Part 10Miscellaneous

Part 10—Miscellaneous 75—Use of certain terms or descriptions prohibited (1) A school that is not registered on the schools register must not use a prescribed term, or derivatives of the words comprising the term, to describe a service provided by the school. (2) If a school contravenes subsection (1)— (a) if the school is an incorporated or trustee services provider—the school; or (3) A person who is not registered on the schools register must not use a prescribed term, or derivatives of the words comprising the term, to describe himself or herself or a service that he or she provides. (4) A person must not, in the course of advertising or promoting a service that he or she provides, use a prescribed term, or derivatives of the words comprising the term, to describe a school that is engaged in the provision of the service unless the school is registered on the schools register. prescribed term means— (a) registered school; or (b) any other word or expression prescribed by the regulations. 76—Exemptions (1) Subject to this section, the Minister may, by notice in writing— (a) exempt a registered school or person, or a class of registered schools or persons, subject to such conditions as the Minister thinks fit and specifies in the notice, from specified provisions of this Act; or (b) vary the conditions of an exemption by the addition, substitution or deletion of 1 or more conditions. (2) The Minister must consult with the Board before making a notice under subsection (1). (3) If a registered school or person contravenes a condition of an exemption— (a) — (i) if the registered school is an incorporated or trustee services provider—the registered school; or (ii) in any other case—the responsible authority for the school; or (b) the person, (as the case requires) is guilty of an offence. 77—Statutory declarations If a person is required under this Act to provide information to the Board, the Board may require that the information be verified by statutory declaration and, in that event, the person will not be taken to have provided the information as required unless it has been verified in accordance with the requirements of the Board. 78—False or misleading statement A person must not make a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information kept or provided under this Act. 79—Victimisation (1) A person commits an act of victimisation against another person (the victim) if he or she causes detriment to the victim on the ground, or substantially on the ground, that the victim— (a) has disclosed or intends to disclose information; or (b) has made or intends to make an allegation, that has given rise, or could give rise, to proceedings against the person under this Act. (2) An act of victimisation under this Act may be dealt with— (a) as a tort; or (b) as if it were an act of victimisation under the Equal Opportunity Act 1984, but, if the victim commences proceedings in a court seeking a remedy in tort, he or she cannot subsequently lodge a complaint under the Equal Opportunity Act 1984 and, conversely, if the victim lodges a complaint under that Act, he or she cannot subsequently commence proceedings in a court seeking a remedy in tort. (3) If a complaint alleging an act of victimisation under this Act has been lodged with the Commissioner for Equal Opportunity and the Commissioner is of the opinion that the subject matter of the complaint has already been adequately dealt with by a competent authority, the Commissioner may decline to act on the complaint or to proceed further with action on the complaint. detriment includes— (a) injury, damage or loss; or (b) intimidation or harassment; or (c) discrimination, disadvantage or adverse treatment in relation to the victim's employment or business; or (d) threats of reprisal. 80—Self‑incrimination Subject to this Act, if a person is required to provide information or to produce a document, record or equipment under this Act and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than— (a) an offence against Part 6 of this Act; or (b) an offence against this or any other Act relating to the provision of false or misleading information. 81—Punishment of conduct that constitutes offence If conduct constitutes an offence and is also a ground for disciplinary action under this Act, the taking of disciplinary action under this Act is not a bar to conviction and punishment for the offence, nor is conviction and punishment for the offence a bar to disciplinary action under this Act. 82—Continuing offence (1) A person convicted of an offence against a provision of this Act in respect of a continuing act or omission— (a) is liable, in addition to the penalty otherwise applicable to the offence, to a penalty for each day during which the act or omission continued of not more than one tenth of the maximum penalty prescribed for that offence; and (b) is, if the act or omission continues after the conviction, guilty of a further offence against the provision and liable, in addition to the penalty otherwise applicable to the further offence, to a penalty for each day during which the act or omission continued after the conviction of not more than one tenth of the maximum penalty prescribed for the offence. (2) If an offence consists of an omission to do something that is required to be done, the omission will be taken to continue for as long as the thing required to be done remains undone after the end of the period for compliance with the requirement. 83—Offences by bodies corporate If a body corporate commits an offence against this Act, any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention that is the subject of the offence also commits that offence and is liable to the penalty for that offence applicable to an individual. 84—General defence It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence. 85—Immunity of persons engaged in administration of Act (1) No personal liability attaches to a person engaged in the administration of this Act for an act or omission in good faith in the exercise or discharge, or purported exercise or discharge, of official powers or functions. (2) A liability that would, but for subsection (1), lie against a person, lies instead against the Crown. 86—Application of fines A fine imposed for an offence against this Act must be paid to the Board. 