Education Legislation Amendment (Staff) Bill
Debate resumed from 3 May 2006.
Mr BRAD HAZZARD (Wakehurst) [10.23 a.m.]: As the shadow Minister I lead for the Opposition in its response to the Education Legislation Amendment (Staff) Bill. When the Minister addressed the House in her second reading speech, before she actually spoke to the substance of the bill, she addressed a number of other preliminary matters. I will comment also on those matters that the Minister highlighted. In particular, she sought to put the best possible gloss on the State Government's management of public education. I will come to that in a moment.
First, as a former teacher—many years ago I was a science teacher in the New South Wales public education system—I have a very high regard, and I know members on both sides of the Chamber have a very high regard, for the role of teachers in our community. The people who influence children's lives more than any others, with the exception, of course, of their own family and carers, are teachers. From the time that a young person commences school at the age of 4½ or 5 years, every day, five days a week, except during school holidays, teachers create a supportive and nurturing environment to encourage the development, learning and life skills of young Australians.
As shadow Minister I am absolutely delighted to meet teacher after teacher when I visit schools in New South Wales and see the level of commitment that teachers apply to their everyday tasks. There are two quotes that I think of in the context of teachers. Interestingly, I have seen these quotes in executive teachers' offices when I have visited schools, and obviously teachers themselves understand the influence they can have on their students' lives, as reflected through these comments. One is a quote by Henry Adams, an American author, autobiographer and historian, and I think a graduate of Harvard University, who said of teachers:
A teacher affects eternity. He can never tell where his influence stops.
That is a reminder to all of us that what is done in our schools affects a student's entire life. Teachers can affect students at many levels. Some teachers rise to greatness and they, in fact, inspire their students towards a life well qualified. The second quote I saw in an executive staff member's office in the electorate of the honourable member for Hornsby and I found it a telling and appropriate measure of what teachers can do. It is a quote by William Arthur Ward, another American scholar, author and editor, who said:
The mediocre teacher tells. The good teacher explains. The superior teacher demonstrates. The great teacher inspires.
New South Wales public schools, indeed non-government schools, have teachers who inspire on a daily basis. I would say by far the majority of teachers inspire their students. It is those teachers that we should always keep in mind when we seek to amend teachers' working conditions. We should resist any move to the lowest common denominator when addressing the framework for management of teachers in the public education system.
The bill, in the form and the way that the Minister introduced it, was at the time of its introduction a source of concern, and to a degree remains so for the Liberal Party and The Nationals in New South Wales. Before I address the measures in the bill, I would like to say a little about the Minister's introductory comments. In her second reading speech the Minister made reference to a number of aspects of public education, particularly expenditure on public education in this State. The figure of $10.2 billion was noted as the amount allocated through the budgetary process to public education in New South Wales. The Opposition does not dispute that figure. What we say is that that amount of money indicates that the State Government could be doing far better if it managed education better, if it listened more to the teachers in classrooms about the best ways to deliver education to students.
Before considering the bill, honourable members should reflect on the Government's claim that having achieved so much is a sequitur to having spent that amount of money. The reality is that in classrooms across New South Wales teachers are saying that the Government has not achieved as much as it should have achieved. Teachers are telling the Opposition that they are constantly concerned about the Government's failure to address issues such as the physical surrounds in which they present their education efforts. Their concerns about the capital infrastructure of schooling in New South Wales and poor maintenance of our schools should be heeded by the Government.
If the Government for some reason does not accept that teachers are being honest about the difficulty of the working circumstances in which they find themselves, then the Government should at least take heed of the Auditor-General's report of last year—indeed, his reports for each of the past few years—for he has highlighted the backlog in maintenance of this State's schools. In his report last year the Auditor-General highlighted a $116 million backlog in school maintenance funding across New South Wales. As shadow Minister, but also as a member of Parliament who has visited schools—
Ms Virginia Judge: Point of order: The bill does not deal with school maintenance. With great respect to the honourable member, I would ask that his attention be drawn to the intent of the bill.
Mr BRAD HAZZARD: To the point of order: At the outset I referred to the Minister's preamble to her speech on the bill—which the honourable member for Strathfield may not have read—which contained a page and a half of general commentary about the Government's alleged good works. I think it is incumbent upon the Parliament to hear the Opposition's response to the Minister's assertions about reduction of class sizes, investments in schools, the total education budget—
Mr SPEAKER: Order! I have heard sufficient on the point of order. The overview of the bill is specific and relates essentially to the performance of teachers and other staff employed in the public education sector. However, I acknowledge that Ministers and shadow Ministers make considerable preliminary remarks in their second reading speeches to put the subject of bills in context. I understand that is what the shadow Minister is doing. Nonetheless, I draw his attention to the overview of the bill.
Mr BRAD HAZZARD: In response to assertions made by the Minister in her preliminary comments, might I say that the problem for public education in New South Wales is that the Government has not yet addressed issues such as the $116 million backlog in school maintenance funding and the poor state of the physical surrounds of classrooms. At the same time, the Government has pursued a quite negative response to some of the great challenges posed by our schools. For example, in the middle of last year the State Government attempted to remove a most excellent program, the Priority Schools Program. Had it not been for the efforts of the New South Wales Liberal Party, The Nationals, the Teachers Federation and teachers across this State, that issue would have fallen from view and with it the money that should be directed to needy schools that benefit from the Priority Schools Program.
Other issues that the Minister failed to address—while attempting to put the gloss on some aspects of the Government's education record—included cutbacks in intellectually mild [IM] and intellectually moderate [IO] classes. In August last year the Government's secret proposal to cut back more than 111 classes for students with disabilities became public. The Government then made it clear that it was going to cut those classes. It was only after an uprising by the Teachers Federation, on behalf of teachers, and by the community and the Liberal Party and The Nationals that the Government appeared, at least on the face of it, to back away from its attack on IM and IO classes. We now find, of course, that in fact the Government did not back off. The Primary Principals Forum has identified 13 classes that definitely have been closed and another 22 that possibly have been closed, with 70 still under threat of the sword.
What I am saying is that the gloss that the Minister attempted to put on public education is not reflective of what is happening in public education in New South Wales under this Government. One of the issues to which I and the New South Wales Coalition are absolutely committed is ensuring that public education is accompanied by a new transparency, a new enthusiasm, a new honesty and a new partnership of teachers and the community to ensure that public education once again will be the desired form of education for all students in New South Wales—not the current education system, under which 0.5 per cent of students each year are leaving the public education system.
Having made those introductory comments in response to the Minister's preliminary comments, I return to the issue of teachers in the context of the bill. The bill seeks to change the current arrangements for dealing with the management of the conduct and performance of government school teachers, review of their professional performance and conduct, and consequential disciplinary proceedings. One would have thought then that a government, particularly a Labor Government, would have listened closely to individual teachers and to the Teachers Federation. The federation is the industrial body representing teachers.
I was a member of the Teachers Federation many years ago. I may not always have agreed with the direction of the Teachers Federation. Many current teachers do not agree all the time with the direction of the Teachers Federation. But that group is best able to represent the collective interests of teachers. Therefore a government—whether Labor or Coalition—should listen to what the Teachers Federation is saying, heed its comments and treat it with respect. We may not agree with the federation on all occasions—I certainly have indicated to Teachers Federation representatives that we will not always agree with them—but we should acknowledge the federation's entitlement to represent a seriously held perspective expressed on behalf of teachers.
Mr Peter Black: Brad Hazzard in support of the trade union movement!
Mr SPEAKER: Order! The honourable member for Murray-Darling will have an opportunity to participate in the debate at the appropriate time.
Mr BRAD HAZZARD: I have no particular problem with the trade union movement. My only difficulty is that sometimes the union sees its role as being to support only the Labor Party. I think that is the wrong role for the trade union movement. Its role should be to represent its members. I acknowledge that the honourable member for Murray-Darling, as a teacher, would understand some of those issues. I was therefore surprised to find when I met with the Teachers Federation to discuss this bill, which was introduced only a week ago in this Chamber, that the Teachers Federation's comments had largely been ignored.
Perhaps before I address the Teachers Federation's concerns I should say that this bill has such significance for the New South Wales community that I would have anticipated that a government that was determined to produce the best outcome for 750,000 students in our public school system—nearly one million when TAFE students are included—would have sought some input from the Liberal and National parties about how it could move forward with this issue within the school and broader communities—the management of teachers in the public school system. The Government did not do that.
I place on record that this Government did not in any manner, shape or form advise the State Opposition that this bill was to be introduced last week until we heard the Minister's press conference at 1.00 p.m. At that point we became aware something was happening about a major overhaul of the management of teachers in their professional environment. I was then surprised to find the Teachers Federation was so frustrated about this process that it placed two letters in the public arena. I will read one of those into the record. It is dated 21 April and is directed to the Minister in the Chamber, the Hon. Carmel Tebbutt. It is from the President of the Teachers Federation, Maree O'Halloran, and states:
At the end of that meeting you advised that the DET would be seeking a meeting with us on Wednesday of next week about "discipline". You further said something to the effect that the Department had proposals but you wanted to know our view.
Today I am advised by the DET that a draft Bill to amend the Teaching Services Act with respect to procedures governing the "discipline" of teachers is being prepared. The DET hoped to provide us with a copy of the Bill at the meeting on Wednesday. The DET made no pretence about consultation advising that this was what the State Government wanted to do.
Not surprisingly, I have asked the DET for a letter outlining the State Government's proposals and a copy of the Bill.
Frankly, this whole situation is a perfect example of the problems we outlined to you on 20 April 2006 about the DET's lack of consultation with the Federation.
In the context of the current industrial relations environment, I fail to understand why the State Government would want to make wholesale changes to procedural fairness rights for teachers.
For the DET to have a reached a state that a draft Bill is either prepared or close to prepared would seem to indicate that you have no intention of listening to the views of the Federation. I hope that is not so. This seems to be one of those cases where it would be more than appropriate for a State Labor Government to consider and act on the views of the relevant trade union.
The Federation will provide its views about the draft Bill to you or the DET or both in writing and at meetings. However, I would appreciate your advice as to whether the DET's "Draft Bill" is State Government policy before the Federation pursues this matter in other forums.
A week later, in the same context, the president of the Teachers Federation wrote again to Carmel Tebbutt and expressed her frustrations. I will not read the whole letter but she said in part:
The effect is that you have allowed the Department to contemptuously bypass the views of the relevant trade union, namely, the Teachers Federation.
