Teaching Service (Conduct and Performance) Act 2004
Victorian Legislation Parliamentary Documents
i
Teaching Service (Conduct and Performance) Act
2004
Act No. 83/2004
TABLE OF PROVISIONS
Section Page
1. Purposes 1
2. Commencement 2
3. Principal Act 2
4. Insertion of new section 3A 2
3A. Employer powers of Secretary 2
5. Substitution of section 45 3
45. Termination due to physical or mental incapacity 3
45A. Appeal to Merit Protection Board 5
45B. Retirement through ill-health—long service leave 6
6. Substitution of Part V 7
PART V—MISCONDUCT AND INEFFICIENCY 7
Division 1—Action for misconduct or inefficiency 7
66. Grounds for action 7
67. Action against officer or employee 8
68. Procedures for investigation and determination of
allegations 9
69. Quashing etc. of conviction or finding of guilt 9
70. Suspension from duty 10
71. Investigation 12
72. Officer or employee may make submissions 12
73. Secretary need not hold oral hearing 13
74. Appeal 14
75. Re-instatement or payment in lieu 15
75A. Address for service 15
Division 2—Disciplinary Appeals Boards 16
75B. Senior chairperson 16
75C. Establishment of Disciplinary Appeals Boards 16
75D. Membership of Boards 16
75E. Terms and conditions of appointment of members of
the pools and of boards 17
75F. Resignation and removal from office 17
75G. Allocation of work 18
75H. Oath of office 18
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75I. Member unable to perform duties 18
75J. Decisions of Board 18
75K. Conduct of proceedings 19
7. Insertion of new section 75L 19
75L. Medical examination 19
8. Evidence 20
9. Consequential amendments 20
10. Insertion of new section 83 21
83. Transitional provisions—Teaching Service (Conduct
and Performance) Act 2004 21
11. New sections 18A and 18B inserted in Victorian Institute of
Teaching Act 2001 22
18A. Criminal record checks 22
18B. Employer to disclose whether criminal record check
conducted 23
12. New Division 2 inserted in Part I of the Education Act 1958 23
Division 2—Criminal Record Checks 23
9. Secretary may request criminal record check 23
═══════════════
ENDNOTES 25
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Teaching Service (Conduct and
Performance) Act 2004 †
[Assented to 16 November 2004]
The Parliament of Victoria enacts as follows:
1. Purposes
The purposes of this Act are—
(a) to amend the Teaching Service Act 1981—
(i) to reform procedures for taking action
against officers and employees for
misconduct, inefficiency or physical or
mental incapacity; and
Victoria
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(ii) to establish Disciplinary Appeals
Boards; and
(iii) to make other miscellaneous
amendments; and
(b) to amend the Victorian Institute of
Teaching Act 2001 and the Education Act
1958 to enable criminal record checks to be
obtained without consent.
2. Commencement
(1) This Act, except sections 11 and 12, comes into
operation on 1 January 2005.
(2) Sections 11 and 12 come into operation on the day
after the day on which this Act receives the Royal
Assent.
3. Principal Act
In this Act, the Teaching Service Act 1981 is
called the Principal Act.
4. Insertion of new section 3A
In Division 1 of Part II of the Principal Act, after
section 3 insert—
"3A. Employer powers of Secretary
(1) The Secretary, on behalf of the Crown, has
all the rights, powers, authorities and duties
of an employer in respect of officers and
employees in the teaching service.
s. 2
See:
Act No.
9714.
Reprint No. 5
as at
24 May 2000
and
amending
Act Nos
96/2001 and
83/2003.
LawToday:
www.dms.
dpc.vic.
gov.au
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(2) Without limiting sub-section (1), the
Secretary—
(a) may assign to an officer or employee
any duties that the Secretary thinks fit;
(b) may transfer an officer to another office
in the teaching service.".
5. Substitution of section 45
For section 45 of the Principal Act substitute—
"45. Termination due to physical or mental
incapacity
(1) If the Secretary is satisfied, on an inquiry
under this section, that an officer or
employee is incapable of performing his or
her duties on account of physical or mental
incapacity, the Secretary may terminate the
employment of the officer or employee.
(2) For the purposes of section 37, an officer or
employee whose employment is terminated
under sub-section (1) is deemed to have
retired on account of ill-health.
