Wednesday, 16 October 2024

Education and Training Reform Amendment Bill 2024

Statement of compatibility

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (10:52): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Education and Training Reform Amendment Bill 2024:

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Education and Training Reform Amendment Bill ‍2024 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill aims to expand and strengthen the regulatory powers of the Victorian Registration and Qualifications Authority (VRQA) and streamline administrative processes for the VRQA, other entities in the Education and Skills and TAFE portfolios, the entities the VRQA regulates, and school principals.

The Bill will amend the Education and Training Reform Act 2006 (the Act) to:

• increase maximum penalties for carrying on or conducting an unregistered school or school boarding premises;

• expand the scope of matters in relation to which the VRQA may accept an enforceable undertaking from certain providers;

• allow the VRQA to consider whether an applicant for registration or re-registration as a registered training organisation (RTO) under the Act, or a high managerial agent of the applicant, has ever failed to comply with the Child Safe Standards, regardless of whether the VRQA is the integrated sector regulator for the applicant;

• enable the VRQA to issue a notice to produce or notice to comply to entities that it has reasonable cause to believe are required to be regulated;

• remove the show cause process that the VRQA is required to comply with where cancellation of the registration of a non-Government school or non-government school boarding premises is voluntary, or where the school or school boarding premises has ceased to operate;

• clarify the VRQA’s information sharing powers;

• provide that school principals may nominate other persons to make work experience arrangements and structured workplace learning arrangements to relieve the burden on principals;

• standardise provisions in relation to board appointments; and

• standardise the resignation requirements for Governor in Council appointed members of various boards.

Human Rights Issues

The following rights are relevant to the Bill:

• Privacy and reputation (s 13)

• Fair hearing (s 24)

• Presumption of innocence (s 25(1))

• Protection from self-incrimination (s 25(2)(k))

Ultimately, in seeking to strengthen the compliance and enforcement powers of the VRQA in respect of schools and other entities with required standards, including the Child Safe Standards, the Bill promotes the protection of children under s 17(2) of the Charter.

Rights to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Information sharing

Clause 34 of the Bill substitutes new s 4.9.4, and inserts new ss 4.9.4A and 4.9.4B into the Act, which clarify the VRQA’s information sharing powers, putting beyond doubt that the VRQA may disclose to specified persons or bodies any information that is relevant to the performance of functions of the specified persons or bodies without first receiving a request in writing. New ss 4.9.4A and 4.9.4B set out respectively that the VRQA may request from specified persons or bodies, information relevant to determining if schools or school boarding premises are complying with the relevant minimum standards for registration under the Act, and the Secretary may disclose information to the VRQA, a Commonwealth Department, or a body equivalent to the VRQA in another jurisdiction, where that information pertains to a breach of, or failure to comply with a government training contract for a RTO. These powers are already provided for in the Act at current s 4.9.4.

While these information sharing provisions engage the right to privacy in the Charter, given that personal or sensitive information, including related to children, may continue to be shared between agencies under these powers, I am of the view that the right is not limited. Any disclosure of information is pursuant to a properly circumscribed law that is precise and not arbitrary. The information that must be shared must be relevant to limited and legitimate purposes pertaining to the regulation of education providers, and the provisions are a reasonable measure that seeks to ensure that providers meet legal obligations, including minimum standards that foster a safe learning environment for children and young people. The VRQA must also act compatibly with the right to privacy and give proper consideration to privacy when determining the scope of an information request made pursuant to these provisions.

I am therefore satisfied that clause 34 is compatible with the Charter.

Notices to produce

Clause 51 of the Bill amends s 5.8.10 to expand the scope of the VRQA’s powers to issue a notice to produce documents or information. Clause 51 provides that the VRQA may issue a notice to produce to a person, body or school if the relevant document or information is required for the purposes of determining whether that person, body or school is required to be registered or approved under the Act. The VRQA may apply to the Magistrates Court or County Court under current s 5.8.11 for a declaration that the person or body has failed to comply with the notice to produce without reasonable excuse. The Court may then make orders requiring the person, or body, to pay a civil penalty or granting an injunction.

The expansion of powers relating to notices to produce in the Act is relevant to the right to privacy, as these amendments may require personal information, including information relating to children, to be produced by a person, school or other body. I am of the view, however, that the privacy right under the Charter is not limited by clause 51, as notices to produce will be issued pursuant to a properly circumscribed law, to regulated persons and entities for the specific and legitimate purpose of ensuring that relevant persons, bodies or schools are properly registered under the Act and are therefore appropriate institutions to be providing education and other services to children and young people.

