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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2008-10-29 Daily Xml
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TEACHERS REGISTRATION BOARD

Adjourned debate on motion of Hon. J.A. Darley:

That the Statutory Authorities Review Committee inquire into and report on the effectiveness of the Teachers Registration Board in the exercise of its functions and powers with respect to:

1. The welfare and best interests of children as its primary consideration in the performance of its functions;

2. The manner and process by which it ensures that a teacher registration system and professional standards are maintained to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of the children;

3. The composition of the board;

4. The manner and process by which evidence is gathered and presented to the board, including the representation of parties to proceedings;

5. The relationship between the Department for Education and Children's Services and the board; and

6. Any other relevant matters.

(Continued from 24 September 2008. Page 175.)

The Hon. D.W. RIDGWAY (Leader of the Opposition) (17:25): I rise on behalf of the opposition to support the motion that the Statutory Authorities Review Committee inquire into and report on the effectiveness of the Teachers Registration Board in the exercise of its functions and powers with respect to:

1. The welfare and best interests of children as its primary consideration in the performance of its functions;

2. The manner and process by which it ensures that a teacher registration system and professional standards are maintained to safeguard the public interest in there being a teaching profession whose members are competent educators and fit the proper persons to have the care of the children;

3. The composition of the board;

4. The manner and process by which evidence is gathered and presented to the board, including the presentation of parties to proceedings—

The Hon. B.V. Finnigan interjecting:

The Hon. D.W. RIDGWAY: Well, I would like to read it out, thank you, the Hon. Bernard Finnigan.

The Hon. B.V. Finnigan interjecting:

The PRESIDENT: Order! The Hon. Mr Ridgway has the call.

The Hon. D.W. RIDGWAY: Thank you very much for your protection, Mr President. I will continue:

5. The relationship between the Department for Education and Children's Services and the board; and

6. Any other relevant matters.

The reason I read that out is that it is the actual motion, and I wish to address most of the issues raised during this contribution; in particular, the issues that I am sure would be at the heart of the Hon. Bernard Finnigan.

Perhaps we might talk about paragraph 3, the composition of the board. It is interesting to note that the act mandates that the board comprise 16 people: half must be teachers, of which seven must be union members. I can see why the Hon. Mr Finnigan is interested in this because, at this point in time, it is heavily weighted in favour of the unions and heavily weighted against the welfare of the children taught by our teachers. Continuing with the composition: two must be employees of the state government education department, one must be an employee of the state government Children's Services Department, one must be from the Catholic Schools Association, one from the Independent Schools Association, one must be a lawyer appointed by the minister, one must be the chair appointed by the minister, one must be employed by the universities in the field of teacher education—

Members interjecting:

The Hon. D.W. RIDGWAY: Mr President, they are not even interested. I ask you to protect me from these buffoons on the other side.

The PRESIDENT: Order!

The Hon. D.W. RIDGWAY: And one must be a parent of a school student, appointed by the minister to represent the community interest. I note that the South Australian Association of State Schools has made an interesting submission to members of this chamber in relation to this matter. It states:

On a board responsible for the welfare of the state's children, to have only one of 16 members appointed to 'represent the community interest' is wholly insufficient; given that the parents of South Australia are entrusting their children's welfare to this board.

It goes on to state:

On a board responsible for overseeing the conduct of teachers, to have at least half the members be teachers, is inappropriate.

On a board, in a country with voluntary unionism, to mandate that only union members are suitable to hold teacher positions is antiquated and relegates non-union teachers to a second-class standing.

On a board responsible for independent investigations of breaches committed by DECS employees, to have the majority of members be DECS employees is unacceptable.

On a board responsible for independent enforcement of the act, to have 11 members either in the employ of, or appointed by the government of the day, is—

not fit and proper—

On a board responsible for ensuring the welfare of children, for only one member to be a parent—is tokenism.

We can see some serious deficiencies in our modern society in the actual composition of the board, which this inquiry will address. I will not take up too much more time, but I want to highlight some, though not all, of the other points made in this submission in relation to the functions of the Teachers Registration Board. The board is required to confer and collaborate with authorities in New Zealand; it is interesting that the board must share information with authorities in New Zealand but not with parents, parents' associations, or the public—or, in fact, the parliament of this state.