(3) The Secretary must establish procedures for
the investigation and determination of an
inquiry under this section.
(4) The Secretary may—
(a) nominate a person; or
(b) constitute a Board of Review—
to investigate and report to the Secretary in
connection with an inquiry under this
section.
s. 5
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(5) If it is alleged that an officer or employee is
incapable of performing his or her duties by
reason of physical or mental incapacity, the
Secretary or a person nominated under sub-
section (4)(a) or a Board of Review
constituted under sub-section (4)(b) must
give to the officer or employee—
(a) notice in writing of the matters to be
considered by the Secretary; and
(b) an opportunity to provide to the
Secretary, nominated person or Board
of Review, as the case may be, a
response in writing to those matters.
(6) The Secretary must give to an officer or
employee who is the subject of an inquiry
under this section notice in writing that the
officer or employee may make a submission
in writing to the Secretary addressing one or
more of the following matters—
(a) the grounds on which the officer or
employee is alleged to be incapable of
performing his or her duties on account
of physical or mental incapacity;
(b) whether termination of employment
should occur.
(7) A submission under sub-section (6) must be
received by the Secretary not later than
14 days after the date on which the officer or
employee is given notice in writing of the
right to make a submission or any longer
period permitted by the Secretary.
(8) The Secretary must consider any submission
made in accordance with this section before
determining the issue to which the
submission, or that part of the submission,
relates.
s. 5
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(9) The Secretary may make a determination
under this section without holding an oral
hearing.
(10) The Secretary may hold an oral hearing or
take the evidence orally, or permit cross-
examination, of all or any witnesses if the
Secretary considers it appropriate to do so,
having regard to—
(a) the seriousness of the allegation against
the officer or employee;
(b) any reasons submitted by the officer or
employee in support of a request for an
oral hearing;
(c) whether the Secretary considers that an
oral hearing would assist in evaluating
the information submitted on the
inquiry;
(d) any other matter that the Secretary
considers relevant.
(11) The Secretary must, by notice in writing,
advise the officer or employee of—
(a) the determination of the Secretary on
the inquiry; and
(b) if the Secretary takes action under
section 45(1), the right to appeal to a
Merit Protection Board.
45A. Appeal to Merit Protection Board
(1) If the Secretary makes a determination under
section 45(1) that an officer or employee is
incapable of performing his or her duties on
account of physical or mental incapacity, the
officer or employee may appeal to a Merit
Protection Board against the determination.
s. 5
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(2) A notice of appeal must be lodged with the
senior chairperson of the Merit Protection
Boards within 14 days after the date on
which the officer or employee is given notice
in writing of the determination of the
Secretary.
(3) A notice of appeal must—
(a) be in writing; and
(b) be in the prescribed form.
(4) A Merit Protection Board may permit an
appeal to be instituted out of time if it
considers that special circumstances exist.
(5) The Merit Protection Board must hear and
determine the appeal and may—
(a) allow the appeal and order that the
officer or employee be re-instated in the
teaching service; or
(b) dismiss the appeal.
(6) An officer or employee who is re-instated in
the teaching service must be treated as
having had continuous service in the
teaching service.
(7) Any period during which the officer or
employee was not performing the duties of
his or her office due to having his or her
employment terminated must be treated as
leave without pay.
45B. Retirement through ill-health—long
service leave
(1) The Secretary may, on application under
sub-section (2), direct that, for the purposes
of section 37, an officer in the teaching
service who ceases to be an officer on
s. 5
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account of ill-health shall be deemed to have
retired on account of ill-health.
(2) An officer may apply for a direction under
sub-section (1) by producing to the Secretary
satisfactory evidence that the officer's
ceasing to be an officer is due to ill-health
which is likely to be permanent.".
6. Substitution of Part V
For Part V of the Principal Act substitute—
'PART V—MISCONDUCT AND INEFFICIENCY
Division 1—Action for misconduct or
inefficiency
66. Grounds for action
(1) The Secretary, after investigation, may take
action under this Part against an officer or
employee who—
(a) conducts himself or herself in a
disgraceful, improper or unbecoming
manner in an official capacity or
otherwise; or
(b) commits an act of misconduct; or
(c) during his or her period of service is
convicted or found guilty of a criminal
offence punishable by imprisonment or
a fine; or
(d) is negligent, inefficient or incompetent
in the discharge of his or her duties; or
(e) contravenes a provision of this Act or
a Ministerial Order made under
section 11 of this Act; or
s. 6
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(f) contravenes a requirement by or under
any Act that corporal punishment not
be administered to any State school
student; or
(g) without reasonable excuse, contravenes
or fails to comply with a lawful
direction given to the officer or
employee by a person with authority to
give the direction; or
(h) without permission and without
reasonable excuse, is absent from his or
her duties; or
(i) is unfit on account of character or
conduct to discharge his or her duties.