Fair hearing

Section 24(1) of the Charter relevantly provides that a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Notices to comply and notices to produce

Clause 54 of the Bill amends s 5.8.18 of the Act to expand the powers of the VRQA to give a notice to comply to a person or body if they reasonably believe that the person or body is conducting a school or school boarding premises, or providing relevant education services, while not registered or approved to do so under the Act. Clause 55 amends s 5.8.19 of the Act to provide that the VRQA may then apply to the Magistrates Court or County Court for a declaration that the person or body has failed to comply with the notice to comply. The Court may then order that the person or body pay a civil penalty or grant an injunction. Clause 58 of the Bill expands the offence in s 5.8.22 of the Act of ‘failure to comply with a notice to comply’ to apply to persons or bodies to whom notices to comply may now be issued.

The notice to comply provisions of the Bill, along with the notice to produce provisions outlined above, are relevant to the fair hearing right, as they may impact a person’s rights by requiring them to ‘do’ or ‘not do’ a certain thing, and in the case of notices to produce or notices to comply, may be imposed unilaterally on a person. Consequences of non-compliance with these measures also include court-ordered civil penalties and injunctions following an application by the VRQA, and criminal liability may attach for failure to comply.

However, in my view, the fair hearing right is not limited by these provisions. This is because procedural fairness safeguards are already included in the Act, and which operate together with the mechanisms expanded by the Bill. These include judicial supervision of the enforcement of notices to produce or comply, appeal rights to VCAT under s 5.8.32 of the Act, and the provision under s 5.8.24 of the Act of an official warning in respect of a breach of a notice to produce or comply, or the possible commission of an offence. The Act also has detailed content requirements for notices to produce and comply, including in relation to the conduct that has prompted the issue of the notice, and the potential penalties or enforcement action that might be taken for non-compliance. Further, if the VRQA applies for a court order following non-compliance with a notice to produce or notice to comply, current s 5.8.23 of the Act provides that the VRQA must not commence criminal proceedings for offences under the Act for failure to comply with the notice.

I am therefore satisfied that the compliance and enforcement mechanisms expanded by the Bill are compatible with the fair hearing right under the Charter.

Right to be presumed innocent

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Failure to comply offence

Clause 58 of the Bill amends s 5.8.22 of the Act to extend the offence of ‘failure to comply with a notice to comply’ to any ‘person or body to whom a notice to comply is issued, which has been expanded by clause 54 of the Bill. This offence also contains a reasonable excuse defence and current s 5.8.22(2) provides that it is a reasonable excuse if the person took all actions that were reasonable for them to take in the circumstances, and believed on reasonable grounds that they were unable to comply with the notice. Subsection 5.8.22(3) then provides that a reasonable excuse would include taking the action specified in the notice would tend to incriminate the person.

By creating a ‘reasonable excuse’ defence, the expansion of this offence is relevant to the right to the presumption of innocence, in that it places an evidential burden on the accused, by requiring them to raise evidence of a reasonable excuse, namely that they took all actions that were reasonable, and believed on reasonable grounds that they were not able to take the relevant action to comply with the notice to comply.

However, this offence does not transfer the legal burden of proof. As it is a summary offence, s 72 of the Criminal Procedure Act 2008 will apply to deem this an evidential burden. Once the accused has pointed to evidence of matters that may establish a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused.

Accordingly, I do not consider that an evidential onus of this kind limits the right to be presumed innocent and clause 58 of the Bill is therefore compatible with the right to be presumed innocent under s 25(1) of the Charter.

Right against self-incrimination

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

Notice to produce

As outlined above, clause 51 expands the VRQA’s power to issue a notice to produce information or documents under s 5.8.10 of the Act. The compulsory production of documents or information may interfere with the right against self-incrimination, as a person might be forced to provide information or documents that might contain incriminating material.

At common law, the High Court has held that the protection accorded to pre-existing documents is considerably weaker than that accorded to oral testimony or to documents that are brought into existence to comply with a request for information. The compulsion to produce pre-existing documents that speak for themselves is in strong contrast to testimonial oral or written evidence that is brought into existence as a direct response to questions. Accordingly, any protection afforded to documentary material by the privilege is limited in scope and not as fundamental to the nature of the right as the protection against the requirement that verbal answers be provided.

Importantly, the relevant offence provision in the Act, s 5.8.15, contains a ‘reasonable excuse’ exception or defence, and expressly provides at subsection (3) that it is a reasonable excuse for a person not to produce documents or information if they would tend to incriminate them. Accordingly, a person may decline to provide documents or give information where doing so would tend to incriminate them.

In view of the protection against self-incrimination in current s 5.8.15 of the Act (and maintained by clause ‍51 of the Bill), and given the limitations of the privilege against self-incrimination at common law as it relates to pre-existing documents, I am of the view that the right against self-incrimination is not limited by clause 51 of the Bill.

