Explanatory Memorandum by abstraks

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									  Teaching Service (Conduct and Performance)
                      Bill

                         Circulation Print

              EXPLANATORY MEMORANDUM


                              Clause Notes
Clause 1   sets out purpose of the Bill, which is to amend the Teaching
           Service Act 1981 to reform procedures for taking action against
           officers and employees for misconduct, inefficiency or physical
           or mental incapacity, to establish Disciplinary Appeals Boards
           and to make other miscellaneous amendments.

Clause 2   specifies that the Bill will come into operation on 1 January
           2005.

Clause 3   specifies that the Principal Act is the Teaching Service
           Act 1981.

Clause 4   inserts a new section 3A in the Teaching Service Act 1981 that
           sets out the employer powers of the Secretary. The Secretary has
           all the rights, powers, authorities and duties of an employer and
           may assign duties to officers and employees and transfer officers.
           This will clarify the right of the Secretary to remove a teacher
           from teaching duties at a school when serious allegations are
           raised and before any suspension from duties has occurred.

Clause 5   substitutes the existing section 45 to provide that the Secretary
           may terminate the employment of an officer or employee where
           an employee is incapable of performing his or her duties on
           account of physical or mental incapacity.
           New section 45(2) provides that an officer or employee whose
           employment is terminated under this section is deemed to have
           retired on account of ill health for the purposes of accessing
           certain long service leave benefits in section 37.
           New section 45(3) provides that the Secretary must establish
           procedures for the investigation and determination of an inquiry
           under this section.



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New section 45(4) enables the Secretary to nominate an
investigator or constitute a board of review to investigate and
report to the Secretary.
New section 45(5) requires that the officer or employee be
notified in writing of the matters to be considered by the
Secretary and be given an opportunity to respond in writing to the
Secretary, the nominated person or the Board of Review, as the
case may be. This is the investigation phase of the inquiry.
New section 45(6) requires the Secretary to give the officer or
employee an opportunity to make submissions on the grounds on
which the officer or employee is alleged to be incapable of
performing his or her duties, and on whether a termination of
employment should occur.
New section 45(7) sets out the time-frame for the provision of a
response to the Secretary under sub-section (6).
New section 45(8) requires the Secretary to consider any
submission made in accordance with section 45.
New section 45(9) enables the Secretary to make a determination
without holding an oral hearing. This provision will enable the
Secretary to make a decision 'on the papers'.
New section 45(10) enables the Secretary to hold an oral hearing
or take the evidence orally of all or any witness or permit cross-
examination of all or any witness, if the Secretary considers it
appropriate, having regard to the seriousness of the allegations,
whether an oral hearing would assist in evaluating the
information submitted on the inquiry, any reasons submitted by
the officer or employee in support of a request for an oral hearing
and any other matter that the Secretary considers relevant.
New section 45(11) requires the Secretary to advise the officer or
employee in writing of the determination of the Secretary and the
right to appeal to a Merit Protection Board.
Clause 5 also inserts a new section 45A which provides that an
employee or officer may appeal to a Merit Protection Board in
relation to a determination under section 45(1). The appeal must
be lodged in writing, in the prescribed form and within 14 days
after the officer or employee is notified of the Secretary's
determination. A Merit Protection Board may permit an appeal
to be made out of time if special circumstances exist. A Merit
Protection Board must hear and determine the appeal and may
allow the appeal and order reinstatement or dismiss the appeal.
A Merit Protection Board will not have any power to vary the


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           decision. An officer or employee who is re-instated will be
           treated as having had continuous service and any period during
           which the officer or employee was not performing their duties
           will be treated as being on leave without pay.
           Clause 5 inserts a new section 45B which provides that, on
           application and with satisfactory evidence, the Secretary may
           direct that an officer who resigns on account of ill-health is
           deemed to have retired on account of ill health, for the purposes
           of certain long service leave benefits in section 37.

