Teachers with a criminal record: an analysis of the legislative regime governing the registration of Victorian teachers and principals insofar as it deals with convictions that come to light once a teacher has obtained initial registration

2017-03-02T23:20:07Z (GMT) by Zigouras, Vernita Margaret Harekla
This thesis examines the appropriateness of the occupational licensing scheme embodied in the Victorian Education and Training Reform Act 2006 ( Vic)(ETRA) insofar as it deals with convictions that come to light once a teacher has obtained initial registration. It considers this primary question from two perspectives; the extent to which this system is consistent with principles of good regulatory design, and the extent to which it operates fairly, having regard to the competing public interests that may be served by excluding teachers from the teaching profession, including the public interest in protecting the rights of children and of the broader school community. The thesis is based on an analysis of the legislative framework created by the ETRA, including its historical origins, and of the published decisions of formal hearing panels relating to teachers with criminal records, which are considered from the perspective of procedural and substantive fairness, drawing on general principles derived from administrative law, human rights instruments and regulatory theory. It also draws and builds on issues identified in a review of the VIT conducted on behalf of the Minister for Education in 2008. The aspects of the ETRA considered fall into two groups: the provisions requiring automatic deregistration in respect of specific offences and those which require a formal hearing panel to consider whether or not a teachers remain fit to teach. As highlighted using the case study of Andrew Phillips, the requirement for automatic deregistration where a teacher is found guilty of specific serious offences, irrespective of extenuating factors, is inherently unfair. it is argued that without any discretion to allow continuation of the registration in exceptional circumstances, and without any right of review, this component of the ETRA process inadequately balances the competing interests involved and compares unfavourably with the more flexible regimes that exist in other parts of Australia in relation to teachers who have committed similar offences. In the case of decision-making involving hearing panels, the issues identified are much broader and span three specific areas; variations in the approach taken to the teacher's role when assessing fitness to teach, procedural fairness and issues of substantive fairness. this analysis suggests that a narrower view is preferable and fairer but it is more frequently the case that panels adopt a broader view. Procedural issues identified include delays, insufficient use of adjournments, unfairness in hearings where teachers are unrepresented and the potential for bias arising from the membership rules for hearing panels. The thesis also identified substantive issues arising from the interrelationship between teachers' criminal offending and their fitness to teach, failures to apply the correct test, inconsistency of outcomes for teachers for like cases and privacy issues. The thesis suggests a way forward based on statutory reforms to the procedures for automatic cancellation and rules relating to the membership and composition of hearing panels, provision of additional guidance materials for panel members and additional measures to protect the privacy of teachers