The Hon. Ben Carroll MP

Minister for Education

Second reading

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (10:52): I ‍move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Today, I introduce a Bill to amend the Education and Training Reform Act 2006 (Act) to improve the regulation of schools and other educational institutions across our state.

The Bill contains a suite of reforms to the Act, including to strengthen the compliance and enforcement powers of the Victorian Registration and Qualifications Authority (VRQA). By providing the VRQA with the powers it needs, we are making it harder for unregistered or non-compliant schools to fall through the cracks to help ensure students get the safe and high quality education they deserve.

The Bill will also allow school principals to nominate others to make work experience arrangements and structured workplace learning arrangements, easing the administrative burden on principals and allowing them to focus their energy on running schools.

This Bill will specifically amend the Act to:

(a) remove the show cause process where cancellation of the registration of a non-Government school or non-government school boarding premises is voluntary, or the school or school boarding premises has ceased to operate; and

(b) increase the maximum penalties for carrying on or conducting an unregistered school or school boarding premises; and

(c) clarify that the VRQA may share information, including documents, with a prescribed person or body without receiving a written request; and

(d) enable the VRQA to issue notices to produce and notices to comply to a person, body or school that the VRQA has reasonable cause to believe is required to be regulated; and

(e) expand the scope of matters in relation to which the VRQA may accept an enforceable undertaking from a non-school senior secondary and foundation secondary provider, an institution approved to provide courses to overseas students, or an institution approved to operate a student exchange program; and

(f) amend various references to ‘days’ in various parts of the Act to improve consistency of terminology; and

(g) enable principals to nominate other persons to make work experience arrangements and structured workplace learning arrangements in accordance with any Ministerial Order; and

(h) standardise and streamline provisions relating to the appointment, fixing of remuneration and fees, and resignation of members of boards; and

(i) allow the VRQA to consider whether an applicant for registration or re-registration as a registered training organisation (RTO), or a high managerial agent of the applicant, has ever failed to comply with the Child Safe Standards, regardless of whether the VRQA is the integrated sector regulator for the applicant; and

(j) make various minor and technical amendments to improve the operation and clarity of the Act.

Summary of the Bill

Issuing notices to produce and notices to comply

The Bill will give the VRQA the power to:

• issue a notice to produce a document or information that the VRQA reasonably believes is necessary to determine whether a person or body is engaging in conduct in respect of which they are required to be regulated by the VRQA under the Act; and

• issue a notice to comply to a person or body that the VRQA has reasonable cause to believe is required to be regulated by the VRQA under the Act, requiring the person or body to either apply for registration or approval under the Act or cease engaging in the relevant conduct.

These powers provide the VRQA with the ability to adequately deter providers, including schools and school boarding premises, that it has reasonable cause to believe are required to be regulated from operating without registration or approval. Currently, the VRQA does not have the power to require such providers to produce information or documents, which potentially puts the health, safety and wellbeing of students in attendance at risk. By filling this gap, the Bill will help ensure providers such as schools and school boarding premises which should be regulated are being regulated.

Increased maximum penalties for unregistered schools or school boarding premises

It is an offence to carry on or conduct a school or school boarding premises unless the VRQA has registered the school or school boarding premises under the Act. Unfortunately, the maximum penalties for these offences in the Act are far lower than they should be, at only 10 penalty units. They do not provide adequate deterrence, and there is little value in prosecuting these entities for such a small maximum penalty.

The Bill will increase the maximum penalties to 120 penalty units for an individual and 600 penalty units for a body corporate. This will bring these penalties in line with penalties for similar offences under the Education and Care Services National Law Act 2010 and the Children’s Services Act 1996.

Principals nominating others to make work experience and structured workplace learning arrangements

The Bill also amends the Act to allow the principal of a school to nominate another person or class of persons to make work experience and structured workplace learning arrangements for students in accordance with any Ministerial Order.

School principals are currently required to approve every work experience and structured workplace learning arrangement for students at their schools. This is administratively burdensome, especially in larger schools and schools where a majority of students undertake either work experience or structured workplace learning. We know school principals already have a heavy workload, and these amendments will go some way to help alleviate that.

In allowing school principals to nominate others to make these arrangements, the Bill will provide schools and school principals with the freedom to approve these arrangements in a way appropriate to their school’s individual circumstances. Not only will this alleviate some of the workload challenges faced by school principals on a day-to-day basis, but it will also allow for decisions to be made by staff members with the closest knowledge of matters relating to work experience or structured workplace learning, and the circumstances of each individual student.

Ultimately, the Bill seeks to improve the operation of the Act to make sure students are getting the best education in a safe and supportive environment, and streamlines and simplifies administratively burdensome processes.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:53): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 30 ‍October.