Once again I ask you to cease any further action on this Bill. In the event that you continue with the course of action recommended by the Department, the Federation will advise its members that your actions and those of your Department are characterised by hostility to the Federation.
Whether or not the Government is hostile to the Federation is almost a side issue to the point that the Government failed to listen to the views of teachers. When it comes to the issue of how we manage our classrooms, the Coalition would agree with the intent of the bill as putting children's interests paramount, but not in a vacuum and without ensuring that the teachers who are required to look after our children also have procedural fairness. They should have an environment in which they feel secure and safe and know that they are being treated fairly and reasonably. In the end, the paramount interest of looking after our children will not be achieved if teachers do not feel secure in their work environment.
This bill effectively seeks to remove certain existing rights of teachers. There is no question that there is a level of concern among teachers themselves, the executive staff and the community that there is a minimal number of teachers in the system who really should not be teaching. Those teachers, it must be said, would be better off out of the system, both for their own good and for the sake of the children. I made it clear last week that the Opposition considers that some teachers in the system who are not up to the task of teaching should be removed. I referred to them as ticking bombs in the classroom environment. They are not up to the task and could cause considerable damage to our young people if they are not those inspiring teachers that I referred to earlier.
The concern then is to strike a balance. This bill lumps together performance and misconduct issues. To some extent I think that may have been a mistake. It may not have been a desirable way for the Government to proceed. Perhaps if the Government had consulted more broadly it would have realised that sooner. There can be no question that teachers who are guilty of misconduct, which includes assault and sexual assault on children, should be removed instantly from the classroom if possible. This bill certainly continues what happens currently. If a teacher is identified as having assaulted or sexually assaulted a student or is in some other way guilty of serious misconduct, that teacher will be removed.
I understand that, depending on the precise assertions, a matter may be outside the department's responsibility, but if there are some grey areas, a teacher may be moved to a non-classroom situation while due process is carried out. I do not think there would be any dispute on either side of the Parliament about that. It is obviously difficult for a teacher if a false assertion is made against them, and in that situation both sides of the House would be sympathetic. At the end of the day the paramount interest of the child creates a very difficult situation for public policy and for governments in determining the right balance. A government of either political persuasion must err on the side of caution and in favour of the child.
The professional capacity of a teacher is a more difficult area. Under the current arrangements certain processes take place. In essence, if a principal identifies that a teacher on his staff may have an issue, is not presenting well and is not reaching the level of a mediocre teacher, there is a process to go through. The process normally involves the teacher being put on a 10-week review. Certain activities are supposedly put in place to encourage and support the teacher, and the Opposition would continue our support for trying to encourage teachers to become better educators.
If that does not work out, there is a six-week period of further review. If that still fails, other processes can take place. As I understand it, and I am not a specialist in this area, there are then processes by which the factual material and the way the support program has been undertaken can be reviewed by a number of educational people who can look at the process and ensure the process has been conducted the way it should be conducted. If that still indicates a teacher is unsatisfactory and the process has been appropriately followed, it can go to a further review where EPAC considers the situation within the department and then it can be referred to the prescribed officers.
Prescribed officers are in some way qualified in law, mostly, and those people look at the substance of the issue and it becomes a case of whether there should be a mini trial within the department. That is conducted in much the same way as a court hearing. Evidence can be called, the Teachers Federation is often called in to represent the teacher, and the department has its own lawyers. It is an expensive and cumbersome process and, I believe, can take a fair amount of time. The point made by the teachers to the Opposition was that they believe most of the current delay could have been addressed in ways other than this bill. Because there has been no public discussion or consultation about this process, the Opposition is in the difficult position of having to try to weigh up what the federation is arguing, that is, that it is largely departmental and government inefficiency that caused the problems.
The Minister argued in her second reading speech that the problem was more about the so-called mini hearing, or the mini trial, if you like. Whether that is right or wrong is difficult for the Opposition to determine but the Teachers Federation has given us a number of examples of processes which would appear to indicate that there is an enormous level of inefficiency within the department itself, which the Government needs to address. It gave us a number of case examples without reference to the individuals so that their privacy is respected. One incident went from 31 March 2003 to 19 April 2006. On the face of it, that delay would be a precise reason we need this legislation, if we accept the Government's argument that it is a problem that comes from the teachers as opposed to the Teachers Federation's view that in some cases it is really about the department's failure. The information provided by the Teachers Federation stated:
31. 3.03 Removed from school, told to go to District Office.
20.6.03 Given specific allegations.
That is nearly three months before the allegation was given to the individual teacher. That does not seem at all fair. The case history went on:
16.7.03 Member responded—
The member responded within three weeks—
15.9.03 Member received further allegations
So, two months after the member responded, the department provided further allegations. That seems to me to be a messy process.
Ms Carmel Tebbutt: Precisely why we need to change it.
Mr BRAD HAZZARD: The federation and the teachers are arguing it is the way the department is conducted at the moment that is causing the problem, and the current system could have been made to operate more efficiently. I acknowledge there is a difference of opinion on that. The case history went on:
19.9.03 Member responded
24.9.03 Matter finalised
In theory that should have been the end of it but seven months later, as the case history stated:
28.4.05 Informed that further allegations made
25.7.05 Received specific allegations
So, there is a three-month delay in the specific allegations to the teacher. That does not seem like a reasonable process from the teacher's point of view in that the Department should have ensured natural justice, and the teacher would have known much sooner than that what the allegations were. Then, within two weeks, as the case history showed:
8.8.05 [member] Responded
25.8.05 Verbally informed of additional allegations and removed from school and sent to district office to commence on 29.8.05
29.8.05 Member admitted to hospital
I am not sure what the basis of that was but I suspect since it is part of the Teachers Federation's representations there is the suggestion that the teacher was suffering from stress because of what had gone on, and since it had gone on for 2½ years that would not surprise any reasonable-minded person. The case history went on:
November 2005 Member referred to HealthQuest
13.11.05 Further allegations
21.12.05 Member responded—
That is five weeks later—
1.3.06 Federation threatened EPAC with Industrial Relations Commission
I should have acknowledged in my earlier comments that, after the processes within the department, teachers still have the right to go to either the Industrial Relations Commission or to the Government and Related Employees Appeal Tribunal—
16.3.06 EPAC recommended matter be dealt with according to Clause 14(2) of the Teachers Service Regulations
29.3.06 Member accepted
This is now three years and one month later—
Final letter from EPAC outlining Clause 14(2) conditions. Member to return to a workplace location currently to be negotiated.
As the Minister interjected—and it is an appropriate issue to be raised—that is the reason the legislation is being changed. The teachers are arguing that if the department had got it right in the first place, perhaps the system now would not need to be changed and perhaps the protections that are there for teachers would not have needed to be removed. Again, it is difficult for the Opposition because we were not privy to the internal workings and we were not briefed, but it seems to us that the Government could have approached this in a different way.
Emphasising my last comment, I was given notice last night, and no doubt the Chamber will be told shortly, that the bill introduced last week is going to be subject to the Government's own amendments. In essence, the teachers have argued through the Teachers Federation that these changes, by removing the mini hearing, are also removing procedural fairness for teachers. As I said a moment ago, if you want a safer environment for children, teachers have to feel safe too. They have to feel the processes they are subject to are fair. The last thing we need is our workers going to work each day feeling that their work environment will not protect them in situations where they are reasonably entitled to expect that protection.
Proposed section 93D provides for the issuing of procedural guidelines. That is another issue that has been raised, quite properly, by teachers and the Teachers Federation. Whilst the bill sets out the framework for the issuing of guidelines, it does not give full details. The devil is in the detail in that the director general may issue procedural guidelines. The Opposition and, no doubt, the teachers await those guidelines with great interest. Subsection (1) of proposed section 93D to the bill, as presented to the House last Tuesday, states:
(1) The Director-General may, from time to time, issue guidelines for the purposes of:
(a) dealing with allegations of misconduct against officers as a disciplinary matter, and
(b) the taking of disciplinary action with respect of officers under this Part, including disciplinary action in relation to unsatisfactory performance, and
(c) any other matter referred to in this Part.
Subsection (2) states:
(2) The procedural guidelines are to ensure that:
(a) an officer to whom an allegation of misconduct relates:
(i) is advised in writing of the alleged misconduct and that the allegation may lead to disciplinary action being taken with respect to the officer, and
(ii) is given an opportunity to respond to the allegation, and
(b) an officer against whom the Director-General is proposing to take disciplinary action under Division 3 is given a reasonable opportunity to make a submission in relation to that proposed action.
The Opposition would not have been hugely concerned with that proposed section, nor I suspect would the teachers, if subsection (3) had not been inserted. Although I anticipate—as I have been advised through the courtesy of the Minister's office—an amendment to this part of the bill, subsection (3) to the bill as it currently stands states:
(3) The Director-General (or any other person) who takes action against an officer in accordance with the procedural guidelines is taken to have observed the rules of procedural fairness.
I put on the record again: "is taken to have observed the rules of procedural fairness". Pursuant to this section, the Government can do whatever it likes through its public service to deal with teachers and totally ignore the rules of procedural fairness, yet it will be taken to have applied procedural fairness. The provision is objectionable. The approach outlined in subsection (3) is largely the cause of concerns of teachers and the Teachers Federation. They felt, understandably, that they were under siege from a government that was not prepared to listen to their concerns about teachers' rights to procedural fairness. There are similar provisions in the bill, which the Opposition will also seek to address. Proposed section 22F in part 6A provides for a similar situation where it will be taken that procedural fairness has been applied.
The Opposition will not oppose the bill. However, we would have had difficulty not opposing the bill if the Government had not agreed to delete the provisions that state that procedural guidelines will have been observed on the basis of procedural fairness. I refer to subsection (3) of proposed section 93D and similar provisions contained in the legislation. If those provisions were not removed, the legislation would present an extremely unfair situation for teachers in New South Wales. On behalf of New South Wales teachers, I acknowledge that the Government has listened, belatedly, on this point and will make the appropriate amendments. I ask the Minister to confirm that the Government will make those amendments.
Ms Carmel Tebbutt: Yes.
Mr BRAD HAZZARD: There are many other aspects of the bill I would like to address, but the Minister and the House are eager to proceed. On the basis of the clear undertaking the Minister has just given to the Opposition that the amendments will be made and the appropriate aspects of procedural fairness will be reintroduced, I will finish on this note. The Opposition will carefully observe the outcome of the changes. The Liberal-Nationals Coalition of New South Wales is very supportive of public education and of choice in the independent sector. We offer an appropriate level of support for both sectors. However, if in the next nine months the Government introduces any more legislation that is an attack on teachers and does not fully consult we may take a different view. We insist that the Government discusses issues properly and openly with teachers and ensures that the bill that comes before the House provides teachers with their entitlement to procedural fairness. In so doing, the Government will ensure that teachers feel far better about their daily presence in the classroom and, given the uplifting support that they need, many superior teachers will become inspiring teachers.
