I rise to contribute to this debate on the Education and Training Legislation Amendment Bill.
This bill seeks to achieve two things: firstly, to provide for the automatic cancellation of a teacher’s registration for life when the teacher is convicted of a serious offence, irrespective of whether the person is sentenced to imprisonment; and, secondly, to extend the mandatory requirements regarding reporting by school staff of the sexual abuse of a student to include reporting where a staff member becomes aware or reasonably suspects a student has become or is likely to be sexually abused by any person.
As it currently stands, sections 365 and 366 of the Education (General Provisions) Act place an obligation on staff in state or non-state schools to report suspected sexual abuse of certain classes of students where perpetrated by an employee of the school.
The reporting obligation applies to the suspicion relating to children in the prep year, students under 18 years of age and students with a disability who are being provided special education.
Additionally, state schools are required to report harm or risk of harm to students by any person, including harm from sexual abuse, under operational policy. Non-state schools are also required to have policies about the appropriate conduct of their staff and the wellbeing of students in order for them to maintain their accreditation. It is incumbent upon the school to show a duty of care to students and to take all responsible steps to minimise the risk of harm.
Currently, there is a delegation of duty to report sexual abuse under section 366 of the Education (General Provisions) Act that places an obligation on the director of a non-state school’s governing body to receive reports from school staff members about alleged sexual abuse and to report the allegations to the police. Areas for improvement in the operation of this provision have been identified to ensure that such reports are made as efficiently as possible.
The Department of Education and Training named a court matter that highlighted such an area for improvement. The Industry, Education, Training and Industrial Relations Committee sought responses to a number of matters from the Department of Education and Training in relation to the Education and Training Legislation Amendment Bill.
In particular, with respect to non-state schools the department was asked if there was any evidence to suggest that the directors are not realising their current operational obligations. The department answered, ‘No.’ The Department of Education and Training has no evidence to suggest that the directors or governing bodies of a non-state school are unaware of their current reporting obligations.
At this point, the department named a particular court case and it was further stated that the case had, indeed, highlighted some difficulties with the operation of this section. The court matter was publicly reported upon and highlighted the difficulties. A school principal appeared before the court. In his evidence, he said he had sought the advice of his immediate superior in the Catholic Education Office when told of a year 4 student’s allegations against a teacher. It was reported that the principal had acted on the advice of his direct line manager and the student protection officer. Based upon that advice, the principal told the student’s father that he was obliged to contact the Catholic Education Office and that the father had every right to go to the police.
However, the prosecution claimed that the principal’s action in reporting the incident did not comply with that set out under the legislation. The prosecution further claimed that he should have provided a copy of his written report to the police. The principal’s superior had been emailed a copy of the letter and the allegations made by the student had been given to his superiors, either verbally or in writing.
The magistrate said that the principal had compiled with his reporting obligations under the section and had included all necessary allegations and particulars in his report. However, the magistrate said that a failure to report the sexual abuse allegations to the police was the offence in question. The magistrate found that it was the persons who received the report that must give written reports to the police. Accordingly, the magistrate found that the principal was not guilty of the offence.
In part, this bill seeks to address any future similar matters arising from the magistrate’s determination in that regard.
In part, clause 10(2A) of the bill states—
However, if the first person is the school’s principal, the principal must give a written report about the abuse, or suspected abuse, to the police officer—
(a) immediately...
The bill also allows that a single director may, or in the case of multiple directors, by the unanimous resolution of all of the directors of a non-state school governing body, delegate their duty to receive and make reports about the suspected sexual abuse of a student. However, the making of a delegation does not relieve a director from his or her responsibility to receive and make reports.
I do note, however, that, in a letter dated 3 November 2011 from the minister to the chair of the committee, there is to be an amendment proposed to restrict directors of non-state school governing bodies from delegating their functions in relation to receiving and making reports about sexual abuse to a principal or other staff member of a school.
Also, a staff member may choose to report to a director rather than the delegate if the delegate is the person the staff member suspects has perpetrated or is likely to perpetrate the sexual abuse. In that case, if a staff member chooses to report a matter to a director rather than a delegate, the director must still ensure that the report is forwarded to the police.
However, it would be a defence for a director to prove that they took all reasonable steps to ensure their delegate complied with the reporting requirements.
Regarding the provision dealing with extending the mandatory requirements regarding the reporting of sexual abuse, within the bill clauses 9 and 11 expand the requirements regarding the reporting of sexual abuse to include reports about the likelihood of sexual abuse. It is arguable that these proposed amendments may breach the Legislative Standards Act in that it may not have sufficient regard to the rights and liberties of individuals.
A somewhat unenviable task for staff may be determining what is a reasonable suspicion. Forming a reasonable suspicion about the likelihood of sexual abuse is a subjective assessment. It is arguable that it might be difficult for individuals to determine when they must report.
However, the notes accompanying the bill claim that this potential breach is justified on the grounds that all state school staff are currently subject to administrative reporting requirements to report risk of harm, including a risk of sexual abuse.
Further, school staff members are provided with training on the implementation of the respective policies and teachers, in particular, are a professional class of people who are trained to observe relevant factors in children and to use analytical skills to form conclusions. That assertion may be all well and good, but this is going to need close monitoring. I submit that we could line up a group from any part of the community or profession and ask them what in their mind constitutes ‘reasonable suspicion’. As with any such scenario, the answer would be very different across the board.
I note the bill intends to provide protection to people who report suspicions or concerns about the safety of children. I agree that adequate protection will make it more likely that individuals will act in the interests of children by reporting. Clause 9 of the bill states—
A person who makes a report ... or gives a copy of a report ... is not liable, civilly, criminally or under an administrative process, for giving the information contained in the report to someone else.
The clause 9(9) states—
(a) in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and (b) if the person would otherwise be required to maintain confidentiality about the given information—
for some other legal reason—
... the person does not contravene the requirement by giving the information.
As we know, the act imposes criminal sanctions for failure to report relevant matters to relevant authorities. Therefore, the immunity clause reduces the potential for a person who fails to report a concern about the sexual abuse of a student from justifying their actions on the grounds that they would be liable for sharing information as required under the legislation.
Proposed section 12M of the bill provides for the expiry of an eligibility declaration issued to an applicant if, after it is issued, the person is charged with a serious offence or becomes an excluded person.
I note also from the minister’s letter to the committee chair that an amendment is to be proposed to section 12M. This amendment proposes that it will no longer revoke an eligibility declaration upon being charged with a serious offence if the holder of the declaration is an approved teacher. The minister cites the reason for this amendment as being the adequacy of the current QCAT act for the protection of children in this situation.
I am confident that there is not one person in this place who does not want to see any potential for harm to students being removed from places of learning. It is paramount that, as legislators, we do everything in our power to ensure that everything is done to protect our children from potential harm.