Education and Training Reform Bill

Introduction Print

EXPLANATORY MEMORANDUM

551276

BILL LA INTRODUCTION 8/2/2006

General

The Bill will replace 11 Acts dealing with education and training, and also Division 8A of Part III of the Community Services Act 1970 (which deals with the obligations of parents to send their child to school).

The 11 Acts relating to education and training comprise the—

  • Education Act 1958;
  • Adult Community and Further Education Act 1991;
  • Vocational Education and Training Act 1990;
  • Tertiary Education Act 1993;
  • Teaching Service Act 1981;
  • Victorian Curriculum and Assessment Authority Act 2000;
  • Victorian Qualifications Authority Act 2000;
  • Victorian Institute of Teaching Act 2001;
  • BaxterTechnicalSchoolLand Act 1982;
  • Educational Grants Act 1973;and
  • Education (Special Developmental Schools) Act 1976.

The Billdoes not affect the individual University Acts. The Bill updates the current legislation relating to education and training by—

  • removing obsolete provisions;
  • updating provisions and re-enacting others that are up-to-date;
  • inserting new provisions including principles and other reform matters;
  • grouping together provisions currently spread across a number of Acts dealing with similar subject matter;
  • merging, simplifying and introducing a consistent approach in those sections grouped together.

Main Changes

The following is a summary of the main changes to the current Acts—

  • PRINCIPLES. Clauses 1.2.1 and 1.2.2 insert sets of principles. Regulations will be made to implement the principles listed at clause 1.2.1(a), (c), (e) and (f). Theprinciples at clause 1.2.2 (2)(a), (b) and (c) are given legal effect by other provisions in the Bill, and clause 1.2.2(2)(d) will be implemented by administrative arrangements.
  • GOVERNMENT SCHOOLS. State schools are to be called Government schools and they must be registered as do current non-Government schools.
  • SCHOOL DEFINITION. There is a new definition of "school" in clause 1.1.3. It is modelled on the definition in most other States and is designed to be wider than the current section 35 of the Education Act 1958 which only covers assemblies of persons.
  • SCHOOL REGISTRATION CRITERIA. The criteria for the registration of schools will change from those in the current section 42 of the Education Act 1958, to prescribed minimum standards.
  • SCHOOL LEAVING AGE. The school leaving age is increased from 15 to 16 years of age. On turning 16, children will be able to leave school, although the vast majority continue their studies beyond that age.
  • RELIGIOUS INSTRUCTION. The position on religious instruction in Government schools is clarified, so as to permit discussion of events or topics that involve religion, whilst maintaining the current position that religious instruction is voluntary and can only be given by accredited instructors.
  • HOME SCHOOLING. Parents who prefer to educate their child at home rather than sending them to school will need to seek approval for home schooling.
  • FREE INSTRUCTION. Clause 2.2.4 provides for free instruction in Government schools to students under 20 years of age on 1 January. The current section 22(2) of the Education Act 1958 limits free instruction to "pupils" but doesnot define "pupils".
  • VOLUNTARY CONTRIBUTIONS. The position on voluntary financial contributions in Government schools is set out in clause 2.2.7 and includes guarantees against coercion or harassment as well as other safeguards.
  • NEIGHBOURHOODGOVERNMENTSCHOOL. Clause2.2.13 provides a child with the right to attend his or herdesignated neighbourhood Government school.
  • FEES ANDCHARGES. Clause 2.3.6 (1)(c) enables school councils to charge parents for matters supplied to students. This is subject to clause 2.2.4 which provides for free instruction in the learning areas in Schedule 1 and is also subject to Ministerial Order.
  • Students aged 20 years and over may be charged fees.
  • COUNCILS OF GOVERNMENT SCHOOLS. Thefollowing are the main changes to the provisions on schoolcouncils—
  • A council may be established for a proposed school.
  • Council members may receive reimbursement of reasonable expenses.
  • Clause 2.3.4 is new and sets out the objective of a council.
  • The function statement for councils is updated in clause 2.3.5 with (a), (b) and (i) being new. In particular, (a)gives a council a general power to supply or arrange for any matters for a school.
  • The wider and revised powers of school councils are in clause 2.3.6. In particular, sub clause (1)(d) is a new general power which enables a council to do anything necessary or convenient for meeting its objectives or performing its functions, subject to the limits expressed in clause 2.3.6(3).
  • The delegation powers of councils have been widened at clause 2.3.15, so as to enable a council to delegate its powers to any person or body.
  • The school plan referred to at clause 2.3.24 will replace the current school charter that councils are required to have under the Education Act 1958.
  • The position of councils under the Financial Management Act 1994 is being clarified. For the future, clause 2.3.30 requires that the report of operations of the Department under the Financial Management Act 1994 is to include a summary of the information provided by councils in their annual reports.
  • Clause 2.3.2 (2)(c) expands the Ministerial Order making power to enable the imposition of duties on individual members of councils, to reflect the approach taken in the Public Administration Act 2004.
  • RSB and VQA. The Registered Schools Board (RSB) and Victorian Qualifications Authority (VQA) are abolished. Theircurrent functions will be assumed by the new Victorian Registration and Qualifications Authority (VRQA). TheVRQA will also take over the Minister's current powers inthe Tertiary Education Act 1993 to accredit courses in higher education and approve and authorise providers of higher education.
  • VRQA. The new Victorian Registration and Qualifications Authority will be responsible for—
  • the registration of all schools (both Government and non-Government) and students undertaking home schooling;
  • in relation to years 11 and 12 of schooling and in Vocational Education and Training or in further education—
  • accrediting courses;
  • authorising providers of accredited courses;
  • registering qualifications;
  • authorising providers to award registered qualifications;
  • in relation to higher education—
  • accrediting courses; and
  • approving and authorising providers of higher education;
  • approving all providers of courses to overseas students.

