Page 3950 - Week 09 - Thursday, 25 August 2011
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I note that the guidelines to be made under the bill will provide for the time since the offence was committed to be taken into account. Clearly, offences committed a long time ago where the applicant has been proven to have mended their ways must be a relevant factor in assessing the degree of connection with the inherent requirements of the teaching profession, and this is a factor that will be required to be assessed. I think this is a reasonable balance between the rights of people who have been punished for an offence to move on with their lives and the protections necessary to protect children and young people.
The bill engages a range of human rights, including the right to privacy. While the explanatory statement makes some general statements about this, it does not properly evaluate the proportionality of this in the context of the criteria set out in section 28 of the Human Rights Act. However, arguably, a determination on this issue had already been reached in the inclusion of the provisions in the current TQI act.
I turn to the issue of a high degree of direct connection, which is the test against which the institute must evaluate any previous convictions. Unfortunately, the explanatory statement is of little assistance in ascertaining what this means as it describes the test as simply a “direct connection”, which, of course, appears to be a much lower standard than what is set out in the bill.
There are two issues with the construction of the test and the standard itself—the first is that, given the nature of teaching, almost anything could be said to be significant in the context of the inherent requirements of the profession as we, of course, want our teachers to be role models for our children and we want to be confident that they will encourage and model the right behaviour. The only other example of this test that I have been able to find occurs in section 35A of the Health Practitioner Regulation National Law (ACT) Act 2010. As far as I am aware, the application of this has not yet been considered by any courts or tribunals.
Given the nature of what we are assessing, any test would be difficult to apply, and I acknowledge that it is difficult to formulate subsidiary tests to assist in articulating the meaning of the high degree of direct connection test. The structure proposed to assess any offences against the guidelines is a good model and provides the best means of assessing the offences against an objective framework but not that ultimately the guidelines refer back to the central high degree of direct connection test.
Some factors which I think are relevant and which I would anticipate the guidelines will contemplate would be that there should not be reasonable grounds for a belief that the offences give rise to an increased risk of the applicant committing an offence against children because of the criminal history.
The other parts of the test should involve the characteristics or character issues that come about because of the offence, even though it is unlikely that these give rise to an increased risk of an offence against children. This may include things such as fraud or violence that could reasonably give rise to significant concern that a person should not be entrusted with the responsibility of educating our children and young people.
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