Ms LINDA BURNEY (Canterbury—Parliamentary Secretary) [11.06 a.m.]: I support the Education Legislation Amendment (Staff) Bill. In so doing I will make a number of comments, although not as in-depth or as lengthy as the previous speaker's comments. I had no idea that the honourable member for Wakehurst was once a science teacher. It is worth acknowledging the many teachers who are members of Parliament in New South Wales and in many other parliaments. The bill will amend the Teaching Service Act 1980, the Technical and Further Education Commission Act 1990 and the Education (School Administrative and Support Staff) Act 1987 to create a new framework for dealing with the conduct and performance—I emphasise "conduct" and "performance"—of persons employed under the Acts and to dismiss and otherwise deal with employees who become prohibited persons.
Before I go to the substance of the bill I want to make a couple of introductory comments. I am a former schoolteacher and spent most of my career working in education. I listened carefully to the comments of the honourable member for Wakehurst on this bill. I wholeheartedly support the bill, and I do so for a number of reasons. Although the honourable member for Wakehurst spoke for almost an hour, he neglected to share with us the fact that this bill will affect a very small number of teachers. The records show that over the past three years only 104 teachers have been dismissed from the teaching service. That needs to be viewed in the context that the teaching service numbers 50,000 in New South Wales. A miniscule number of teachers have been eventually dismissed at the end of disciplinary procedures. The other important point is that not only does an underperforming teacher or a teacher undergoing a conduct procedure affect the lives of potentially hundreds if not thousands of students, he or she affects staff morale and the capacity of staff to do their job properly.
I have listened to and have had discussions with a number of people, and they have relayed to me just how challenging it is to have one or more underperforming members of staff at a school and what it means for the principal's role, good morale and teaching outcomes. An enormous amount of time is consumed when dealing with underperforming teachers or teachers who are the subject of disciplinary arrangements. We must think not only of outcomes for students but also what it means for the school staff and their capacity to do their job properly.
Honourable members have probably witnessed these situations during their children's school years and they would know just how difficult it is if students, particularly primary school students, have an underperforming teacher for an entire year. What sort of difficulties does that create for any subsequent teacher in trying to catch up on all the things that have not been taught properly? If there are discipline problems in the classroom because the teacher is not good at keeping control of the class that causes enormous distress for the children, which they take home. The ripple effect of poor teaching is enormous. As I said, potentially hundreds, if not thousands, of students are affected. It is not restricted to the individual child; it also affects their family and the rest of the school staff. They are important points in the context of this legislation.
I will focus today on the establishment of a modern, streamlined and consistent process for dealing with conduct and performance issues that involve the education profession. In the case of the Teaching Service Act, this new process replaces a system that has been in place with very little change for more than 30 years. The honourable member for Wakehurst described one case that took three years or thereabouts to be resolved. That is the perfect demonstration of why this legislation should be modernised. Education systems have transformed over that 30 years, society has changed, technology and communication systems have improved, and people have become much more mobile. Increasing competition between education providers is another important point.
Our approach to teaching and learning and our attitudes to the role of parents in school communities and education have also changed, as has our attitude to the accountability of teachers and other employees and how they should be managed. That is not rhetoric; it is a fact. The public education sector must adapt to meet these challenges as it continues to face increased competition from non-government schools and increasing demands on its services within the tight fiscal environment. My children went to public schools and I believe passionately in public education. This legislation is about modernising the public education system and ensuring that the quality of teachers within that system is the highest possible.
The bill updates the legislation under which people working in public education are employed to twenty-first century standards while ensuring that they continue to have appropriate conditions of employment and are treated fairly. Every honourable member appreciates and recognises the amazing contribution that teachers make to society. In fact, I am on record as saying that I think Australia has a very poor attitude to teachers. Teachers are fundamental to our children's life outcomes and to giving young people a life of choice and chance. They are probably one of the most important professional groups in the community and they deserve much more credit than we as a society, and particularly the media, give them.
The bill will impact on a very small number of employees. The overwhelming majority of teachers and other staff working in government schools and TAFE are doing amazing jobs. They are dedicated, committed and professional, and they will not be adversely affected by the proposed changes. It is not uncommon for allegations of misconduct to take up to two or three years of time-consuming and legalistic processes to be worked through. That is crazy. We must modernise the system. Honourable members can imagine the effect of an underperforming schoolteacher working in a school for three years while going through these processes.
Similarly, concerns with a teacher's poor performance can take up to 15 months to be addressed. Very often the adversarial and time-consuming nature of the process places a heavy burden on the players involved—the employee concerned, their work colleagues, and the young people and their families. It is not fair on the employee or the system in which they work that investigative and inquiry processes about performance and conduct of employees drag on for lengthy periods. The bill modernises the process by which employees who have allegations to answer in relation to their performance or conduct are addressed. It streamlines the process without compromising procedural fairness rights for employees or rights to appeal.
The bill introduces objectives for a disciplinary scheme specifically designed for public education. Objectives are introduced to emphasise that discipline is concerned with the public interest and not punitive measures. Any fair-minded person would agree with this measure. The proposed process is less legalistic and adversarial. These changes will allow allegations made against employees to be resolved much more quickly. This will alleviate stress and anxiety for everyone. It is in no-one's interests for these matters to be prolonged, be the allegations proven or unsubstantiated. The proposed system is substantially the same as that which has been successfully introduced for public servants who work under the Public Sector Employment and Management Act 2002. Honourable members are aware that I was a very senior public servant before coming into this Chamber. I can assure them that the Act is procedurally fair, that it has integrity and that it is very thorough. At the end of the day, teachers are also public servants, and what applies to other public servants should also apply to teachers. I say that as a former public servant and former teacher.
In accordance with the bill, guidelines will be introduced that flesh out the separate procedures for dealing with the management and conduct of performance issues. These guidelines, which are important to this debate, will be discussed and developed with unions and the relevant parts of the bill will not commence until they have been finalised. I am sure that other honourable members who speak in this debate will focus on that issue because it is extremely important. For the first time people who work with children and people working in schools and TAFE colleges will be subject to substantially the same scheme as that which applies to people who work with children in the Department of Community Services and the Department of Juvenile Justice—who, once again, are public servants. The protection of children will be paramount. The proposed objectives are designed to maintain appropriate standards of conduct and work-related performance for professionals working in the field of public education to protect and enhance government education authorities and to ensure the public interest is protected.
The procedures for this new disciplinary system will be contained in guidelines which will comply with the rules of procedural fairness but will remove the current right of an employee to a "mini-trial" before a departmental decision maker, known as a "prescribed officer", at which witnesses, including children, can be cross-examined. The bill introduces a general ground for disciplinary action called "misconduct", and ensures that remedial action can be taken as an alternative to a disciplinary punishment. Remedial action includes counselling, training and development, and transfers. The bill recognises that conduct and performance issues need to be treated differently, and it separates the two. Other speakers will underline the new performance measures.
Under the new process an employee's performance must be periodically reviewed. If an employee's performance causes concern, he or she will be placed on a performance improvement program and given an opportunity, with support, to improve. That program, which is managed by the school principal, will usually take 10 weeks. If at the conclusion of that program the employee's performance is considered not to be of an acceptable standard, disciplinary action in the form of demotion or dismissal will be taken. That is an important measure. Of course, prior to a final decision being made, the employee will be given an opportunity to make a written submission about what should happen. The employee will also be given the opportunity to meet the decision maker to put their case. Thus the important principle of procedural fairness for employees is protected.
I am proud to be able to say to my community of Canterbury that we have taken steps to ensure that a modern, streamlined and fair system which reflects the working environment of the twenty-first century is in place for dealing with concerns about the conduct and performance of people who work in public education. As a former teacher and a former public servant, I wholeheartedly support the bill and commend it to the House.
Mrs SHELLEY HANCOCK (South Coast) [11.22 a.m.]: I wish to make a number of comments about the Education Legislation Amendment (Staff) Bill. Whilst the Opposition will not oppose the bill we take that stand somewhat reluctantly. Obviously, we have made that decision in the broad context of the paramount need to protect children as a priority, but we maintain our concerns about the legal framework of the bill. Therefore, my comments do not relate to the intent of the bill but, rather, to its legal framework. My initial comments relate to my role as a member of the Legislation Review Committee, of which I have been a member since 2003. I acknowledge that my colleague opposite, the honourable member for Strathfield, has also been a member of that committee.
For members who do not familiarise themselves with the work of the committee, part of our role is to review all bills introduced into Parliament and all regulations subject to disallowance. I remind members of our committee guidelines with respect to the scrutiny of bills, which provide that the committee is to report to Parliament whether a bill trespasses unduly on personal rights and liberties; makes rights, liberties or obligations unduly dependent upon insufficiently defined administrative powers; makes rights, liberties or obligations unduly dependent upon non-reviewable decisions; inappropriately delegates legislative powers; or insufficiently subjects the exercise of legislative power to parliamentary scrutiny.
On most occasions bills that have come before our committee over the last three years gained a tick in the boxes for all the criteria I have outlined. Over the last three years our concerns have centred on, for the most part, retrospectivity issues or commencement of the bill by proclamation. Sometimes bills that come before us may raise concerns regarding one or two of the criteria I have outlined. It must also be said that when issues arise as to trespass on personal rights and liberties, decisions have been made on balance to protect the most vulnerable members of the community, as is the intent of the bill. However, the Minister and the Government must understand that the bill has not achieved a tick in any of the boxes that the committee uses to assess a bill.
Indeed, in my three years as a member of the Legislation Review Committee I have not seen a bill that has received so much criticism by this bipartisan committee. Again I state that the philosophy behind this bill is something we all agree with—that is, we must be able to remove teachers from classrooms if their conduct places at risk the personal wellbeing and safety of children. I join the throng of former teachers who have spoken to this bill this morning. Indeed, I was a teacher for 27 years so I probably hold the record in this place in that respect. Over those years I observed a number of non-performing teachers. However, provisions have always been in place to deal with non-performing teachers fairly.