(2) In considering the fitness of an officer or
employee to discharge his or her duties,
consideration may be given to any relevant
matters including his or her character and
any conduct in which he or she has engaged
(whether before or after becoming an officer
or employee).
67. Action against officer or employee
(1) If the Secretary is satisfied on an inquiry
under this Part that there are one or more
grounds under section 66 for taking action
against an officer or employee, the Secretary
may take one or more of the following
actions against the officer or employee—
(a) a reprimand;
(b) a fine not exceeding 50 penalty units;
Note: See section 49.
(c) a reduction in classification;
(d) termination of employment.
s. 6
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(2) The Secretary, by notice in writing, must
advise the officer or employee of—
(a) the determination of the Secretary on
the inquiry; and
(b) if the Secretary takes action under sub-
section (1), the right to appeal to a
Disciplinary Appeals Board.
68. Procedures for investigation and
determination of allegations
The Secretary must establish procedures for
the investigation and determination of an
inquiry under this Part.
69. Quashing etc. of conviction or finding of
guilt
If the Secretary takes action against an
officer or employee on the ground referred to
in section 66(1)(c) and the conviction or
finding of guilt is subsequently quashed or
the officer or employee receives a pardon or
the conviction or finding is otherwise
nullified—
(a) the action taken by the Secretary must
be set aside; and
(b) the officer or employee must be
re-instated in the teaching service at the
same classification as the officer or
employee held before the Secretary
took action; and
(c) the officer or employee must be treated
as having had continuous service in the
teaching service; and
s. 6
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(d) any period during which the officer or
employee was not performing the
duties of his or her office due to having
been dismissed must be treated as leave
without pay.
70. Suspension from duty
(1) If—
(a) the Secretary reasonably believes that
there may be grounds under section 66
for taking action against an officer or
employee; or
(b) an officer or employee is charged with
a criminal offence punishable by
imprisonment or a fine—
the Secretary may suspend the officer or
employee from duty, with or without pay, by
giving notice in writing to the officer or
employee.
(2) A suspension under sub-section (1)
continues, at the discretion of the Secretary,
until the Secretary has made a determination
whether or not to take action under
section 67 against the officer or employee.
(3) If the Secretary takes action against an
officer or employee who then appeals to a
Disciplinary Appeals Board or a court or
tribunal, the Secretary may suspend the
officer or employee from duty, with or
without pay, until the final determination of
the appeal.
(4) Before deciding whether to suspend an
officer or employee from duty without pay,
the Secretary must give the officer or
employee an opportunity to make a
submission in writing to the Secretary
s. 6
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addressing whether suspension without pay
should occur.
(5) An officer or employee who is suspended
from duty without pay may engage in other
employment if the officer or employee first
seeks the permission of the Secretary to do
so.
(6) If an officer or employee is suspended from
duty under this Part and the employment of
the officer or employee is subsequently
terminated, then unless the Secretary
determines otherwise, the officer or
employee forfeits all salary or wages except
any salary or wages due in respect of a
period before the suspension.
(7) If grounds for action against an officer or
employee are not established, whether on
appeal or otherwise, the Secretary must—
(a) immediately remove any suspension
imposed in respect of those grounds;
and
(b) ensure that the officer or employee is
paid any salary or wages due in respect
of the period of suspension, together
with any allowances that the Secretary
thinks fit.
(8) The Secretary must not pay any allowances
under sub-section (7)(b) unless the officer or
employee has applied to the Secretary for the
payment of those allowances.
s. 6
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71. Investigation
(1) The Secretary may nominate a person to
investigate and report to the Secretary in
connection with an inquiry under this Part.
