Teacher Accreditation Act 2004 (NSW)

Teacher Accreditation Act 2004 No 65 An Act to make provision for professional teaching standards and the accreditation of teachers in relation to those standards; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Teacher Accreditation Act 2004. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— accreditation means accreditation under Part 4, and includes provisional accreditation or conditional accreditation under that Part. accredited means accredited for the time being under Part 4, and includes provisionally accredited or conditionally accredited under that Part. approved course means an initial teacher education course or program approved by the Minister in accordance with the professional teaching standards. Authority means the NSW Education Standards Authority constituted under the Education Standards Authority Act 2013. Children's Guardian means the Children's Guardian appointed under the Children's Guardian Act 2019, section 115. degree means a degree that meets the specifications under the Australian Qualifications Framework. dismiss includes— (a) in the case of a teacher who is appointed on probation—the annulment of that appointment, or (b) in the case of a teacher employed on a casual basis—dispensing with the services of the teacher. early childhood education centre or centre means the following, but does not include a family day care service or an out-of-school hours or vacation care service— (a) an approved education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011, (b) a service or facility of a class declared by the regulations to be an early childhood education centre. employ includes engage or appoint. exercise a function includes perform a duty. function includes a power, authority or duty. government school and non-government school have the same meanings as in the Education Act 1990. non-centre based teacher means a person— (a) who holds a degree or teaching qualification recognised by the Authority, and (b) who is not teaching in an early childhood education centre but has taught in an early childhood education centre for a period of not less than the period prescribed for the purposes of this definition by the regulations or the rules of the Authority, and (c) who is employed to undertake any of the following— (i) duties relating to the development or implementation of the curriculum for early childhood education, (ii) duties relating to the learning and wellbeing of children who attend early childhood education centres, (iii) duties relating to curriculum teaching and learning in early childhood education centres, (iv) duties as an early childhood education lecturer or tutor in a university or other higher education institution in New South Wales, (v) duties as an educational consultant for early childhood education centres. non-school based teacher means a person— (a) who holds a degree or teaching qualification recognised by the Authority, and (b) who is not teaching in a school but has taught in a school for a period of not less than the period prescribed for the purposes of this definition by the regulations or the rules of the Authority, and (c) who is employed to undertake any of the following— (i) duties relating to the development or implementation of the curriculum (including assessment and reporting) for primary and secondary education, (ii) duties relating to the learning and wellbeing of school students, (iii) duties relating to curriculum teaching and learning in schools, (iv) duties as a K–Year 12 education lecturer or tutor in a university or other higher education institution in New South Wales, (v) duties as an educational consultant for schools. non-teaching school counsellor means a school counsellor who is not teaching in a school. professional development includes formal and informal learning activities designed to maintain and enhance the knowledge and skills of teachers. professional teaching standards means the professional teaching standards approved by the Minister from time to time under section 19. relevant complaint about a person means an allegation that— (a) the person has engaged in misconduct, or (b) the person is incompetent in performing the work of a teacher, or (c) the person has failed to comply with the professional teaching standards. roll of teachers means the roll maintained by the Authority under Part 3. rules of the Authority means rules made by the Authority under section 25 of the Education Standards Authority Act 2013. Note— The rules of the Authority only have effect if approved by the Minister. school means a government school or a non-government school. school counsellor means a person— (a) who is employed in a school to undertake duties relating to the learning and wellbeing of school students, and (b) who holds a degree or teaching qualification recognised by the Authority. Secretary means the Secretary of the Department of Education. teach—see section 3A. working with children check clearance has the same meaning as in the Child Protection (Working with Children) Act 2012. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 3A Meaning of "teach" (1) In this Act, teach means— (a) in relation to a school—to undertake duties that include— (i) delivering courses of study that are designed to implement the school curriculum under the Education Act 1990, and (ii) assessing the participation, performance and progress of students in those courses, and (iii) supporting and leading the development and implementation of the delivery and assessment of the courses, and (b) in relation to an early childhood education centre—to undertake duties that include— (i) delivering an educational program based on an approved learning framework under the Children (Education and Care Services) National Law (NSW), and (ii) assessing the participation, performance and progress of children in that educational program, and (iii) supporting and leading the development and implementation of the delivery and assessment of the educational program. (2) A reference in this section to undertaking duties in relation to a school or early childhood education centre is a reference to undertaking duties on the premises of a school or centre in the course of providing services conducted by the school or centre. 