The aim of the bill is therefore to be commended, notwithstanding that provisions already exist to remove certain teachers on the basis of either performance or conduct issues. However, in framing legislation to strengthen those provisions the result must be seen as an embarrassing debacle for the Government in terms of its own responsibilities to frame appropriate legislation to deal with issues as they arise. It is important to note also that the Legislation Review Committee met yesterday and unanimously, and in a bipartisan manner, endorsed the recommendations that seriously criticise the bill. In other words, members of the Labor Party, the Liberal Party and The Nationals endorsed the recommendations.
With respect to the issue of trespass on personal rights liberties, the committee noted that the bill provides for the bare requirements of natural justice by providing for the right to be heard. However, the provisions expressly provide that in consideration of disciplinary action a person who is the subject of the action is not entitled to cross-examine any person, have legal representation, or call witnesses. The bill therefore narrows the common law right to be heard under the rules of natural justice or procedural fairness. In relation to property rights the bill provides that the salary of a person who is suspended pending consideration of disciplinary action or who is charged with a serious offence may be withheld. In either case, and without waiting for the determination of the matter, the withheld salary is to be forfeited unless the director general makes a decision that it not be forfeited. The committee noted yesterday that allowing the forfeiture of salary of a person who is suspended pending determination of a disciplinary matter or a criminal charge is a trespass on the person's right to property.
In this respect the committee also noted the alternative formulation in section 49 of the Public Sector Employment and Management Act 2002, which makes forfeiture dependent on the outcome of the matter, that is, either a finding of misconduct by the director general or a conviction of a serious offence after a criminal trial. Therefore the committee has written to the Minister—and I will be interested to hear her comments—for advice as to why the formulation under the Public Sector Employment and Management Act 2002 was not followed in the bill; why the bill requires the director general to make a decision not to forfeit salary, rather than a decision to forfeit salary; and why such a decision is to be made before any final determination of the disciplinary action or criminal charge has been made.
The committee has also sought the Minister's advice as to whether the bill can be amended to ensure that any salary withheld can only be forfeited to the State if the suspended person concerned is convicted of a criminal offence or subjected to disciplinary action; whether the legislation provides for restoration of forfeited salary to a person who is subsequently found not guilty of the offence with which they were charged or the charge is dropped, or where no disciplinary action is taken against the person concerned, as the case may be; and whether the legislation provides for restoration of forfeited salary in the case of a person who is convicted of a serious offence but whose conviction is overturned on appeal or quashed. Therefore, the committee has referred to Parliament the question as to whether the trespass on property rights under these sections is undue.
In relation to misconduct the committee noted yesterday that the definition of "misconduct" under the bill should be clear and as unambiguous as possible, given the potential adverse impact on an officer that an investigation into or finding of misconduct can have. However, it should be noted that the definition of "misconduct" is vague and circular. The bill states that misconduct is conduct which justifies taking disciplinary action. Somebody, somewhere in this place, must have an idea what "misconduct" means—and I am sure we all do. But the legislation should be clear about that definition, given that the ramifications of misconduct under the bill are so serious. The committee has therefore requested that the Minister advise how the definition can be amended to provide clearer content. I have heard that amendments are to come forward, and I hope that this is one of them. As is its role, the committee referred to Parliament the question as to whether proposed sections 93C (1) (b), 22E (1) (b) and 29 (1) (b) make rights or obligations unduly dependent on unclear administrative powers.
The Legislation Review Committee also noted that reviews by a court or administrative review tribunal, in effect, will be prohibited. We noted that the effect of those provisions is to remove the fundamental right of a person to seek a review of an adverse decision. We referred to Parliament the question as to whether the relevant sections of the bill make rights, liberties or obligations unduly dependent upon non-reviewable decisions—another cross in another box! The committee had much more to say about the bill, and I refer all honourable members to the committee digest for the full report. I have spoken about the first three criteria, but the committee has made comments about the inappropriate delegation of legislative powers and the fact that the bill insufficiently subjects the exercise of legislative power to parliamentary scrutiny.
Suffice it to say that the framing of the legislation, irrespective of its intent, has been careless and inappropriate. As a former teacher, I have waited for a long time in this House to see whether the Government will say anything positive to support teachers and gain the support of the New South Wales Teachers Federation. There is often a lot of rhetoric in this House about support for teachers, but if the Minister knew the role of teachers and what the New South Wales Teachers Federation has said to me over the past few weeks about its hopes for the upcoming budget, she would realise that there is a problem with morale amongst teachers.
In the next couple of weeks I will welcome any comments that the Minister may make in the budget relating to the issues raised by the New South Wales Teachers Federation with me, irrespective of what the federation has said about the bill. The shadow Minister identified those issues. They relate to the following areas. The first is the $115 million maintenance backlog. In this place we all talk about infrastructure, but we expect some serious measures in the forthcoming budget to address that issue. The second issue concerns support for beginning teachers.
Ms Carmel Tebbutt: Point of order: We have taken a fairly generous approach to the debate on this bill and broad-ranging comments have been made. But the bill is not about maintenance and it is not about supporting beginning teachers. I ask that you draw the member's attention to the subject matter of the bill and ask her to keep her comments relevant.
Madam ACTING-SPEAKER (Ms Marie Andrews): Order! I take the point made by the Minister. I ask the honourable member for South Coast to confine her remarks to the bill before the House.
Mrs SHELLEY HANCOCK: For almost the entire time that I have been speaking I have spoken specifically about the bill. Earlier the shadow Minister stated that when the Minister introduced the bill a number of comments were made in relation to teachers in this State and he was addressing those remarks. Mr Speaker noted that and allowed the shadow Minister to continue with his comments. My comments will be brief, but I am surprised at the sensitivity of the Minister when I raise the concerns of the New South Wales Teachers Federation, which has certainly raised concerns about this bill and will continue to do so. The bill is not the only matter the federation has raised concerns about. We talk about removing underperforming teachers from the classroom. What about support for beginning teachers? The spectre has been raised of perhaps 25 per cent of our teaching staff retiring during the next five years Where is the support for beginning teachers to ensure that they remain in the classroom and realise that we value the work they do?
What about the mentoring programs that the New South Wales Teachers Federation has asked for and has asked again to be considered in this budget? We need well-funded induction and mentoring programs for our beginning teachers. What about English as a second language [ESL] programs? Last week the New South Wales Teachers Federation again raised with me the failure of the Government to provide ESL programs for non-English speaking background migrant and refugee students. Despite repeated budget enhancement proposals, the freeze on the employment of additional ESL teachers continues, and the ESL student to teacher ratio has almost doubled during the time the Government has been in office.
The New South Wales Teachers Federation has raised its concerns about this bill because it has not been consulted. I wonder why. Bearing in mind the comments I have made about the framing of the legislation, why could the Minister not have taken the time to talk to Maree O'Halloran, a highly amenable and intelligent person, and seek her comments and the comments of her members on these issues? The bill has been rushed into this House with little thought, albeit with good intent perhaps, for the purpose of expediting the removal of underperforming teachers and teachers who do the wrong thing. We acknowledge there are such teachers but they are in the minority. The bill has sent a clouded message to the New South Wales teaching fraternity: the Government will not support the teachers of New South Wales. It will take a baseball bat to hit an egg—the egg perhaps being the problem.
The Government did not need to take that approach. The Minister and her advisers could have framed this legislation in all sorts of different and better ways. I remind all members of the comments of the Legislation Review Committee, which seriously criticised the bill. The members of the Legislation Review Committee come from the Labor Part, the Liberal Party and The Nationals. I remind the Minister that yesterday, in a bipartisan way, we unanimously voted on all of the recommendations that were seriously critical of this bill and sought amendments to it. In essence the committee asked the Minister to go back to the table and have another look at this careless legislation.
Ms VIRGINIA JUDGE (Strathfield) [11.36 a.m.]: I support the Education Legislation Amendment (Staff) Bill. I commend the Minister, her hardworking staff and the department for introducing it. We have just heard a gross exaggeration of the issues. I thought the honourable member for South Coast intended to start talking about how high the grass is growing in the fields around the schools in her electorate. She basically spoke about teachers, but there was very little talk about the children or students. The bill is about teachers. What do teachers do in schools? They do not sell food. They provide the right learning environment, that is, a safe working environment that provides opportunities for every child to achieve his or her potential.
The honourable member for South Coast was forthright in her comments about the Legislation Review Committee, a bipartisan committee with members from all parties. That means that members of all parties have the opportunity to debate forthcoming legislation. The most entertaining part of the contribution of the honourable member for South Coast came after she attacked certain elements of the bill. She said—not once, but twice—"We all voted unanimously to support the bill". If the honourable member for South Coast was fair dinkum about the views she has expressed, she would have said, "No, I feel so strongly about this bill that I could not possibly for one moment put my hand up and support it. I am not going to have my name and my vote recorded as supporting a bill which I so strongly object to". But she did not take the opportunity to do that. She could have recorded a dissenting vote, but she did not do that. She is now becoming agitated—she is jumping up and down—because she knows I am speaking the truth. I am one of the original, veteran members of the Legislation Review Committee.
I have sat through a lot of debate on much of the legislation that comes before the House. When I talk about gross exaggeration, I refer to really gross exaggeration. The Legislation Review Committee has commented on the different aspects of bills in relation to the potential breaching of rights, whether that concerns privacy issues, the Trade Practices Act or anything else. The honourable member for South Coast selectively referred to one element of the bill, that is, teachers' salaries being forfeited. However, she did not mention paragraph (31) of the review of the bill in "Legislation Review Digest No. 6", which states:
The Committee notes that under the Bill the Director-General has the discretion to direct that the salary not be forfeited.
She selectively chose to mention only certain elements of the bill. Obviously, I have hit a raw nerve because she is now trying to silence me.
Madam ACTING-SPEAKER (Ms Marie Andrews): Order! There is too much noise on the Opposition benches.
Ms VIRGINIA JUDGE: I am passionate about this because not only do I have three children, I have also been a teacher. I have taught kindergarten, which I enjoyed. In my first job I taught in a primary school. I taught a composite fifth-sixth class for the principal who had gone on leave, and I enjoyed that. When the young and vulnerable kindergarten children are left at the gate each morning their mums and dads or grandparents want to know that when the children walk through the gate they will be in a safe environment where they can be protected and where their eager little minds can learn. I think I have taught every single class in primary and secondary schools. I was a year 8 mistress for some time. Indeed, I have taught entry-level students to students in year 12. I have taught overseas and in a school for students with special needs, so I have had some experience in the teaching profession.
