Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016

Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016

No. 9 of 2016

table of provisions

SectionPage

Part 1—Preliminary

1Purpose

2Commencement

3Principal Act

Part 2—Interim suspension of registration of registered teachers

4Effect of suspension on registration

5New Division 8A inserted

6Powers of inquiry

7Change of informal hearing to formal or medical panel hearing during course of hearing

8Notice of cancellations and determinations of panel

9Removal of particulars contained in Register of Disciplinary Action

10New Division 13B inserted

11Delegation

12Statute law revision

13Consequential amendment of the Working with Children Act2005

Part 3—Membership of the Council of the Victorian Institute of Teaching

14Definitions

15Council of the Victorian Institute of Teaching

16New sections 2.6.6AB, 2.6.6AC, 2.6.6AD and 2.6.6AE inserted

17New section 6.1.41 inserted

Part 4—Repeal of amending Act

18Repeal of amending Act

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Endnotes

1General information

SectionPage

Victoria

SectionPage

Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016[†]

No. 9 of 2016

[Assented to 15 March 2016]

Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016
No. 9 of 2016

The Parliament of Victoriaenacts:

Part 4—Repeal of amending Act

Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016
No. 9 of 2016

Part 1—Preliminary

1Purpose

The main purpose of this Act is to amend the Education and Training Reform Act 2006—

(a) to provide power for the Victorian Institute of Teaching to suspend the registration of a registered teacher if there is an unacceptable risk of harm to children; and

(b)to change the membership requirements of the Council of the Victorian Institute of Teaching.

2Commencement

(1)This Act (except Part 3) comes into operation on the day after the day on which it receives the Royal Assent.

(2)Subject to subsection (3), Part 3 comes into operation on a day to be proclaimed.

(3)If Part 3 does not come into operation before 1December 2016, it comes into operation on that day.

3Principal Act

In this Act, the Education and Training Reform Act 2006 is called the Principal Act.

Part 2—Interim suspension of registration of registered teachers

4Effect of suspension on registration

Section 2.6.28 of the Principal Act is repealed.

5New Division 8A inserted

After Division 8 of Part 2.6 of the Principal Act insert—

"Division 8A—Interim suspension of registration

2.6.28Institute may suspend registration where unacceptable risk of harm to children

(1)The Institute may suspend any orall registrations held by a person under this Part if the Institute reasonably believes that—

(a)the person poses an unacceptable risk of harm to children; and

(b)the suspension is necessary to protect children.

(2)A suspension under this Division takes effect on the day the person is served with a written notice under section 2.6.28A or, if any later day is specified in the notice, on that day.

2.6.28ANotice of interim suspension of registration

If the Institute decides to suspend a person's registration under this Divisionit must serve a written notice on the person containing the following—

(a)that the person's registration is suspended;

(b)the date on which the suspension takes effect (which must be no earlier that the date that the notice is served);

(c)the reasons for the suspension and the information on which the Institute has based its decision;

(d)the date on which the Institute will review the basis of the suspension;

(e)that the Institute mustunder section2.6.28Ereview the basis
for the suspension at least every 30days after the date of the first review;

(f)that the person may make written submissions to the Institute at any timeregarding the continuation of the suspension.

2.6.28B Institute must notify employer of person subject to interim suspension

(1)The Institute must serve a written notice on any person employing the person subject to a suspension under this Divisionas a teacher or an early childhood teacher containing the following—

(a)that the employed person's registration is suspended;

(b)the date on which the suspension takes effect.

(2) A notice under subsection (1) must be served on the same day a notice is served on the employed person under section 2.6.28A or, if it is not reasonably possible to do so, as soon as practicable after that day.

(3)The validity of a suspension under this Division is not affected by any failure to serve a notice under subsection (1).