4 Protection of children paramount This Act must be administered by applying the principle that, in an action or decision concerning a child or young person, the safety, welfare and wellbeing of the child or young person are paramount. 5 Mutual recognition laws This Act does not limit or otherwise affect the operation of— (a) the Mutual Recognition Act 1992 of the Commonwealth, or (b) the Trans-Tasman Mutual Recognition Act 1997 of the Commonwealth. Part 2 Authority's functions 6 Functions of Authority (1) The functions of the Authority under this Act include the following— (a) to provide advice to the Minister on the development, content and application of the professional teaching standards, (b) to provide advice to the Minister on the Minister's other functions under this Act, (c) to monitor the accreditation process across all schools, (d) to ensure professional teaching standards are applied fairly and consistently, (e) to monitor, evaluate and report on the quality of initial and continuing teacher education courses and programs approved under the professional teaching standards, (f) to assess a person's suitability to teach, (g) to accredit teachers at all levels, including the voluntary accreditation of teachers at higher levels and non-practising teachers, (h) to suspend, revoke and impose conditions on accreditation, (i) other functions imposed by or under this Act or another Act. (2) The functions of the Authority under this Act also include making decisions about whether or not to approve— (a) a teacher education course or program for the purposes of this Act, or (b) a person or body to provide professional development in accordance with the requirements of the professional teaching standards. (3) The functions of the Authority under this Act do not extend to industrial matters concerning teachers, for example, the salaries of teachers or the conditions of employment of teachers. 7 Obtaining and sharing information (1) The Authority may obtain relevant information from, and disclose relevant information to, the following relevant entities, for an authorised purpose— (a) the Children's Guardian, (b) the Commissioner of Police, (c) a school or early childhood education centre, or an equivalent entity in another jurisdiction, including outside Australia, (d) an organisation to which a matter relevant to an assessment of suitability has been referred under section 38. (2) In this section— authorised purpose means a purpose for or in connection with the execution or administration of this Act and includes the following purposes— (a) the verification of the identity of a person who is an applicant for, or the holder of, an accreditation under this Act, (b) the consideration and determination of a person's application under this Act, (c) assessing and determining under Part 4, Division 2 whether to suspend or revoke a person's accreditation, (d) assessing and determining under Part 4, Division 4 whether a person is suitable to teach. clearance history, of a person, means the history of action taken in relation to an application for a clearance by the person or a clearance held by the person under the Child Protection (Working with Children) Act 2012, including the following— (a) a risk assessment determination, (b) an interim bar, (c) a refusal of an application, (d) the suspension or cancellation of a clearance. relevant information means the following information about a person— (a) information relevant to the verification of the identity of the person, (b) information about the person disclosed by the person to a relevant entity, (c) information about the person's criminal history in this jurisdiction or another jurisdiction, (d) information about disciplinary proceedings against the person in this jurisdiction or another jurisdiction, (e) information about the person's clearance history, (f) information about whether the person continues to comply with accreditation requirements and teaching standards under the professional teaching standards, (g) other information relevant to assessing the person's suitability to teach, including a relevant complaint. 8–15 (Repealed) Part 3 Roll of teachers 16 Authority to maintain roll of teachers (1) The Authority is required to maintain, in printed or electronic form (or both), a roll of teachers for the purposes of this Act. (2) The roll of teachers is to consist of 2 parts, namely— (a) the public register of teachers, and (b) the accreditation list. 17 Public register of teachers (1) A public register of accredited persons must be published on the Authority's website. (2) The public register must contain the following information about an accredited person— (a) the person's full name, (b) the accreditation number specified on the person's certificate of accreditation, (c) the type or level of accreditation held by the person. 