I now highlight certain elements in the bill. The honourable member for Canterbury, a hardworking member, dealt mainly with the management, conduct and performance of government schoolteachers and other staff. However, I intend to focus on the dismissal of government schoolteachers and other staff who have been convicted of sex offences. The bill will ensure the immediate and automatic dismissal of teachers, employees or others convicted of sex offences. The bill will amend three specific Acts: the Teaching Services Act 1980, the Technical and Further Education Commission Act 1990 and the Education (School Administrative and Support Staff) Act 1987. It will create a new framework to deal with the conduct and performance of persons employed under those Acts and to dismiss and otherwise deal with employees who become prohibited persons.
The bill reflects the Government's commitment to families by ensuring that protection of children is a priority when decisions are made about who should work with children in our great public education system. As the major New South Wales government agencies entrusted with the provision of school and vocational education to more than one million students in this great State, the Department of Education and Training and TAFE have a responsibility to appropriately deal with the small number of teachers and other employees whose work performance and conduct is of an unsatisfactory standard. The overwhelming majority of teachers and other staff working in government schools and TAFE are doing a fine job. They are dedicated, committed and hardworking; they will not be affected by the proposed changes.
The electorate of Strathfield has some fantastic schools: Ashfield Boys High School, Homebush Boys High School, Strathfield Girls High School, Croydon Public School, Croydon Park Public School and Enfield Public School. I am sure my colleagues also have wonderful government schools in their electorates. Recently I had a wonderful time at Croydon Public School. Each year that school has an Easter hat parade: the music teacher writes a play for the children to perform and all the parents attend. One gets a glimpse of the great work that the teachers do in that safe environment. All the teachers work hard and are very dedicated. It is all part of ensuring that children have a safe, nurturing environment in which to grow and learn.
Parents place a special trust in teachers and others who work in our public schools and TAFE colleges. That trust is especially great for young children in the early years of school, but it also extends to older children and young people, who remain vulnerable to abuse. An overwhelming majority of the people who work in the public education system are professional and dedicated to the welfare of these children. Sadly, on occasion serious allegations are made against people working with children in this field. The idea that children could be sexually, physically or psychologically abused by education professionals is inimical to the professional values shared by the vast majority of people who work with children in the public education system.
Such allegations undermine the trust that parents who send their children to school and TAFE colleges have in public education and in the teaching profession; they can make parents concerned about children's safety at school. Children are entitled to be safe at school and must not be exposed to avoidable risks of harm. In the spirit of bipartisanship I am sure that all honourable members would agree. On some occasions a difficult choice may arise. That is the reality and we have to deal with it. When an allegation is made, should the right of a staff member to work with children continue despite doubts as to whether the person does or does not pose a risk, or should the right of children to be safe at school and for parents to know that no avoidable risk is taken in protecting their children outweigh employment rights?
It is a vexing issue. Because of the centrality of that question to public confidence in public schools and in the teaching profession, the Government believes that when such a doubt arises—and it does not happen often, thank goodness—a clear indication is required that the interests of children are to be taken by the courts as paramount. Children always come first. Education authorities must be free to thoroughly investigate allegations made against people who work with children, and the need to protect children must be the paramount concern when such investigations are conducted.
The need to protect children must also be the paramount consideration when allegations are substantiated and an education authority is required to make a decision about a teacher's future. The need to make the protection of children an express requirement in legislation makes it clear to everybody from the start how such allegations will be treated. There are no grey areas; it is black and white. That principle is important when decision makers are weighing up the risks to children with the rights of employees in disciplinary matters. Although each case will always be considered on its merits, the legislation makes it clear that the rights of children are paramount and cannot be subordinated or overlooked when disciplinary matters are dealt with. I do not think any member in this Chamber would disagree with that.
The protective nature of that principle would be seriously undermined if the courts and the tribunals that deal with appeals by employees against decisions that give paramount consideration to the welfare of children are not also required to give paramount consideration to the same important considerations. It is important that the principle applied in the original decision—that the rights of children be given paramount consideration—also be applied when an appeal is considered.
I would also like to make some remarks about the aspects of the bill related to an employee who becomes a prohibited person—that is, a person convicted of a serious sex offence, the murder of a child, a child-related personal violence offence—or who becomes subject to registration requirements under the Child Protection (Offenders Registration) Act 2000. I have had dealings with that because I am on another bipartisan committee, the Committee on Children and Young People, and members of that committee have often turned our minds to these sorts of issues. As agencies responsible for the care and welfare of students, the Department of Education and Training and TAFE have an obligation to protect the children and young people in their care from inappropriate conduct. The Government has already introduced a comprehensive legislative scheme that deals with an evaluation of the fitness of people who work, or seek to work, in child-related employment and who are convicted of a serious sex offence or otherwise become a prohibited person.
The bill builds upon that legislative scheme by recognising the special trust placed by the community in schoolteachers and others working in schools, and in TAFE teachers who work with children or young people. The bill recognises that confidence in public education is eroded when a staff member who works with children is convicted of a serious sex offence. Under this bill such education professionals who work with children and are convicted of a serious sex offence or otherwise become prohibited persons will be dismissed from employment effective from the date of their conviction. There is no place in our public education system for a person convicted of a crime by a criminal court. The dismissal will occur as a direct consequence of the criminal conviction, not as a result of departmental disciplinary action. In summary, the bill will provide a faster and less complex process for dealing with poor performance and misconduct. Importantly, it will ensure the immediate and automatic dismissal of teachers or other employees convicted of sex offences. I commend the bill to the House.
Ms CLOVER MOORE (Bligh) [11.51 a.m.]: I wish to preface my comments on the bill by again stating my very strong support for public education and the vital role it plays in the life of our community. I also want to express my support for our hardworking, responsible and inspiring teachers. I think we all appreciate the problems faced not only by school staff but also by parents and students when lazy or incompetent teachers are on the staff. I believe the teaching profession is the most important profession because it contributes to the future of our society. It is our investment in the future.
I cannot support the bill in its current form. I am very concerned about the fact that it removes teachers' rights to have their performance and conduct judged independently and without bias. I am concerned that the director general and division head are given complete power to dismiss teachers and school staff. When power is concentrated in one individual, teachers are not protected from prejudice. With a single, all-consuming decision maker there is scope for factors to influence decisions, such as pressure from parent groups based on age, race, religion, sexuality or personality.
Under the current system, teachers who are accused of poor performance or misconduct—the sorts of things that would concern us all—can state their case in a hearing with witnesses. Teachers have the opportunity to defend themselves against allegations to an independent body. Removing the mini trial process takes away almost all opportunity for a teacher to respond to an allegation prior to a determination of disciplinary action. The teacher is left with the opportunity to make a submission only after a determination is made which need only be considered by the initial decision maker before the decision is implemented.
Furthermore, the bill takes away a teacher's right to question anyone in relation to allegations, regardless of whether they support or oppose the teacher's case, making it difficult to produce a sound and justified submission. To top it off, during the process the teacher may be suspended without salary. It is disappointing that a Government that openly criticises the Federal Government's WorkChoices legislation has introduced a bill that removes workers' rights to a fair hearing in the face of allegations and provides employers with total power to dismiss them. The bill claims to protect children by removing the protection of what we would all agree could be their best advocates. I cannot support the bill in its current form.
Ms ANGELA D'AMORE (Drummoyne) [11.54 a.m.]: I support the bill. I wish to direct my comments to the new provisions relating to prohibited persons. Following the report of the Wood royal commission into paedophile activity in 1997, the Government vigorously enacted measures to enhance the protection that our society provides to our children. Those measures include the establishment of the Commission for Children and Young People; working-with-children checks for persons in child-related employment; the requirement for thorough investigations of all allegations of child abuse, independently monitored by the Ombudsman; and the requirement for persons working with children, whether employees or volunteers, to make declarations that they have no past convictions that would make them unsuitable to be in close proximity to children. Those requirements are tough, and rightly so. Children have limited capacity to protect themselves against adults. Therefore, society has a right to demand higher standards of people working with children than it does for those working in other fields.
The provisions of the bill applying to prohibited persons build on the principles and concepts of this comprehensive legislative scheme to protect children. Thankfully, the overwhelming majority of people who work in the public education system are professionals who are genuinely dedicated to the welfare of children. They will not be adversely affected by these changes. On rare occasions, however, a person who works with children in public education is found guilty by a criminal court of an offence. An example of such an offence occurred last year. A teacher in a primary school was found guilty of possession of child pornography. That person was dismissed forthwith by the director general, although legal advice was received that the person was required to be given a chance to argue that he should not be dismissed. It may well strike people as absurd that a teacher, fully represented by a lawyer, who is found guilty by a court of a serious sex offence should still be entitled to a formal process of submitting why he should still be employed.
That is not only demoralising to the vast majority of decent people who work in public education but also makes parents who send their children to public schools question the value system of public education. It is vital to the reputation of the teaching profession and of public education as a whole that if a teacher is found guilty of such an offence quick and decisive action is not only taken but is seen to be taken as a direct consequence of such a conviction. Under the current process established by the Government, prohibited persons are unable to work with children until a court or tribunal determines they are fit to do so. A person becomes a prohibited person when found guilty of certain very serious offences, such as the murder of a child or offences involving sexual activity or acts of indecency punishable by imprisonment for 12 months or more. Those offences include sexual assault, indecent assault and sexual intercourse with under-age children.
A finding of guilt on such charges is made only if the person pleads guilty or is found guilty after receiving the full weight of protections offered by the criminal justice system. Those protections include the presumption of innocence; the right to a jury trial for an indictable offence; the requirement for the offence to be proved beyond reasonable doubt, not just on the balance of probabilities; the right to legal representation; and tight procedural requirements and adherence to the rules of evidence. Those protections go well beyond what is afforded by the notion of procedural fairness, which in essence involves the right to be heard before an unbiased decision maker. The bill provides for the automatic dismissal of a staff member who is or becomes a prohibited person and who is employed in child-related employment in the Teaching Service, the TAFE Commission Division of the Government Service or as a permanent or temporary employee under the Education (School Administrative and Support Staff) Act 1987.
The bill will apply to current and future employees, as well as to those who are currently prohibited persons. Anyone whose employment is terminated as a consequence of these provisions will already have passed through the criminal justice system. While being dealt with by that system they would have enjoyed the protection of a large array of legal principles, rigorously enforced by appeal courts, designed to ensure it is all but impossible to convict the innocent, and if the conviction of the staff member is subsequently overturned by the appeal court, he or she will be automatically reinstated or re-employed to a position that is similar to the one that he or she held. To be able to work in child-related employment a prohibited person must seek a review of his or her prohibited employment status from the Commission for Children and Young People, the Industrial Relations Commission or the Administrative Decisions Tribunal.