The VRQA's functions will result in the merger of the powers currently exercised by 3 authorities—the RSB in respect of registering nonGovernment schools, the VQA in respect of accredited courses and providers and the Minister in respect of higher education and overseas students in nonGovernment schools or in higher education.

The other main changes to the current VQA provisions are—

  • Clause 4.3.10 clarifies the ability of schools to be registered training organisations.
  • Clause 4.9.4 authorises the VRQA to disclose information to Commonwealth bodies, such as the Department of Education, Science and Training and the Department of Immigration and Multicultural and Indigenous Affairs. This is necessary to enable the VRQA to manage risks associated with overseas students and other courses that involve the Commonwealth.
  • Clause 4.5.1 (5) amends the current section 27(5) of the VQA Act to enable the VRQA to approve a provider of courses to overseas students for up to 5 years, rather than a fixed 5 year period. This change mirrors the Education Services for Overseas Students Act 2000 of the Commonwealth and other provisions of the current VQA Act.
  • Clause 4.2.3 clarifies the authority's ability to exercise its powers outside Victoria.
  • VLESC. The Victorian Learning and Employment Skills Commission is being renamed the Victorian Skills Commission.
  • MINISTER'S POWERS AND FUNCTIONS. TheMinister's powers and functions have been updated in thefollowing areas—
  • Industry Training Boards, approved training agents andbodies to advise the Minister on post secondary education will in future be established by the Minister. They are currently established by the Governor in Council.
  • The powers to provide education or training outside Victoria have been strengthened (ref. clause 5.2.10).
  • There is an express power to require financial agreements from persons receiving moneys from the State for educational purposes (ref. clause 5.2.13). Thisis required because of the repeal of the Educational Grants Act 1973.
  • Multi-sector arrangements are given special provisions (ref. clause 5.2.4).
  • The Minister's common law powers to do anything that is "necessary or convenient to be done in or in connection with the functions of the Minister" under the Bill or other Act is stated in clause 5.2.3, as well as clarifying the Minister's powers to determine policy, issue guidelines or seek information.
  • Obligations are placed on education bodies to supply information required by the Minister for the effective monitoring, development and planning of education and training (ref. clause 5.1.2).
  • Clause 5.2.11 updates the Minister's powers of delegation so as to provide a consistent approach across the whole portfolio and to cover all the Minister's powers under the Bill, but subject to important limitations listed in that clause.
  • ANTA. The repeal of the Australian National Training AuthorityAct of the Commonwealth and the passing of the Skilling Australia's Workforce Act 2005 of the Commonwealth necessitated various amendments to the Vocational Education and Training and Victorian Qualifications Authority provisions.
  • IMMUNITIES FROM LEGAL ACTION. The Bill updates the immunities in the current provisions, in line with Government policy, by—
  • removing the immunities for the Victorian Learning and Employment Skills Commission, TAFE councils, Industry Training Boards, Adult Community and Further Education Regional Councils, the Adult Community and Further Education Board and the Minister and Secretary; and
  • inserting an immunity for members of the Merit Protection Boards and Discipline Appeals Board in respect of the Teaching Service and members of Victorian Institute of Teaching panels who hear discipline matters.
  • OBSOLETEACTS. The Bill will replace the following Acts—