There were a couple of other points raised by the submission, including the point that the board may call a committee to inquire into possible breaches by teachers. The only required members of such a committee are to be a legal practitioner and a teacher; no parent or representative of the community of interest is required to inquire into an offence committed by a teacher. The submission also goes on to say that the Teachers Registration Board is required to submit an annual report, which must be tabled in both houses of parliament; however, it says that there is no requirement for the annual report to cover the process or activities of the board or to report on any revision of standards or complaints received, inquiries held or outcomes of any investigations.

There is also a couple of other matters I want to mention. The board is required to keep a register of teachers, including records of any offences and actions against the teachers; however, there is no requirement for this register, or any report concerning teachers guilty of offences, to be available to anyone other than the members of the board. Another point made is that the registrar is required to inform certain people and groups of the commencement of an inquiry and the outcome of it. The Catholic and Independent Schools Association, the chief executive of DECS, and the relevant authorities in New Zealand must be informed while parents, the parliament and the people of our own state are ignored.

The principles governing the proceedings of the board are not bound by any rules of evidence. It may make its own motion, hold any proceedings in private, and may develop its own procedures. The submission suggests that the board is not required to adhere to any rules or follow any accepted procedures. It may conduct all proceedings in secret, with no justification as to why, and may develop its own procedures in addition to this complete lack of accountability. There is no requirement for the board to inform anyone as to which rules and processes it employs.

Clearly, the Hon. Mr Darley's motion to refer this matter to the Statutory Authorities Review Committee follows on from the Hon. Nick Xenophon's range of questions in relation to activities that occurred at a school in Mount Gambier prior to his departure from this chamber. With the submission that has been made to members, and with the opposition also having done a considerable amount of research, we see that this is an appropriate inquiry, and have much pleasure in supporting the Hon. Mr Darley's motion.

The Hon. R.P. WORTLEY (17:34): I would like to read from the Hon. Mr Darley's contribution before I go to the issues—

The Hon. S.G. Wade: It's already in Hansard.

The Hon. R.P. WORTLEY: What is going on? The Hon. Mr Darley said:

This motion was first introduced on 26 September 2007 by the Hon. Nick Xenophon in response to allegations of improper conduct by a teacher at a school in Mount Gambier. These allegations were reported and investigated by the Teachers Registration Board, but parents expressed concerns about the way in which the investigation was conducted and how the board dealt with evidence, especially from children and parents who were affected.

I would like to go into the actual issue down at Mount Gambier at that time, which arose in response to a letter dated 5 September 2004 addressed generally to members of parliament and concerned parents from Wendy Utting, director of Child Protection Watchdog Incorporated. I do not know what sort of organisation that is, but the letter was entitled, 'Abuse allegations dismissed by Teachers Registration Board'. It lists a range of serious and potentially defamatory allegations made against the Teachers Registration Board and other organisations and individuals.

The issues referred to in the letter were subject to an extensive investigation over two years by a number of agencies, including SA Police, the Police Complaints Authority, Child Protection Services, Flinders Medical Centre, the Department of Family, Community and Youth Services, the Teachers Registration Board and others. Aspects of the matter were also raised in parliament and through the media channels TEN News and The Advertiser of 7 January 2005.

The issues relate to complaints from several parents regarding the alleged conduct of a teacher (I will not mention the teacher's name or the school, in the interests of natural justice) and the outcome of an internal school investigation. Parents, over a period of time, approached a number of agencies—

Members interjecting:

The Hon. R.P. WORTLEY: I beg your pardon; this is a very serious issue. It warrants a little respect from the opposition.

The PRESIDENT: Order! Once you become an interjector you sometimes have to suffer the consequences of those interjecting against you, Mr Wortley. You have the floor.

The Hon. R.P. WORTLEY: Thank you, Mr President. Over a period of time parents approached a number of agencies and individuals, including parliamentarians, to intervene, as they were not satisfied with the outcome of investigations at the school or government agency level. Early in 2003 the registrar of the Teachers Registration Board received written complaints from these parents regarding the alleged conduct of the teacher. In their view they had exhausted all other avenues, and requested that the teacher be immediately deregistered.