18 Accreditation list (1) The accreditation list must contain the following particulars in relation to each person who is accredited— (a) the full name and date of birth of the person, (b) the type or level of accreditation held by the person, (c) the date on which the person was accredited, (d) other information required by or under this Act or the regulations to be included on the accreditation list. (2) The accreditation list must contain the details of a decision by the Authority— (a) to refuse an application to accredit a person, or (b) to revoke the accreditation of a person, or (c) to suspend the accreditation of a person. (3) The Authority may provide information contained in the accreditation list to the following— (a) a school or an early childhood education centre, (b) the person or body responsible for registering or accrediting teachers under the law of another jurisdiction, including outside Australia, (c) another person or body prescribed by the regulations. Part 4 Accreditation of teachers Division 1 Professional teaching standards 19 Minister may approve professional teaching standards (1) The Minister may, from time to time and having regard to the advice of the Authority, approve of professional teaching standards in relation to each of the following levels of accreditation— (a) provisional accreditation under Division 3, (b) conditional accreditation under Division 3, (c) accreditation at proficient teacher level under Division 3 or 5, (d) accreditation at highly accomplished teacher level under Division 5, (e) accreditation at lead teacher level under Division 5. (2) The Authority is to ensure that the professional teaching standards are made available to all teachers. 20 Matters to be dealt with by professional teaching standards (1) The professional teaching standards may deal with, and make provision for or with respect to, the following matters— (a) the skills, qualifications, experience and knowledge required for teaching at each level of accreditation, (b) the conditions and criteria for continuing accreditation, including requirements in relation to professional development, (b1) the conditions and criteria relating to an individual's suitability to teach, (c) the procedures and guidelines to be followed in relation to the accreditation of persons under this Part, including the suspension or revocation of accreditation, (d) the approval by the Authority of initial and continuing teacher education courses or programs that are relevant to the accreditation of persons under this Part, (e) the approval by the Authority of those persons or bodies who may provide professional development, (f) ethical conduct of teachers, (g) any other matter relating to teaching standards. (2) Any procedures or guidelines under the professional teaching standards in relation to the suspension or revocation by the Authority of the accreditation of persons— (a) must be consistent with the rules of procedural fairness, and (b) are subject to section 24C. (3) Any approval by the Authority under the professional teaching standards of a teacher education course or program or of the persons or bodies who may provide professional development— (a) is subject to such conditions as the Authority thinks fit to impose (including while the approval is in force), and (b) may be suspended or revoked at any time by the Authority. Division 2 Accreditation scheme—general provisions 21 Accreditation of teachers at schools and early childhood education centres (1) The Authority may, in accordance with this Part— (a) grant accreditation for the purpose of teaching in a school or early childhood education centre, or (b) accredit a non-school based teacher or non-centre based teacher, or (c) grant non-practising accreditation. (1A) (Repealed) (2) If a person is accredited under this Part, the person's accreditation has effect in relation to any school or early childhood education centre, but is subject to revocation by the Authority. (3) The accreditation of a person under this Part is not restricted to accreditation in relation to a specific area of study, learning or expertise. Accordingly, a person's accreditation does not, in itself, limit the areas of study or learning in which the person teaches. 22 Applications for accreditation (1) A person may apply to the Authority for accreditation under this Part. (2) An application must— (a) be in the form approved by the Authority (the approved form), and (b) be accompanied by other information required by the Authority, and (c) specify the type of accreditation applied for. (3) The approved form must include provision for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application and at any time while the accreditation is in force— (a) the conduct of a criminal record check in relation to the applicant, (b) the disclosure of the applicant's criminal history and disciplinary history, (c) other inquiries about the applicant relevant to— (i) the suitability of the applicant to teach, or (ii) the type of accreditation for which the applicant has applied. (4) The regulations may— (a) prescribe the fee payable for an application and the way in which it must be paid, and (b) require proof of identity to be provided by an applicant in the way prescribed by the regulations or approved by the Authority. 23 Notice of decisions by Authority (1) The Authority must give written notice to the applicant of the following— (a) a decision to grant an accreditation, (b) a decision to refuse to grant an accreditation, (c) an assessment the person is not suitable to teach under Division 4. (2) If the Authority grants an accreditation, the Authority must issue a certificate of accreditation to the person in the form approved by the Authority. (3) Notice of a decision referred to in subsection (1)(b) or (c) must state the following— (a) the reasons for the decision, (b) that the individual may appeal against the decision, (c) how an application for appeal may be made and the period within which the application must be made. 23A Conditions of accreditation (1) The accreditation of a person under this Part is subject to such conditions as are imposed by this Act or prescribed by the regulations. (2) The accreditation of a person under this Part is also subject to such conditions as may be specified in the rules of the Authority. 