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House of Assembly - Fifty-Fourth Parliament, Second Session (54-2)
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Bills

Teachers Registration and Standards (Miscellaneous) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 26.

Dr CLOSE: My question is how it can be that the minister has agreed with the TRB (Teachers Registration Board) that he is happy to put into a piece of legislation the capacity to create codes of conduct and professional standards but does not appear to have inquired about what examples might be, what the likely content would be or the extent to which such a standard would be used for punitive purposes; in other words, that a teacher risks losing their registration to be a teacher if they are seen to infringe a code of conduct or a professional standard and what the enforcement mechanisms might be.

In short, we are being asked to support the creation of the capability to do this without any illustration of what this might look like or how it might affect the working lives of the teachers that the TRB is responsible for.

The Hon. J.A.W. GARDNER: I thank the member for the question, and perhaps I misunderstood her earlier question. I have not checked Hansard, but from memory I understood it to be asking about my own personal reflections and how, it was suggested, I might be putting such a matter together. I thought it worth reassuring the house, especially those members who had expressed concerns, about the nature of a board somehow becoming a creature of the minister when in fact I was wanting to reassure the member and the house, and anyone with those concerns, that I wanted to maintain support for the Teachers Registration Board itself to do that work.

If the member is asking now, have I inquired, do I have any information, am I bringing legislation to the house having sought information about what the TRB were indeed proposing would be the benefits and outcomes and applicability, then I am happy to provide some further information and will now do so.

Codes of conduct will set out high-level principles which apply to conduct so as to clearly inform all registered teachers of the expected standards at a professional and personal level in keeping with professional community expectations. I think I said that before the break. In preparing or adopting any code of conduct, the board will consult with employers and stakeholders while acknowledging requirements which exist in employer or sector codes of conduct and which promote best practice.

They will, of course, doubly do that if we indeed ultimately amend the legislation to require they do that, but even without that amendment that was always the plan. This can also include the adoption of elements or codes of conduct already developed interstate and provides further opportunity to work towards national consistency for teacher professional conduct.

The member asked about examples. An example of a current South Australian code, which might be evaluated for future adoption, is 'Protective practices for staff in their interactions with children and young people', as revised in November 2018 and currently adopted by the Department for Education, Catholic Education SA and the Association of Independent Schools of SA as a collaborative effort between government and non-government sectors. It sets out a guide for managing professional boundaries, best practice for physical contact and managing challenging behaviours, in addition to other matters.

In regard to standards, the Australian Professional Standards for Teachers articulate the key elements of quality teaching and guide professional learning practice and engagement. The national standards detail what teachers are expected to know and be able to do at different stages of their professional career. The board currently uses these standards to guide its assessment of initial teacher education programs and to ensure that students who complete a qualification will meet the graduate standards. It also uses the standards to ensure that teachers only progress to full registration once they meet the standards expected of a proficient teacher.

Proposed amendments will provide for the board to also have the ability to recognise, certify and accredit highly accomplished and lead teachers—HALT teacher standards. For some reason they are described to me as 'HALTS'. Further to that, in relation to one of the member for Wright's questions we talked a little bit about punitive measures or aspirational measures, about the relevance of unprofessional conduct in that space and the role that the codes of conduct play towards that.

The definition of unprofessional conduct in section 3 has been amended to include a contravention of the code of conduct or professional standard published or adopted by the board. If somebody clearly contravenes, then that can go towards consideration of unprofessional conduct, which is a cause for disciplinary action against a teacher; however, each situation must be considered in the context in which it occurs.

Often, the factors motivating teacher behaviour with the child, such as whether restraint in an alleged emergency scenario was warranted—and I know the shadow minister would be aware that there are occasions when that has presented significant challenges for different bodies—would be gleaned by many external matters. Adoption and publication of codes of conduct will go some way, we believe, to providing clarity for teachers as to the exercise of responsible and respectful conduct towards children and young people, and I heartily endorse its inclusion in the act.

