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This is a Bill, not an Act. For current law, see the Acts databases.
House of Assembly—No 42
As laid on the table and read a first time, 27 October 2004
South Australia
Teachers
Registration and Standards Bill 2004
A Bill For
An
Act to regulate the teaching profession.
Contents
Part 1—Preliminary
1 Short title
2 Commencement
3 Interpretation
Part 2—Object of Act
4 Object of Act
Part 3—Teachers Registration
Board
5 Establishment of Teachers
Registration Board
6 Functions of Teachers Registration
Board
7 Primary consideration in performance
of functions
8 Directions by Minister
9 Membership of Teachers Registration
Board
10 Terms and conditions of membership
11 Remuneration
12 Conflict of interest etc under Public
Sector Management Act
13 Validity of acts of Teachers
Registration Board
14 Procedures of Teachers Registration
Board
15 Registrar of Teachers Registration
Board
16 Committees
17 Delegation
18 Accounts and audit
19 Annual report
Part 4—Requirement to be
registered
20 Requirement to be registered
Part 5—Registration
21 Eligibility for registration
22 Application for registration
23 Grant of registration
24 Conditions of registration
25 Offence to contravene certain
conditions of registration
26 Term of registration
27 Requirement for provision of
information
28 Register
29 Certificates of registration
Part 6—Special authority for
unregistered person to teach
30 Special authority for unregistered
person to teach
31 Register
Part 7—Action to deal with
unprofessional conduct or incapacity of teachers
32 Application and interpretation
33 Cause for disciplinary action
34 Registrar may conduct investigation
35 Inquiries and disciplinary action
36 Punishment of conduct that constitutes
offence
37 Employer to report dismissal etc for
unprofessional conduct
38 Action by Teachers Registration Board
to deal with impairment of teacher's capacity
39 Employer to report impairment of
teacher's capacity
40 Notification by Registrar of inquiry
and outcome
Part 8—Provisions relating to
proceedings of Teachers Registration Board
41 Application
42 Natural justice and right to be heard
and to call evidence etc
43 Evidence and findings in other
proceedings
44 Power to issue summons etc
45 Principles governing proceedings
46 Protection of children etc
47 Representation at proceedings
48 Counsel to assist Teachers
Registration Board
Part 9—Appeals
49 Right of appeal
Part 10—Miscellaneous
50 Information from Commissioner of
Police relevant to registration
51 Arrangements between Teachers
Registration Board, DPP, and Commissioner of Police for reporting of offences
52 Notification of offences to employer
etc
53 Confidentiality
54 False or misleading information
55 Procurement of registration by fraud
56 Self-incrimination
57 Service of documents
58 Continuing offence
59 Liability of members of governing
bodies of bodies corporate
60 General defence
61 Regulations
Schedule 1—Consequential amendments and transitional provisions
Part 1—Preliminary
1 Amendment provisions
Part 2—Amendment of Education
Act 1972
2 Amendment of section 5—Interpretation
3 Repeal of Part 4
4 Amendment of section 107—Regulations
Part 3—Transitional provisions
5 Transitional provisions
Schedule 2—Temporary provisions
1 Conflict of interest
2 Protection from personal liability
3 Power to direct
criminal record checks
The Parliament of South Australia enacts
as follows:
This Act may be cited as the Teachers Registration and
Standards Act 2004.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act—
condition includes a limitation;
Department means the administrative unit of the Public Service responsible
for assisting the Minister in the administration of this Act;
director of a recognised kindergarten means the person responsible for
providing educational leadership in the kindergarten and managing the
day-to-day operations of the kindergarten;
practising teacher means a person in employment for which registration is
required under this Act;
pre-school education means the provision of courses of education, training and
instruction to children under the age of 5 years;
principal of a school means the person responsible for providing
educational leadership in the school and managing the day-to-day operations of
the school;
professional standards for teachers means professional standards for teachers
required for the purposes of registration of teachers, as developed from time
to time by the Teachers Registration Board;
recognised kindergarten means—
(a) a
kindergarten registered as a Children's Services Centre under Part 3 Division 4
of the Children's Services Act 1985; or
(b) a
pre-school education centre established by the Minister under the Education
Act 1972;
registered teacher means a person registered as a teacher under Part 5;
Registrar means the Registrar of the Teachers Registration Board appointed
under Part 3, or a person acting in the position of the Registrar;
registration includes, unless the context otherwise requires, provisional
registration and renewal of registration;
repealed provisions means Part 4 of the Education Act 1972, as in
force from time to time before the commencement of this Act;
school means a school established for the purpose of providing education
at primary or secondary level, whether or not also for the purpose of providing
a pre-school education;
Teachers Registration Board means the Teachers Registration Board of
South Australia established under Part 3;
teacher regulatory authority means an authority with functions under
the law of a place outside this State similar to those of the Teachers
Registration Board;
unprofessional conduct means—
(a) a
contravention of this Act or the repealed provisions; or
(b) a
contravention of a condition of registration as a teacher under this Act or the
repealed provisions; or
(c) incompetence;
or
(d) disgraceful
or improper conduct.
The object of this Act is to establish and maintain a teacher
registration system and professional standards for teachers 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.
Part 3—Teachers Registration Board
5—Establishment of Teachers Registration Board
(1) The
Teachers Registration Board of South Australia is established.
(2) The Teachers Registration Board—
(a) is
a body corporate; and
(b) has
perpetual succession and a common seal; and
(c) has
the powers of a natural person and the functions and powers assigned or
conferred under this or any other Act.
(3) If
a document appears to bear the common seal of the Teachers Registration Board,
it will be presumed, in the absence of proof to the contrary, that the document
was duly executed by the Teachers Registration Board.