When a review is successful the person remains guilty of the offence but is no longer prohibited from working with children. Under reforms introduced in the bill, the Director General of Education and Training or the Managing Director of the TAFE Commission will be notified of applications by staff members and is entitled to appear and make submissions about whether or not the review should be successful. If the staff member is successful in obtaining a review of his or her prohibited person status within 12 months of the termination of his or her employment, he or she will be automatically reinstated or re-employed in a position. Sometimes these reviews can be sought years after the person became a prohibited person.
If the staff member is successful in obtaining a review of his or her prohibited person status more than 12 months from the date of the termination of his or her employment then he or she will be free to seek employment in the field of public education. The bill also enhances child protection by adopting a principle found in the Health system—and I am happy to say that I was previously an officer of the New South Wales Nurses Association and I understand that system very well. That principle, which was applied in other areas where the protection and welfare of children is a key objective, is that the protection of children is to be the paramount consideration in all decision making relating to allegations of misconduct in employment in public education.
That requirement will apply not only to managers within the Department of Education and Training, but also in relation to any appeals taken to the Industrial Relations Commission or the Government and Related Employees Appeals Tribunal. This bill reflects the Government's commitment to families by ensuring that only those people who are fit to work with children are employed in such positions by the Department of Education and Training or the New South Wales TAFE Commission. I am proud to be able to say that we have taken steps to ensure that only people who are fit to do so will work with children in our schools and TAFE colleges. Our parents deserve that assurance and so do our professional teachers, so that their profession is not discredited by a few. I commend the bill to the House.
Mr DONALD PAGE (Ballina—Deputy Leader of The Nationals) [12.02 p.m.]: As the Opposition spokesman on skills, development and training, I make a brief contribution on the Education Legislation Amendment (Staff) Bill. As the shadow Minister for Education and Training indicated in his contribution, the Liberal Party and The Nationals will not be opposing the legislation but we have a number of concerns. I am a strong supporter of public education and our teachers, and always have been. I believe teaching is one of the most important jobs a person can have because it influences the minds of our young people, and because the values, skills and knowledge they obtain today will determine the sort of society we have tomorrow.
I am concerned essentially about issues that go to procedural fairness for teachers affected, particularly those affected by the management of conduct and performance provisions. I have fewer concerns about the other issues dealing with prohibited persons. I am quite concerned about a number of issues raised by the Legislation Review Committee. I endorse strongly the comments made by the honourable member for South Coast in her earlier contribution. The Legislation Review Committee is a bipartisan committee. Its report on this legislation runs to nine pages, which is much longer than is normally the case for any legislation, even if it is complex. Under the new scheme an allegation of misconduct against a teacher may be dealt with as a disciplinary matter. Remedial action, for example counselling or a warning, and disciplinary action, for example dismissal, may be taken with respect to the person. The allegation is to be dealt with in accordance with the procedural guidelines made by the director general. I will have more to say about that later.
The new provisions also provide that a person's performance must be reviewed periodically. If a person is not performing his or her duties in a satisfactory manner, remedial action or disciplinary action, or both, may be taken against the person. If the person is convicted or has been found guilty of a serious offence, the person may be suspended from duty and his or her salary withheld and forfeited to the State while an allegation of misconduct is being dealt with or pending a decision in relation to a criminal conviction against the person. I go now to the issues raised by the committee. With respect to trespass on personal rights and liberties, specifically procedural fairness, the committee noted in paragraph 18:
… that the right to be heard is a fundamental rule of procedural fairness, the content of which is to be determined by what is fair in the circumstances.
Paragraph 19 notes:
The Committee refers to Parliament the question of whether the Bill unduly trespasses on the right to be heard by limiting that right to a right to make a submission in defence of disciplinary action.
With respect to procedural fairness and the director general's procedural guidelines, the committee states that proposed sections 93D (2), 22F (2) and 30 (2):
… provide that the Director-General may issue "procedural guidelines" dealing with allegations of misconduct against officers as a disciplinary matter and the taking of disciplinary action with respect to officers. These clauses require the guidelines to set out practical procedures to ensure that the right to be heard, the first aspect of natural justice, is available to an officer facing an allegation of misconduct.
However, the Bill does not require the guidelines to provide for the second aspect of natural justice, namely the rule against bias on the part of the decision maker.
The committee states in paragraph 26:
The Committee has written to the Minister for advice as to why proposed sections 93D(2) [and cognate clauses 22F(2) and 30(2)] do not include a provision equivalent to s. 45(1) of the Public Sector Employment and Management Act 2002 expressly providing that the Director-General's procedural guidelines must be consistent with the rules for procedural fairness. The Committee has also written to the Minister for advice as to whether the Bill can be amended accordingly.
So, the committee has no doubt in its mind that issues in relation to procedural fairness need to be amended. I have been advised by the shadow Minister that the Government has an amendment in relation to proposed section 93D (2), which may well address that issue. However, I am concerned that even if that provision is deleted there is an issue about what happens with procedural guidelines vis-a-vis oversight from Parliament and scrutiny, and so on. The Legislation Review Committee, in relation to the right to property and the forfeiture of withheld salary, makes the recommendation in paragraph 32:
The Committee is of the view that allowing for the forfeiture of salary of a person who is suspended pending determination of a disciplinary matter or a criminal charge is a trespass on the person's right to property.
The committee is pretty clear on that issue as well. In relation to making rights, liberties or obligations dependent on unclear administrative powers, the committee recommends in paragraph 40:
The Committee is of the view that the definition of "misconduct" under the Bill should be as clear and unambiguous as possible, given the potential adverse impact on an officer that an investigation into, or finding of, misconduct can have.
In paragraph 41 the committee goes on:
The Committee has written to the Minister for advice as to how the definition in proposed sections 93C(1)(b), 22E(1)(b) and 29(1)(b) can be amended to remove the circularity and provide clearer content.
The committee concluded it is a circular situation and those matters need to be clearly defined. As to making rights, liberties or obligations dependent upon non-reviewable decisions, the committee concluded:
46. The Committee notes the effect of these provisions in removing the fundamental right of a person to seek review of an adverse decision.
In other words, there is no provision in this legislation for a person to seek review of an adverse decision. In terms of procedural fairness, the capacity to seek a review would be fundamental. As to delegation of legislative powers the committee concluded:
53. The Committee is of the view that entitlements relating to employment amount to personal property. The Committee notes that 93W(6) [and cognate clauses 22W & 32N] purport to give regulations made under the proposed sections primacy over other legislation in the field.
54. For these reasons the Committee is of the view that, to avoid an undue delegation of legislative power, such matters should be provided in the primary legislation.
In other words, the matter should be dealt with in the bill, not subsequently. As to procedural fairness, particularly as it relates to the director general's procedural guidelines, the committee stated:
60. The Committee notes that proposed sections 93D(2), 22F(2) & 30(2) appear to delegate the task of determining the content of natural justice to the Director-General for the purposes of the legislation, subject only to the minimum requirements set out in clause 93D(2) (and cognate clauses)—
Which, as I understand it, will not be amended—
and no further oversight by the legislature.
61. Given the importance of these procedural guidelines and their potential to impact on a person's right to procedural fairness, the Committee has written to the Minister for advice as to why the Director-General's procedural guidelines are not disallowable by Parliament or otherwise subject to a measure of oversight by the legislature.
It is common practice that all guidelines that are put in place by way of regulation should be disallowable by the Parliament. The Parliament should not avoid its responsibilities in this regard by handing them over to a director general. The Government needs to resolve several issues in the legislation. I am hopeful that the Minister and the Government will take on board the substantive contribution made by the Legislation Review Committee. I commend the members of the committee for their diligence, perception and almost forensic ability to analyse the issues of procedural fairness and individual rights.
Mr MALCOLM KERR (Cronulla) [12.12 p.m.]: The Education Legislation Amendment (Staff) Bill is an important piece of legislation. I am pleased the honourable member for Miranda is present in the Chamber.
Mr Barry Collier: I am not here to listen to you.
Mr MALCOLM KERR: I am disappointed. I thought there had been an outbreak of good taste on the part of the honourable member for Miranda. This legislation should be of interest to him as a former teacher and a lawyer who was very involved in the due process of law and appeared on behalf of people alleged to have committed offences. As an advocate he was keen to see that procedural fairness was applied in their cases.
Mr Barry Collier: Prosecuting as well.
Mr MALCOLM KERR: Prosecuting as well.
Mr Barry Collier: And I taught for 17 years.
Mr MALCOLM KERR: That qualifies the honourable member and we look forward to his contribution to this debate. The Opposition does not quibble with the purpose of the bill and will not oppose it. The purpose of the bill is to create a legislative framework for dealing with the conduct and performance of public school teachers and other staff and to provide for automatic dismissal of staff who become persons prohibited from working in child-related employment. As the shadow Minister for Education and Training noted, numerous unsuccessful efforts were made to set up an internal framework to expeditiously remove from the teaching service poor-performing teachers and those involved in criminal offences.
In my view, teaching is the most important profession. Every profession, trade and position in society is dependent on the quality of the teaching profession. A person cannot be employed in a profession, trade or position unless he or she is educated. The quality of most aspects of society depends on the quality of the teaching profession. That is why the teaching profession should be an honoured profession. I am a product of a public school education, and there are a number of public schools in my area. Public school teachers are dedicated and committed professionals. They do not want to see a poor-performing teacher or a teacher who has committed criminal acts to continue in their profession.
People in any trade or profession will have to be removed because of their poor performance or criminality. However, it is important when such a removal occurs, as the honourable member for Miranda would know, that procedural fairness is applied scrupulously. That is why I recommend to everyone—teachers, the public, and members in the other place when they scrutinise this legislation—that they read the Legislation Review Committee's conclusions on the bill. The honourable member for Miranda is a former chairman of that committee. The committee performs a very valuable service.
Mr Barry Collier: Why do you keep talking about me?
Mr MALCOLM KERR: I would have to say you certainly have form.
Mr Barry Collier: You should withdraw that remark.
Mr MALCOLM KERR: Form in education and legal qualifications and as a former chairman of the Legislation Review Committee. The honourable member knows the important role performed by that committee. The House should take seriously the committee's reports. I commend the qualifications that have been placed on the legislation by the committee. I do not need to outline those qualifications because the previous speaker, the honourable member for Ballina, has already done so. However, it is clear that the committee has written to the Minister and raised very important objections to the legislation. I hope before the bill is sent to the other place that upper House members have access to the correspondence. When debate in this House has concluded I welcome the Minister responding to the concerns raised by the Legislation Review Committee and giving an assurance that the correspondence will be made available to members in the other place when they come to consider this legislation.