Clause passed.

Clauses 27 and 28 passed.

Clause 29.

Mr BOYER: Minister, in relation to clause 29 and what it seeks to put in place in terms of empowering the board to be able to force a teacher to submit to a medical examination, I am sure we could probably all agree in this place that that is a pretty sensitive area. What is in place to make sure the privacy of the teacher will be maintained through that process given that for teachers it is particularly sensitive if they have a leave of absence from the classroom for any period of time? The school community might often ask questions and, if the teacher's suitability or medical health is in any way brought into question, it could be very damaging for them in the long term.

The Hon. J.A.W. GARDNER: Yes, that is an important and worthwhile question to explore. To start with, the registrar may only require a teacher to submit to a medical examination if the registrar has reasonable grounds to suspect that a teacher's capacity to teach is seriously impaired by an illness or disability affecting the teacher's behaviour or competence as a teacher. Accordingly, the registrar would be seeking a medical report that particularly addresses the question of whether or not the teacher's capacity to teach is seriously impaired. Broader medical information that does not have any bearing on the teacher's capacity to teach is not of any interest to the registrar.

The member asked directly about privacy and confidentiality. Medical information constitutes personal information that can only be used or disclosed in accordance with the legislative framework. Section 53 provides that a person engaged or formerly engaged in the administration of the act must not divulge or communicate personal information obtained in the course of official duties except as required or authorised by this or another law or with the person's consent. Further, information that has been appropriately disclosed for a particular purpose in accordance with the legislative framework must not be used for any other purpose. There is a penalty of $10,000 that applies for breach of these provisions.

Mr BOYER: Thank you for that answer, minister. At any stage in the development of this bill has it been contemplated whether or not the doctor to whom the teacher under question needs to submit for a medical examination will be a doctor chosen by the board or a medical professional chosen by the teacher in question?

The Hon. J.A.W. GARDNER: In line with current arrangements for inquiries by the board, this is shifting the power to the registrar rather than the board and it is set out in 29(1b)(a), which suggests that the medical practitioner will be selected by the teacher from a panel of medical practitioners nominated by the board. I am not familiar with whether or not there were matters raised during the consultation process arguing on this point whether teachers should select their own without reference to the panel, but, in terms of the existence of the panel, my understanding is that carries over from the current arrangements but the person responsible goes from being the board to the registrar.

Mr BOYER: If I understand the minister's answer correctly, the power will be shifting from the board to the registrar in terms of being able to request the medical examination. In terms of a potential appeal—and you mentioned that you think that probably the doctor or medical professional the teacher must submit to is mostly likely one who will be at least recommended if not mandated probably by the board—do you think there might not be scope here to allow the teacher in question to have a right of appeal, which might include being able to seek out their own medical professional to at least have a second opinion, I guess?

The Hon. J.A.W. GARDNER: My understanding is that if a matter is being investigated, then the registrar can seek that a medical examination be conducted. They do not mandate the doctor, but the panel of doctors is provided from whom the subject of the investigation can choose their preferred doctor. If there is an issue with the proposed panel, I can seek more information between the houses to provide to the opposition about how those panels are likely to be comprised.

If the person refuses that examination, then it ceases to be an investigation and starts to become a suspension, and there are a range of other mechanisms there, including appeal rights at that point, as I understand. I think we talked about those before and I will clarify if I have misunderstood anything from the advice.

Clause passed.

Clause 30.

Dr CLOSE: This is an interesting inclusion in the bill and one that may be very important but I think is likely to be quite fraught. I am referring specifically to the capacity for the registrar to suspend the registration of a teacher where the registrar reasonably suspects that the teacher poses an unacceptable risk to children.

