The Education Legislation Amendment (Victorian Institute of Teaching, TAFE and Other Matters) Bill 2018 was introduced in the Victorian Parliament on 27 March 2018.

The Bill proposes amendments to the Education and Training Reform Act 2006 (Vic), Working with Children Act 2005 (Vic) and Children, Youth and Families Act 2005 (Vic) to better align the Victorian Institute of Teaching (VIT) registration scheme with the Working with Children Check (WWCC) scheme to ensure the continued safety and wellbeing of children.

Prompted by the Royal Commission into Institutional Responses to Child Sexual Abuse’s final report on Working with Children Checks from June 2015, the Victorian Government saw it timely to review the State’s current standards for the screening of those wishing to work with children.

This review led to the introduction of this Bill, which proposes new teacher and regulator notification processes and information sharing, and increased consistency in dealing with serious offences and disciplinary offences under both schemes.

The Current Situation

The VIT has registered and regulated Victorian teachers since 2003, and the WWCC scheme was introduced three years later in 2006 under the Working with Children Act 2005 (Vic).

There is considerable overlap in the aims and processes of the two schemes – they both require the registration of people wanting to work with children and use a national criminal history check and other disciplinary information about a person to do so.

Due to this overlap, since the commencement of the WWCC scheme, registered teachers have been exempt from requiring a WWCC for child-related work, including non-teaching work. This is because the same checks that would be part of the WWCC process, are carried out by the VIT during its teacher registration process. This teacher exemption applies to both paid and volunteer activities, such as with sporting clubs or youth groups that are not associated with their teaching role and is similar to other jurisdictions’ exemptions.

Currently, it’s an offence under the Working with Children Act 2005 (Vic) for a registered teacher to fail to notify the WWCC Unit if their VIT registration has been suspended or cancelled by the VIT. It is also an offence for a teacher with suspended or cancelled registration to continue working without a WWCC. This is because there is a risk that that person may continue to engage in child-related work outside of a school setting because there is no obligation to notify any regulator of the organisations that a teacher provides child-related work to outside of their school or ELC centre.

This has been called the “notification gap” and is a main gap the Bill seeks to address.

Fixing the “Notification Gap”

The Bill proposes an amendment to the Working with Children Act 2005 (Vic) to close this “notification gap” by requiring registered teachers to advise the WWCC Unit of the Department of Justice and Regulation (DoJR) of the details of any organisations (other than schools or early childhood services) where they are engaged in child-related work. A financial penalty will apply to teachers who fail to make a notification.

Additionally, the Bill proposes a new requirement for the DoJR to notify other organisations where a registered teacher is known to work with children (as notified under the proposed amendments to the Working with Children Act 2005 (Vic) explained above) when the teacher’s registration has been suspended. The VIT is already required to notify the WWCC Unit of a cancellation or suspension of a teacher’s registration, but the Bill allows for the DoJR to share this information with affected organisations.

Other Proposed Changes: Aligning the Two Schemes

The Bill also aims to better align the VIT teacher registration and WWCC schemes by ensuring that serious offences and disciplinary findings are dealt with in a similar way under both schemes, to the greatest extent possible. For example, the same serious offence will result in a negative notice on a WWCC and also a cancellation of teacher registration.

This means changing the definitions of “interim negative notice” and “negative notice” in the Education and Training Reform Act 2006 (Vic) to match those in the Working with Children Act 2005 (Vic).

It also means introducing new, consistent definitions of Category A, B and C Offences in the Education and Training Reform Act 2006 (Vic), currently used in the Working with Children Act 2005 (Vic) and which are used to categorise offences and disciplinary findings based on the seriousness of the offending or behaviour.

Under the Working with Children Act 2005 (Vic):

• Category A covers the most serious offences and results in an automatic negative notice
• Category B covers serious offences resulting in a negative notice, unless the person does not pose an unjustifiable risk to children
• Category C covers less serious offences and some disciplinary findings that do not preclude a WWCC, unless it poses an unjustifiable risk to the safety of children.

To improve consistency amongst the schemes, the Bill proposes to amend the Education and Training Reform Act 2006 (Vic) to treat serious criminal charges and offences committed by teachers, or applicants for registration, in the same way, meaning that:

• a Category A offence will result in the VIT automatically refusing or cancelling teacher registration
• a Category B offence will result in the VIT refusing or cancelling registration unless the VIT is satisfied that the person does not pose an unjustifiable risk to children
• Category C conduct may result in the VIT refusing to grant registration, if the VIT is satisfied this conduct makes the person unsuitable to be a teacher and it would not be in the public interest to register them.

The Bill makes other amendments to the Education and Training Reform Act 2006 (Vic) that are relevant for schools including:

• new financial penalties for teachers where teachers fail to notify the VIT of a change in employer and personal details
• a new requirement of the VIT to consider the safety and wellbeing of children in all of their decision-making and when performing its regulatory functions
• a new function to enable the VRQA to investigate complaints made against persons, bodies or schools registered by the VRQA to formalise a complaint handling function that the VRQA has been undertaking administratively to date.

Overhaul of WWCC Scheme Needed?

Recent news reports have revealed that in the past five years, more than a dozen people convicted of child sex crimes, rape, obscene exposure and assault have obtained a WWCC through successful appeals at the Victorian Civil and Administrative Tribunal (VCAT).

After initially resulting in negative notices due to the applicants' prior convictions, the WWCC Unit's decisions were overturned on appeal based on various legal tests including whether a "reasonable person" would let their child have direct contact with the person in a working context, whether the applicant poses an "unjustifiable" risk to children, and whether a check is in the public interest.

This development is interesting considering the Bill's proposed new requirement of the VIT to consider the safety and wellbeing of children taking into community expectations, when performing its regulatory functions and decision-making. The Bill's second reading speech stated that this amendment has been prompted by a recent review commissioned by the Victorian Government into the governance and decision-making of the VIT, following a series of decisions to not sanction or deregister a teacher whose conduct involving a child clearly fell below community expectations.

Hetty Johnston, the founder of the child protection organisation Bravehearts, said of the VCAT appeals: "We don't understand it and they're undermining the integrity of the whole working with children system". Ms Johnston also said that the VCAT standards for overturning a negative notice did not meet community expectations. Could these overturned decisions be a trigger for the Victorian Government to review VCAT decision-making relating to WWCCs in a similar vein to the VIT review that resulted in this Bill?

Next Steps

The Bill has only just been introduced and undergone a second reading, however the changes proposed in the Bill will require consideration by schools as they affect the maintenance of their child safe environments. If passed, the Bill will require schools to amend their current working with children check and teacher registration policies and ensure that their teaching staff are aware of their increased notification obligations and penalties for non-compliance.