Clause 6   substitutes the existing Part 5 (sections 66 to 75A).
           New section 66 sets out the grounds on which the Secretary may
           take action against an officer or employee for misconduct or
           inefficiency. The grounds are: conducting oneself in a
           disgraceful, improper or unbecoming manner; misconduct;
           criminal conviction or finding of guilt; negligence, inefficiency
           or incompetency in the discharge of one's duties; contravening a
           provision of the Act or a Ministerial Order made under the Act;
           contravening a requirement in or under an Act that corporal
           punishment not be administered to a student; failing to comply
           with a lawful instruction; being absent without permission and
           without reasonable excuse; and being unfit on account of
           character or conduct (whether before or after becoming an officer
           or employee).
           New section 67 sets out the action that the Secretary may take
           against an officer or employee. The action comprises a
           reprimand, fine, reduction in classification or termination of
           employment if the Secretary is satisfied that there is a ground or
           grounds under section 66 for doing so. The Secretary must
           advise the officer or employee in writing of the determination
           and of the right to appeal to a Disciplinary Appeals Board.
           New section 68 requires the Secretary to establish procedures for
           the investigation and determination of an inquiry under this Part.
           New section 69 reflects the current section 67 by imposing an
           obligation on the Secretary to reinstate an officer or employee if
           his or her conviction or finding of guilt is subsequently quashed
           or the officer or employee receives a pardon or the conviction or
           finding of guilt is otherwise nullified.




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New section 70 empowers the Secretary to suspend from duty
with or without pay an officer or employee if the Secretary
reasonably believes that there may be grounds under section 66
for taking action or if an officer or employee is charged with a
criminal offence. A suspension will continue at the Secretary's
discretion until the Secretary has made a determination on
whether to take action under section 67. If the Secretary takes
action, and the officer or employee appeals, the Secretary may
suspend the officer or employee from duty with or without pay
until the final determination of the appeal. Before deciding
whether to suspend an officer without pay, the Secretary must
give the officer or employee an opportunity to make a submission
in writing. An officer who is suspended without pay may engage
in other employment if the officer or employee first seeks the
permission of the Secretary. If grounds for action against an
officer or employee are not established, the Secretary must
remove any suspension and pay any salary due in respect of the
period of suspension.
New section 71(1) provides that the Secretary may nominate a
person to investigate and report to the Secretary. This is in
addition to the Secretary's power to delegate his or her functions.
Section 71(2) requires the Secretary or investigator to provide the
officer or employee with the allegations and particulars in writing
and an opportunity to respond in writing to the alleged grounds.
This is the investigation phase of the inquiry. Section 71(3)
clarifies that the Secretary may request the investigator to
conduct further investigation and provide a further report to the
Secretary at any time during an inquiry.
New section 72(1) requires the Secretary to provide the officer or
employee with an opportunity to make submissions on the
alleged grounds and any action that may be taken, prior to
making a decision. Sub-section (2) sets out the time-frame for
the provision of a submission to the Secretary. Sub-section (3)
provides that the Secretary must consider any submission made
under this section.
New section 73(1) enables the Secretary to make a determination
without holding an oral hearing. This provision empowers the
Secretary to make a decision 'on the papers'. Sub-section (2)
enables the Secretary to hold an oral hearing or take the evidence
orally of all or any witnesses or permit cross-examination of all
or any witnesses, if the Secretary considers it appropriate, having


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regard to the seriousness of the allegations, whether an oral
hearing would assist in evaluating the information submitted on
the inquiry, any reasons submitted by the officer or employee in
support of a request for an oral hearing and any other matter that
the Secretary considers relevant.
New section 74 provides an officer or employee with a right to
appeal to a Disciplinary Appeals Board against a decision of the
Secretary under section 67. Sub-section (2) sets out the time
within which an appeal must be lodged and sub-section (3) sets
out how the appeal must be lodged. Sub-section (4) empowers a
Disciplinary Appeals Board to permit an appeal to be made out of
time if special circumstances exist. Sub-section (5) provides that
appeals will be conducted as a re-hearing. Sub-section (6)
provides that a Board may allow the appeal in whole or in part
and vary the decision or dismiss the appeal.
New section 75 provides that the Disciplinary Appeals Board
may order that an officer or employee be re-instated in the
teaching service or paid an amount not exceeding six months
salary. Sub-section (2) provides that an officer or employee who
is re-instated must be treated as having had continuous service
and sub-section (3) provides that any period during which an
officer or employee was not performing his or her duties must be
treated as leave without pay.
New section 75A replaces the current section 75A in relation to
the procedure to be followed if the current address of an officer
or employee is not known.
Division 2—Disciplinary Appeals Boards
New section 75B defines "senior chairperson" to mean the senior
chairperson of the Merit Protection Boards.
New section 75C establishes one or more Boards to be known as
Disciplinary Appeals Boards and provides that their function is
to hear and determine appeals in relation to decisions of the
Secretary made under section 67. The Disciplinary Appeals
Boards do not have any other function, as compared to the Merit
Protection Boards, which hear reviews and appeals in relation to
a range of different matters.