I understand very well the grey area that people and institutions that are responsible for children live in, where a matter might not have reached an arrest, a charge, a court case and a conviction, but nonetheless there may be very serious grounds to consider a person not appropriate to be with children. In that sense, I understand and have sympathy for the intent of this clause, but I think we also must understand the great complexity in front of a decision-maker in the absence of using that chain to take you to the place where you can make a judgement that in this case the teacher should be suspended.

I initially invite the minister to reflect on how the minister, in bringing this piece of legislation to parliament, understands that it would operate in a way that takes account of risk for children and also due and fair process for any adults involved on both sides, both being potentially in the position of having to make such a judgement, for the registrar, and also in the position of being a teacher who may have a shadow over them that is entirely unwarranted.

The Hon. J.A.W. GARDNER: I thank the member for the question and I will provide some information directly and potentially a little bit extra in relation to the matter. The registrar would need to form a reasonable suspicion first that the teacher poses an unacceptable risk to children based on information that they have in relation to the conduct of the teacher. That could be in relation to sexual conduct in relation to a child, it could be in relation to acts of violence or it could be in relation to what I think is probably best described as a failure to maintain appropriate professional boundaries between a teacher and a child. I do not want to limit it, so there could be a range of other matters, but effectively any behaviour that suggests that a teacher can pose a risk to children by continuing in their work.

In coming to a decision to first suspend the registration of a teacher, the registrar would have to receive and gather and assess sufficient evidence to lead them to form that reasonable suspicion that such a teacher posed that unacceptable risk. Obviously, the member identifies if a matter reaches a charge then that is now automatic. In those cases of sexual offences against children, for example, if a teacher is charged they are removed from the register, so this is to pick up people who provide conduct that the registrar has evidence of but there has not been a charge laid by police.

Some of the factors that the registrar might take into account in forming that reasonable suspicion would have to include the extent and the veracity of the available evidence, the impact of the alleged behaviour and the circumstances and type of behaviour in the context of the employment setting. It could include the frequency of the behaviour. It could include, as I said before in relation to the fit and proper person test, previous allegations or substantiated inappropriate behaviour of the teacher. Other jurisdictions in I think Queensland and Victoria provide similar powers to these, and there is case law that would further provide guidance to the registrar in forming that view.

In relation to the recourse that a teacher who finds themselves under this cloud would have, clause 30 extends the existing provision in section 34 for suspension where there is a prescribed offence where a charge has been laid. Section 34A has the provision that with the notice of suspension being served on the teacher the board then does the review. The suspension is supposed to be a temporary measure in advance of an inquiry, which would be a more permanent measure.

The teacher would have the opportunity to present their case to that inquiry. They would have the opportunity to examine or cross-examine witnesses, they could make submissions and it is appealable once it reaches that inquiry. Suspension is the preliminary measure before we get there. I will leave it there and am happy to answer follow-up questions.

Dr CLOSE: I would imagine the burden carried by the registrar in this scenario is getting it wrong either way: getting it wrong by suspending someone who it turns out should not have been suspended because there was in fact no impropriety or not suspending someone who perhaps should have been in light of subsequent events.

We know that these are real issues that have been dealt with by school systems in Australia, in particular those that came to light in the Royal Commission into Institutional Responses to Child Sexual Abuse, so I feel for registrars sitting in the position of having to make a judgement in the absence of any separate legal process taking place on which they can rely. As the minister points out, that legal process in fact means that the registrar does not have to do anything because it takes it away. It is creating this extra little bit of space.

Thinking about the responsibility that is placed on the registrar's shoulders through this piece of legislation, my question is: what kinds of guidelines are provided to the registrar by the board or the minister or through the act or through any other instrument that mean that at least there is something for the registrar to depend on and to consult, rather than only forming in the registrar's own mind by the registrar's own judgement when having to make such a burdensome decision?

The Hon. J.A.W. GARDNER: I thank the member for the question. I feel like I answered some of it earlier when we were talking about some of the other examples interstate and the case law, but nevertheless I think that there would also be the two risks the member identifies.

