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2011
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN
TERRITORY
ACT
TEACHER QUALITY INSTITUTE AMENDMENT BILL
2011
EXPLANATORY
STATEMENT
Presented by
Mr Andrew Barr
MLA
Minister for Education and Training
ACT TEACHER QUALITY INSTITUTE AMENDMENT BILL
2011
Background and overview
In December 2010 the ACT Teacher
Quality Institute Act 2010 was passed and came into effect on 1 January
2011. This Act provides the legislative basis for the establishment of the ACT
Teacher Quality Institute (TQI) and provides guidance on its
operations.
The purpose of the ACT Teacher Quality Institute is to
register teachers or issue permits to teach, accredit pre-service teacher
education programs, and certify teachers against professional
standards.
An essential element of teacher registration and permit to
teach is an assessment of the criminal history of applicants in order to
determine their suitability to teach in the ACT. Presently under the ACT
Teacher Quality Institute Act 2010 spent convictions are not required to be
assessed during the processes followed by people applying for registration or a
permit to teach.
However, under section 19 of the Spent Convictions
Act 2000 there is such a requirement for spent convictions to be assessed
for persons seeking employment as a teacher. This means that persons seeking
registration or a permit to teach with the ACT Teacher Quality Institute will
not have spent convictions assessed during the application process.
The
Bill removes this inconsistency and will bring the ACT Teacher Quality
Institute Act 2010 into line with the Spent Convictions Act
2000.
The Bill will align the criminal history checks of ACT
registration to those across Australia and avoid the need for an additional
criminal history check to satisfy employer requirements. By incorporating these
amendments into the Act, the processes for assessing an applicant’s
criminal history will be more reliable and against a single standard of
practice.
The Bill will also give effect to amendments to Transitional
Arrangements to:
• include people with education qualifications who are
working in the administration of education service roles and not actively
teaching
• allow the issue of a permit to teach to a person who is
teaching in a school without education qualifications but who has appropriate
skills and experience.
Human Rights considerations
Criminal
risk assessment, including looking at spent convictions engages a number of
rights protected under various statutes including the Human Rights Act 2004,
Discrimination Act 1991 and the Privacy Act 1998 (Cwth) as it applies
in the ACT. Most rights are not absolute and proportional limitations may be
permitted where demonstrably justified in a free and democratic society. In
deciding whether a limit is reasonable, all relevant factors must be considered
as specified in section 28 of the Human Rights Act 2004. While it is
important to be mindful of the rights of applicants to privacy, reputation,
discrimination and recognition and equality before the law, it must be balanced
against the rights of children and young people to right to life, protection,
liberty, security and humane treatment.
It is believed the requirement
to undertake criminal history checks and the assessment of spent convictions are
proportionate given the potential risk to children and young people of coming
into contact with people who may have criminal history of inappropriate
behaviour. Care will be taken to ensure that the use of personal information
about the conviction will only be used for the purposes necessary to meet the
requirements of the ACT Teacher Quality Institute Act
2010.
Clause notes
Clause 1
Name of
Act
This section states the title of the Act as the ACT Teacher
Quality Institute Amendment Bill 2011.
Clause
2
Commencement
This section sets out the commencement date for
the Act, which is the day after its notification.
Clause
3
Legislation amended
This section states that this Act amends
the ACT Teacher Quality Institute Act 2010 and the ACT Teacher Quality
Institute Regulations 2010. A consequential amendment to the Spent
Convictions Act 2000 will also occur.
Clause
4
Section 32 (1)(f)
This clause replaces paragraph (f) which
refers to convictions revealed during a criminal history check but did not give
guidance on how an assessment of them should be conducted.
Section
32(1)(f) provides that convictions will be assessed in accordance with criminal
history guidelines described in the proposed section 35A and that where such an
assessment determines that the conviction does not have a direct connection with
the inherent requirements of the teaching profession then an application for
full registration should be approved.
The term conviction in this section
and the following sections will include a spent conviction given the
consequential amendment to the Spent Convictions Act
2000.
Clause 5
Section 33(1)(e)
This clause is
similar to section 32(1)(f) above except that it refers to applications for
provisional registration.
Clause 6
Section 35(1)
This
is a technical amendment which clarifies what the Institute must do under this
section. It places the onus on the Institute to be satisfied that the applicant
meets certain criteria rather than stating that the applicant must meet certain
requirements.
Clause 7
Section 35(1)(d)
This clause
is similar to clause 32(1)(f) and clause 33(1)(e) except that it refers to
applications for permit to teach.
Clause 8
Section
35(4)
Permit to teach is not a class of registration under the Act,
therefore this amendment more correctly refers to the granting of a permit to
teach rather than to the registration of an applicant under this
section.
Clause 9
Sections 35A and 35B
New
section 35A
This section requires the Institute to develop and apply
guidelines on how an assessment is to be conducted of a person’s police
certificate and criminal history record. These will be developed separately and
are a notifiable instrument.
New section 35B
This section lists
the assessment criteria against which such an assessment is to be carried
out.
Clause 10
Section 51(5)(d)
The amended clause
allows for an assessment of a person’s application for renewal of their
full or provisional registration to be carried out in accordance with the
guidelines set out in section 35B.
Once the conviction is assessed,
consideration must be given to ensure the conviction does not have a high degree
of direct connection with the inherent requirements of the teaching
profession.
Clause 11
Section 53(5)(d)
The amended
section allows for an assessment of a person’s application for renewal of
their permit to teach to be carried out in accordance with the guidelines
detailed at clause 35B.
Once the conviction is assessed, consideration
must be given to ensure the conviction does not have a high degree of direct
connection with the inherent requirements of the teaching
profession.
Clause 12
Section 151 new section
(5)
This amended section includes people working in the administration of
education services with teaching qualifications who were not actively teaching.
It also aligns with section 8(a)(iii) of the Act which refers to teaching to
include the administration of education services.
The amendment to this
clause defines a teacher under transitional arrangements as a person immediately
before 30 June 2012.
Clause 13
Section 151 new section
151A
This section has been added to clarify that a person who is not
qualified to teach but has specialist knowledge, training, skills or
qualifications in the subject they are teaching and has been employed or engaged
to teach in a school will be issued with a permit to teach under transitional
arrangements. For example, a person with trade or vocational certificates, not
formal teaching qualifications, teaching a specialised technical or vocational
class.
Clause 14
Dictionary, new definition of criminal
history guidelines
This clause is a consequential amendment to insert
a new signpost of criminal history guidelines in the
dictionary.
Clause 15
Dictionary, new definition of
police certificate, note
This clause amends the note under the
dictionary definition of police certificate to provide that a conviction
includes spent convictions.
Clause 16
New section
21A
This section refers to the new section 151A(2)(a). An applicant is
required to apply for a permit to teach by 30 June 2012.
Clause
17
Spent Convictions Act 2000, new section 19
(8A)
Section 19 of the Spent Convictions Act 2000 states that the
consequences of a conviction becoming spent are:
• the person is not
required to disclose information about the spent conviction
• a
question about the person’s criminal history is taken not to refer to a
spent conviction, but refers only to convictions that are not spent
• a
reference to the person’s conviction or character does not allow for a
spent conviction to be considered.
Section 19(8A) is a consequential
amendment following on from the ACT Teacher Quality Amendment Bill 2011
providing that section 16 of the Spent Convictions Act 2000 does not
apply in relation to an application or renewal of registration or a permit to
teach under the ACT Teacher Quality Institute Act 2010.