(2) The Secretary or nominated investigator
must give to an officer or employee against
whom it is alleged there are grounds under
section 66 for action—
(a) notice in writing of the alleged grounds;
and
(b) written particulars of the alleged
grounds; and
(c) an opportunity to provide to the
Secretary or investigator, as the case
may be, a response in writing to the
alleged grounds.
(3) The Secretary may request the nominated
investigator to conduct further investigation
and provide a further report to the Secretary
at any time during an inquiry under this Part.
72. Officer or employee may make
submissions
(1) The Secretary must give to an officer or
employee against whom it is alleged there
are grounds for action under section 66
notice in writing that the officer or employee
may make a submission in writing to the
Secretary addressing one or more of the
following matters—
(a) the alleged grounds;
(b) any action that may be taken by the
Secretary under section 67.
s. 6
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(2) A submission under sub-section (1) must be
received by the Secretary not later than
14 days after the date on which the officer or
employee is given notice in writing of the
right to make a submission or any longer
period permitted by the Secretary.
(3) The Secretary must consider any submission
made in accordance with this section before
determining the issue to which the
submission, or that part of the submission,
relates.
73. Secretary need not hold oral hearing
(1) The Secretary may determine, without
holding an oral hearing—
(a) whether there are grounds under
section 66 for taking action in respect
of an officer or employee; and
(b) if the Secretary decides that there are
grounds for taking action, the action, if
any, under section 67 to be taken
against the officer or employee.
(2) The Secretary may hold an oral hearing or
take the evidence orally, or permit cross-
examination, of all or any witnesses if the
Secretary considers it appropriate, having
regard to—
(a) the seriousness of the allegation against
the officer or employee;
(b) any reasons submitted by the officer or
employee in support of a request for an
oral hearing;
s. 6
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(c) whether the Secretary considers that an
oral hearing would assist in evaluating
the information in support of the
allegations;
(d) any other matter that the Secretary
considers relevant.
74. Appeal
(1) An officer or employee may appeal to a
Disciplinary Appeals Board against a
determination of the Secretary to take action
against the officer or employee under
section 67.
(2) A notice of appeal must be lodged with the
senior chairperson of the Disciplinary
Appeals Boards within 14 days after the date
on which the officer or employee is given
notice in writing of the determination of the
Secretary.
(3) A notice of appeal must—
(a) be in writing; and
(b) be in the prescribed form.
(4) A Disciplinary Appeals Board may permit an
appeal to be instituted out of time if it
considers that special circumstances exist.
(5) An appeal must be conducted as a
re-hearing.
(6) A Disciplinary Appeals Board must hear and
determine the appeal and may—
(a) allow the appeal in whole or in part and
vary the decision of the Secretary; or
(b) dismiss the appeal.
s. 6
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75. Re-instatement or payment in lieu
(1) If an appeal is allowed in respect of an
officer or employee whose employment in
the teaching service has been terminated, the
Disciplinary Appeals Board may order that
the officer or employee—
(a) be re-instated in the teaching service; or
(b) be paid an amount not exceeding the
greater of—
(i) the remuneration received by the
officer or employee during the
period of 6 months immediately
before the termination; or
(ii) the remuneration to which the
officer or employee was entitled
for the period of 6 months
immediately before the
termination.
(2) An officer or employee who is re-instated in
the teaching service must be treated as
having had continuous service in the
teaching service.
(3) Any period during which the officer or
employee was not performing the duties of
his or her office due to having his or her
employment terminated must be treated as
leave without pay.
75A. Address for service
If the current address of an officer or
employee is unknown, the Secretary must
ensure that all notices, orders or
communications relating to procedures under
this Part are sent to the last known address of
the officer or employee.
s. 6 s. 6
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Division 2—Disciplinary Appeals Boards
75B. Senior chairperson
In this Division—
"senior chairperson" means the senior
chairperson of the Merit Protection
Boards.
75C. Establishment of Disciplinary Appeals
Boards
(1) There are established one or more Boards to
be known as Disciplinary Appeals Boards.
(2) The function of the Boards is to hear and
determine appeals in relation to decisions of
the Secretary made under section 67.
75D. Membership of Boards
(1) A Disciplinary Appeals Board shall consist
of 3 members of whom—
(a) one shall be the chairperson and shall
be selected by the senior chairperson
from the pool of persons referred to in
sub-section (2)(a); and
(b) one shall be selected by the senior
chairperson from the pool of persons
referred to in sub-section (2)(b); and
(c) one shall be selected by the senior
chairperson from the pool of persons
referred to in sub-section (2)(c).