Firstly, there is the risk to the reputation of a teacher who might be unfairly put in this situation. That is a risk where I think in successive pieces of legislation we have determined that the best interests of the child trump that risk. While the consequences in that circumstance are significant for that individual, and if there are certain individuals who are caught up in that situation we extend our absolute sympathies and potentially measures to look at what can be done for them, the needs of the child are our paramount concern.

On either side of the ledger, if the evidence turns out to be significant to the point where we feel that in retrospect a suspension should have been applied, I would start with the point that, in that sort of circumstance, we would also trust that the police would be looking to lay a charge. A suspension may potentially be something that could be an interim measure before a charge has been laid.

I suggested a range of circumstances before that might include information that came to the registrar, but of course I do not want to limit it just to those. In relation to the guidelines that the member suggested may or may not be appropriate in helping a registrar form that view, I will take that on notice as a suggestion. I will explore with the chair whether that is something that has been explored. If it has and there is some proposed development of that, I will look to provide it to the opposition.

Hopefully, we are not talking about an enormous number of cases, and each case is going to be unique, of course, in their circumstances. Successive registrars, and I guess I am talking about the two I have dealt with, would both identify that this is a power they would not be looking for opportunities to use, but there are certainly going to be examples that would come to either of their minds where it would be a power that might potentially assist in the function of their duties.

Dr CLOSE: This is my last question on this, although I think the member for Wright also has some. I want to flesh out something a little bit. I know it is very difficult to talk in hypotheticals, but bear with me. I am trying to get at how close to a threat to a child in a classroom the allegation needs to be for the registrar to be likely to suspend the registration. If the registrar becomes aware that the teacher has been involved in a domestic violence dispute with a partner, could that act of violence or aggression be taken as evidence that the adult-to-adult misbehaviour could be translated to a child in a classroom, or would that be beyond the sphere?

You may not wish to indulge in this specific hypothetical, but that example is why I am wondering about guidelines. It seems to me it is possible that a range of allegations could be made about a particular teacher, and the registrar might need some guidance to fall back on to say, 'That's within the scope and that is outside the scope,' rather than, 'This teacher appears to not be a pleasant individual, or in fact to be a violent individual, in this environment and therefore is not appropriate or safe to be with children.'

The Hon. J.A.W. GARDNER: I will take the member's invitation to not go into a specific example because I would not want to presuppose any cases that are out there that might sound similar to any that we might describe. Hopefully, I can provide some information that will be useful. The weight is on the registrar to not only form the suspicion that a teacher poses an unacceptable risk but indeed gather and assess sufficient evidence that leads them to having that suspicion, understanding that there would then be a process where you would have the section 34 review, and the registrar would be in a position of having to justify the suspension at that point.

It would also be worth noting that the test—I think it is the fit and proper person test, which would potentially involve adult-to-adult conduct—could be applied, an investigation into that could be applied, without a suspension needing to be imposed in the meantime. The suspension occurs when the registrar forms the suspicion that the risk is significant and indeed that it is an unacceptable risk to children to have the teacher continuing without that suspension being imposed.

Mr BOYER: Minister, given that this bill seeks to empower the board to create a code of conduct to in some way regulate the profession, and assuming that whatever code of conduct might be created by the board would probably anticipate some of the issues that might also potentially be governed in clause 30, why is there a need for both those things? Is it not covered by what will be in the code of conduct?

The Hon. J.A.W. GARDNER: Regarding the code of conduct that we are proposing, we talked about its punitive side before and I think the words I used were that it could lead to an inquiry into unprofessional conduct. This power is about suspending somebody in those cases where they have not been removed as a result of a charge having been laid but nevertheless pose in the registrar's mind an unacceptable risk to the children under their supervision. I think that is a separate matter from that which the code of conduct would be seeking to address.