6—Functions of Teachers Registration Board
The Teachers Registration Board has the
following functions:
(a) to
administer the provisions of this Act for the regulation of the teaching
profession;
(b) to
promote the teaching profession and professional standards for teachers;
(c) to
confer and collaborate with teacher education institutions with respect to the
appropriateness for registration purposes of teacher education courses;
(d) to
confer and collaborate with teacher employers, the teaching profession, teacher
unions or other organisations and other bodies and persons with respect to
requirements for teacher registration and professional and other standards for
teachers;
(e) to
confer and collaborate with other teacher regulatory authorities to ensure
effective national exchange of information and promote uniformity and
consistency in the regulation of the teaching profession within Australia and
New Zealand;
(f) to
keep the teaching profession, professional standards for teachers and other
measures for the regulation of the profession under review and to introduce
change or provide advice to the Minister as appropriate.
7—Primary consideration in performance of functions
The Teachers Registration Board must have the welfare and best
interests of children as its primary consideration in the performance of its
functions.
(1) Subject
to this section, the Minister may give directions to the Teachers Registration
Board when it appears to the Minister to be necessary in the public interest.
(2) The Minister —
(a) may
not give a direction that relates to—
(i) a
particular person; or
(ii) a
particular application or inquiry; or
(iii) the
performance by the Teachers Registration Board of its function of determining
qualifications or experience for registration; and
(b) must
consult with the Teachers Registration Board before giving it a direction; and
(c) must,
within 3 sitting days after giving a direction, cause a copy of the direction
to be laid before each House of Parliament.
9—Membership of Teachers Registration Board
(1) The Teachers Registration Board consists of
16 members appointed by the Governor of whom—
(a) 1
must be a person nominated by the Minister, who will be the presiding member of
the Board; and
(b) 2
must be persons selected by the Minister from a panel of 5 employees in the
Department nominated by the person holding or acting in the office of Chief
Executive of the Department; and
(c) 1
must be a person selected by the Minister from a panel of 3 nominated by the
Catholic Education Office; and
(d) 1
must be a person selected by the Minister from a panel of 3 nominated by the
Association of Independent Schools of South Australia Incorporated; and
(e) 1
must be a person nominated by the Minister to represent the community interest;
and
(f) 5
must be persons selected by the Minister from a panel of 11 practising
registered teachers nominated by the Australian Education Union (S.A. Branch);
and
(g) 2
must be persons selected by the Minister from a panel of 5 practising
registered teachers nominated by the Independent Education Union (S.A. Branch);
and
(h) 1
must be a person selected by the Minister from a panel of 3 persons employed in
the field of teacher education nominated jointly by the universities in the
State; and
(i) 1
must be a person selected by the Minister from a panel of 3 nominated by the
person holding or acting in the office of Director of Children's Services; and
(j) 1
must be a legal practitioner nominated by the Minister.
(2) The
Minister must ensure, as far as practicable, that the persons appointed under
subsection (1) consist of equal numbers of women and men.
(3) A
person or body must, in constituting a panel for the purposes of
subsection (1), ensure that, as far as practicable, the panel consists of
equal numbers of women and men.
10—Terms and conditions of membership
(1) A
member of the Teachers Registration Board will be appointed on conditions
determined by the Governor and for a term, not exceeding 3 years, specified in
the instrument of appointment and, at the expiration of a term of appointment,
is eligible for reappointment.
(2) The
Governor may appoint a person to be a temporary member of the Teachers
Registration Board for a period not exceeding 6 months.
(3) A temporary member of the Teachers
Registration Board may act as a member of the Board—
(a) if
a vacancy arises in the membership of the Board; or
(b) during
any period of absence of a member of the Board.
(4) The
Governor may appoint a person to be the deputy of a member of the Teachers
Registration Board and the deputy may act as a member of the Board during any
period of absence of the member.
(5) The Governor may remove a member of the
Teachers Registration Board from office—
(a) for
breach of, or non-compliance with, a condition of appointment; or
(b) for
misconduct; or
(c) for
failure or incapacity to carry out official duties satisfactorily.
(6) The office of a member of the Teachers
Registration Board becomes vacant if the member—
(a) dies;
or
(b) completes
a term of office and is not reappointed; or
(c) resigns
by written notice to the Minister; or
(d) is
removed from office under subsection (5).
(7) A
member of the Teachers Registration Board may continue to act as a member of
the Board despite the expiry of his or her term of office for the purpose of
continuing and completing the hearing of an application under Part 5 or an
inquiry under Part 7.
A member of the Teachers Registration Board is entitled to
remuneration, allowances and expenses determined by the Governor.
12—Conflict of interest etc under Public Sector Management Act
A member of the Teachers Registration Board will not be taken to
have a direct or indirect interest in a matter for the purposes of the Public
Sector Management Act 1995 by reason only of the fact that the member
has an interest in the matter that is shared in common with teachers generally
or a substantial section of teachers in this State, or schools or kindergartens
generally or substantial section of schools or kindergartens.
13—Validity of acts of Teachers Registration Board
An act or proceeding of the Teachers Registration Board or a
committee of the Teachers Registration Board is not invalid by reason only of a
vacancy in its membership or a defect in the appointment of a member.
14—Procedures of Teachers Registration Board
(1) A
quorum of the Teachers Registration Board consists of 9 members.
(2) If
the presiding member of the Teachers Registration Board is absent from a
meeting of the Board, a member chosen by the members present at the meeting
will preside.
(3) A
decision carried by a majority of the votes cast by the members present at a
meeting of the Teachers Registration Board is a decision of the Board.
(4) Each
member present at a meeting of the Teachers Registration Board has 1 vote on
any question arising for decision.
(5) A conference by telephone or other
electronic means between the members of the Teachers Registration Board will,
for the purposes of this section, be taken to be a meeting of the Board at
which the participating members are present if—
(a) notice
of the conference is given to all members in the manner determined by the Board
for the purpose; and
(b) each
participating member is capable of communicating with every other participating
member during the conference.
(6) A proposed resolution of the Teachers
Registration Board becomes a valid decision of the Board despite the fact that
it is not voted on at a meeting of the Board if—
(a) notice
of the proposed resolution is given to all members of the Board in accordance
with procedures determined by the Board; and
(b) a
majority of the members express concurrence in the proposed resolution by
letter, facsimile transmission, e-mail or other written communication setting
out the terms of the resolution.
(7) The
Teachers Registration Board must have accurate minutes kept of its meetings.