(2) The Governor in Council shall appoint to a
pool—
(a) persons who have been admitted to
legal practice in Victoria for not less
than 5 years and have been nominated
by the Secretary;
s. 6
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(b) persons who are officers in the teaching
service and have been nominated by the
Minister after calling for expressions of
interest;
(c) persons who have knowledge of or
experience in education, education
administration or public sector
administration and have been
nominated by the Secretary.
75E. Terms and conditions of appointment of
members of the pools and of boards
(1) A member of a pool referred to in section
75D holds office for the period, not
exceeding 5 years, specified in his or her
instrument of appointment and is eligible for
re-appointment.
(2) A member of a Disciplinary Appeals Board,
other than a public servant or an officer or
employee in the teaching service, is entitled
to the remuneration and allowances (if any)
fixed in respect of the member from time to
time by the Minister.
(3) The Public Sector Management and
Employment Act 1998 (except in
accordance with Part 7 of that Act) does not
apply to a member of a pool or a member of
a Disciplinary Appeals Board in respect of
the office of member.
75F. Resignation and removal from office
(1) A member of a pool may resign from office
by sending to the Governor a signed letter of
resignation.
(2) The Governor in Council may at any time
remove a member of a pool from office.
s. 6
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75G. Allocation of work
The senior chairperson is to determine—
(a) the allocation of business to the
Disciplinary Appeals Boards; and
(b) which Board is to hear an appeal.
75H. Oath of office
A member of a Disciplinary Appeals Board
must take an oath or make an affirmation in
or to the effect of the oath in the Schedule
before first serving as a member of a Board.
75I. Member unable to perform duties
(1) If—
(a) the hearing of an appeal before a
Disciplinary Appeals Board has
commenced but not concluded; and
(b) a member of the Board is absent or for
any other reason is unable to perform
the duties of office—
the remaining members of the Board may
continue to hear and determine the appeal in
the absence of that member.
(2) The decision of the remaining members in
relation to the appeal must be unanimous.
75J. Decisions of Board
(1) A decision of the majority of members of a
Disciplinary Appeals Board in relation to an
appeal is to be treated as the decision of the
Board.
(2) A Disciplinary Appeals Board must not
refuse to hear an appellant except by a
unanimous decision.
s. 6
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75K. Conduct of proceedings
(1) A Disciplinary Appeals Board may allow an
officer or employee to appear before the
Board personally or by a legal or other
representative.
(2) All proceedings before a Disciplinary
Appeals Board—
(a) must be conducted without regard to
legal formalities; and
(b) must be directed by the best evidence
available, whether or not it is the best
evidence that the law in other cases
admits, requires or demands.'.
7. Insertion of new section 75L
In Part VI of the Principal Act, before section 76
insert—
"75L. Medical examination
(1) For the purpose of ascertaining the fitness of
an officer or employee—
(a) to perform his or her duties; or
(b) to participate in any procedures under
this Act relating to the officer or
employee—
the Secretary may direct the officer or
employee to submit to a medical
examination by a qualified medical
practitioner nominated by the Secretary.
(2) An officer or employee must comply with a
direction made under sub-section (1).".
s. 7
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8. Evidence
In section 48 of the Principal Act—
(a) for "and 16" substitute ", 16 and 21A";
(b) for "or a Merit Protection Board" substitute
"a Merit Protection Board or a Disciplinary
Appeals Board";
(c) for "or Merit Protection Board" substitute
", Merit Protection Board or Disciplinary
Appeals Board".
9. Consequential amendments
(1) In section 26(1)(b) of the Principal Act—
(a) after "removed from office" insert "or the
member's employment is terminated";
(b) for "class or grade" substitute "division,
class, subdivision or grade".
(2) In section 49 of the Principal Act, after "officer"
(where twice occurring) insert "or employee".
(3) In section 53 of the Principal Act—
(a) after "officer" insert "or employee";
(b) after "dispensed with" insert "or of
termination of employment".
(4) In section 64(2)(b) of the Principal Act, for "this
or any other Act" substitute "this Act (except
Part V) or any other Act".
