EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (South Australia) (Exemption – Teachers Registration) Declaration 2022
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (South Australia) (Exemption – Registration) Declaration 2022 (the Declaration). The specific provisions in the Declaration are outlined in Attachment A. The information in the explanatory statement is an aid to understanding the Declaration and should not be substituted for the Declaration.
Context and purpose
Part 3A of the Mutual Recognition Act 1992 of the Commonwealth (the MRA) provides for the automatic mutual recognition of occupational registrations (AMR). AMR will provide an entitlement for an individual to carry on an activity in a second State, under the registration covering the activity in their home State through Automatic Deemed Registration (ADR).
Section 42S of the MRA provides for the making of declarations that exclude certain registrations from ADR where a minister of a state is satisfied that the declaration is necessary because of a significant risk arising from circumstances or conditions in the declaration state, to consumer protection, the environment, animal welfare or the health or safety of workers or the public. The Legislation Act 2003 of the Commonwealth provides for the making of legislative instruments.
Summary
Through this Declaration, the Treasurer of South Australia has excluded Teachers registration pursuant to the Teachers Registration and Standards Act 2004 (South Australia) from ADR for the period 1 July 2022 to 30 June 2027. By virtue of the making of the Declaration, the minister is satisfied that the exclusion is necessary because of a significant risk to consumer protection/the safety of the public, specifically children. The Declaration provides an explanation of the specific risks arising from the registration in the context of the circumstances and conditions in South Australia. The information relied on to support the minister is provided in Attachment B.
Consultation
South Australia did not conduct open public consultation as the Treasurer and state considers it inappropriate / impractical in the circumstances. In preparing the declaration, the Treasurer had regard to the expert information available and the positions of persons likely affected. The Treasurer considered the expert advice of the Teachers Registration Board (membership of the Teachers Registration Board includes nominees of education unions) and in recognition of the risk assessment undertaken and summarised in Attachment B.
Attachment A
Automatic Mutual Recognition (South Australia) (Exemption – Teachers Registration) Declaration 2022
Part 1 – Preliminary
Section 1 – Name
This section provides that this Declaration is to be cited as the the Automatic Mutual Recognition (South Australia) (Exemption – Teachers Registration) Declaration 2022 (the Declaration).
Section 2 – Commencement
This section provides the date on which the Declaration comes into operation. The Declaration comes into operation on 1 July 2022.
Section 3 – Authority
This section outlines the authority through which the Declaration is made. The Declaration is made under section 42S of the Mutual Recognition Act 1992 (Commonwealth).
Section 4 – Simplified outline of the instrument
This section explains that the purpose of this instrument is to exempt a specified registration from the ADR provisions of the MRA, the application of the exclusion and the period of the exclusion.
Section 5 – Definitions
This section provides, for the purposes of this Declaration, self-explanatory definitions of the following terms:
- The Act is defined in this section as meaning the Mutual Recognition Act 1992
Section 6 – Exemptions
This section lists the specific paragraph of the MRA relied on to make the Declaration, the specific registrations excluded from ADR, the explanation of the risk(s) and the self-repeal date for the exemption.
The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, teachers registration pursuant to the Teachers Registration and Standards Act 2004 (South Australia) (shown in column 1) is excluded from ADR because the minister making the Declaration is satisfied that there is a significant risk to consumer protection/or the health or the safety of the public, specifically children (as outlined in column 2).
This means that an individual cannot carry on the activities authorised under this registration in South Australia without teacher registration under the Teachers Registration and Standards Act 2004 (South Australia). An individual may obtain teacher registration under Part 3 of the MRA.
In accordance with subsection 42S(2) of the MRA, this provision in the Declaration also provides a statement of the risk to consumer protection or safety of the public (as shown in column 2). In making this determination the minister has determined that in the absence of robust and tested processes and protocols for the sharing of information between jurisdictions the commencement of Automatic Mutual Recognition for teachers presents an unacceptable risk to the safety of children and young persons in South Australia.
The following table replicates the provisions in the Declaration.
Exemptions for the purposes of paragraph 42S(1)(a) | ||
Item | Column 1 Registration | Column 2 Statement of risk |
1 | Teachers under the (Teachers Registration and Standards Act 2004 (South Australia)) | Significant risk to consumer protection/public safety specifically children in the absence of proven robust processes between jurisdictions and particularly in South Australia to ensure interstate registered and deemed registered teachers are fit and proper persons. |
Subsection 4 provides a repeal date for section 6. The declaration will sunset on 30 June 2027.
The Hon Stephen Mullighan MP
Treasurer (South Australia)
Attachment B - Information relied on to support the minister
Teacher registration exists to establish and maintain a system and professional standards for teachers. This is to safeguard the public interest in there being a teaching profession whose members are competent educators and fit and proper persons to have the care of children and young persons.
Ensuring the welfare and best interests of children is the paramount consideration in relation to the discharge of the South Australian Teachers Registration Board responsibilities. Accordingly, ensuring the safety of children and young persons is a critical obligation.