It is a matter of balance. We want a teaching profession that does not have a place for poor performers or for those involved in criminality. But we also want to ensure that justice is done. It is too easy to make allegations, even on the question of performance, and for those allegations to be considered in an arbitrary fashion based on personalities rather than on principles. As the honourable member for Ballina noted and the committee concluded:
The Committee notes that proposed section 93D(2), 22F(2) & 30(2) appear to delegate the task of determining the content of natural justice to the Director-General for the purposes of the legislation, subject only to the minimum requirements set out in clause 93D(2) (and cognate clauses) and no further oversight by the legislature.
The honourable member for Miranda would well know the type of inconsistencies that occurred in English Common Law and Equity. There was an expression—which is probably used now only in Cronulla—that justice depended on the length of a chancellor's foot because of the discretion that was given to the Lord Chancellors in the Equity jurisdiction. If we want to encourage people to enter the teaching profession, we must ensure that they are treated fairly. As I have said, the Opposition does not quibble with the purpose of the bill. I am sure that the Parliamentary Secretary Assisting the Minister for Education and Training, given her background, would want to ensure that every citizen in New South Wales was treated with procedural fairness. That is particularly true when we consider the consequences that flow from the removal of teachers from their profession.
Ms KATRINA HODGKINSON (Burrinjuck) [12.19 p.m.]: I speak to the Education Legislation Amendment (Staff) Bill. As a former teacher—I was a TAFE teacher at the Queanbeyan and Yass colleges of technical and further education and very much enjoyed my time at both institutions—I taught Joint Secondary Schools with TAFE courses in labour market programs, office skills, business skills, grammar, business English, and numeracy and literacy to those who had a less fortunate education than many of us. I am also the mother of a primary-school aged child and a preschooler, so children's education is very important to me. I recognise that the purpose of this bill is to create a legislative framework for dealing with the conduct and performance of public school teachers and other staff and to provide for automatic dismissal of staff who become persons prohibited from working in a child-related environment.
Teachers have expressed their concerns to several honourable members of the Opposition that the environment they work in makes them susceptible to false allegations, particularly from teenage students who simply want to get even for some reason. That was not something to which I was subjected in my years as a TAFE teacher, but I can understand it and have heard reports about it. It is a valid concern. Honourable members on this side of the House have spoken at some length about that issue. It is important to balance those concerns with the issues raised in the legislation and addressed in the "Legislation Review Digest" at paragraph 10 of section 2, which states:
A person becomes a prohibited person if the person is convicted of a serious sex offence, the murder of a child, or a child-related personal violence offence or becomes subject to registration requirements under the Child Protection (Offenders Registration) Act 2000.
There is nothing that a parent fears more than that their child will be the subject of an attack by a paedophile or involved in some way in child pornography. Both offences are very serious and should be dealt with extremely harshly. I am a great proponent of ensuring that those sorts of villainous crimes are totally stamped out of our society. Unfortunately, paedophilia and child pornography are alive and well in this State. If we as a Parliament could stamp out both horrendous crimes, we would improve the world for our children.
The honourable member for Wakefield stated that it can take two to three years to get rid of poorly performing teachers and even those charged with criminal offences. Other teachers and parents expect the system to be expedited, and that is understandable. When such serious allegations are made and if they are genuine, and only then, obviously we must have a legislative framework to rapidly remove the personnel involved who do not satisfy the standards or who are guilty of serious offences, sexual or otherwise. This bill provides that an allegation of misconduct—for example, assault—becomes a disciplinary matter that can result in remedial action, such as counselling or a warning, or disciplinary action, such as dismissal. I also note that this bill provides that while awaiting trial on a serious offence a teacher or staff member may be suspended from duty and his or her salary withheld for a period and that guidelines will be developed to ensure procedural fairness.
On balance, despite the number of valid concerns that have been raised by honourable members on this side of the House, I understand why the Opposition is not opposing the bill. It relates to extremely serious issues and circumstances in which a child's life and childhood are under threat. We must ensure that procedures are in place to deal with those matters quickly and fairly.
Mr DARYL MAGUIRE (Wagga Wagga) [12.26 p.m.]: I wish to make a brief contribution to debate on this very important bill. An education is the greatest gift we can give a child. Indeed, an education and the ability to access learning environments are important for people of all ages. Whether it be in a technical educational background, universities or community colleges, all citizens would agree that education is the greatest gift. The ability to learn and the thirst for knowledge should be encouraged throughout our lives. To do that we must have a profession that is able to develop and enhance teachers' skills.
Much has been said today about this bill and what it is designed to achieve. For the record I state my support for teachers and the very difficult job they do, often under very onerous circumstances. I have long-term friends who are teachers and who have told me about the difficulties they face and the expectations placed on them by the community, governments, lawmakers and others. As honourable members of Parliament we see the consequences of accusations made against teachers and the results of problems that have manifested in schools and education environments. These issues often end up in our offices and from time to time require action by the Minister or the individuals charged with administering the education system.
In the time that I have been in this place I cannot recall having received a "Legislation Review Digest" comprising nine pages detailing 62 points for one piece of legislation. I know that various honourable members commented about particular points in the digest. I will not do that because all the relevant points have been made. However, I will detail my concerns. I have pointed out to the shadow Minister that I am troubled that unfounded allegations can be made against individuals. I have seen examples in which teachers have been broken as a result of unfounded allegations. Some years ago a teacher suicided because of allegations that were later admitted to be false. Of course, that kind of thing understandably troubles people.
I was very concerned about the fact that this legislation may have some unintended consequences. We often deal in this place with legislation that needs amendment before it can be passed and transmitted to the House of review. Sometimes legislation is passed that has unforeseen consequences or it is rushed through this place and honourable members do not have time to consider it properly. I was also concerned that this legislation was not affected by the Child Protection (Offenders Registration) Act 2000, to which the legislation refers, and the Commissioner for Children and Young People Act 1998. I have read the legislation and, with my basic grasp of it, I am now comfortable with the fact that the way in which these two pieces of legislation have been drafted will ensure that they will not affect or be affected by the Education Legislation Amendment (Staff) Bill.
Given that the bill and the Minister's second reading speech refer to the two Acts, it is important to ensure that there is no unintended consequence or adverse impact of the legislation upon individuals' rights. I have pointed to procedural fairness because, ultimately, members have focused on that aspect in the bill. With those comments, I thank the House for its indulgence. I again state for the record that education is the greatest gift we can give to a child, and encouraging teachers and the department to strive for excellence should be the challenge for us all. I hope that the legislation does that. The shadow Minister for Education and Training has capably highlighted some of the other concerns of the Opposition with regard to the bill.
Ms CARMEL TEBBUTT (Marrickville—Minister for Education and Training) [12.30 p.m.], in reply: I thank all honourable members who have participated in the debate, which on the whole has been thoughtful and constructive. I thank the Opposition for supporting the Education Legislation Amendment (Staff) Bill, which amends the Teaching Service Act 1980, the Technical and Further Education Commission Act 1990 and the Education (School Administrative and Support Staff) Act 1987 to create a new legislative framework for dealing with the management of conduct and performance of persons employed under the Acts, and to dismiss and otherwise deal with employees who become prohibited persons. The new legislation will ensure the highest standards of conduct and performance amongst New South Wales teachers and school support staff.
A number of issues have been raised in the debate, and I will attempt to address them in my response. As the major New South Wales Government agencies entrusted with the provision of school and vocational education to more than one million students, the Department of Education and Training and TAFE have a responsibility to appropriately deal with the small number of teachers and other employees whose work performance and conduct is of an unsatisfactory standard. As I have said on many occasions, it is a small number of employees. The majority of teachers and other staff who work in education are committed, dedicated and caring, and do their job with the utmost diligence.
The bill will provide a simple, fast and fair process for dealing with performance and misconduct issues, without diminishing employees' rights to procedural fairness; enhance options for dealing with poor performance or allegations of misconduct by including the power to take remedial action; provide for the immediate dismissal of teachers or other employees who work with children and have been convicted of sex offences; ensure regular monitoring of the performance of teachers and other staff, who will have their work reviewed regularly by principals and managers; and ensure that the rights of children are given paramount importance by the department's decision makers, courts and tribunals when any action is taken against employees of the department.
As I have said, the overwhelming majority of teachers are of the highest quality, and they will not be affected by the bill. The legislation will ensure that the processes for dealing with the small minority of teachers who have performance issues is timely and fair. I make it very clear that the legislation the Government is introducing is not, as was referred to by the honourable member for Wakehurst, an act of hostility towards the Teachers Federation. I understand that the honourable member, in referring to that matter, was paraphrasing or quoting from a letter from the Teachers Federation.
The Government accepts and respects the role of the Teachers Federation in representing the interests of teachers in New South Wales. However, we also understand that it is the Government's role to legislate in the best interests of public education. Governments must be able to show leadership. Clearly, it is in the best interests of public education that the process for dealing with performance and misconduct of teachers and others who work in education be fair, timely and efficient. Currently, the time taken to deal with poor performance and misconduct is far too long.
As I have outlined previously, it is not unusual for performance matters to take up to 15 months and for misconduct matters to take up to two years. For a school that is in the middle of one of these proceedings, the impact of this uncertainty on other teachers at the school, the teacher at the centre of the process, the students and the parents, is entirely unsatisfactory. A number of speakers have referred to that issue. The Government cannot allow such a situation to continue; we must address it. The majority of teachers do a fantastic job. However, we are in an environment where public education must continually be able to demonstrate its excellence, and this legislation ensures that we maintain our high-quality public education system and that we are able to demonstrate the excellence of our teachers, student outcomes and the public education system.
With regard to the specifics of the consultation process, I place on record that on 20 April I advised the Teachers Federation of the Government's intention to vary the disciplinary provisions applying to teachers. On Wednesday 26 April a copy of the draft bill was provided to the New South Wales Teachers Federation, the Public Service Association, and the Institute of Senior Education and Administrators, with an invitation to meet with the department at short notice if they wished to clarify any aspect of the proposed legislation. A copy of the bill was also provided to the Secondary Principals Council and the Primary Principals Association. The Federation of Parents and Citizens was briefed on the bill and provided with a copy on 1 May.
