Alert Digest No. 9
of 1996
19 November 1996
Education (Amendment) Bill |
1.1
The Committee reported on the above Bill in Alert Digest No.7 of 1996 on 28 October 1996. The Committee made the following comments:-
"Pursuant to clause 12 the Minister may determine that an employer is not required to make any payment to a pupil placed in a training or skill centre conducted by an employer on a non-profit basis. The Committee notes that the minimum rate of payment under section 64Q of the Act is fixed by Order of the Governor in Council. The Committee also notes that the determination referred to in clause 12 is fixed by way of Ministerial Order. The Committee has written to the Minister seeking further information."
1.2
The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996. The relevant extract is set out:-
"I refer to your letter dated 1 November seeking comments on clause 12 of the Education (Amendment) Bill and clause 93 of the Miscellaneous Acts (Further Omnibus Amendments) Bill.
In reply to the Committee's comments on clause 12 of the Education (Amendment) Bill, the Bill empowers the Minister to make Ministerial Orders on the placement of students. The Orders may cover the maximum number of work hours or days for a student, the hours in a day, the maximum number of students an employer may engage and other terms and conditions relevant to a placement. The determination of the minimum rate of payment is only one of the many matters on which Orders may be made. In response to the Committee's comments-
* It would be impractical for the minimum rate of payment to be prescribed by Order of the Governor in Council whereas all other terms and conditions relating to work placement arrangements are stated in a Ministerial Order.
* The Order making power is necessary to provide flexibility in the work placement arrangements and to provide for speedy changes. The Department will engage in consultation with employers and school communities before proposing any Order to the Minister."
MISCELLANEOUS ACTS (FURTHER OMNIBUS AMENDMENTS) BILL
2.1
The Committee reported on the above Bill in Alert Digest No.7 of 1996 on 28 October 1996. The Committee made the following comments:-
"Clause 93 inserts new section 45(1A) into the Teaching Service Act 1981 which states that an inquiry into an officer's fitness may include matters other than a physical fitness. It may also have regard to conduct occurring before a person became an officer or occurring before the commencement of the Act. The Committee notes the comments in the Second Reading Speech:-
"Part 23 of the Bill amends the Teaching Service Act 1981, so that an inquiry into a teacher's suitability to be employed under that Act may have regard to matters irrespective of when they occurred.
The amendment is being made because there is no power at present under that Act to inquire into the conduct of (and if appropriate take action against) officers in respect of matters that are alleged to have occurred prior to 24 March 1982, which is the commencement date of that Act. This limitation needs correcting as there are current complaints of sexual assault by State school teaches against children, where the facts are alleged to have occurred prior to 24 March 1982. In two matters, criminal charges were laid by police and the teachers were found not guilty. Criminal charges are pending in other matters.
If a teacher is found not guilty of a criminal charge, and in particular where the criminal charge involves an allegation of sexual assault of children, the Department of Education has a duty to ensure that it investigates all matters relating to the teacher's suitability to be placed in charge of children. This duty arises out of its role as an employer of that teacher, as well as being entrusted with the care of children.
For that purpose, the Department of Education reviews the teacher's conduct having regard to the totality of the evidence and the difference in the standard of proof between civil and criminal proceedings. The amendments will enable any Departmental investigation into a teacher's suitability to consider matters occurring at any time, and in particular matters occurring prior to 24 March 1982, as well as matters occurring prior to a teacher being employed by the Department as an officer under the Teaching Service Act 1981.
The Bill implements the changes by amending section 45 of the Teaching Service Act 1981. That section already authorises an inquiry into a teachers `fitness capacity and efficiency' to be an officer of the teaching service. The amendment makes it clear that when conducting such an inquiry, regard may be had to matters irrespective of when they occurred. To remove any doubt and out of an abundance of caution, the amendment also makes it clear that in considering an officer's `fitness', regard may be had to matters other than physical fitness, so that any relevant matter such as a person's conduct and character may be taken into account."
The Committee notes the retrospective effect of the provision. The Committee wishes to record its concern and ensure that the proposed amendment is confined to the matters referred to in the Second Reading Speech. The Committee has written a letter to the Minister seeking confirmation that this is in fact the case.
2.2
The Committee wrote to the Minister on 1 November 1996. The Minister responded by way of letter dated 11 November 1996. The relevant extract is set out:-
"I refer to your letter dated 1 November 1996 seeking comments on clause 12 of the Education (Amendment) Bill and clause 93 of the Miscellaneous Acts (Further Omnibus Amendments) Bill.
In reply to the Committee's comments on clause 93 of the Miscellaneous Acts (Further Omnibus Amendments) Bill, it should be noted that the clause was introduced because of the matters referred to in the Second Reading Speech, namely allegations of sexual misconduct by teachers against pupils or children. However, there may be other matters which the Department considers sufficiently serious to investigate under the new clause. Those other matters may -
(i) involve separate allegations of cruelty or serious physical maltreatment of a child; or
(ii) involve other serious conduct which brings into question a teacher's suitability to be placed in charge of a group of children.
In essence, whilst the reason for introducing the clause is referred to in the Second Reading Speech, there may be other serious conduct which brings into question a teacher's suitability to be placed in charge of a group of children and which need to be investigated under the new clause."
3.1
The Committee reported on the above Bill in Alert Digest No. 8 of 1996 on 12 November 1996. The relevant extract is set out:-
"Clause 13 provides that Rail Track is under no obligation to fence or contribute to the fencing of any portion of a railway and is not liable for any damage that may be caused by reason of any railway not being fenced in or fenced off. The Committee has written to the Minister requesting his advice as to the historical background of the provision and clarification of its effect in relation to the protection of children who may innocently wander onto railway tracks."
3.2
The Committee wrote to the Minister on 12 November 1996. The Minister responded by way of letter dated 18 November 1996. The relevant extract is set out:-
"Thank you for your letter of 12 November 1996 about clause 13 of the Rail Corporations Bill.
Clause 13 is based on section 249 of the Transport Act 1983. The Transport Act exempts the Public Transport Corporation (PTC) from the requirement to fence railways or to contribute to the cost of fencing where a boundary fence is erected. It is understood that section 249 was a new provision when it was inserted in the Transport Act in 1983 to give legal effect to a policy which had been in operation for many decades.
Clause 13 ensures that the same exemptions that will continue to apply to the PTC will be applicable to the proposed Victorian Rail Track corporation.
The exemption is necessary to avoid the large expense that would result from an obligation to fence railways. With some 7,000 kilometres of track in Victoria the cost of around 14,000 kilometres of fencing would be very significant. In addition, the administrative costs of having to deal separately with many thousands of private landowners would be extremely burdensome. Exemptions from the requirement to fence also apply to Crown land generally (see the Fences Act 1958) and to roads, as section 249 of the Transport Act also applies to the Roads Corporation.
The Committee asked about any protection afforded to persons who may innocently wander onto a railway line which has not been fenced off. The statutory exemption is only relevant to damage that may be caused by reason of a railway not being fenced. It does no more than establish that the absence of a fence cannot in itself be relied on as the basis of a claim. It does not provide a general defence to an action based on negligence.
I trust these comments are of assistance to the Committee."
Committee Room
18 November 1996
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