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EDUCATION AND TRAINING REFORM FURTHER AMENDMENT BILL 2010

         Education and Training Reform
          Further Amendment Bill 2010

                        Introduction Print

              EXPLANATORY MEMORANDUM

Clause 1   sets out the main purposes of the Bill, which are to make various
           amendments to the Education and Training Reform Act 2006,
           to re-enact the Mildura College Lands Act 1916 in the
           Education and Training Reform Act 2006, to repeal the
           Mildura College Lands Act 1916, the Mildura College Land
           (Ranfurly) Act 1992, the Institute of Educational
           Administration (Repeal) Act 1993 and the Mildura College
           Lands (Amendment) Act 1995.

Clause 2   provides for the commencement of the Bill, and states that the
           provisions of the Bill come into operation on a day or days to be
           proclaimed.
           Subclause (2) provides that if a provision to be proclaimed has
           not come into operation before 1 January 2011, it comes into
           operation on that day.

Clause 3   states that in the Bill the Education and Training Reform Act
           2006 is called the Principal Act.

Clause 4   inserts a new definition of Catholic Education Commission in
           section 1.1.3 of the Education and Training Reform Act 2006.
           Catholic Education Commission is defined to mean the Catholic
           Education Commission of Victoria Limited ACN 119 459 853.

Clause 5   amends 2.6.3 of the Education and Training Reform Act 2006
           by substituting a new section 2.6.3(1)(d) which adds the function
           of developing, establishing and maintaining standards for the
           recognition of higher levels of professional practice attained by
           teachers in Victorian schools.
           Section 2.6.3 (3) is amended to provide that the Minister may not
           approve qualifications, criteria and standards for the recognition
           of higher levels of professional practice unless those
           qualifications, criteria and standards have been recommended by


561394                               1      BILL LA INTRODUCTION 24/3/2010

 


 

the Victorian Institute of Teaching (the VIT) under section 2.6.3(1)(c). Clause 6 inserts into section 2.6.7 of the Education and Training Reform Act 2006 new section 2.6.7 (2A) which contains the requirement that an approved application form for registration as a teacher, must contain an authorisation by the applicant for the VIT to conduct a police record check at the time of application and, if registration is granted, from time to time during the period in which the registration remains in force. Subclause (2) adds a new section 2.6.7(3A) which gives the VIT the power to arrange for the conduct of the police record check consented to by an applicant in the new section 2.6.7(2A). The authorisation by prospective teachers for the VIT to undertake police record checks is in addition to existing provisions relating to criminal record checks under sections 2.6.22 and 2.6.22A of the Education and Training Reform Act 2006 and is not intended to limit the operation of section 2.6.31(4) of that Act. Clause 7 substitutes section 2.6.8 of the Education and Training Reform Act 2006 which specifies the qualifications for registration as a teacher and adds a new section 2.6.8(b), which that states that a person who is registered as a non-practising teacher (under section 2.6.11 of that Act) is qualified to be a teacher under section 2.6.8. Clause 8 amends 2.6.13 of Education and Training Reform Act 2006 to mirror the provisions in clause 6, in the context of an application for "permission to teach". The application must include authorisation for VIT to have a police record check on a "permission to teach" applicant conducted at the application stage and throughout the period of time for which the permission to teach remains in force. Clause 9 amends section 2.6.18 of Education and Training Reform Act 2006 to insert power for the VIT to conduct police record checks with authorisation of applicants for renewal of registration. This clause also inserts a new paragraph (ab) into section 2.6.18(1) of that Act, which states that an application for renewal of registration must be made in the form approved by the VIT. Clause 10 amends section 2.6.21 of the Education and Training Reform Act 2006 to provide for the VIT to calculate annual teacher registration fees on a pro rata basis to the nearest month when appropriate. 2

 


 