A prolonged and comprehensive investigation was undertaken by the registrar, the Crown Solicitor's Office, and the government investigation unit. Formal statements were taken from a number of parties, including parents, senior clinical psychologists at Flinders Medical Centre, teachers and others. Based on the information gained through documentation and interview, the Crown Solicitor's Office provided the final written advice to the registrar, and a summary was presented to the board to determine whether or not to proceed with an inquiry. From the outset it was also acknowledged that it would be difficult to prove the allegations, and it would ultimately depend on how the evidence came out during the inquiry regarding what had actually transpired in the classroom. The teacher denied any intent of disgraceful or improper conduct.

The board was assisted by Ms Jenny Olsson of the Crown Solicitor's Office, and the teacher was represented by legal counsel. The board sat in a quasi-judicial role over eight days, commencing 1 June 2004 and concluding on 16 November 2004. The board, consisting of nine members including the chairperson, called seven witnesses. Witnesses were called based on their ability to provide relevant information to the matter and not because they wanted to comment on or had an interest in the matter.

Not all persons interviewed by the government investigator on behalf of the registrar were called as witnesses. The whole inquiry produced 800 pages of transcript. After consideration, the board resolved that the evidence was not sufficient to satisfy the board on the balance of probabilities as to the allegations set out in the notice of the inquiry dated 11 March 2004. The written reasons for the decision were ratified and a copy was sent to the legal representatives of the teacher.

It is always difficult to prove such allegations. These are terrible and serious allegations, but they are always difficult to prove for the following reasons: the majority of the evidence was based on hearsay; the age and vulnerability of the children; the passage of time since the alleged incidents occurred; the potential for contamination of evidence, particularly as a range of agencies had already been involved and determined their own findings; and the intensive ongoing discussions between parents had the effect of tainting the evidence and making it all the more difficult to prove.

Ms Utting also made allegations against the principal on the way the matter was reported, but I understand that there was clear evidence that the principal reported the matter to the appropriate authorities within a reasonable time frame. A range of allegations in relation to this matter had been investigated by a number of agencies, including the Police Complaints Authority, in respect of the local police investigation. Based on the evidence available, no charges were laid.

The government opposes this motion, and I will outline the reasons why, and then I will go through the five points of the Hon. Mr Darley's motion. If this statutory review proceeds, it should be noted that it will occupy a significant degree of resources from the Teachers Registration Board. It is also worth pointing out that the body is funded solely by teachers, with legal and other associated costs to be met from the existing resources of the board. The Teachers Registration and Standards Act 2004 has been in operation for only three years since its proclamation in 2005. When introduced in parliament, it received the full support of the Liberal opposition. As the legislation is just a few years old, there are some matters that are still a work in progress. A five-year period would be a more reasonable time frame.

I also acknowledge that some members associated with the South Australian Association of State School Organisations believe that the alleged events in Mount Gambier in 2002 should be the basis for the review. As the matter has been subject to numerous investigations and showed the Teachers Registration Board to have acted appropriately, it should not pre-empt the review before all the reforms are enacted and properly evaluated.

I will go through the five points made out in the Hon. Mr Darley's motion. As to the welfare and best interests of children as its primary consideration in the performance of its functions, the following should be considered:

the safety and wellbeing of children is considered in all decisions made by the board, and this has always been the case;

the Teachers Registration Board operates on a peer model, rather than a policing model, which is subsequently undertaken by the courts;

the board was not established as a child protection authority: it is a teacher's regulatory authority which supports the protection of children and recognises the professionalism of teachers who work with children and young people in both the government and non-government sectors;

the legislation enables the Teachers Registration Board to monitor and assess the fitness of applicants seeking and renewing registration;

the legislation strikes a fair balance between the protection of children and procedural fairness in relation to the regulation of teachers.

The second term of reference relates to 'the manner and process by which the board ensures that a teacher registration system and professional standards are maintained to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children'. The new legislation provides for the following:

rigorous measures and capacity for the Teachers Registration Board to ensure quality and fitness-to-teach standards in line with nationally agreed principles and guidelines;

enhances the ability of the board to screen, monitor and make decisions on the suitability of teachers to work with children in school environments;

enables the board to impose preconditions on an application for registration and subsequent conditions on registration;

provides authority to undertake investigations and apply disciplinary actions where appropriate, following an open and transparent inquiry. The board has the capacity to reprimand, fine and impose conditions, suspend, cancel or disqualify from registration;

enhances provision for the sharing of critical information between the board, employers and all schooling sectors, the police, the DPP, the Australian and New Zealand teacher regulatory bodies to stop the movement of child abusers between schools and across borders.