2.6.28C Cessation of interim suspension of registration

A suspension under this Division remains in force until the earliest of the following occurs—

(a)the Institute revokes the suspension under section 2.6.28G;

(b)the person ceases to be registered as a teacher or an early childhood teacher under section 2.6.29(1);

(c)the person ceases to have permission to teach under section 2.6.29(2);

(d)the person's registration is cancelled under section 2.6.29C or under an agreement in accordance with section2.6.34(1)(d);

(e)a medical panel makes a determination under section 2.6.41E(2) or (4) in relation to the matter which is the basis for the Institute's decision to suspend the person's registration;

(f)a formal hearing panel finds under section 2.6.46(1) that the person has not engaged in misconduct or serious misconduct, has not been seriously incompetent and is fit to teach;

(g)aformal hearing panel makes a determination under section 2.6.46(2)(h), (ha), (hb), (i), (j) or (k) in relation to the matter which is the basis for the Institute's decision to suspend the person's registration.

2.6.28DPerson subject to interim suspension may make submissions to Institute

A person whose registration is suspended under this Division may make written submissions to the Institute at any time regarding the continuation of the suspension.

2.6.28E Periodic review of interim suspension

(1)The Institute must review the basis for the suspension of a person's registration under this Division within 30 days after the suspension takes effect and within 30 days after that review and every successive review in order to determine whether or not to continue that suspension.

(2) The Institute must take into account any submission provided under section 2.6.28D in determining whether or not to continue the suspension.

(3) The Institute may take into account any matter it considers to be relevant in determining whether or not to continue the suspension.

(4) The Institute may determine to continue the suspension if it reasonably believes that—

(a)the person continues to pose an unacceptable risk of harm to children; and

(b)the suspension is necessary to protect children.

2.6.28FNotice of determination to continue interim suspension

If the Institute determines to continue the suspension of the person's registration it must serve a written notice on the person containing the following—

(a)that the person's registration continues to be suspended;

(b)the reasons for continuing the suspension and the information on which the Institute based its decision;

(c)the date on which the Institute will next review the suspension;

(d)that the person may make written submissions to the Institute at any timeregarding the continuation of the suspension.

2.6.28G Revocation of interim suspension

(1)The Institute must revoke the suspension of a person's registration under this Division if the Institute no longer reasonably believes that—

(a)the person poses an unacceptable risk of harm to children; and

(b)the suspension is necessary to protect children.

(2)The revocation of the suspension of a person's registration under this section does not affect an inquiry conducted under this Part that has commenced in relation to the person.

2.6.28H Notice of revocation of interim suspension

If the Institute revokes the suspension of a person's registration under this Division it must notify the person, and any person employing the person as a teacher or early childhood teacher at the time the suspension was imposed, in writing as soon as possible after the suspension is revoked—

(a)that the suspension is revoked; and

(b)the date on which therevocation takes effect.".

6Powers of inquiry

(1)After section 2.6.30(1) of the Principal Act insert—

"(1A) Subject to subsection (1C), the Institute must in accordance with this Part inquire into whether a registered teacher, whose registration has been suspended under Division 8A—

(a) has engaged in misconduct or serious misconduct; or

(b)is unfit to be a registered teacher; or

(c)has such an impairment that the person's ability to practise as a registered teacher is seriously detrimentally affected or is likely to beseriously detrimentally affected.

(1B)The Institute must commence an inquiry intoa matter referred to in subsection (1A) as soon as practicable after the Institutedecides to suspend the registration under Division 8A.

(1C)Subsection (1A) does not apply if the Institute is already conducting an inquiry into the matter which is the basis for the Institute's decision to suspend the registration of the registered teacher.".

(2)For section 2.6.30(2) of the Principal Actsubstitute—

"(2) The Institute must in writing notify—

(a)the registered teacher; and

(b)the employer of the registered teacher; and

(c)the person who made the complaint, if applicable—

of its determination under subsection (1) to inquire or not to inquire,or of an inquiry under subsection (1A),into the registered teacher's—

(d)competence; or

(e)fitness to teach; or

(f)conduct; or

(g)ability to practise as a registeredteacher.

(2A) Despite subsection (2), the Institute is not required to give notice if it reasonably believes that doing so may—

(a)seriously prejudice the inquiry; or

(b)place at risk a person's health or safety; or

(c)place a person at risk of harassment or intimidation.".

