff of
a school to sexually harass a student at the
same school or a person seeking to become
a student at the same school. It also makes it
unlawful for a student who has attained the
age of 16 to sexually harass another student
over 16 or sexually harass a teacher at the
The Senate recently passed the Com -
monwealth Sex and Age Discrimination
Legislation Amendment Bill 2010, with
some a mendments. Currently awaiting
assent, this aims to expand the law with
regard to sexual harassment to address the
problem of sexting and cyberbullying. It
will extend the ambit of sexual harassment
to cover where sexual harassment occurs
between students and staff of different
schools, for example at school sports carni-
vals and mi xed-school theatre productions.
It will also be extended to allow students
under the age of 16 to sue for sexual harass-
me nt , provided their harasser has attained
the age of 16.
A complaint of sexual harassment cannot
be made against a student under the age of
16, but it may be possible to make a com-
plaint against the school as it has a duty of
care to protect students and teachers from
harassment and discrimination .
Duty of care
Schools should be well aware that they owe
a duty of care to their students to provide
a safe learning environ ment and guard
against foreseeable risk of harm.
The risk of harm to students involved
in sexting is high given the ease and pace
at which nude images can be forwarded
on to recipients. This magnifies the risk of
humiliation a nd the potential for bullying
Where there is concern that sexting
amounts to sexual abuse, there are certain
mandatory requirements, differi ng across
each state, for teachers to report suspected
abuse to the appropriate child protection
agency. In all jurisdictions, except NSW,
it is mandatory to report suspected child
abuse, including sexual abuse, in relation
to children up to the age of 18. In NSW,
reporting is not mandatory unless children
are under 16 years of age. Subject to man-
datory reporting requireme nts, it is not
compulsory for schools to report criminal
behaviour to the police.
It should also be noted that teachers
sexting students is clearly a violation of the
professional conduct obligations they owe
Policies and practice
School leaders may be faced with conflict-
ing dema nds from pare nts, some of whom
may see interception by the school as an
overreaction and others who demand that
students be disciplined.
Given the media hype about sexting,
there’s also the real concern of inflaming the
situation when the authorities need to get
involved. This is why prevention , by educat-
ing students and staff about both the legal
and social dangers of sexting, is crucial.
Schools can take simple steps to manage
the risks that sexting presents.
Students should be informed that they
are in breach of child pornography laws
when they participate in sexting. Students
should also be made aware of the serious-
ne ss of having images circulating and the
very real possibility of these images gaining
wide circulation over the internet, never to
be recovered. Education about the dangers
of these images is the key.
Schools should implement codes of con-
duct prohibiting sexting and put in place
disciplinar y procedures for when these
codes are breached.
Schools should not collect phones or
computers which they believe to contain
the nude or sexual images of students, but
should take steps to re move any images
especially if they have made their way on to
the school’s online environ ment.
Schools should also be aware of their
duty of care to students which extends to
protecting students from the harms of sex-
ting, including cyberbullying and sexual
By staying aware of the problem of sex-
ting and implementing policies and proce-
dures to deal with the issue, schools can
minimise their exposure to liability. It’s not
a problem that is likely to go away any time
soon and schools are better off tackling the
issue rather than ignoring it. T
Leneen Forde is a partner and Vanessa
Hardley is a solicitor at Cornwall Stodart
Lawyers, Melbourne .
For more information, phone 03 9608
2000 or visit www.cornwalls.com .au
For more on Connect.ed, visit www.
Director of Public Prosecution s v Eades
 NSWSC 1352
AAP. (2011). NZ schools ban mobiles to
stop ‘sexting.’ (10 February.) The Age.
Australian Federal Police. (2010).
Megan’s Story. Available at www.afp.
Bruce-Rosser, K. (2011). Cybersafety:
Federal cop warns Croydon students of
online dangers. (13 April.) Maroondah
Eliot, L. (2011). Teenagers caught in sex-
ting probe. (23 March.) West Australian.
Trieste, L . (2011). Castle Hill High School
forums to address cyberbullying and sex-
ting. (8 April.) Hills Shire Times.
Weldon, P. (2011). Sexting. Teacher. 219:
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