Clause 11 substitutes section 2.6.24(d) of the Education and Training Reform Act 2006 to require that certain information regarding the outcome of an adverse finding by a formal hearing panel or cancelation of a registration by virtue of section 2.6.29 must be published on the VIT Register of Teachers. The information to be published is whether the registration of a teacher is subject to a condition, limitation or restriction or has been suspended or cancelled. Clause 12 amends section 2.6.51(1) of the Education and Training Reform Act 2006 require that the VIT give notice of certain determinations made by a formal hearing panel to the Director of Public Transport (within the meaning of the Transport Act 1983). Such a notification is necessary as the Director of Public Transport may employ registered teachers as school bus drivers and is currently not notified of determinations made by a panel under Part 2.6 of the Education and Training Reform Act 2006. The clause also amends section 2.6.51(3) to provide that the Director of Public Transport be notified in the event of the registration of a teacher being cancelled by virtue of section 2.6.29 of the Education and Training Reform Act 2006. Clause 13 inserts a new section 2.6.77(3) into the Education and Training Reform Act 2006, which allows for any fees fixed by the Minister to be calculated on a pro rata basis calculated to the nearest month if the period for which the fee is payable is less that 12 months. Clause 14 amends section 5.2.6(1) of the Education and Training Reform Act 2006 to exclude Mildura schools land as defined in new section 5.7A.3 (see clause 17) from land administered under this section. This clause also inserts new section 5.2.6(5A) into the Education and Training Reform Act 2006 to allow proceeds from dealing with the Mildura schools land to be paid into separate funds rather than Consolidated Revenue (see new sections 5.7A.19 and 5.7A.26 inserted by clause 17). Clause 15 amends the definition of education or training provider in Part 5.3A of the Education and Training Reform Act 2006 by adding a new paragraph (b), which includes a person or body receiving funding from the Adult Community and Further Education Board for the provision of adult, community and further education. 3

 


 

In conjunction with clause 16, this clause expands the class of potential authorised users of the Victorian student number to include those bodies responsible for administering adult community and further education and vocational education. The revised definition of education or training provider now includes schools, TAFE institutes and certain registered training organisations registered with the Victorian Registration and Qualifications Authority as potential authorised users of the Victorian student number under part 5.3A of the Education and Training Reform Act 2006. Clause 16 inserts a new subsection 5.3A.9(1)(ca) into the Education and Training Reform Act 2006, stating that any employee of the Catholic Education Commission (or a Catholic education agency acting on its behalf) whose duties include the analysis and evaluation of information relating to students can be authorised to access, use or disclose one or more Victorian student numbers. In conjunction with the amendment made by clause 15, this amendment expands the class of authorised users of Victorian student numbers to include the Catholic Education Commission. The Catholic Education Commission requires authorisation to utilise the Victorian student number as it administers data on behalf of Catholic schools in Victoria. Subclause (2) amends section 5.3A.9(1)(d) of the Education and Training Reform Act 2006 by adding the Department of Innovation, Industry and Regional Development and the Department of Planning and Community Development to the list of potential authorised users of the Victorian student number. Bodies or persons authorised under the Education and Training Reform Act 2006 to access, use or disclose a Victorian student number may not do so until the Secretary has published notice of an authorisation in the Government Gazette. Such an authorisation may be for specific uses of the Victorian student number and may be subject to conditions. Clause 17 inserts a new Part 5.7A into the Education and Training Reform Act 2006. The new Part re-enacts and modernises the scheme established by the Mildura College Lands Act 1916 which will be repealed under clause 23. Division 1--Introductory New section 5.7A.1 states the purpose of the new Part 5.7A, which is to re-enact and modernise the provisions of the Mildura College Lands Act 1916. The new Part therefore provides continuing legislative recognition of the contribution George and William Chaffey made to education in the Mildura region. 4

 


 