(8) Subject
to this Act, the Teachers Registration Board may determine its own procedures.
15—Registrar of Teachers Registration Board
(1) There
will be a Registrar of the Teachers Registration Board.
(2) The
Registrar will be appointed by the Governor.
(3) The
Registrar must be a Public Service employee.
(4) The Registrar is responsible for—
(a) managing
the staff and resources of the Teachers Registration Board; and
(b) giving
effect to the policies and decisions of the Board.
(1) The Teachers Registration Board may
establish committees—
(a) to
advise the Board on any matter; or
(b) to
carry out functions on behalf of the Board.
(2) The procedures to be observed in relation
to the conduct of the business of a committee will be—
(a) as
determined by the Teachers Registration Board;
(b) insofar
as a procedure is not determined under paragraph (a)—as determined by the
relevant committee.
(1) The Teachers Registration Board may
delegate a function or power of the Board under this Act to—
(a) a
member of the Board; or
(b) the
Registrar; or
(c) a
committee of the Board.
(2) The
Teachers Registration Board may only delegate the holding of an inquiry under
Part 7 to a committee of the Board that is comprised of not less than 3 members
of the Board and includes a member who is a legal practitioner and a member who
is a practising teacher.
(3) A delegation under this section—
(a) must
be by instrument in writing; and
(b) may
be absolute or conditional; and
(c) does
not derogate from the power of the Teachers Registration Board to act in any
matter; and
(d) is
revocable at will.
(1) The
Teachers Registration Board must keep proper accounting records in relation to
its financial affairs, and must have annual statements of account prepared in
respect of each financial year.
(2) The
Auditor-General may at any time, and must at least once in each year, audit the
accounts of the Teachers Registration Board.
(1) The
Teachers Registration Board must, on or before 30 September in each year,
deliver to the Minister a report on the administration of this Act and the work
of the Board during the 12 months ending on the preceding 30 June.
(2) The report must—
(a) incorporate
the audited accounts of the Teachers Registration Board for the relevant
financial year; and
(b) include
details of any delegation of a function or power of the Teachers Registration
Board that was in operation during the relevant financial year.
(3) The
Minister must, within 12 sitting days after receiving a report under this
section, have copies of the report laid before both Houses of Parliament.
Part 4—Requirement to be registered
20—Requirement to be registered
(1) A person must not—
(a) undertake
employment as a teacher, principal or director at a school or recognised kindergarten;
or
(b) for
a fee or other consideration, personally provide primary or secondary
education, or offer to do so; or
(c) claim
or pretend to be a registered teacher,
unless the person is a registered teacher.
Maximum penalty: $5 000.
(2) A person must not employ another person as
a teacher, principal or director at a school or recognised kindergarten unless
the other person is a registered teacher.
Maximum penalty: $10 000.
(3) A person must not employ another person in
the course of a business to provide primary or secondary education unless the
other person is a registered teacher.
Maximum penalty: $10 000.
(4) Subsections (1),
(2) and (3) do not apply in relation to a person acting in accordance with a
special authority to teach granted by the Teachers Registration Board under
Part 6.
21—Eligibility for registration
(1) Subject to this Act, a person is eligible
for registration as a teacher if the person—
(a) has
qualifications and experience—
(i) prescribed
by regulation; or
(ii) determined
by the Teachers Registration Board to be appropriate for registration; and
(b) has
met any other requirements for registration—
(i) prescribed
by regulation or contained in professional standards for teachers; or
(ii) determined
by the Teachers Registration Board to be necessary for registration; and
(c) is
a fit and proper person to be a registered teacher.
(2) Subject
to this Act, a person is eligible for provisional registration as a teacher if
the person does not have the necessary experience but is otherwise eligible for
registration under subsection (1).
22—Application for registration
(1) An application for registration as a
teacher must—
(a) be
made to the Teachers Registration Board in the manner and form prescribed by
regulation or approved by the Board; and
(b) be
accompanied by the fee prescribed by regulation.
(2) An applicant for registration must—
(a) consent
to the conduct by the Teachers Registration Board of a criminal record check
relating to the applicant; and
(b) if
the Board so requires for the purpose of determining whether the applicant's
capacity to teach is seriously impaired by an illness or disability affecting
the applicant's behaviour or competence as a teacher—
(i) submit
to a medical examination by a medical practitioner selected by the applicant
from a panel of medical practitioners nominated by the Board; and
(ii) provide,
or authorise the medical practitioner to provide, a report on the results of
the medical examination to the Board; and
(c) provide
the Board with any information required by the Board for the purposes of
determining the application, verified, if the Board so requires, by statutory
declaration.
(3) An
applicant for registration must pay, in addition to the prescribed fee, an
amount specified by the Teachers Registration Board, being an amount payable by
the Board for the conduct by the Board of a criminal record check relating to
the applicant.
(4) An
application for renewal of registration must be made not less than 1 month
before the expiry of the registration.
(1) The
Teachers Registration Board may, on application under this Part, grant
registration to the applicant if satisfied that the applicant is eligible for
registration as a teacher.
(2) The
Teachers Registration Board may, on application under this Part, grant
provisional registration to the applicant if satisfied that the applicant is
eligible for provisional registration as a teacher.
(3) The Teachers Registration Board may, on
application under this Part, grant provisional registration to the applicant if—
(a) the
applicant has the necessary qualifications and experience but has not met
requirements under section 21(1)(b); and
(b) the
Board is satisfied that the applicant should be granted provisional
registration.
(4) The
Teachers Registration Board is not required, if it has assessed a person's
qualifications or experience to be appropriate for registration, to assess the
person's qualifications or experience again on a subsequent application by the
person.
(1) The Teachers Registration Board may impose
conditions of registration which may include (but are not limited to) the
following:
(a) conditions
requiring the person to complete a course or acquire experience as a teacher;
(b) conditions
requiring the supervision of the person;
(c) conditions
restricting the subjects that the person may teach;
(d) conditions
restricting the education that the person may provide;
(e) conditions
limiting the period for which the registration remains in force;
(f) conditions
requiring the provision of further evidence as to competence.