87—Confidentiality (1) A person engaged or formerly engaged in the administration of this Act must not divulge or communicate personal information obtained (whether by that person or otherwise) in the course of official duties except— (a) as required or authorised by or under this Act or any other Act or law; or (b) with the consent of the person to whom the information relates; or (c) in connection with the administration or enforcement of this or any other Act; or (d) to an authority responsible under the law of a place outside this State for the registration or accreditation of persons who provide education services or early childhood services, where the information is required for the proper administration of that law; or (e) to an agency or instrumentality of this State, the Commonwealth or another State or a Territory of the Commonwealth for the purposes of the proper performance of its functions. (2) Subsection (1) does not prevent disclosure of statistical or other data that could not reasonably be expected to lead to the identification of any person to whom it relates. (3) Information that has been disclosed under subsection (1) for a particular purpose must not be used for any other purpose by— (a) the person to whom the information was disclosed; or (b) any other person who gains access to the information (whether properly or improperly and whether directly or indirectly) as a result of that disclosure. (4) The regulations may make further provision in respect of the disclosure of information obtained in the course of the administration of this Act. 88—Service (1) A notice or document required or authorised to be given or sent to, or served on, a person for the purposes of this Act may— (a) be given to the person personally; or (b) be posted in an envelope addressed to the person at the person's last known residential, business or (in the case of a corporation) registered address; or (c) be left for the person at the person's last known residential, business or (in the case of a corporation) registered address with someone apparently over the age of 16 years; or (d) be transmitted by fax or email to a fax number or email address provided by the person (in which case the notice or document will be taken to have been given or served at the time of transmission). (2) Without limiting the effect of subsection (1), a notice or other document required or authorised to be given or sent to, or served on, a person for the purposes of this Act may, if the person is a company or registered body within the meaning of the Corporations Act 2001 of the Commonwealth, be served on the person in accordance with that Act. 89—Evidentiary provision (1) In proceedings for an offence against this Act or in disciplinary proceedings under Part 7, an allegation in the complaint— (a) that a school named in the complaint is or is not, or was or was not on a specified date, registered on the schools register; or (b) that the registration of a school named in the complaint is or is not, or was or was not on a specified date, subject to specified conditions; or (c) that the registration of a school named in the complaint is or is not, or was or was not on a specified date, endorsed with an approval to enrol full fee paying overseas students; or (d) that a person named in the complaint is, or was on a specified date, the responsible authority for a specified school; or (e) that a person named in the complaint is, or was on a specified date, a member of the governing authority of a specified school; or (f) that a person named in the complaint is, or was on a specified date, an authorised officer, must be accepted as proved in the absence of proof to the contrary. (2) In legal proceedings, a document apparently certified by a Registrar to be a copy of a register under this Act, or a copy of a code of conduct prepared or endorsed by the Board under this Act, must be accepted as such in the absence of proof to the contrary. 90—Regulations (1) The Governor may make such regulations as are contemplated by, or necessary or expedient for the purposes of, this Act. (2) Without limiting subsection (1), the regulations may— (a) vary Schedule 2; (b) prescribe fees or charges for the purposes of this Act (including, to avoid doubt, for the purposes of the Education and Care Services National Law (South Australia)) and may provide for the payment, recovery, reduction or waiver of such fees or charges; (c) exempt classes of persons or activities from the application of this Act or specified provisions of this Act, either unconditionally or subject to specified conditions; (d) prescribe penalties, not exceeding $10 000, for offences against the regulations; (e) modify the operation of the Education and Care Services National Law and the national regulations under the Education and Care Services National Law (South Australia) as they apply in this jurisdiction (whether to a residual early childhood service or otherwise); (f) make provisions of a saving or transitional nature consequent upon— (i) the enactment of this Act; or (ii) amendments to the Education and Care Services National Law text; or (iii) amendments to the Education and Care Services National Law (South Australia); or (iv) variations to the national regulations under the Education and Care Services National Law (South Australia). (3) A provision of a regulation contemplated by subsection (2)(a), (e) or (f) may, if the regulation so provides, take effect from the commencement of this section or from a later day (but if a provision takes effect from a day earlier than the day of the regulation's publication in the Gazette, the provision does not operate to the disadvantage of a person by decreasing the person's rights or imposing liabilities on the person). (4) The regulations may— (a) be of general application or vary in their application according to prescribed factors; (b) refer to or incorporate, wholly or partially and with or without modification, a code, standard or other document prepared or published by a prescribed body, either as in force at the time the regulations are made or as in force from time to time; (c) provide that a matter or thing in respect of which regulations may be made is to be determined according to the discretion of the Minister, the Board or other specified person or body. (5) If a code, standard or other document is referred to or incorporated in the regulations— (a) a copy of the code, standard or other document must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified in the regulations; and (b) evidence of the contents of the code, standard or other document may be given in any legal proceedings by production of a document apparently certified by the Minister to be a true copy of the code, standard or other document.