New section 5.7A.2 defines certain terms used in the new Part. New section 5.7A.3 provides that the Mildura schools land consists of the land shown in two survey plans lodged at the Central Plan Office of the Department of Sustainability and Environment and any additional land subsequently purchased by the Minister for the purposes of the new Part. The land currently listed in Schedule 1 of the Mildura College Lands Act 1916, with the exception of two parcels of land no longer held by the Minister under that Act, is included in the survey plans. The plans provide a graphical representation of the extent and location of the Mildura schools land. Additional land purchased by the Minister under this new Part will become Mildura schools land when purchased. An order made under new section 5.7A.5 will then vary the Mildura schools land to include that land in new consolidated plans that replace the original plans or any prior consolidated plans. New section 5.7A.4 vests any land acquired under this Part by the Minister in the Minister administering this Part and provides that the Registrar of Titles must make any necessary amendments to the Register of Land if requested to do so. New section 5.7A.5 allows the Governor in Council to make an order to change the Mildura schools land when land has been sold or otherwise disposed of, purchased, subdivided or consolidated. An order will refer to a survey plan showing the land that has been added or removed, as well as a consolidated plan showing all land that comprises Mildura school land at the time of the order. The order must be published in the Government Gazette and a newspaper in the Mildura region. New section 5.7A.6 provides that the Governor in Council must declare all current beneficiary schools under the Mildura College Lands Act 1916 to be beneficiary schools under the new Part. The order must be published in the Government Gazette and a newspaper in the Mildura region. A transitional provision, new section 6.1.18(9), has been inserted by clause 19. This provision provides that until an Order is made under new section 5.7A.6, a beneficiary school under the Mildura College Lands Act 1916 before its repeal is taken to be a beneficiary school for the purposes of new Part 5.7A. New section 5.7A.7 allows the Governor in Council to make an order varying the list of beneficiary schools by adding or removing a school or changing the name of a previously declared school. For example a school may merge with another school or become deregistered. An order will include a consolidated list 5

 


 

showing all current beneficiary schools. To be eligible, a school must be in the area of Mildura described as the beneficiary schools region, which is defined in new section 5.7A.2. The order must be published in the Government Gazette and a newspaper in the Mildura region. New section 5.7A.8 works in conjunction with section 15 of the Subordinate Legislation Act 1994 to provide that an order by the Governor in Council varying the Mildura schools land or beneficiary schools must be tabled in Parliament within six sitting days after it is published in the Government Gazette. Division 2--Dealings with Mildura schools land Subdivision 1--Leasing of land New section 5.7A.9 allows the Minister to lease any part of the Mildura schools land. New section 5.7A.10 provides that the rent is determined on the basis of a valuation by the valuer-general and is reviewed every three years on the basis of a new valuation or every year according to the Consumer Price Index. New section 5.7A.11 provides that a valuation by the valuer- general must include any improvements on the land unless the current leaseholder made the improvements or paid the previous leaseholder for them. New section 5.7A.12 allows a leaseholder to apply to the Victorian Civil and Administrative Tribunal for a review of a valuation by the valuer-general. The provision has been updated to impose a 28 day time limit in which applications must be lodged. New section 5.7A.13 provides that a leaseholder owns any improvements on the land if the leaseholder made them or paid the previous leaseholder for them. Improvements will become the property of the Minister if the lease is terminated, there are no lawful assignees of the lease and the leaseholder does not remove the improvements after termination of the lease. Subdivision 2--Easements over land New section 5.7A.14 allows the Minister to grant an easement over any part of the Mildura schools land. 6

 


 

Subdivision 3--Sale and purchase of land New section 5.7A.15 provides that the Minister holds the Mildura schools land on trust for the benefit of the beneficiary schools with the power to postpone sale or disposal of that land for an indefinite period. New section 5.7A.16 allows the Minister to purchase additional land with money from the special fund (refer to new section 5.7A.26). Subdivision 4--Subdivision or consolidation of land New section 5.7A.17 allows the Minister to subdivide or consolidate any part of the land for the purposes of leasing, selling or any other disposal of the land in fee simple. Division 3--Distribution and use of rents and profits New section 5.7A.18 allows the Minister to enter into an agreement with a trustee company to manage the Mildura school lands scheme. The agreement must provide for-- · the establishment of a fund or funds for the rents and profits received from the leases (new section 5.7A.19); · the payment of costs of subdivision or consolidation and administration costs out of the rents and profits received from the leases (new section 5.7A.20); · the quarterly distribution of rents and profits to beneficiary schools on a per student basis (new section 5.7A.21); · the submission of quarterly financial reports to the Minister (new section 5.7A.23). New section 5.7A.22 allows the beneficiary schools to recommend a new formula other than the one in section 5.7A.21 for the distribution of rents and profits. New section 5.7A.24 allows a beneficiary school to request the payment of the money in parts and provides for the payment of the money to the schools. New section 5.7A.25 provides that the school council or governing body of a beneficiary school holds the funds on trust for the benefit of the school and must spend the funds on buildings, grounds and equipment. Schools must invest any surplus funds in accordance with the Trustee Act 1958 and any guidelines issued by the Minister. 7