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New section 75D sets out the composition of the Disciplinary
Appeals Boards. Each Board which will consist of 3 members
selected from 3 pools of persons appointed by the Governor in
Council, of whom—
        one will be the chairperson selected from persons who
         have been admitted to legal practice in Victoria for not
         less than 5 years and have been nominated by the
         Secretary;
        one will be selected from officers in the teaching service
         who have been nominated by the Minister after calling
         for expressions of interest; and
        one will be selected from persons who have knowledge
         of or experience in education, education administration
         or public sector administration and have been
         nominated by the Secretary.
New section 75E sets out the terms and conditions of
appointment of members of the pools and of boards. Members of
a pool hold office for a period not exceeding five years and are
eligible for re-appointment. Members of a Board, other than
public servants and officers or employees in the teaching service,
are eligible for the remuneration and allowances fixed by the
Minister. The Public Sector Management and Employment
Act 1998 (except in accordance with Part 7) does not apply to a
member of a pool.
New section 75F enables a member of a pool to resign and
permits the Governor in Council to remove a member of a pool
from office.
New section 75G provides that the senior chairperson is to
allocate business of the Disciplinary Appeals Boards and
determine which Board is to hear an appeal. The Disciplinary
Appeals Boards will be administered by the senior chairperson of
the Merit Protection Boards.
New section 75H provides that a member must take an oath or
make an affirmation as set out in the Schedule before first serving
as a member of a Disciplinary Appeals Board.




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           New section 75I allows a Disciplinary Appeals Board to continue
           to hear an appeal where an appeal has commenced but not
           concluded and a member is absent or unable to perform his or
           her duties. A decision of the remaining members must be
           unanimous.
           New section 75J provides that a decision of the majority of
           members of a Disciplinary Appeals Board in connection with an
           appeal is to be treated as a decision of the whole Board. A Board
           must not refuse to hear an appellant except by a unanimous
           decision.
           New section 75K sets out the conduct of proceedings before a
           Disciplinary Appeals Board, namely, that an officer or employee
           may appear personally or by legal or other representative and that
           proceedings must be conducted without regard to legal
           formalities and must be directed by the best evidence available.

Clause 7   inserts a new section 75L empowering the Secretary to direct an
           officer or employee to submit to a medical examination by a
           qualified medical practitioner nominated by the Secretary for the
           purposes of ascertaining the fitness of an officer or employee to
           perform his or her duties or to participate in any procedures under
           the Teaching Service Act 1981 relating to the officer or
           employee. Sub-section (2) provides that an officer or employee
           must comply with such a direction. This power may be
           exercised, for example, to ascertain the physical or mental
           capacity of an officer or employee to perform his or her duties
           under section 45 or to ascertain the fitness of an officer or
           employee to respond to allegations in relation to an inquiry under
           either section 45 or Part V.

Clause 8   amends section 48 to confer the privileges and immunities set out
           in section 21A of the Evidence Act 1958 on certain persons
           conducting investigations or proceedings under the Teaching
           Service Act 1981, and includes reference to a Disciplinary
           Appeals Board.

Clause 9   makes consequential amendments to various sections of the
           Teaching Service Act 1981. The Bill amends sections 26 and 53
           of the Act, both of which contain no compensation provisions.
           When section 26 was inserted in 1993, section 77B was also
           inserted and a section 85 statement was made in relation to it.
           The Government has obtained legal advice from the Solicitor
           General and the Chief Parliamentary Counsel which states that it
           is not legally necessary to comply with section 85(5) of the
           Constitution Act 1975 for amendments to provisions such as


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           section 26 and section 53 and that previous statements were made
           out of an abundance of caution. Accordingly, the Bill does not
           include section 85 statements in relation to those provisions.

Clause 10 inserts new section 83. The new section is a transitional
          provision that will enable matters commenced but not concluded
          under the Teaching Service Act 1981 and the Regulations in
          force before the Bill comes into operation to continue in
          accordance with the terms of clause 10.




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