SCHOOL yard fights are nothing new, but in the digital era they bring a new world of complications with them.
Filming, uploading or otherwise disseminating footage of school yard brawls can be illegal and in some circumstances carries a jail sentence upon conviction.
Last month, in Kiama, police stepped in after violent fights at one high school were posted on social media. Last year similar footage depicting students in Bathurst gained national news coverage after a fight in a public car park.
Solicitor, and legal academic at Charles Sturt University's Centre for Law and Justice, Lisa Coates, said filming and uploading school yard fights was a complex area, and covered a number of legal issues.
Ms Coates said under section 8 of the Crimes Act 1900 (NSW) the definition of a public place does not include reference to a school.
She said the recording by persons of juveniles in school yard fights, on schoolyard premises is more likely to be covered under the Surveillance Devices Act 2007 (NSW).
Under section 7 of this Act, a person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
Similarly, under section 8 of the Act, a person must not knowingly install, use or maintain an optical surveillance device on or within premises or a vehicle or on any other object, to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:
(a) entry onto or into the premises or vehicle without the express or implied consent of the owner or occupier of the premises or vehicle, or
(b) interference with the vehicle or other object without the express or implied consent of the person having lawful possession or lawful control of the vehicle or object.
Both carry a maximum penalty is 500 penalty units (in the case of a corporation) or 100 penalty units or five years imprisonment, or both (in any other case).
Ms Coates said mobile phones would be covered under sections 7 and 8 of the above Act under the area of "use", depending on the type of data that is being recorded on the personal device, in particular visual footage under section 8.
Ms Coates said a student already has the express or implied consent of the occupier (the Department of Education) to be on the school premises and in most cases to carry a mobile phone.
"So if one student, is using their mobile phone, on school premises to visually record on their mobile phone camera a schoolyard fight, they may be able to make an argument that they should not be held liable under this section," she said.
Ms Coates said it was also worthwhile noting that once a person leaves the school grounds and are on neighbouring property, such as a footpath, road or park, you are on public property.
"Generally, a person can be filmed without their consent in public spaces, which explains the existence of CCTV footage used in public spaces to ensure community safety."
However, she said it was important to note if a schoolyard fight leads to criminal charges, any video or audio footage of the fight produced without consent, apart from being illegal under the Surveillance Devices Act 2007, if uploaded to the Internet/ social media, may be in breach of orders if made by the NSW Children's Court.
"New South Wales children's court proceedings are closed proceedings and there is potential for persons who upload footage of juveniles who are involved in criminal proceedings before the children's court to find themselves in contempt of court for revealing their identities, for example naming and shaming," she said.
A spokesperson for the Department of Education said violence, bullying and other aggressive behaviour is not tolerated in public schools.
"When behaviours may be illegal they will be reported to police and schools support police investigation and action. This can include providing police with details of students who have filmed inappropriate behaviour at school or in the community."
The spokesperson said the use of devices to film in schools is covered by schools' mobile devices policies which were developed in consultation with school communities, and which will be revised later this year in response to the government decision following an inquiry conducted by Michael Carr-Gregg.
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