BaxterTechnicalSchoolLand Act 1982

This Act authorised the Minister to lease part of the school's land to the Commonwealth for defence purposes, to construct certain buildings on the land and to establish a joint committee of management for the leased land.

The Commonwealth owned lands adjacent to the school and it transferred those lands to the Minister in consideration of the Minister constructing certain buildings on the land and granting a lease back to the Commonwealth over the same lands.

This Act is spent. Any new lease will be entered under the Minister's general power to enter leases rather than having a special Act for the purpose.

The Education Grants Act 1973 specifies a capitation grant, in respect of each primary pupil and for each secondary pupil, to be paid to the school authority of a "non-government school". The Act has been overtaken by a number of developments at both the Commonwealth and State levels and is being repealed. It is being replaced by clause 5.2.13 which authorises the Minister to require any person or body to enter an agreement as a condition of receiving any State government funding.

Education (Special Developmental Schools) Act 1976

This Act is out of date and superfluous. It provides for long service and sick leave entitlements of members of the teaching service employed in a special developmental school.

The provisions in the Act will be replaced by a Ministerial Order to the same effect.

Particular provisions needing further explanation

  • Clause 1.1.2 provides that the Bill is to commence on a day or days to be proclaimed, but not later than 31 December 2007. This has the potential for the Bill, or parts of it, to commence more than 12 months after its Royal Assent. The reasons for the delayed sunrise date are as follows—
  • There are some provisions (such as increasing the compulsory school age to 16, or the requirement for all schools to be registered) that should coincide with the start of a school year, so the sunrise date of 31December has been selected.
  • The reason for selecting 2007 is to allow sufficient time to prepare regulations prescribing the criteria for the registration of all schools and home schooling and to give all persons adequate notice of the new regulations. It is expected that it will take 12 months to finalise those regulations.
  • Clause 2.3.15 widens the delegation powers of councils of Government schools, and enables them to delegate matters to "another person or body". The broad delegation power is intended to support different forms of school education provision which might emerge through the Capital Investment and Access Policy and under clause 5.2.4 which covers multi sector arrangements. For example, a group of schools may decide to form a federation and delegate some (or all) powers to an overarching council; two schools may form an association with a TAFE provider and thereby create a new governance body.
  • Councils are subject to directions of the Minister, and the directions could limit the persons to whom delegations may be made. The section and directions will also provide the flexibility as circumstances change in the future without having to seek further legislative changes and to meet the requirements of school councils that need special delegation powers to meet their special circumstances.
  • Clause 2.1.14 provides that in any proceeding for a breach of a parent's duty to send a child to school or to receive instruction, the burden of proving the grounds of an excuse lies on the defendant. This clause reflects the current section 74F(a) of the Community Services Act 1970. The clause is not considered to involve a reversal of the legal burden of proof. The defendant, if pleading one of the excuses listed in clause2.1.3 or any other excuse,would have to establish the facts giving rise to the excuse. If the facts of the defence are raised by the defendant, the legal burden of proof passes back to the prosecution to establish its case.
  • Clauses 2.3.10 and 2.4.58 provide that a school council and the Secretary must dismiss a teacher or any member of the teaching service convicted or found guilty of a sexual offence against a child. Clause 2.6.29 states that a teacher ceases to be registered by the VIT if convicted or found guilty of a sexual offence. The clauses repeat sections in the current Education, Teaching Service and VIT Acts and do not provide an appeal right against the operation of the clauses.