 


 

Division 4--Proceeds derived from disposal of land or creation of easement over land New section 5.7A.26 provides that the proceeds from the sale or other disposal of any Mildura schools land, or the granting of an easement over that land, must be paid into a special fund and used for the purchase of additional land. New section 5.7A.27 provides that any income derived from the proceeds of sale (for example, interest) must be distributed to schools in the same way as rental income. New section 5.7A.28 provides that this Division has effect despite any contrary laws (other than the Charter of Human Rights and Responsibilities Act 2006). Clause 18 inserts a new section 6.1.16 into the Education and Training Reform Act 2006, which is a transitional provision that is linked to the transitional provision contained in section 6.1.14(3) of the Education and Training Reform Amendment Act 2010. This section confirms that the registration fee payable in respect of the period that the registration of a teacher is taken to continue in force under section 6.1.14(3) of the Education and Training Reform Amendment Act 2010 is the fee fixed by the Minister in accordance with section 2.6.77(3). Clause 19 inserts new section 6.1.17 into the Education and Training Reform Act 2006. This is a transitional provision which vests the land currently held by the Minister under the Mildura College Lands Act 1916 in the Minister administering new Part 5.7A. New section 6.1.17(5) relates to certain Mildura schools land that is vested in the Minister, but held in the name of an owners' corporation and provides that section 6.1.17 does not apply to that land. This clause also inserts a new section 6.1.18 into the Education and Training Reform Act 2006. This is a transitional provision dealing with other transitional matters relating to Mildura schools land, including existing leases, easements, VCAT reviews, funds and beneficiary schools under the Mildura College Lands Act 1916. Clause 20 amends clause 4 of Schedule 2 to the Education and Training Reform Act 2006 to clarify the power of the Minister to make acting appointments for an authority as defined under clause 1 of Schedule 2. Clause 4(1) of Schedule 2 is amended to clarify that the Minister may appoint a person to act in the place of a member, including a chairperson, who is absent or unable to perform his or her duties. Clause 4(2) of Schedule 2 is also 8

 


 

clarified by the amendments made by this clause and now states that if there is the vacancy in the office of a member, including a chairperson, that the Minister may appoint a person to act in the place of that member until the vacancy is filled. This clause adds the Victorian Curriculum and Assessment Authority to the list of authorities for whom the Minister may appoint a person to act in the case of a vacancy in the office of a member. Clause 21 amends the heading to clause 11 in Schedule 2 to the Education and Training Reform Act 2006 to make it consistent with the content of the clause. Clause 22 amends section 32 of the Education and Training Reform Amendment Act 2010, which inserts new section 2.6.35C into the Education and Training Reform Act 2006, to change the wording in section 2.6.35C(3) by changing the person to whom an investigator may choose to deliver a report containing information that is potentially prejudicial to the physical or mental health or wellbeing of a teacher. Section 2.6.35C(3) will provide that the investigator may give such information to the registered health practitioner nominated by the VIT or by that teacher, instead of stating that the investigator may give the information to a registered medical practitioner or a registered health practitioner nominated by that teacher. Clause 23 repeals the Mildura College Lands Act 1916 as that Act has been updated and re-enacted as new Part 5.7A of the Education and Training Reform Act 2006 inserted by clause 17 of this Bill. Transitional provisions relating to the land and existing leases, easements, VCAT reviews and funds under the repealed Act are provided in new sections 6.1.17 and 6.1.18 inserted by clause 19. Clause 24 repeals the Mildura College Land (Ranfurly) Act 1992. This Act amended the Mildura College Lands Act 1916 to add an additional beneficiary school. That amendment has taken effect and is spent. Section 5 of the 1992 Act is a transitional provision which provided that the 1916 Act as amended by the 1992 Act applied only to money received by the Mildura Schools Fund after the commencement of the 1992 Act and that the 1916 Act applied to money received by that Fund before that commencement as if the 1916 Act had not been amended. This transitional is now redundant as the money in the Fund prior to the commencement was distributed in accordance with the 1916 Act as it was before the commencement. The 1992 Act can be repealed. 9