(2) Without limiting the effect of
subsection (1), the Teachers Registration Board must—
(a) make
it a condition of every registration that—
(i) if
the person is charged with or convicted of an offence of a kind specified in
the condition (which may include offences under the law of South Australia or
elsewhere), the person must, within 14 days, give written notice of the charge
or conviction to the Board containing the details specified in the condition;
and
(ii) if
the person is dismissed from employment as a practising teacher in response to
allegations of unprofessional conduct, or resigns from employment as a practising
teacher following allegations of unprofessional conduct, the person must,
within 14 days, give written notice of the person's dismissal or resignation to
the Board containing the details specified in the condition; and
(iii) if
the person is dismissed from any employment in response to allegations of
improper conduct relating to a child, or resigns from employment following
allegations of improper conduct relating to a child, the person must, within 14
days, give written notice of the person's dismissal or resignation to the Board
containing the details specified in the condition; and
(b) make
it a condition of every provisional registration that the person acquire the
experience or meet the requirements (as the case may be) necessary for the
person to be eligible for registration under section 21(1).
(3) The
Teachers Registration Board may, on application or by written notice, vary or
revoke a condition, or impose a condition, of a person's registration as a
teacher.
25—Offence to contravene certain conditions of registration
If a registered teacher contravenes a
condition of the person's registration that requires the Teachers Registration
Board to be notified of a matter or imposes a restriction on the practice of
teaching by the person, the person is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(1) Subject to this Act, registration as a
teacher remains in force—
(a) until
31 January in the third year following the year in which the registration was
granted or last renewed; or
(b) if
the registration is subject to a condition limiting the period for which it
remains in force to a lesser period—for that period.
(2) The
Teachers Registration Board may, if it thinks fit, on granting registration,
determine that the term of the registration commences from the end of a
preceding term of registration.
27—Requirement for provision of information
(1) The
Teachers Registration Board or the Registrar may, at any time, require a
registered teacher or the employer or a former employer of a registered teacher
to provide information relating to the teacher or the teacher's employment.
(2) A person who fails to comply with a
requirement under this section is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(1) The
Teachers Registration Board must keep a register of persons registered under
this Part.
(2) The register must include, in relation to
each registered person—
(a) the
person's full name, personal address and business address (if any); and
(b) the
qualifications for registration held by the person; and
(c) details
of any specialist qualifications held by the person and determined by the
Teachers Registration Board to be appropriate for inclusion on the register;
and
(d) details
of any condition of the person's registration; and
(e) the
expiry date of the person's registration; and
(f) the
person's registration number; and
(g) details
concerning the outcome of any action taken against the person by the Board
under Part 7,
and may include other information as the Board thinks fit.
(3) The
Registrar will be responsible to the Teachers Registration Board for the form
and maintenance of the register.
(4) A registered person must, within 28 days
after changing name or address, inform the Registrar in writing of the change.
Maximum penalty: $1 250.
Expiation fee: $160.
(5) The
Registrar may remove or correct an entry in the register as required without
giving notice to any person.
(6) The Registrar must—
(a) make
a record of the full name of each registered teacher and the information
entered in the register under subsection (2)(b), (c), (d), (e)
and (f) in relation to the teacher available for inspection on application to
the Registrar; and
(b) make
a record of the full name of each registered teacher and the information
entered in the register under subsection (2)(e) and (f) in relation to the
teacher available for inspection on a website established by the Board.
(7) An apparently genuine document purporting
to be signed by the Registrar stating that, at a specified date, or during a
specified period—
(a) a
specified person was registered under this Part unconditionally or subject to
specified conditions; or
(b) a
specified person was not registered under this Part,
will, in any legal proceedings, constitute proof of the matters
stated in the document in the absence of proof to the contrary.
29—Certificates of registration
(1) The Registrar must, on the registration of
a person as a teacher, issue to the person a certificate of registration in a
form approved by the Teachers Registration Board that includes the following
information:
(a) the
person's full name and registration number; and
(b) the
conditions (if any) of the registration; and
(c) the
expiry date of the registration; and
(d) any
other information the Board thinks fit.
(2) A registered teacher must, within 28 days
after—
(a) a
condition of the person's registration has been varied or revoked; or
(b) any
other change in the information recorded in the certificate of registration has
occurred; or
(c) the
registration has been suspended or cancelled,
return the certificate of registration to
the Registrar.
Maximum penalty: $1 250.
Expiation fee: $160.
(3) On receipt of a certificate of registration
under subsection (2), the Registrar must—
(a) if
the person's registration has been cancelled, destroy the certificate; or
(b) if
the person's registration has been suspended, retain the certificate until the
end of the period of suspension, and then return the certificate to the person;
or
(c) in
any other case, unless the Registrar determines otherwise, alter the
certificate or issue a new certificate.
Part 6—Special authority for unregistered
person to teach
30—Special authority for unregistered person to teach
(1) The
Teachers Registration Board may, on application by a person who is not a
registered teacher, in its discretion, grant the applicant a special authority
to teach for a period and subject to conditions specified by the Board (which
must include conditions limiting the places or circumstances in which the
person may teach under the special authority).
(2) Without otherwise limiting the discretion
of the Board under subsection (1), the Teachers Registration Board may not
grant a person a special authority unless the person—
(a) consents
to the conduct by the Board of a criminal record check relating to the person;
and
(b) has
met any requirements prescribed by regulation for the purposes of this section.
(3) An application for a special authority must—
(a) be
made to the Teachers Registration Board in the manner and form approved by the
Board; and
(b) be
accompanied by the fee fixed by regulation.
(4) An
applicant for a special authority must provide the Teachers Registration Board
with any information required by the Board for the purposes of determining the
application, verified, if the Board so requires, by statutory declaration.
(5) The
Teachers Registration Board may, in its discretion and without any requirement
for a hearing or other process, by written notice to the holder of a special
authority, vary or revoke the special authority.
(1) The
Teachers Registration Board must keep a register of persons granted special
authorities under this Part.