Recommendations and reports stemming from recent state and national Royal Commissions and inquiries, promote that care is required when regulating occupations characterised as ones involving a relationship of trust, such as between teachers and learners, to ensure that the safety and well-being of children is paramount. This is especially true where education /care is given in the absence of a primary caregiver/guardian.
The Teachers Registration Board has an obligation to validate teacher credentials and secure community confidence that teachers with a history of disciplinary action, with respect to the teaching profession or in relation to the care and learning of children, or where subject to later notification of disciplinary action, are appropriately excluded from registration in South Australia. This requirement, as imposed under Automatic Mutual Recognition (AMR) under the Mutual Recognition Act, 1992, is also supported under the Teachers Registration and Standards Act 2004 (South Australia), where emphasis is that teachers be fit and proper to apply and remain registered.
Deeming registration as operative in South Australia when teacher registration is procured elsewhere places further emphasis on the need for timely and effective information exchange. Satisfactorily discharging this obligation in relation to interstate registered teachers relies on the existence of robust and proven information exchange protocols and powers between jurisdictions, as well as the existence of robust and reliable systems and processes in South Australia to support the discharge of the obligations. Systems and processes have been developed over time between jurisdictions to manage this under mutual recognition principles. AMR requirements impose a further layer of required information exchange between jurisdictions created by a need to advise of further notification events.
Under usual mutual recognition principles, a South Australian teacher registration is created in each case, creating a regime of regular registration renewal that enables a periodic refresh of teacher registration eligibility and fitness. The open-ended nature of automatic deemed registration under S42G places the onus on the Teachers Registration Board to make itself aware, at all times, of factors impacting eligibility; like the expiry of home state registration upon which AMR relies.
To implement AMR in a manner that mitigates additional risks posed to child safety, the Teachers Registration Board must implement and maintain rigorous systems in South Australia. This is to ensure appropriate integration and protection of information sources derived from South Australia and elsewhere, to meet all appropriate (and new) notification requirements for the purposes of AMR. Insufficient time to implement systems will result in impacts to learners and be detrimental to employers providing safe schools, pre-schools and long day care centres in South Australia.
Section 42G of the Mutual Recognition Act 1992 provides that automatic deemed teacher registration would end if a teacher is no longer registered in their home state, or one of several other circumstances in subsection 42D(4) applies.
In particular, subsection 42D(4)(a) provides for circumstances relating to a range of “proceedings” or “preliminary investigations” in any State in relation to the conduct of the teacher which excludes the teacher from the benefits of AMR. This differs from the current mandated notifications between jurisdictions as currently occurs under local laws regulating teachers and usual mutual recognition principles. Efficient operation of both data sharing and the appropriate processing and interpretation of this information is of critical importance in the maintenance of child safety.
Sections 42N and 42P provide the legislative framework for the transfer of information fundamental to the operation of S42G(4) in circumstances of teacher suspension and disciplinary action . Jurisdictions, including South A are continuing to evolve appropriate mechanisms that will underpin the discharge of this responsibility. Regulators are working at the national level to resolve differences in the processes underlying investigation and disciplinary processes to ensure consistency.
In South Australia, systems to manage the large volume of data that will be required to be shared from across Australia, including from new secondary sources, are yet to be developed. The development of processes to integrate these new data flows and ensure the timely response to information shared is also crucial to mitigate risk to children. This work is evolving and ongoing.
Under AMR the potential risk to children from incomplete, inaccurate or delayed transfer of information, and especially accurate and timely local assimilation of all information sourced/transferred between regulators to assess a teacher as being fit and proper, is considered to be unacceptably high without further measures being implemented.
The potential number of South Australian employment sites available to AMR teachers is significant and covers every regional, rural, peri-urban and urban part of the state, impacting on children and young people as young as birth to 18 years of age. Early childhood teaching to secondary school specialist-subject teaching, all come within the scope of AMR and are potentially impacted by these changes.
The scale of possible deleterious impact of AMR, if insufficient time is available to ensure comprehensive assurances and processes are in place, will be far-reaching. For each affected child, this will have long term learning, well-being, social, emotional and developmental impact.
Notwithstanding arrangements for notification and information transfer under the Mutual Recognition Act 1992, there remains a likelihood (and risk) of a teacher who is not “fit and proper” transferring to South Australia under AMR without detection. This risk is assessed to be possible and the consequence catastrophic if occurring. On this basis, the risk to child safety has been determined to be high.
In recognition of the benefits of AMR, teacher registration authorities nationally are working to implement robust measures to mitigate the identified risk. Further, once those new processes and protocols are in place it will be necessary for South Australia to update local processes and systems to ensure consistent national improvements apply and are effectively implemented. It is important to ensure that new protocols and processes, both nationally and locally, are rigorously tested to ensure the risk to child safety is effectively mitigated.
It is acknowledged that in time, the continuous disclosure requirements of AMR should, in an environment of consistently understood processes and disciplinary standards, provide robust risk mitigation. The time afforded by the 5-year exemption will provide the opportunity to ensure such measures are in place and work effectively.
On this basis, a 5-year exemption from the implementation of AMR is justified.