7Change of informal hearing to formal or medical panel hearing during course of hearing

In section 2.6.41 of the Principal Act—

(a)in paragraph (c), for "impairment—"substitute "impairment; or";

(b)after paragraph (c) insert—

"(d) the Institute suspends the registration ofthe registered teacherunder Division8A—".

8Notice of cancellations and determinations of panel

(1)In section 2.6.50(1) of the Principal Act, after "teacher"insert "in writing".

(2)In section 2.6.50(2) of the Principal Act, after "Part"insert "in writing".

(3)After section 2.6.50(2) of the Principal Act insert—

"(3) If a finding or a determination of a hearing panel or a suspension, cancellation or cessation of a person's registration under this Part has the effect of ending the suspension of registration of a person under Division8A, the Institute must notify the person, and any person employing the person as a teacher or early childhood teacher at the time the suspension was imposed, in writing—

(a)that the suspension has ceased to be in force; and

(b)the date on which the suspension ceased to be in force; and

(4) At the foot of section2.6.50 of the Principal Actinsert the following note—

"Note

For the purposes of subsection (3), section 2.6.28C sets out the circumstances in which a suspension of registration of a person under Division 8A ends.".

9Removal of particulars contained in Register of Disciplinary Action

After section 2.6.54H(e) of the Principal Act insert—

"(ea) in the case of asuspension of registration under Division 8A, when the suspension is no longer in force;".

10New Division 13B inserted

After Division 13A of Part 2.6 of the Principal Act insert—

"Division 13B—Suspension of registration under this Part

2.6.54K Effect of suspension of registration

(1)For the purposes of this Act, a teacher or an early childhood teacher whose registration is suspended is deemed not to be registered for the period of that suspension.

(2)Despite subsection (1), the Institute may conduct or continue to conduct an inquiry into the conduct or activities of a person whose registration has been suspended under this Part as if the person were a registered teacher.".

11Delegation

(1) After section 2.6.67(1)(fa) of the Principal Act insert—

"(fb) the power to suspend registration, continue to suspend registration or revoke the suspension of registration under Division8A; or".

(2)In section 2.6.67(2) of the Principal Act—

(a)in paragraph (b), for "teach."substitute "teach; and";

(b)after paragraph (b) insert—

"(c) to suspend registration, continue to suspend registration or revoke the suspension of registration under Division 8A.".

12Statute law revision

In section 2.6.54C(2)(d) of the Principal Act, for "2.6.22A(5)"substitute "2.6.22A(4)".

13Consequential amendment of the Working with Children Act 2005

(1)In the note at the foot of section 30(1) of the Working with Children Act 2005, for "section2.6.28"substitute"section 2.6.54K".

(2)For Note 1 at the foot of section 30(2) of the Working with Children Act 2005substitute—

"1The Victorian Institute of Teaching must notify a teacher's employer of the suspension or cancellation of the teacher's registration: see sections 2.6.27(7), 2.6.28B and 2.6.51 of the Education and Training Reform Act 2006.".

Part 3—Membership of the Council of the Victorian Institute of Teaching

14Definitions

In section 2.6.1 of the Principal Act insert the following definitions—

"Australian Education Union means the Australian Education Union Victorian Branch (ABN 44 673 398 674) or any successor in law;

Independent Education Union means the Independent Education Union of Australia, Victoria Tasmania Branch trading as the Victorian Independent Education Union (ABN 34 532 902 687) or any successor in law;

nominating organisation means an organisation that may make nominations under section 2.6.6AB(1);".

15Council of the Victorian Institute of Teaching

(1)In section 2.6.6(3) of the Principal Act—

(a)for"12"substitute"14";

(b)in paragraph (a), for "11"substitute"13".