The reason for not providing a right of appeal is because—

  • a conviction or finding of guilt for a sexual offence against a child destroys the trust that must exist between a parent, the school and teacher, as well as between the Department and the employee;
  • the Department is charged with the care and responsibility of children, and it is inconsistent with that responsibility to employ persons found guilty or convicted of sexual offences against children;
  • the Government has adopted a policy of zero tolerance in respect of teachers convicted of sexual offences against children;
  • Employees do have the right to submit that a case of mistaken identity has occurred, or that an incorrect criminal record has been received. These cases are handled administratively by internal processes;
  • Also the unfair dismissal laws of the Commonwealth may provide rights to employees to seek redress under that Act.
  • Clauses 2.6.22 and 5.3.4 authorise the Victorian Institute of Teaching and the Secretary to obtain a criminal record check without a teacher's or employee's consent. They repeat sections in the current VIT and Education Acts. The clauses may raise privacy issues, as criminal record checks can normally only be undertaken with the consent of a person. Thesections in the current Acts were recently inserted to undertake criminal record checks on a number of teachers and employees who had not undergone a criminal record check before being employed or registered by the VIT. The power has been retained as it also enables the VIT and the Department to follow up any information it may receive concerning a person's background, as well as checking the validity of any information supplied by a person, or following up a criminal record check which has not disclosed offences beyond a certain date.
  • Clause 2.6.27 is new and permits the Victorian Institute of Teaching to suspend the registration of a teacher charged with a sexual offence against a child, after giving notice to the teacher and the opportunity to make submissions. The clause may raise issues of fairness, as a person is presumed to be innocent until convicted or found guilty.
  • The reason for inserting the clause is because a range of circumstances may warrant suspending the registration, or other students may need to be protected, or there is a need to uphold the reputation of the teaching profession.
  • The circumstances that may warrant suspending the registration include where the teacher has made admissions or pleaded guilty to the offence, or where the evidence is overwhelming.
  • Other students may need to be protected if the teacher leaves the current employer and seeks employment at another school pending the hearing of the charges. The reputation of the teaching profession may need protection if no action is taken by the school against the teacher.
  • Clause 5.3.3 contains the Secretary's delegation powers. Apartfrom some minor limitations, they largely enable the Secretary to delegate powers to "any person". The section mirrors section 18 of the Public Administration Act 2004 which enables a public service body head (which includes the Secretary as a Department Head) to delegate powers under that Act to "any person". The reasons for providing the Secretary with a wide delegation power are—
  • most of the Secretary's powers relate to employment matters, which cover those employed under the Government teaching service (under the Bill) and also administrative staff under the Public Administration Act 2004, and it is preferable that the delegation powers under both Acts be the same;
  • the delegation power enables the Secretary to delegate matters to other persons such as contractors with expertise, or retired officers engaged to conduct investigations or discipline enquiries. For example, a recent matter involved a delegation to a person who was retired Departmental officer and an officer of another Department.
  • Clause 5.10.5 repeats section 11(5) of the Teaching Service Act 1981 to enable Orders in respect of the Teaching Service to be retrospective in operation. This is necessary to enable salary increases and other entitlements to be awarded from a date before the making of the Order.

Clause Notes

CHAPTER 1—GENERAL

PART 1.1—PRELIMINARY

Clause 1.1.1sets out the purpose of the Act.