The Public Service Association took the opportunity to meet with the department on 28 April. The association has a large number of members who are affected by the legislative changes. Further information was forwarded to the Teachers Federation and the Institute of Senior Education Administrators on the afternoon of 1 May. The department met with the executive of the Primary Principals Association on 5 May, and has answered a range of questions presented by the Secondary Principals Council.
The bill has been in the public domain, and there has been opportunity for comment and further information and discussion with the department and the Government. However, as I have said on many occasions, the legislation establishes a framework to deal with poor performing teachers and others who work in education, and to deal with issues of misconduct. The procedural guidelines are critical to implementing the provisions of the bill. Those procedural guidelines will be available, and the Department of Education and Training will consult with the unions and key interest groups. The Government makes that clear commitment in relation to the procedural guidelines that will implement the provisions of the bill. It is my expectation that this consultation process will commence as soon as next week.
I turn now to other issues that have been raised in the debate. With regard to procedural fairness, the bill clearly outlines in proposed section 93D that the guidelines shall provide that when an allegation of misconduct or poor performance is made, an employee is advised in writing of the alleged misconduct, advised that the allegation may lead to disciplinary action being taken, and given an opportunity to respond to both the allegations themselves and the proposed action to be taken. This is procedural fairness, and it reflects the provisions of the Public Sector Employment and Management Act. Nonetheless, to make it absolutely clear, in Committee the Government will amend the bill to stipulate that the guidelines will provide for procedural fairness.
I wish to address other issues that have been raised both in the debate and by the Legislation Review Committee. The first relates to the procedural guidelines with regard to conduct and performance, and the scrutiny by Parliament. It is presumed that this question largely arises out of the concern as to whether the guidelines will be required to comply with the principles of procedural fairness. This issue will now be addressed by the amendments I have foreshadowed. The second issue relates to the suspension of officers from duty pending decisions in relation to criminal conviction. The Government will remove a defect in section 87 of the Teaching Service Act relating to the power to suspend. That defect is an inappropriate, and probably unintended, limitation in the power to suspend.
As I outlined in my second reading speech, it may be desirable and necessary, having regard to the need to protect children, to continue a suspension in circumstances that the Act does not currently allow for. The difficulty with section 87 (1) (b) of the Teaching Service Act lies in the wording "until the [criminal] charge has been dealt with". A criminal charge is dealt with when the relevant court imposes a sentence. This means that the director general only has the power to suspend an officer who has been "charged" with a criminal offence. That power is arguably exhausted immediately when the officer is convicted, enabling the officer to return to duty until disciplinary action is completed.
The third issue that has been raised is with regard to the power to withhold salary. The power to withhold salary under section 49 (3) (b) of the Public Sector Employment Management Act relies on the person being convicted of the offence. A person who pleads guilty to, or is found guilty of, an offence but has no conviction recorded_that is, the person receives a section 10 under the Crimes (Sentencing Procedures) Act_will have his or her salary restored.
The amended section is designed to give the director general discretion to forfeit to the Crown the salary of a person who is found guilty of a criminal offence. This is consistent with the impact of the prohibited persons provisions where the child protection legislation specifies that "conviction" includes being found guilty of the offence concerned. The director general would exercise this power consistently with the Premier's guidelines, which provide that the power to suspend without pay can be exercised only in exceptional circumstances. Those guidelines provide that agencies are to give priority to placing employees facing criminal charges or disciplinary proceedings on alternative duties.
The fourth issue is in relation to the definition of "misconduct". Once again, the definition closely follows the model established in the Public Sector Employment Management Act and outlines several broader areas: a contravention of the Act or its regulations; engaging in conduct that justifies dismissal or demotion; or taking detrimental action within the meaning of the Protected Disclosures Act against a person in reprisal for making a protected disclosure or an internal disclosure. The final issue is in relation to regulations made in respect of employees dismissed because they become prohibited persons, and who are then reinstated or reemployed. The regulation-making power enables a process to be established to meet the individual circumstances as they arise of the particular person who has been reemployed or reinstated. This would not delay their return to the workforce or payroll. That process would be undertaken under the supervision of the Parliament. This legislation will ensure the highest standards of conduct and performance among New South Wales teachers and school support staff. I commend the bill to the House.
Motion agreed to.
Bill read a second time.
Clauses 1 to 8 agreed to.
Ms CARMEL TEBBUTT (Marrickville—Minister for Education and Training) [12.42 p.m.], by leave: I move Government amendments Nos 1 to 9 in globo:
No. 1 Page 7, schedule 1.1, proposed section 93D. Insert after line 25:
(2) The procedural guidelines must be consistent with the rules of procedural fairness.
No. 2 Page 7, schedule 1.1, proposed section 93D, line 26. Omit "The". Insert instead "Without limiting subsection (2), the".
No. 3 Page 7, schedule 1.1, proposed section 93D, lines 37 to 39. Omit all words on those lines.
No. 4 Page 20, schedule 1.2, proposed section 22F. Insert after line 24:
(2) The procedural guidelines must be consistent with the rules of procedural fairness.
No. 5 Page 20, schedule 1.2, proposed section 22F, line 25. Omit "The". Insert instead "Without limiting subsection (2), the".
No. 6 Page 21, schedule 1.2, proposed section 22F, lines 1 to 4. Omit all words on those lines.
No. 7 Page 31, schedule 1.3, proposed section 30. Insert after line 9:
(2) The procedural guidelines must be consistent with the rules of procedural fairness.
No. 8 Page 31, schedule 1.3, proposed section 30, line 10. Omit "The". Insert instead "Without limiting subsection (2), the".
No. 9 Page 31, schedule 1.3, proposed section 30, lines 23 to 26. Omit all words on those lines.
As outlined in my response to the second reading debate, the Government foreshadowed the moving of these amendments in Committee to make it absolutely clear that the bill is providing for procedural fairness. There are nine amendments because the bill amends three pieces of legislation. Therefore, we need to move the amendments for each piece of legislation. In section 93D the bill clearly outlines that the guidelines shall provide that when an allegation of misconduct or poor performance is made an employee is advised in writing of the alleged misconduct, is advised that the allegation may lead to disciplinary action being taken, and is given an opportunity to respond both to the allegation and in relation to the proposed action to be taken. It is very clear that the intent of those provisions of the bill is to provide for procedural fairness in the operation of this legislation and that the guidelines that will implement the framework for the legislation also will be drafted with procedural fairness principles.
Nonetheless, given that it has been raised in debate and in other circles that there is a question mark over procedural fairness, I make it absolutely clear that the Government stipulates that the guidelines will provide for procedural fairness by moving these amendments. These amendments make it very clear that the guidelines must be consistent with the rules of procedural fairness. I believe that will clarify for everyone that there is no question that the guidelines for which the legislation provides a framework will provide for procedural fairness.
Mr BRAD HAZZARD (Wakehurst) [12.45 p.m.]: As I indicated during the second reading debate, the Liberal and National parties would have been extremely concerned if these amendments had not been made to the bill. The bill that was presented to the House, which was the subject of a ministerial second reading speech and the debate up to this point, was unacceptable because of the apparent and, I believe, actual denial of the guarantee of procedural fairness in the provision for dealing with teachers in relation to misconduct or professional matters. As the Minister has indicated, the same words currently apply at various points in the Act_"The Director-General (or any other person) who takes action against an officer in accordance with the procedural guidelines is taken to have observed the rules of procedural fairness." If that provision had remained we would have taken a different view on this bill. The fact that the Government has now seen fit to amend its bill and to recognise that there was a legitimate concern about it is something that the Liberal and National parties welcome.
There is also an issue about the development and basis of the guidelines. It is still a little unclear, but the Liberal and National parties accept that what the Minister is saying is that in regard to both the development of the guidelines and the way those guidelines will be applied, there will be procedural fairness. Certainly, when the rules are applied there will be procedural fairness predicated on procedural fairness being contained within the guidelines. On that basis we will not oppose the amendment and, in fact, welcome it wholeheartedly. If the Government had consulted more carefully with the teachers, the New South Wales Teachers Federation and the Opposition, we would have been happy to ensure that the legislation that passed through this House was drafted appropriately at the start and that it works effectively for children and teachers.
As I indicated earlier, clearly there are some issues in regard to moving on teachers whose conduct is inappropriate or illegal and teachers who are not up to the professional standards that we expect. It should be said that the majority of our teachers are of an excellent standard. If the bill had been created in a different way and if there had been more liaison with the profession we would not have had this problem. The Minister thanked the Opposition for supporting the bill. I make it clear that we do not support the bill; we do not oppose the bill. Quite a number of issues still concern the Opposition, but we will not oppose the bill. We do not support the bill because we know that other parts of it are clearly wrong.
Mr Barry Collier: Why don't you say what they are?
Mr BRAD HAZZARD: The sharp-as-a-tack member for Miranda, who is interjecting from the back bench_where he might be destined to spend his political life_should take this up with his Minister in the party room because it just shows how sharp the New South Wales Labor Party is. I am sure the honourable member for Miranda went through this bill with a fine toothcomb and would have told the Minister that this should have been fixed. The bill that we are now approving will have to be amended. I refer to page 38, part 4B, under the heading "Definitions", "Termination of employment of prohibited persons" which refers to "Commission means the Commission for Children and Young People". That commission does not exist any more. On 7 April the Minister gazetted a change. There is no longer a Commission for Children and Young People.
Mr Chris Hartcher: Can't they even get that right?
Mr BRAD HAZZARD: No, they cannot. It is a sad indictment on the State Labor Party that it cannot lift its standards and even get bills right, let alone know what happens out in the real world. The Government should lift its standards and get it right. Perhaps the Government should move amendments in the upper House. If it does so, the New South Wales Opposition is here to help the Government and ensure that it produces reasonable outcomes for the people of New South Wales. It is now called the Office for Children. The Minister should look at the Government Gazette of 7 April.
It was five weeks ago. It does not surprise me that no-one on the Government benches has woken up to it yet, including the honourable member for Miranda, who, as sharp as a tack, interjected yet again.
The CHAIRMAN (Mr John Mills): What page are you talking to?
Mr BRAD HAZZARD: I would have assumed that you, Mr Chair, would have known that because you are a step above. It is page 38. The Minister is looking over her shoulder towards her advisers, but I am sure it will be sorted out. The Opposition will not oppose the bill. We do not support it, but we will not oppose it.
Amendments agreed to.
Schedule 1 as amended agreed to.
Schedules 2 and 3 agreed to.
Bill reported from Committee with amendments and passed through remaining stages.