(2) The register must include, in relation to
each person granted a special authority—
(a) the
person's full name, personal address and business address (if any); and
(b) the
qualifications (if any) held by the person determined by the Teachers
Registration Board to be relevant to the person's activities under the special
authority; and
(c) details
of the conditions of the special authority; and
(d) the
expiry date of the special authority,
and may include other information as the Board thinks fit.
(3) The
Registrar will be responsible to the Teachers Registration Board for the form
and maintenance of the register.
(4) The holder of a special authority must,
within 28 days after changing name or address, inform the Registrar in writing
of the change.
Maximum penalty: $1 250.
Expiation fee: $160.
(5) The
Registrar may remove or correct an entry in the register as required without
giving notice to any person.
(6) The
Registrar must make the information recorded on the register (other than
addresses of any person) available for inspection on application to the
Registrar and on a website established by the Board.
(7) An apparently genuine document purporting
to be signed by the Registrar stating that, at a specified date, or during a
specified period—
(a) a
specified person was the holder of a special authority under this Part subject
to specified conditions; or
(b) a
specified person was not the holder of a special authority under this Part,
will, in any legal proceedings, constitute proof of the matters
stated in the document in the absence of proof to the contrary.
Part 7—Action to deal with unprofessional
conduct or incapacity of teachers
32—Application and interpretation
(1) This
Part applies to conduct engaged in by a teacher whether before or after the
commencement of this Act and whether within or outside South Australia.
(2) In this Part—
teacher means a person who is or has been employed as a teacher whether
or not the person is or has been registered as a teacher under this Act or the
repealed provisions.
33—Cause for disciplinary action
(1) There is proper cause for disciplinary
action against a teacher if—
(a) the
teacher has improperly obtained registration as a teacher; or
(b) the
teacher has been guilty of unprofessional conduct; or
(c) the
teacher is not a fit and proper person to be a registered teacher; or
(d) the
teacher's registration or other authority to teach has been suspended,
cancelled or otherwise withdrawn by another teacher regulatory authority.
(2) In
determining whether there is proper cause for disciplinary action against a
teacher, regard may be had to any evidence of the teacher's conduct that the
Teachers Registration Board considers relevant (no matter when the conduct is
alleged to have occurred), including information that existed at the time of
registration, or extension of registration, of the teacher under this Act or
the repealed provisions, regardless of whether that information was before or
could have been before the registering body at that time.
34—Registrar may conduct investigation
(1) The Registrar, or a person authorised by
the Registrar, may, for the purpose of determining whether there is a basis for
the Registrar to make a complaint to the Teachers Registration Board under this
Part, require a person—
(a) to
answer questions and to be present or attend a specified place and time for
that purpose;
(b) to
provide information or to produce material for inspection.
(2) The
Registrar or other person acting under this section may retain any material
produced under this section for such reasonable period as he or she thinks fit,
and make copies of the material, or any of its contents.
(3) A person who fails, without reasonable
excuse, to comply with a requirement under this section is guilty of an
offence.
Maximum penalty: $10 000 or imprisonment for 1 year.
(4) This
section does not limit or affect a power of investigation or inquiry that
exists apart from this section.
35—Inquiries and disciplinary action
(1) The
Teachers Registration Board may, on complaint by the Registrar or of its own
motion, hold an inquiry to determine whether conduct of a teacher constitutes
proper cause for disciplinary action.
(2) If, after conducting an inquiry under this
section, the Teachers Registration Board is satisfied on the balance of
probabilities that there is proper cause for disciplinary action against the
teacher, the Board may do one or more of the following:
(a) reprimand
the teacher;
(b) order
the teacher to pay a fine not exceeding $5 000;
(c) in
the case of a registered teacher—
(i) impose
conditions of the teacher's registration;
(ii) suspend
the teacher's registration for a specified period or until the fulfilment of
specified conditions or until further order;
(iii) cancel
the teacher's registration with immediate effect or effect at a future
specified date;
(d) disqualify
the teacher from being registered as a teacher permanently or for a specified
period or until the fulfilment of specified conditions or until further order.
(3) A
fine imposed under subsection (2) is recoverable by the Teachers
Registration Board as a debt.
36—Punishment of conduct that constitutes offence
(1) If
conduct constitutes an offence and also proper cause for disciplinary action,
the taking of disciplinary action under this Part is not a bar to conviction
and punishment for the offence, nor is conviction and punishment for the
offence a bar to disciplinary action under this Part.
(2) However, if—
(a) a
person has been found guilty of an offence; and
(b) circumstances
of the offence are the subject matter of an inquiry under this Part,
the person is not liable to a fine under this Part in respect of
conduct giving rise to the offence.
37—Employer to report dismissal etc for unprofessional conduct
(1) If the employer of a practising teacher
dismisses the teacher in response to allegations of unprofessional conduct, or
accepts the resignation of the teacher following allegations of unprofessional
conduct, the employer must, within 7 days, submit a written report to the
Teachers Registration Board—
(a) describing
the circumstances of the dismissal or resignation; and
(b) containing all other prescribed
information.
Maximum penalty: $10 000.
(2) A
person incurs no liability by making a report purportedly in compliance with
this section in good faith.
38—Action by Teachers Registration Board to deal with impairment of teacher's capacity
(1) The
Teachers Registration Board may, on complaint by the Registrar or of its own
motion, hold an inquiry to determine whether a teacher's capacity to teach is
seriously impaired by an illness or disability affecting the person's behaviour
or competence as a teacher.
(2) The Teachers Registration Board may, during
the course of an inquiry under this section, require the teacher—
(a) to
undergo a medical examination by a medical practitioner selected by the teacher
from a panel of medical practitioners nominated by the Board; and
(b) to
provide, or authorise the medical practitioner to provide, a report on the
results of the medical examination to the Board.
(3) If
the teacher refuses or fails, without reasonable excuse, to comply with a
requirement under subsection (2), the Teachers Registration Board may
suspend the teacher's registration until the teacher complies with the
requirement.
(4) The
Teachers Registration Board must furnish the teacher with a copy of any report
on the results of a medical examination required under this section.