24 Revocation of accreditation (1) The Authority may revoke the accreditation of a person on any of the following grounds— (a) the Authority is satisfied that the person is a disqualified person within the meaning of the Child Protection (Working with Children) Act 2012, (b) the person is found guilty of an offence punishable by imprisonment for 12 months or more, (c) the person is found guilty of an offence under this Act, (d) the person is found guilty more than once during the period of 5 years immediately before the revocation of any other type of offence that, in the opinion of the Authority, involves an act or conduct that is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (e) the person has— (i) been dismissed from employment as a teacher (whether on a permanent, temporary, part-time or casual basis) or has resigned from such employment before being dismissed, or (ii) been included in the list of persons maintained by the Secretary under section 7 (1) (e) of the Teaching Service Act 1980 as a person who is not to be employed in the Teaching Service, because of any misconduct that, in the opinion of the Authority, is of a nature that would reflect adversely on a teacher's professional standing or integrity or suitability or competence to teach, (f) the Authority is satisfied that the person has failed to comply with any condition to which the person's accreditation is subject, (g) the Authority is satisfied that the person has failed to comply with any of the requirements of the professional teaching standards that apply to the person, (h) the Authority has made an assessment the person is not suitable to teach under Division 4. (2) (Repealed) 24A Suspension of accreditation (1) The Authority may suspend the accreditation of a person— (a) on any ground on which the Authority may revoke the person's accreditation, or (b) if disciplinary proceedings against the person are pending in relation to alleged misconduct, or (c) if proceedings against the person for an offence are pending and, were the person to be found guilty of the offence, the Authority would have grounds to revoke the accreditation. (2) The Authority must review the Authority's suspension of a person's accreditation at least every 3 months and must remove the suspension in the following circumstances— (a) if the suspension was imposed because of pending disciplinary proceedings and those proceedings have been finalised with no finding that the person has engaged in misconduct, (b) if the suspension was imposed because of pending proceedings for an offence and the person has been found not guilty of the offence or the proceedings have been withdrawn or dismissed, (c) if the suspension was imposed on a ground referred to in subsection (1) (b) or (c) and a finding that the person has engaged in misconduct has been made against the person in the relevant disciplinary proceedings, or a finding of guilt has been made against the person in the relevant proceedings for an offence, but the Authority has not taken action to revoke the person's accreditation within a reasonable period having regard to the circumstances of the case. (3) (Repealed) (4) A person's accreditation is not in force during any period for which it is suspended whether under this or any other section of this Act. (5) (Repealed) 24B Criteria for determining revocation or suspension of accreditation on general grounds The Authority is to take account of the following matters (where appropriate) when determining whether to revoke a person's accreditation under section 24 or suspend a person's accreditation under section 24A or 25 (4)— (a) the nature and seriousness of the conduct concerned, (b) the frequency of the conduct concerned, (c) the recency of the conduct concerned, (d) any other matter that is required to be taken into account by the procedures and guidelines in the professional teaching standards (as referred to in section 20(1)(c)). 24C Notice to be given of intention to suspend or revoke accreditation (1) The Authority may suspend or revoke a person's accreditation only after having served on the person written notice of its intention to suspend or revoke the accreditation setting out its reasons. (2) The notice must include a statement that the person concerned may make submissions to the Authority in relation to the proposed suspension or revocation within 14 days after the date of the notice. (3) This section also applies in relation to the suspension by the Authority of a person's accreditation for failure to pay the annual fee under section 25. (4) This section does not apply to the suspension or revocation of a person's accreditation on the following grounds— (a) the person is subject to an interim bar imposed under the Child Protection (Working with Children) Act 2012, section 17, (b) the working with children check clearance for the person is cancelled under the Child Protection (Working with Children) Act 2012, section 23. 24D Placing accreditation on hold during leave of absence from teaching (1) The Authority may, on application by a person who is accredited, place the person's accreditation on hold during any period that the person takes leave of absence from teaching in New South Wales. (2) Any such period may not, except in any particular case approved by the Authority, be less than 6 months or more than 5 years. (3) A person is taken not to be accredited under this Act during a period in which the person's accreditation is placed on hold. (3A) During the period— (a) the person may undertake courses or carry out duties to enable the person to satisfy the requirements of the professional teaching standards relating to professional development and continuing teacher education, and (b) the Authority may suspend or revoke the person's accreditation. (4) The placing of a person's accreditation on hold under this section also has the effect of suspending the period in which the person is required to satisfy conditions for continuing accreditation under the professional teaching standards. Note— See also sections 30 (7) and 31 (6) which provide that any period that a person's accreditation is placed on hold under this section is to be disregarded when determining the period of a person's provisional or conditional accreditation. 