Mr BOYER: Thank you for your answer, minister. In a situation where a registrar reasonably suspects that a teacher does pose an unacceptable risk to children and the registrar seeks to take action, has the government sought any advice in the development of this bill around what legal right of recourse that teacher might have if they want to challenge the matter or take it any further?

The Hon. J.A.W. GARDNER: I think the member will be encouraged to know that there is indeed that recourse because the suspension is not only reviewed but exists as a precursor to the section 34 review and then is in advance of a part 7 inquiry. That inquiry has all those appeal mechanisms, all those safeguards, from the teacher's point of view that we discussed earlier: the cross-examination of witnesses, the submissions they can make and the appeal capacity that we described earlier.

Clause passed.

Clause 31.

Dr CLOSE: I just want to pick up on this question of incompetence in clause 31(1)(a)(iv), 'incompetence (however described)'. Can the minister tell the chamber a bit about whose judgement is used to decide what incompetence is and what due process might be gone through for the teacher who is being accused of incompetence?

The Hon. J.A.W. GARDNER: We might need to revisit this a couple of times just to make sure I am encapsulating the exact question that is being asked, but my understanding is that this is not so different from the current provisions but is expressed in a different way. This is in relation to potential incompetence that has led to the dismissal of a teacher.

The clause refers broadly to these several reasons: a prohibited person, a working with children check not being conducted, an unprofessional conduct allegation or incompetence. If they are the reasons that an employer has dismissed a teacher, then the employer's obligation is to provide that information to the TRB. It is not up to the registrar or the board to describe the incompetence. However it is described, this is just the requirement to go to the TRB, presumably to ensure that the TRB has information that may or may not be relevant for their future consideration.

Dr CLOSE: In that case, if we look at subclause (2), which is not when the teacher has been dismissed but when the employer has become 'aware of any of the following in relation to the teacher', incompetence is not listed as one of the items that would trigger that notification, but there is 'any other matter of a kind prescribed by the regulations'. I do not know whether regulations are currently essentially in existence that would be attached to this because I do not have the current act sitting next to me, but are there any, or what regulations are being considered to be made and would the terminology 'incompetence (however described)' be found in that?

The Hon. J.A.W. GARDNER: I will take it on notice in relation to the regulations. If the member is happy for me to expand further on my first answer, I can give some further clarification to what I described as a continuing thing expressed in a different way. Under new section 37, the circumstances in which employers of teachers must make notifications to the board has been expanded. An employer will need to notify the board if an allegation of unprofessional conduct is made against the teacher even if this does not result in the dismissal or resignation of the teacher.

Separately, an employer will need to notify the board if the teacher is not, in the opinion of the employer, a fit and proper person to be a registered teacher. If an employer dismisses the teacher or accepts their resignation for reasons of incompetence, then as the member has described, section 37 will now make it explicit that the employer must notify the board of the fact.

This in one way is not a new obligation as employers have an obligation under the existing provision to notify the board when a teacher is dismissed or resigns due to allegations of unprofessional conduct, and teacher incompetence would fall under the definition of unprofessional conduct in the act. However, amendment of this requirement was seen to be warranted as feedback on the operation of the legislation indicated it would be beneficial to make that explicit for the employers. Obviously the same suggestion was not made in relation to the following subclause but if there is any suggestion that that would be contemplated in the regulations, then I will let the member know.

Clause passed.

Remaining clauses (32 to 39), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. J.A.W. GARDNER (Morialta—Minister for Education) (16:22): I move:

That this bill be now read a third time.

Mr TEAGUE (Heysen) (16:23): I take the chance to speak very briefly to the matters that I taxed the deputy leader on in relation to clause 7 and its proposed amendment, particularly that aspect of it that related to the mandating of nomination to the board by, firstly, the Australian Education Union on the one hand and, secondly, the Independent Education Union on the other to the extent of five out of the 10 to 14-member board.