 


 

Clause 25 repeals the Institute of Educational Administration (Repeal) Act 1993. This 1993 Act repealed the Institute of Educational Administration (Repeal) Act 1993, which has taken effect and is spent. Section 14(1) of the Interpretation of Legislation Act 1984 (the ILA) provides that the repealed Act is not revived when the provision repealing it is repealed. The 1993 Act also abolished the Institute, transferred its assets and liabilities and records to the Minister and substituted the Minister as a party to agreements and proceedings and the like. These provisions have taken effect and are spent. The 1993 Act contained transitional provisions relating to licences, permits and authorities granted by the Institute and for references to the Institute and other bodies to be construed as references to the Minister. Section 7 created certain rights in relation to officers and employees of the Institute. These transitional provisions and any continuing operation of the rights will be preserved under section 14 of the ILA. Part 3 of the 1993 Act dealt with Crown land occupied by the Institute, which was permanently reserved under an Order in Council. The Order was revoked and the land previously reserved deemed to be unalienated Crown land, the management of the land divested from the Institute and vested in the Minister and any appointment of a committee of management of the land revoked and any regulations under section 13 of the Crown Land (Reserves) Act 1978 revoked. These provisions have taken effect and are spent. Section 9 provided that the Governor in Council could by Order approve a plan of survey relating to land (reserved under another Order in Council) required for a road to access the land previously occupied by the Institute. On publication of the Order the land was deemed to be a road and the Order in Council reserving the land partially revoked. The Order was made and this provision is now redundant. Under section 10(2) the land comprising the road was deemed unalienated Crown land and any appointment of a management committee and regulations revoked in respect of that land. These provisions have taken effect and are spent. Section 12, requiring the Registrar of Titles to make necessary amendments is no longer required. The right of the Crown not to have to pay compensation in respect of matters arising out of the 1993 Act will be preserved under section 14 of the ILA. Section 14, which alters or varies section 85 of the Constitution Act 1975 due to section 13 is no longer required. The 1993 Act can be repealed. Clause 26 repeals the Mildura College Lands (Amendment) Act 1995. This Act amended the Mildura College Lands Act 1916 to provide for, amongst other things, the Mildura Schools Fund to be managed by a trustee company and for one or more new funds to be established and money derived from leases to be distributed 10

 


 

to a wider range of beneficiaries. These amendments have taken effect and are spent. Section 5(2) of the 1995 Act required that the money in the Mildura Schools Fund before the amendments were made must be paid into the new funds and for all liabilities of that Fund before being transferred to the new funds to be met from the Fund or the new funds. The money in the Fund was paid into the new funds and liabilities of the Fund were met. Section 5(2) is therefore redundant. Section 9 of the 1995 Act is an application provision that provided that the 1916 Act as amended by the 1995 Act applied to money in the Mildura Schools Fund before the amendments were made and to money derived from leases received by the trustee company after the amendments. This provision is now redundant as the money in the Fund before the amendments were made has been distributed. The 1995 Act can be repealed. Clause 27 provides for this amending Act to be repealed on 1 January 2012. This does not affect the continuing operation of the amendments made by the amending Act (see section 15(1) of the Interpretation of Legislation Act 1984). 11

 


 

 


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