24E Voluntary cancellation of accreditation The Authority may, on application by a person who is accredited, cancel the person's accreditation. 25 Annual fee (1) A person who is accredited under this Part must, in accordance with the regulations, pay an annual fee to the Authority. (2) The amount of the annual fee is to be prescribed by the regulations. (3) It is a condition of the person's accreditation under this Part that the annual fee is paid. (4) The Authority may suspend the accreditation of a person for failure to pay the annual fee. (5) The Authority must, before suspending a person's accreditation for failure to pay the annual fee, give at least 14 days' notice of its intention to do so to the person's employer. 25A Working with children check clearances (1) A person must not be accredited under this Part unless the person holds a working with children check clearance under the Child Protection (Working with Children) Act 2012 that authorises the person to engage in paid child-related work. (2) It is a condition of the accreditation of a person under this Part that the person holds a working with children check clearance under the Child Protection (Working with Children) Act 2012 that authorises the person to engage in paid child-related work. 26 False information and representation (1) A person must not, in an application for accreditation under this Part, provide any information that the person knows is false or misleading in a material particular. (2) A person must not make any representation to the effect that the person is accredited at any level of accreditation unless the person is for the time being accredited at that level. Maximum penalty—50 penalty units. 27 Administrative review of certain decisions (1) A person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the following decisions— (a) the refusal or failure by the Authority to accredit the person under this Part, (b) the revocation or suspension of the person's accreditation by the Authority under this Part, (c) the refusal or failure of the Authority to approve— (i) a teacher education course or program for the purposes of this Act, or (ii) a person or body to provide professional development in accordance with the requirements of the professional teaching standards, (d) the revocation or suspension of any such approval by the Authority. (2) A decision of a kind referred to in subsection (1) is not reviewable by any other court or tribunal (including in any proceedings in the nature of disciplinary proceedings or in any proceedings for unfair dismissal). Division 3 Mandatory accreditation 28 Requirement for teachers to be accredited (1) A person must not teach in a school or early childhood education centre unless the person is accredited. Maximum penalty—100 penalty units. (2) A person must not employ another person to teach in a school or early childhood education centre unless the other person— (a) is accredited, and (b) if conditionally accredited under section 31—is working under the supervision of a teacher who is not provisionally or conditionally accredited. Maximum penalty—100 penalty units. (3), (4) (Repealed) 29 Provisions relating to employment (1) The employment of a person as a teacher may be terminated by the person's employer if the person's accreditation is revoked under this Act. (2) A person who is required to be accredited may be suspended from employment as a teacher by the person's employer during any period in which the person's accreditation is suspended. (3) A person who is suspended from employment as a teacher under this section for any period is, for the purposes of section 28 (2), taken not to be employed as a teacher during that period. (4) Nothing in this Act requires an employer who terminates or suspends the employment of a person as a teacher in accordance with this Act to provide alternative employment to the person. (5) This section does not apply in relation to a person who is employed as a teacher in a government school. Note— The Secretary may, under section 77 of the Teaching Service Act 1980, suspend or terminate a person's employment in the Teaching Service if the person's accreditation is suspended or revoked. 30 Provisional accreditation (1) The Authority may, on application by a person who is required to be accredited— (a) provisionally accredit the person, or (b) refuse to provisionally accredit the person. (2) The Authority may provisionally accredit a person if the Authority is satisfied that— (a) the person meets the requirements specified in the professional teaching standards for provisional accreditation, and (b) the person has completed an approved course and will receive a qualification in relation to that course. (3) In the case of a person referred to in subsection (2) (b), it is a condition of a person's provisional accreditation that the person provides the Authority with evidence of the person's qualification as soon as practicable after receiving his or her qualification in relation to the approved course. (4) The Authority may also provisionally accredit a person who is conditionally accredited if the person— (a) has completed an approved course, and (b) has provided the Authority with evidence of that completion. (5) The provisional accreditation of a person ceases (unless sooner revoked under this Act)— (a) at the end of the relevant period, or (b) if the person is accredited at proficient teacher level before the end of the relevant period.