2016-03-08
Ms PENNICUIK (Southern Metropolitan) — I am very pleased to speak today on behalf of the Greens on the Education and Training Reform Amendment (Victorian Institute of Teaching) Bill 2015. This bill proposes amendments to the Education and Training Reform Act 2006 to provide the Victorian Institute of Teaching (VIT) with the power to temporarily suspend the registration of a teacher or early childhood teacher or the permission to teach if VIT has a reasonable belief that that person poses an unacceptable risk of harm to children and that this is necessary to protect children.
The bill also proposes changes to the membership requirements of the Victorian Institute of Teaching. It will enable nominations from the Australian Education Union (AEU) and the Independent Education Union. It will enable those two unions to nominate people for appointment to the council of the Victorian Institute of Teaching, and it will also increase membership of the council from 12 to 14 members.
The Greens will be supporting the bill, but I do raise some concerns, particularly with the part of the bill with regard to the temporary suspension of teachers. Those concerns go really to the ability of the Victorian Institute of Teaching and its council to fulfil those functions, given that they are quite specific legal requirements, in particular the establishment of a reasonable belief or reasonable grounds.
It is worth saying what the VIT actually does. Its functions are mainly that it reviews teacher education courses and the qualifications and criteria for teacher registration; maintains the register of teachers; develops professional standards and the professional learning framework for continuing the education and professional development of teachers; investigates the conduct and competence of teachers, and can impose sanctions on teachers, including suspension, refusal or termination of registration in certain circumstances; conducts research into education; and provides advice to the minister. They are the main functions of the Victorian Institute of Teaching. It has evolved in its functions over time. It is more focused on those functions that I have just referred to. Earlier it was more involved with representing teachers — it was more teacher focused than regulatory and standard focused. But that is where its functions are now, and that is the context in which we are looking at this particular bill today.
The former government, in its Education and Training Reform Amendment (Registration of Early Childhood Teachers and Victorian Institute of Teaching) Bill 2014, moved from having elected members on the VIT council to having ministerial appointments. At that time I moved an amendment to remove part 4 of that bill, which proposed that ministerial appointees would replace elected teacher representatives on the VIT council. Of course the government did not support the amendment to remove that part of the bill, because clearly that was part of its intention — to remove the elected teacher representation on the council — but it was supported by the then opposition, the Labor Party. It would not be any surprise, then, that the Greens will not be supporting the amendments circulated by the coalition and will be supporting the changes proposed by this bill.
Currently the council comprises 6 professional and 5 employer representatives and the chair is appointed by the minister. Under this legislation representatives from the AEU will increase from 4 to 5 members to include the early childhood sector member, the Independent Education Union will nominate 2 representatives and the minister will determine the other 7 positions. As I said, that will increase the number from 12 to 14 members. The Greens are supportive of those amendments.
The bill under clause 5 inserts a new division, division 8A, into the act with regard to interim suspension of registration. Under that particular new division, under new section 2.6.28(1):
The Institute may suspend any or all 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.
Of course we understand the very serious matter of the protection of children in schools and that if a person is posing an unacceptable risk of harm to children and a suspension is necessary to protect children, that should occur to protect children. The paramount goal there is to protect children in schools from inappropriate people — people who are posing an unacceptable risk to children and could harm children. We know that that type of harm — abuse, including sexual abuse — has happened in schools at the hands of teachers, so this is a very serious matter. But we do have some concerns regarding the natural justice implications of the way this is being set up under clause 5 and the particular provisions in that clause, which put in the new division 8A and quite a large number of sections, which go to some five pages of the bill.
One of those is that, given the composition of the council, which is mainly educators, teacher representatives and principals from all the different sections of schooling — there is the public and the independent sector and teacher educators et cetera — I think it is important to ensure that the members of the council fully understand the legal test of reasonable belief when making a decision to suspend any or all registrations held by a person with reference to subsections (a) and (b) of new section 2.6.28. Our concern is whether the VIT council has the appropriate expertise and/or training to do this. I will certainly be raising this issue in committee with the government so it can clarify whether that training and expertise will be there for the council members in terms of them understanding the legal test of reasonable belief. It is extremely important, because to suspend someone temporarily, for a start, will have immediate employment implications for that person and for the school at which that person is teaching. So you need to be very sure when implementing an interim suspension on reasonable grounds, and it is necessary to understand how the institute could come to that conclusion that there are reasonable grounds to suspend a teacher, even temporarily, particularly if the fact that the teacher has been suspended temporarily becomes public knowledge, because that will have an implication on their future employment.
So there is the need to balance the protection of children with natural justice for a person, particularly because this temporary suspension of registration will occur before there is any conclusion to any investigation as to whether or not a teacher who has been suspended is in fact an innocent person. It is a very grave matter to suspend someone and to basically imply guilt before there has been any investigation either by the police or the Victorian Institute of Teaching as to the veracity of any allegation against a person who has already had their livelihood and their registration as a teacher suspended. Notwithstanding that, of course, the bill does require the institute of teaching to review a suspension every 30 days while it is in place, and that is a good thing. It is not just a matter of putting it in place and leaving it there; a suspension has to be proactively reviewed every 30 days.