(5) If, after conducting an inquiry under this
section, the Teachers Registration Board is satisfied on the balance of
probabilities that the teacher's capacity to teach is seriously impaired by an
illness or disability affecting the person's behaviour or competence as a
teacher, the Board may do one or more of the following:
(a) impose
conditions of the teacher's registration;
(b) suspend
the teacher's registration for a specified period or until the fulfilment of
specified conditions or until further order;
(c) cancel
the teacher's registration with immediate effect or effect at a future
specified date.
39—Employer to report impairment of teacher's capacity
(1) If the employer of a practising teacher has
reason to believe that the teacher's capacity to teach is seriously impaired by
an illness or disability affecting the person's behaviour or competence as a
teacher, the employer must, as soon as practicable, submit a written report to
the Teachers Registration Board—
(a) describing
the grounds on which the belief is based; and
(b) containing all other prescribed
information.
Maximum penalty: $10 000.
(2) A
person incurs no liability by making a report purportedly in compliance with
subsection (1) in good faith.
40—Notification by Registrar of inquiry and outcome
The Registrar must, as soon as
practicable, give notice of the commencement of an inquiry under this Part, and
then of the outcome of the inquiry, to—
(a) the
person's employer if the person to whom the inquiry relates is a practising
teacher; and
(b) the
chief executives of the Department, the Catholic Education Office and the
Association of Independent Schools of South Australia Incorporated; and
(c) the
Director of Children's Services; and
(d) the
other teacher regulatory authorities in Australia and New Zealand.
Part 8—Provisions relating to proceedings
of Teachers Registration Board
(1) This Part applies to proceedings of the
Teachers Registration Board—
(a) on
an application under Part 5; or
(b) on
an inquiry under Part 7.
(2) This
Part does not apply to an application that the Teachers Registration Board
decides to grant without a hearing.
42—Natural justice and right to be heard and to call evidence etc
(1) The
Teachers Registration Board must observe the rules of natural justice in
proceedings.
(2) Without limiting the effect of
subsection (1), the Teachers Registration Board must—
(a) give
the person to whom the proceedings relate at least 21 days' written notice of
the time and place at which it intends to conduct the proceedings; and
(b) if
the proceedings are on an inquiry, include in the notice particulars of the
allegations that are the subject of the inquiry; and
(c) afford
the person a reasonable opportunity to call and give evidence, to examine or
cross-examine witnesses, and to make submissions to the Board.
(3) The
requirement to give written notice does not extend to adjournments.
(4) If
the person to whom the proceedings relate does not attend at the time and place
fixed by the Teachers Registration Board for the commencement or resumption of
the proceedings, the Board may proceed to hear and determine the matter in the
absence of the person.
43—Evidence and findings in other proceedings
The Teachers Registration Board may, in
the course of proceedings—
(a) receive
in evidence a transcript of evidence taken in proceedings before a court,
tribunal or other body constituted under the law of South Australia or any
other place and draw conclusions of fact from the evidence that it considers
proper;
(b) adopt,
as in its discretion it considers proper, any findings, decision, judgment, or
reasons for judgment, of any such court, tribunal or body that may be relevant
to the proceedings.
(1) The Teachers Registration Board may, for
the purpose of proceedings—
(a) by
summons signed on behalf of the Board by a member, or by the Registrar, require
a person to appear before the Board or require material to be produced to the
Board;
(b) inspect
material produced to it, and retain the material for such reasonable period as
it thinks fit, and make copies of the material, or any of its contents;
(c) require
a person appearing before the Board to make an oath or affirmation to answer
truthfully all questions put to him or her relating to any matter in issue
before the Board (which oath or affirmation may be administered by a member of
the Board or the Registrar);
(d) require
a person appearing before the Board to answer any relevant question.
(2) On
the receipt of an application for the issue of a summons under this section, a
member of the Teachers Registration Board or the Registrar may, without
referring the matter to the Board, issue a summons on behalf of the Board.
(3) If a person—
(a) who
has been served with a summons to appear before the Teachers Registration Board
fails, without reasonable excuse, to attend in accordance with the summons; or
(b) who
has been served with a summons to produce material fails, without reasonable
excuse, to comply with the summons; or
(c) misbehaves
during any proceedings, or interrupts any proceedings; or
(d) refuses
to answer a relevant question when required to do so under this section; or
(e) refuses
to be sworn or to affirm when required to do so under this section,
the person is guilty of an offence.
Maximum penalty: $10 000 or imprisonment for 1 year.
(4) If
a person summoned under this section fails to produce material or to appear as
required by the summons, or having appeared before the Teachers Registration
Board refuses to be sworn or to affirm, or to answer a relevant question when
required to do so, the Registrar may sign a certificate of the failure or
refusal and such a certificate may be filed in the District Court.
(5) If
a certificate is filed under subsection (4), an application may be made to
the District Court for an order directing that the material be produced or that
the person appear, or be sworn or affirm, or answer questions (as the case may
require), and, on that application, the District Court may make such orders as
it thinks fit (including orders for costs).
45—Principles governing proceedings
In proceedings, the Teachers Registration
Board—
(a) is
not bound by the rules of evidence and may inform itself on any matter as it
thinks fit; and
(b) may,
of its own motion or on the application of a party, direct that the proceedings
or a part of the proceedings be held in private; and
(c) may,
subject to this Act, determine its own procedures.
If evidence is to be given in proceedings by a student or a
vulnerable witness within the meaning of section 13 of the Evidence
Act 1929, the Teachers Registration Board should, before evidence is
taken in the proceedings from the witness, determine whether an order should be
made under that section.
47—Representation at proceedings
A party to proceedings is entitled to be represented at the
hearing of those proceedings by a legal counsel or other person.
48—Counsel to assist Teachers Registration Board
The Teachers Registration Board may be assisted by a legal counsel
at the hearing of proceedings.
(1) A
right of appeal to the Administrative and Disciplinary Division of the District
Court lies against a decision of the Teachers Registration Board made in the
exercise or purported exercise of a power under Part 5 or Part 7.
(2) Subject
to this section, an appeal must be instituted within one month of the making of
the decision appealed against.