I note that a proposition was put in the context of what we have all been talking about in terms of the merits and importance of registered, practising teachers and the contribution they make not only to the profession but the contribution they properly make in the context of this board. I wish to emphasise that my contribution in this regard ought not be misunderstood to in any way, as it were, reflect upon the important role of those unions in the industrial space. They are both industrial unions and both proudly so. I think they both proudly describe themselves as such.

The thrust of my inquiry, and the view that I take the opportunity to put again, is that the opposition's proposed amendment linking the participation of teachers on the board with inevitable nomination by those unions in my view simply weakens the proposition. It weakens the argument. I hear the opposition having been somewhat stung by the notion that it might be embarrassing to them to find themselves in a position where nominating teachers equates to a nomination of teachers by the industrial unions—because I have no difficulty whatsoever with the proposition that teachers play an important part on the board, as is provided for in the bill—but what is very clear on the face of the material that the Australian Education Union in particular is publishing on a day-to-day basis is that it is concerned with industrial advocacy, and proudly so.

It highlights as its major ally not academic bodies or a university or places of consideration of questions of governance and the profession but rather, unsurprisingly, other industrial advocacy bodies, chiefly amongst them the ACTU. When it refers to its major publication considering priorities for public education now and into the future, it has a document that it describes as ‘Priorities for 2018 and beyond’. That is a document that is preoccupied with industrial matters.

It may be said that might extend into matters of the quality of educational outcomes for children, resourcing and so on, but it is largely focused on industrial matters. In that regard, I think there is really a choice that is important to be made, and it would seem natural to me that if a teacher chooses to be a member of one or other of these unions, then that teacher might reasonably expect to receive the benefit of industrial advocacy that that union might be promoting.

And if that teacher found themselves—to use the deputy leader's terminology—perhaps in need of succour or support from the union when they perhaps found themselves in difficulty perhaps before the board, then they might turn to that union for assistance in advocacy for the difficulty that they might face. But it is a very different thing to say that the unions ought to control up to half of—therefore effectively the board itself—the membership of the board. It is for those reasons that I rather think that the proposition linked as it is by the opposition—teacher nomination equals union nomination—just rather weakens the proposition, and it is regrettable for that reason.

I certainly wish the union well in the task that it performs advocating for all sorts of things on behalf of those people who choose to be members of it, and I certainly commend the important work of our teachers.

I highlight that, in this sense and in this case, the bill as it is proposed by the minister gets the structure exactly right. It is a merits-based board, it contains provisions as to the particular minimal breakdown as far as representation is concerned and I note that, insofar as a parent and a legal practitioner are concerned—that is a matter that dates back to 2011 and the consideration as to membership that took place back then—broadly a structure of participation on the board that is uncontroversial but for this, what seems to me to be misplaced, connection between meritorious teacher participation on the one hand and a union endorsed, union-nominated gateway into this position on the other.

The emphasis should be on fearlessness, independence and merits. If you are going to be on this board, then you ought to be able to exercise judgement free of fear or favour and you ought to be able to do your job without fear that somehow in some people's eyes you might be regarded as being diminished or in need of some succour or support.

Finally, very briefly on the matter that lies ahead—because I think this is a matter that I hope is a cause for reflection on the merits—I note that the Australian Education Union is presently embarking on a campaign, as I said at the outset, to retain what it describes as 'our' Teachers Registration Board within its control by seeking to advance a petition, which it describes as something that it would use to lobby members of the crossbench as to its proper role, and to go about it that way.

Of course, they are welcome to go ahead and do that, but much more effective, in my view, would be the advancing of a meritorious argument in this place, and in the context of the structure of the bill, about that question: why is it a more effective position for the union to want to be nominating this bulk of the membership of the board rather than stepping back, being a reasonable and respected voice in this space and being prepared to be able to discharge functions, including to advocate for members who might find themselves in difficulty from time to time? That is very much the thrust of my thinking in this regard, and it is for all those reasons that I commend the bill and the minister's work in this regard to the house.

Bill read a third time and passed.

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