I would suggest in the first instance that that review and the commencement of any investigation by the Victorian Institute of Teaching takes place forthwith, so that nobody is suspended temporarily for longer than they need to be, particularly if it is found that there is no ground or reasonable grounds following an investigation by the VIT or the police. As Mrs Peulich mentioned, if there is a police investigation underway, the VIT would not be carrying out a parallel investigation. So there are quite a lot of issues raised by the provisions in this bill, and they were of course raised by the Scrutiny of Acts and Regulations Committee as well.
The other issues with regard to this are under the new section 2.6.28A (f) and also another new section to be inserted later by that clause — and I do not have the number now. The issue really is that a person who has been notified that their registration will be temporarily suspended under paragraph (f):
… may make written submissions to the Institute at any time regarding the continuation of the suspension.
I raise the concern that wherever the person referred to in the bill is to make a submission to the institute, it must be in writing. I wonder why there is not a provision for an oral submission as well as a written submission. I raise a query as to why it is very specific that any submission with regard to that suspension has to be written. That is another question that I will be asking the minister in committee.
They are the main questions that we have with regard to that. I also seek clarification as to the time period between the suspension of the teacher and the commencement of any investigation by the Victorian Institute of Teaching into the reasons for that suspension. That is certainly an issue that was raised by the Independent Education Union.
One other issue the IEU raised with us concerns clause 11, which provides the delegation of powers. Clause 11 allows the institute to delegate:
the power to suspend registration, continue to suspend registration or revoke the suspension of registration under Division 8A …
I will be querying the minister as to why that delegation is in the bill, because it seems to me this is a very serious issue that one would presume is not going to happen too often, and as to why this power should not stay with the council and be delegated elsewhere in the Victorian Institute of Teaching.
Those are the issues we raise with regard to the interim suspension of the registration of teachers. We are supportive of the changes to the composition of the council of the Victorian Institute of Teaching. We make the point that this will bring the act into line with other states in terms of naming unions as part of the council. Victoria is in fact the only state that does not name unions as part of its council. We believe it is vitally important that the council has the direct voice of the teaching profession, which brings a perspective to the institute that other people cannot bring and maintains a professional voice at a professional level.
The AEU has indicated that it expects its elected members would reflect the breadth of the profession — for example, special school, primary, secondary, early childhood and a principal representative. We did have some conversations with the AEU with regard to the suspension of teachers and the issue with regard to reasonable belief. I think it is fair to say that the union would say what I said: that there is a very serious issue associated with looking after the welfare of children and also protecting the rights of teachers and not prejudging someone, as Mrs Peulich said in her contribution. I agree with her that a person is innocent until proven guilty. So in some ways this is pre-empting that, but it is a difficult balance. I think the union would agree that the balance is probably about right, but we will see what the minister says about the issues I have raised.
I do not agree with Mrs Peulich with regard to her comments that union representation disenfranchises teachers. In fact the bill that was introduced by the Liberal-Nationals coalition government in the last Parliament did that. It disenfranchised teachers by allowing the minister to appoint people to the Victorian Institute of Teaching council. She also described this bill as a retrograde step; I would describe the other bill as a retrograde step, which is why I moved the amendment to remove the whole of part 4 from the bill at the time. Mrs Peulich was talking about turning us back to the 1980s. Of course the Victorian Institute of Teaching was established in 2001 and really was the model for similar institutes around the country. It was the first of them, but they were all established in the early to mid-2000s.
Lastly, I have heard from, as everyone has, the Australian Principals Federation. The federation raised its concern that it has not been specifically named as an organisation that can nominate a member to the VIT council.
Other acts around the country do not name similar organisations, they name the teaching unions, so the bill is in keeping with that situation around the country. There is no reason why, in appointing the other seven members of the council, the minister could not appoint someone from the Australian Principals Federation if it put someone forward for one of those other positions. Our main concerns are with how the Victorian Institute of Teaching establishes a reasonable belief on which it will temporarily suspend the registration of a teacher, and those are the issues I will be pursuing with the minister in the committee stage.
In committee:
Ms PENNICUIK (Southern Metropolitan) — I have a number of questions on clause 5, which I did foreshadow during the second-reading debate, with regard to the new division which allows for the interim suspension of the registration of a teacher where the institute reasonably believes that the person poses an unacceptable risk of harm to children and that the suspension is necessary to protect children. While we are fully cognisant of the overarching and paramount need to protect children from harm in schools, I am also wanting to question how the institute is going to establish a reasonable belief, which is a test under law, as opposed to anybody being able to make an allegation against a teacher. There could be a rumour. I am not presuming that the Victorian Institute of Teaching would be suspending someone temporarily based on that, but I think it is very apposite that the committee should know how the Victorian Institute of Teaching and the council — which is made up basically of teachers and not legal professionals — will establish and what criteria would be used to establish a reasonable belief in order to take this step, which is a very serious step, to suspend someone's registration.