(3) The
Teachers Registration Board must, on application by a person affected by a
decision that may be the subject of an appeal, give the person a written
statement of the reasons for its decision.
(4) If
a written statement of the reasons for a decision are not given by the Teachers
Registration Board at the time of making the decision and the person affected
by the decision, within one month of the making of the decision, applies to the
Board for a written statement of reasons for the decision, the time for
instituting an appeal runs from the time when the person receives the written
statement of reasons.
50—Information from Commissioner of Police relevant to registration
(1) The Commissioner of Police—
(a) must,
at the request of the Teachers Registration Board; and
(b) may,
at the Commissioner's own initiative,
make available to the Teachers Registration Board information
about criminal convictions and other information to which the Commissioner has
access relevant to the question of a person's fitness to be, or continue to be,
registered as a teacher.
(2) The Commissioner of Police is not required
to provide information under subsection (1) that the Commissioner
considers—
(a) may
prejudice or otherwise hinder an investigation to which the information may be
relevant; or
(b) may
lead to the identification of an informant; or
(c) may
affect the safety of a police officer, complainant or other person.
(3) Subsection (1)
applies whether or not the person to whom the information relates has consented
to the provision of the information.
(1) This section applies to an offence that—
(a) has
been committed, or is alleged to have been committed, by a person who is a
registered teacher, or is believed to be or to have been a registered teacher;
and
(b) raises
serious concerns about the person's fitness to be, or continue to be,
registered as a teacher.
(2) The
Teachers Registration Board, the Director of Public Prosecutions and the
Commissioner of Police must establish arrangements for reports to be made to the
Board of the laying of charges for offences to which this section applies and
the outcomes of the proceedings on the charges.
(3) The
arrangements must define the offences to which they are to apply and specify
the contents of the reports and the times within which the reports must be
made.
(4) The
Teachers Registration Board, the Director of Public Prosecutions and the
Commissioner of Police must conduct reviews, at least annually, to ensure the
continuing effectiveness of the arrangements and their implementation.
52—Notification of offences to employer etc
(1) If the Registrar becomes aware that a
person who is or has been registered as a teacher has been charged with or
convicted of an offence (whether an offence under the law of South Australia or
elsewhere) that, in the opinion of the Registrar, raises serious concerns about
the person's fitness to be, or continue to be, registered as a teacher, the
Registrar must, as soon as practicable, give details of the matter to—
(a) the
person's employer if the person is a practising teacher; and
(b) the
chief executives of the Department, the Catholic Education Office and the
Association of Independent Schools of South Australia Incorporated; and
(c) the
Director of Children's Services.
(2) If the Registrar gives details under
subsection (1), the Registrar must —
(a) if
the details concern a person's being charged with an offence—at the same time
give notice to the person concerned that the Registrar is taking that action;
and
(b) if
the details concern a person's being charged with an offence and the charge is
subsequently withdrawn or the person is subsequently acquitted—as soon as
practicable give notice of the withdrawal or acquittal to—
(i) the
person's employer if the person is a practising teacher; and
(ii) the
chief executives of the Department, the Catholic Education Office and the
Association of Independent Schools of South Australia Incorporated; and
(iii) the
Director of Children's Services.
(1) A person engaged or formerly engaged in the
administration of this Act or the repealed provisions must not divulge or
communicate personal information obtained (whether by that person or otherwise)
in the course of official duties except—
(a) as
required or authorised under this Act or the regulations or any other Act or
law; or
(b) with
the consent of the person to whom the information relates; or
(c) in
connection with the administration of this Act or the repealed provisions; or
(d) to
another teacher regulatory authority; or
(e) to another statutory authority of this
State, the Commonwealth or another State or a Territory of the Commonwealth for
the purposes of the proper performance of its functions.
Maximum penalty: $10 000.
(2) Subsection (1)
does not prevent disclosure of statistical or other data that could not
reasonably be expected to lead to the identification of any person to whom it
relates.
(3) Information that has been disclosed under
subsection (1) for a particular purpose must not be used for any other
purpose by—
(a) the
person to whom the information was disclosed; or
(b) any other person who gains access to the
information (whether properly or improperly and whether directly or indirectly)
as a result of that disclosure.
Maximum penalty: $10 000.
54—False or misleading information
A person must not make a statement that is
false or misleading in a material particular (whether by reason of the
inclusion or omission of any particular) in any information provided under this
Act.
Maximum penalty: $10 000.
55—Procurement of registration by fraud
A person who by fraud or any other dishonest
means procures registration for himself or herself, or for another person, is
guilty of an offence.
Maximum penalty: $10 000.
If a person is required to provide information or produce material
under this Act and the information or material would tend to incriminate the
person or make the person liable to a penalty, the person must nevertheless
provide information or material, but the information or material so provided or
produced will not be admissible in evidence against the person in proceedings
for an offence, other than an offence against this or any other Act relating to
the provision of false or misleading information.
(1) A notice or document required or authorised
to be given or sent to, or served on, a person for the purposes of this Act may—
(a) be
given to the person personally; or
(b) be
posted in an envelope addressed to the person—
(i) at
the person's last known address; or
(ii) at
the person's address for service.
(2) The
address for service of a person registered under this Act is the address for
the person that appears on the register under this Act.
(1) A person convicted of an offence against a
provision of this Act in respect of a continuing act or omission—
(a) is
liable, in addition to the penalty otherwise applicable to the offence, to a
penalty for each day during which the act or omission continued of not more
than one-tenth of the maximum penalty prescribed for that offence; and
(b) is,
if the act or omission continues after the conviction, guilty of a further
offence against the provision and liable, in addition to the penalty otherwise
applicable to the further offence, to a penalty for each day during which the
act or omission continued after the conviction of not more than one-tenth of
the maximum penalty prescribed for the offence.
(2) If
an offence consists of an omission to do something that is required to be done,
the omission will be taken to continue for as long as the thing required to be
done remains undone after the end of the period for compliance with the
requirement.
59—Liability of members of governing bodies of bodies corporate
(1) If—
(a) a
body corporate commits an offence against this Act; and
(b) a
member of the governing body of the body corporate intentionally allowed the
body corporate to engage in the conduct comprising the offence,
that person also commits an offence and is liable to the same
penalty as may be imposed for the principal offence.