Since 2005, the board has established protocols with employers, South Australia Police, the Director of Public Prosecutions, and other teacher regulatory authorities in Australia and New Zealand and brought in a mandatory notification training requirement and criminal record checks on application and renewal of registration. It has also established subcommittees of the board with delegated power to conduct disciplinary hearings in relation to an expanded definition of unprofessional conduct and with an increasing range of sanctions.

It has established subcommittees of the board with designated powers to conduct admissions and incapacity hearings regarding entry to or continuation of registration. The board has developed a code of ethics and professional teaching standards for graduate and provisional registration which align to a national framework. It has developed an integrated computerised data management system to assist the increased monitoring and screening functions required by the new act. It has also gained membership of the Australian Teacher Regulatory Authorities. This ensures consistency to develop professional standards for registration and enabled the exchange of appropriate information between states.

The third paragraph of the motion deals with the composition of the board. Section 9 of the act provides for the composition of the board as follows:

three nominees from DECS;

one Association of Independent Schools of South Australia;

one Catholic Education Office;

one university of the state;

five Australian Education Union;

I know members opposite have a problem with union people on the boards, but probably only 80 per cent of teachers are members of the union. You only have to look at the way the Howard government treated unions during its 10 years: they were basically isolated and had no input on very important boards because the government did not want union members on those boards. It would be quite unfair, where maybe 20 per cent—I am not sure of the actual numbers, but I know they have a very high membership—

The Hon. A. Bressington interjecting:

The Hon. R.P. WORTLEY: I am staggered that on such an important issue I get interjections from the Hon. Ms Bressington. Unless they actually have it in the legislation to protect unionists, what would happen is that members opposite would have no member of the union. They would look at the 20 per cent of non-members and make sure that every member of the board was not a union member. Considering the fact—

The Hon. A. Bressington interjecting:

The Hon. R.P. WORTLEY: I am still staggered. We are talking on such an important issue. During these sorts of issues I have never interjected while you were speaking.

Members interjecting:

The PRESIDENT: Order!

The Hon. R.P. WORTLEY: Listen to what I am saying. Get your finger out of your ear. During these sorts of issues that are so important and so critical, I think it deserves a little bit of respect from the cross-bench.

Members interjecting:

The PRESIDENT: Order! The Hon. Ms Bressington will cease interjecting and the Hon. Mr Wortley will stagger on.

The Hon. R.P. WORTLEY: Five Australian—

The Hon. T.J. Stephens interjecting:

The Hon. R.P. WORTLEY: Listen, mate, one thing I can guarantee—unlike some members opposite—is that you will never find me intoxicated in this chamber. That is a fact of life. So, do not make comments about having drinks at lunch time, or else every time I see someone opposite trip over their feet I will start making the same comment. If you want to start carrying on, I have no problem with it.

The Hon. J.S.L. DAWKINS: I rise on a point of order. The member has been here long enough to know that he needs to address his remarks through the chair.

Members interjecting:

The PRESIDENT: Order! The Hon. Mr Wortley—

The Hon. T.J. STEPHENS: I rise on a point of order. The honourable member should know it is rude to point. He should keep his horrible little paws to himself.

The PRESIDENT: Order! There is no point of order. The Hon. Mr Wortley should cease taking notice of out of order interjections and cease responding to them.

The Hon. R.P. WORTLEY: The composition of the board is as follows:

five Australian Education Union members;

two Independent Education Union members;

one parent of a school age student—representing the community, not a parent organisation—nominated by the minister;

one legal practitioner, nominated by the minister; and

one independent chairperson, nominated by the minister.

That is a broad range of the education community, and I think it is an absolute affront to the union movement that there are such strong objections from those opposite to the fact that seven of the members have to be unionists.

Public consultation indicated overwhelming support for the act. Detailed and valuable input was received from teachers, community members and organisations, parent and professional organisations, the Catholic Education Office, the Association of Independent Schools of South Australia, the Independent Education Union, the Australian Education Union and the previous Teachers Registration board.

The fourth point is: the manner by which evidence is gathered and presented to the board, including the representation of parties to proceedings. The establishment of an investigations unit consisting of three experienced investigations officers and a paralegal supported by officers of the Crown Solicitor's Office, the establishment of protocols with teacher employers, SAPOL, DPP and other teaching regulatory authorities in Australia to report certain information, and teachers are required to report changes and convictions and dismissals or resignations in lieu of disciplinary action.