(5) In section 78(2)(e) of the Principal Act, after
"Board" insert "or a Disciplinary Appeals Board".
s. 8
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(6) In the Schedule to the Principal Act—
(a) for "Merit Protection Board" substitute
"*Merit Protection Board/*Disciplinary
Appeals Board";
(b) at the end of the Schedule insert—
"*Delete as appropriate".
10. Insertion of new section 83
After section 82 of the Principal Act insert—
"83. Transitional provisions—Teaching
Service (Conduct and Performance) Act
2004
(1) This Act and the Teaching Service (Merit
Protection Board) (Appeal) Regulations
2004 as in force immediately before the
commencement of the Teaching Service
(Conduct and Performance) Act 2004
continue to apply to—
(a) any action under section 9(8) that has
commenced but not concluded before
that commencement; and
(b) an inquiry under section 45 that has
commenced but has not been finally
determined before that commencement;
and
(c) a charge for an offence under
section 66 that has been laid but has not
been finally determined before that
commencement; and
(d) an investigation under section 68(a)
that has begun before that
commencement; and
(e) any action taken by the Secretary under
section 67 or 70 before that
commencement.
s. 10 s. 10
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(2) Subject to sub-section (1), this Act as
amended by the Teaching Service (Conduct
and Performance) Act 2004 applies to an
inquiry under section 45 or Part V that
commences after the commencement of that
Act, irrespective of when the grounds for
action are alleged to have occurred.".
11. New sections 18A and 18B inserted in Victorian
Institute of Teaching Act 2001
After section 18 of the Victorian Institute of
Teaching Act 2001 insert—
"18A. Criminal record checks
(1) The chief executive officer of the Institute
may, at any time, request the Chief
Commissioner of Police to give to the chief
executive officer information concerning the
criminal record, if any, of a registered
teacher and, for that purpose, may disclose to
the Chief Commissioner the information
concerning the registered teacher that is
necessary to conduct the criminal record
check.
(2) The chief executive officer may make a
request under sub-section (1) without the
consent of the registered teacher named in
the request but must give notice of the
request to that teacher.
(3) The Chief Commissioner of Police must, not
more than 14 days after receiving a request
under sub-section (1), enquire into and report
to the chief executive officer on the criminal
record, if any, of the registered teacher
named in the request.
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18B. Employer to disclose whether criminal
record check conducted
On request by the chief executive officer of
the Institute, the employer of a registered
teacher must disclose to the chief executive
officer whether to the knowledge of the
employer the registered teacher has
undergone a criminal record check at any
time.".
12. New Division 2 inserted in Part I of the Education
Act 1958
After Division 1 of Part I of the Education Act
1958 insert—
'Division 2—Criminal Record Checks
9. Secretary may request criminal record
check
(1) In this section—
"relevant person" means—
(a) a person employed by the
Secretary under section 5 or 5A or
under the Public Sector
Management and Employment
Act 1998 or the Teaching Service
Act 1981; or
(b) a person employed by a school
council under section 15B or
15ZK.
(2) The Secretary may, at any time, request the
Chief Commissioner of Police to give to the
Secretary information concerning the
criminal record, if any, of a relevant person
who performs some or all of their duties in a
State school and, for that purpose, may
disclose to the Chief Commissioner the
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information concerning the relevant person
that is necessary to conduct the criminal
record check.
(3) If a request relates to a relevant person
employed by a school council, the school
council may disclose to the Secretary the
information concerning the relevant person
that is necessary to conduct the criminal
record check.
(4) The Secretary may make a request under
sub-section (2) without the consent of the
relevant person named in the request but
must give notice of the request to that
person.
(5) The Chief Commissioner of Police must, not
more than 14 days after receiving a request
under sub-section (2), enquire into and report
to the Secretary on the criminal record, if
any, of the relevant person named in the
request.
(6) If the report relates to a relevant person
employed by a school council, the Secretary
may give a copy of the report to the school
council.'.
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ENDNOTES
† Minister's second reading speech—
Legislative Assembly: 16 September 2004
Legislative Council: 3 November 2004
The long title for the Bill for this Act was "to amend the Teaching
Service Act 1981, the Victorian Institute of Teaching Act 2001 and the
Education Act 1958 and for other purposes."
By Authority. Government Printer for the State of Victoria.
Endnotes
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