(2) A
person may be prosecuted and convicted of an offence under this section whether
or not the body corporate has been prosecuted or convicted of the offence
committed by the body corporate.
It is a defence to a charge of an offence against this Act if the
defendant proves that the alleged offence was not committed intentionally and
did not result from any failure on the part of the defendant to take reasonable
care to avoid the commission of the offence.
(1) The
Governor may make such regulations as are contemplated by, or necessary or
expedient for the purposes of, this Act.
(2) Without limiting the generality of
subsection (1), those regulations may make provision for or relating to—
(a) exemptions
(conditional or unconditional) from specified provisions of this Act; and
(b) assessment
by the Teachers Registration Board, on application, of qualifications for
registration; and
(c) fees
in respect of any matter under this Act and their payment, recovery or waiver;
and
(d) fines,
not exceeding $5 000, for offences against the regulations; and
(e) facilitation
of proof of the commission of offences against the regulations.
(3) The regulations may—
(a) be
of general application or vary in their application according to prescribed
factors;
(b) provide
that a matter or thing in respect of which regulations may be made is to be
determined according to the discretion of the Minister or the Teachers
Registration Board.
Schedule 1—Consequential amendments and transitional
provisions
Part 1—Preliminary
In this Schedule, a provision under a heading referring to the
amendment of a specified Act amends the Act so specified.
Part 2—Amendment
of Education Act 1972
2—Amendment of section 5—Interpretation
Section 5(1), definitions of the register and registered—delete
the definitions
Part 4—delete the Part
4—Amendment of section 107—Regulations
Section 107(2)(q) and (r)—delete paragraphs (q) and (r)
Part 3—Transitional
provisions
(1) Subject
to this Act, registration of a person as a teacher in force under Part 4 of the
Education Act 1972 immediately before the commencement of this
clause, will, on that commencement, continue as registration of the person as a
teacher under this Act for the balance of the term of the registration.
(2) Subject
to this Act, an authority in writing for the employment of an unregistered
person as a teacher or administrator granted by the Teachers Registration Board
and in force under Part 4 of the Education Act 1972 immediately
before the commencement of this clause, will, on that commencement, continue as
a special authority under Part 6 of this Act for the balance of the period for
which it was granted.
Schedule 2—Temporary provisions
(1) A member of the Teachers Registration Board
who has a direct or indirect personal or pecuniary interest in a matter decided
or under consideration by the Board—
(a) must,
as soon as reasonably practicable, disclose in writing to the Board full and
accurate details of the interest; and
(b) must
not take part in any discussion by the Board relating to that matter; and
(c) must
not vote in relation to that matter; and
(d) must be absent from the meeting room when
any such discussion or voting is taking place.
Maximum penalty: $20 000.
(2) If a member of the Teachers Registration
Board makes a disclosure of interest and complies with the other requirements
of subclause (1) in respect of a proposed contract—
(a) the
contract is not liable to be avoided by the Board; and
(b) the
member is not liable to account to the Board for profits derived from the
contract.
(3) If
a member of the Teachers Registration Board fails to make a disclosure of
interest or fails to comply with any other requirement of subclause (1) in
respect of a proposed contract, the contract is liable to be avoided by the
Board or the Minister.
(4) A
contract may not be avoided under subclause (3) if a person has acquired
an interest in property the subject of the contract in good faith for valuable
consideration and without notice of the contravention.
(5) Where a member of the Teachers Registration
Board has or acquires a personal or pecuniary interest, or is or becomes the
holder of an office, such that it is reasonably foreseeable that a conflict
might arise with his or her duties as a member of the Board, the member must,
as soon as reasonably practicable, disclose in writing to the Board full and accurate
details of the interest or office.
Maximum penalty: $20 000.
(6) A
disclosure under this clause must be recorded in the minutes of the Teachers
Registration Board and reported to the Minister.
(7) If,
in the opinion of the Minister, a particular interest or office of a member of
the Teachers Registration Board is of such significance that the holding of the
interest or office is not consistent with the proper discharge of the duties of
the member, the Minister may require the member either to divest himself or
herself of the interest or office or to resign from the Board (and
non-compliance with the requirement constitutes misconduct and hence a ground
for removal of the member from the Board).
(8) Without
limiting the effect of this clause, a member of the Teachers Registration Board
will be taken to have an interest in a matter for the purposes of this clause
if an associate of the member has an interest in the matter.
(9) This
clause does not apply in relation to a matter in which a member of the Teachers
Registration Board has an interest while the member remains unaware that he or
she has an interest in the matter, but in any proceedings against the member
the burden will lie on the member to prove that he or she was not, at the
material time, aware of his or her interest.
(10) In this clause—
associate has the same meaning as in the Public Corporations
Act 1993.
(11) This
clause will expire on the commencement of section 6H of the Public Sector
Management Act 1995 (as inserted by the Statutes Amendment (Honesty
and Accountability in Government) Act 2003), or if that section has come
into operation before the commencement of this clause, will be taken not to
have been enacted.
2—Protection from personal liability
(1) No personal liability is incurred for an
act or omission by—
(a) a
member of the Teachers Registration Board; or
(b) the
Registrar of the Board; or
(c) any
other person engaged in the administration of this Act,
in good faith in the performance or purported performance of
functions or duties under this Act.
(2) A
civil liability that would, but for subclause (1), lie against a person,
lies instead against the Crown.
(3) This
clause will expire on the commencement of section 28 of the Statutes
Amendment (Honesty and Accountability in Government) Act 2003, or if that
section has come into operation before the commencement of this clause, will be
taken not to have been enacted.
3—Power to direct criminal record checks
(1) The
Minister may, within 1 month after the commencement of this Act, after
consultation with the Teachers Registration Board, give written directions to
the Board requiring it to obtain information to which the Commissioner of Police
has access about criminal convictions and other matters relevant to the fitness
for registration of persons currently registered as teachers.
(2) This clause will expire 1 month after the commencement of this Act.