The act confers on the Registrar an independent statutory role as complainant. The Registrar is required to investigate complaints or concerns and to exercise prosecutorial discretion. As such, the Registrar must act independently of the board and is not directed by the board in respect to the conduct of a specific case. The Registrar may conduct an investigation and has the power to issue an authority pursuant to section 34 of the act to require documentation, respond to questions and attendance at an interview.

The board has the power to issue a summons. The Registrar can require an employer or teacher to provide information relating to the teacher or the teacher's employment (under section 27 of the act). The principles of natural justice and adherence to confidentiality are an integral part of any such process. There is a right of appeal against any decision of the board.

The Crown Solicitor's Office assists the Registrar in determining whether or not a complaint should be put before the board and prepares the legal documentation. The Crown Solicitor's Office represents the Registrar and parties at the disciplinary hearing. The respondent has the right to be legally represented and call witnesses. The board acts in a quasi-judicial manner and determines, after hearing all evidence, whether or not, on the balance of probabilities, the conduct warrants disciplinary action.

The Registrar must give notice of an inquiry to employers and other teacher regulatory authorities and notify the outcome of the inquiry when completed. All proceedings are transcribed and reasons for decisions produced. A brief summary of the outcomes are published in the newsletter and annual report. Work is currently underway to publish a precis of a hearing on the website.

There is a clear distinction between the role of the Registrar and investigations officers and that of the board who make the determination after hearing the matter. The legislation provides for the rights of all concerned (under section 42). Principles of natural justice and administrative law are strictly adhered to. The legislation in relation to this issue reflects similar legislation applicable to other professional regulatory authorities, for example, nurses.

The purpose of an inquiry is not to punish the respondent; it is to protect the public interest. This distinguishes proceedings from that of a civil or criminal nature.

The last point is the relationship between the Department of Education and Children's Services (DECS) and the board. DECS is an employer of teachers and, together with other employers in the non-government sector, must comply with the provisions of the act. Employers are required to report certain matters to the board; for example, resignation of a teacher in lieu of dismissal for unprofessional conduct, and provide a written report if a practising teacher's capacity to teach is impaired by illness or disability. DECS is required under section 34 of the act to provide the registrar with information relevant to an investigation under part 7 of the act. The government appoints the registrar, who must be a member of the Public Service. The registrar directly reports to the presiding member and the board. The board is an independent statutory authority and a body corporate. It has the ability to appoint its own staff and has initiated preliminary discussion into the employment of staff.

Historically the Department of Education and Children's Services has been the administrative unit assisting the minister in the administration of the legislation. Since 1976 staff of the Teachers' Registration Board have been on loan from DECS and either members of the Public Service or seconded teachers. As such the Chief Executive Officer of DECS currently employs the staff of the board. However, under the Teachers Registration and Standards Act 2004 the registrar of the board manages the staff and resources of the board at an operational level. Staff are accountable to and managed by the registrar and not DECS. The chief executive officer of DECS does not have a direct role in the functions, role or responsibilities of the board. There are three nominees from the Department of Education and Children's Services appointed to the board by the Governor.

We believe everything that could be done has been done in regard to this matter. We also believe that, as the act has only been in operation for three years, it would be much more appropriate to wait for five years before a review is held. I seek the support of members in opposing the motion.

The Hon. J.A. DARLEY (17:55): I thank members for their contribution. I am disappointed that the government is unable to support this motion. However, I remind the Hon. Mr Wortley that SAASSO supports this motion. It is aimed at reviewing the functions of the Teachers Registration Board and, in particular, having the best interests of children as its primary consideration. A number of allegations have been raised with my office regarding the process of investigation conducted by the board relating to allegations against the teacher in Mount Gambier. Parents who approached my office were concerned that the board did not have access to all possible information and that the procedures regarding the calling of witnesses and considering evidence from children were inadequate.

I am not here to pass judgment on the correctness or otherwise of the allegations in that particular case. However, issues of process are worthy of investigation, especially where children are concerned. We hear every day about the importance of having good teachers in our schools and the very significant influence they wield over young lives. Often what happens to children in school, both good and bad, has a significant impact on the people they become as adults. I think that this inquiry is worthy and timely, and I commend the motion to the council.

Motion carried.

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