(2)For section 2.6.6(4) of the Principal Act substitute—

"(4) Of the members appointed under subsection(3)(a) on the recommendation ofthe Minister—

(a)subject to section 2.6.6AD, 5 must be registered teachers (of whom at least one must be an early childhood teacher) nominated by a nominating organisation referred to in
section 2.6.6AB(1)(a); and

(b)subject to section 2.6.6AD, 2 must be registered teachers nominated by a nominating organisation referred to in section 2.6.6AB(1)(b); and

(c)the majority must be registered teachers.".

16New sections 2.6.6AB, 2.6.6AC, 2.6.6AD and 2.6.6AE inserted

After section 2.6.6A of the Principal Act insert—

"2.6.6AB Nominations for recommendation for appointment of members to the Council

(1)For the purposes of recommending persons for appointment to the Council to satisfy the requirements in section 2.6.6(4)(a) and (b), the Minister must call for nominations of registered teachers by—

(a)the Australian Education Union or, if the Australian Education Union ceases to exist, an organisation designated byaMinisterial Order under section2.6.6AE(1)(a); and

(b) the Independent Education Union or, ifthe Independent Education Union ceases to exist, an organisation designated by a Ministerial Order undersection2.6.6AE(1)(b).

(2)The nominating organisation may nominate any number of registered teachers for recommendation for appointment to the Council in accordance with subsection (3).

(3)A nomination referred to in this section must be given to the Minister—

(a)in the manner specified by the Minister; and

(b)on or before the date specified by the Minister.

2.6.6ACMinister may decline nominations

The Minister may decline to recommend to the Governor in Council for appointment to the Council a person nominated under section 2.6.6AB if—

(a)the nominee is not a registered teacher; or

(b)the appointment of the nominee wouldresult in the requirement in section2.6.6(4)(a) to appoint an early childhood teacher to the Council not being satisfied; or

(c) in the Minister's opinion the nominee does not possess the skills, experience or qualifications referred to in section2.6.6A(a); or

(d)the appointment of the nominee wouldresult in the requirement in section2.6.6A(b) not being satisfied.

2.6.6ADInsufficient eligible nominations

If there is not a sufficient number of eligible nominations provided to the Minister to fill a vacancy in the office of a member of the Council appointed to satisfy the requirements in section 2.6.6(4)(a) or (b), the Minister may recommend any other suitable person in accordance with sections 2.6.6A and 2.6.6B to fill that vacancy.

2.6.6AEMinister may designate nominating organisation in certain circumstances

(1)The Minister may, by Order, designate an organisation representing the professional and industrial interests of teachers and early childhood teachers to be the nominating organisation—

(a)for the purposes of section 2.6.6AB(1)(a) if the Australian Education Union ceases to exist; or

(b) for the purposes of section 2.6.6AB(1)(b) if the Independent Education Union ceases to exist.

(2) An Order referred to in subsection (1)must be published in the Government Gazette as soon as practicable after the Order is made.".

17New section 6.1.41 inserted

After section 6.1.40 of the Principal Act insert—

"6.1.41 Transitional and savings provisions—Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016

(1)On and from the commencement day the Council is taken to be the same body as it was before that commencement despite the changes made to its constitution by Part 3 of the amending Act and no decision, matter or thing is affected by those changes.

(2)On the commencement day the members ofthe Council appointed under section2.6.6(3)(a) in office immediately before that daygo out of office.

(3)In this section—

amending Act means the Education and Training Reform Amendment (Victorian Institute of Teaching) Act2016;

commencement day means the day on which Part 3 of the amending Act comes into operation.".

Part 4—Repeal of amending Act

18Repeal of amending Act

This Act is repealed on 1 December 2017.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

Education and Training Reform Amendment (Victorian Institute of Teaching) Act 2016
No. 9 of 2016

Endnotes

1General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

[†] Minister's second reading speech—

Legislative Assembly: 25 November 2015

Legislative Council: 11 February 2016

The long title for the Bill for this Act was "A Bill for an Act to amend the Education and Training Reform Act 2006 to provide power for the Victorian Institute of Teaching to suspend the registration of a registered teacher if there is an unacceptable risk of harm to children, to change the membership requirements of the Council of the Victorian Institute of Teaching and for other purposes."