Education (School Administrative and Support Staff) Act 1987

The Act’s primary subjects are the “school administrative and support staff of the Department” (s 3(1)), a term that encompasses permanent and temporary employees engaged under the Act in roles that support the operation of public schools and departmental facilities but do not involve teaching. Typical positions include school administrative officers, finance clerks, general assistants, grounds staff, library technicians and student support officers.

The Secretary of the Department is the central repository of power. Virtually every substantive decision—creation of positions (s 5(2)), determination of duties (s 7(1)), appointment (ss 8, 21), confirmation or annulment of probation (s 12), transfer (s 17), reduction of excess staff (s 18), fixing of conditions (s 22), remuneration (s 23), disciplinary and remedial action (ss 32, 32B, 32C), suspension (s 32D), and maintenance of the “not to be employed” list (s 7E)—is vested in the Secretary. The Minister retains residual powers over classifications (s 5(1)) and maximum staffing numbers (s 6).

Permanent employees (those appointed under s 8 on an ongoing basis) enjoy greater procedural protections than temporary employees, yet both classes are subject to the child-protection termination regime in Part 6A and the paramountcy of child safety under s 7A. Temporary employees engaged for less than 10 weeks are exempt from the secondary-employment permission requirement (s 7C(4)) and may be terminated with minimal process (s 21(4)–(6)).

School principals and persons in charge of workplaces are obliged to report serious criminal charges or findings against staff (s 7D(2)) and unauthorised-person status (s 32L(2)). Staff themselves bear positive reporting obligations: bankruptcy (s 7B), serious offences (s 7D(1)), and loss of working-with-children clearance (s 32L(1)).

Industrial associations representing these employees may enter agreements with the Secretary that bind all members of the covered class, whether or not they belong to the association (s 24(3)). The Industrial Relations Commission is expressly denied jurisdiction to reinstate or award compensation where Part 6A operates (s 32Q).

Finally, the Act indirectly affects students and their families by elevating child protection to paramount consideration in every staffing decision (s 7A) and by maintaining a list of persons who must not be employed (s 7E). The Crown itself retains its inherent power to dispense with services notwithstanding anything in the Act (s 25).

Duties fall heaviest on employees and the Secretary. Employees must:

• Perform duties determined by the Secretary or prescribed by regulation (s 7(1)).
• Treat child protection as the paramount consideration in any interaction that could engage s 7A.
• Report bankruptcy or arrangements with creditors immediately and supply further information as required (s 7B).
• Obtain the Secretary’s permission before undertaking any other paid work (subject to the short-term temporary exemption) (s 7C).
• Report any charge or finding of guilt for an offence punishable by 12 months’ imprisonment or more, whether in New South Wales or elsewhere (s 7D(1)).
• Immediately notify the Secretary if they become an unauthorised person under the Child Protection (Working with Children) Act 2012 (s 32L(1)).

The Secretary’s duties include issuing and publishing procedural guidelines consistent with procedural fairness (s 30), maintaining the list of prohibited persons (s 7E), considering performance periodically (s 32A), and implementing decisions under Part 6 or 6A (s 32E). When exercising disciplinary powers the Secretary must give notice of the allegation and an opportunity to respond (s 30(3)), and before imposing disciplinary action must allow submissions on the proposed sanction (ss 32(3), 32C(2)).

Rights are more constrained. Permanent employees have a right to a probationary process (s 11), to be transferred only to positions for which they are qualified and at equivalent remuneration (s 17), and to receive procedural fairness within the limits of ss 30–31. They may sue for remuneration determined under s 23(2). However, there is no right to cross-examine witnesses or insist on a formal hearing in misconduct matters (s 31), no automatic right to notice before annulment of probation (s 12), and no entitlement to compensation when services are dispensed with under s 18(1)(b) or s 26. Temporary employees have even fewer rights: their services may be dispensed with at any time (s 21(4)), subject only to the four-week notice or pay rule where misconduct is not alleged.

Persons dismissed under s 32K have no right to a hearing (s 32K(3)) and no entitlement to industrial remedies (s 32Q), but may apply for reinstatement if they later obtain a clearance within 12 months (s 32N). The Act expressly preserves the Crown’s right to dispense with services independently of the statute (s 25).

The Act creates few traditional criminal offences. The principal sanction for breach of the secondary-employment rule or reporting obligations is disciplinary action up to and including dismissal. Section 35(8) alone creates a statutory offence: a judgment creditor who fails to notify the Secretary that a garnishee debt has been satisfied is liable to a penalty not exceeding 1 penalty unit, enforceable summarily before the Local Court (s 36).

Enforcement of the conduct regime is almost entirely internal. After an allegation of misconduct is received, the Secretary follows the procedural guidelines (s 32(1)). If misconduct is established, disciplinary action—dismissal, directed resignation, reduction in salary or demotion, fine, caution or reprimand—may be imposed (s 28(1)). A fine is recovered by salary deduction (s 32F(2)). Remedial action (counselling, training, performance plans, warnings, transfer without loss of pay) may be taken instead of, or in addition to, disciplinary action (s 32(4)).

Part 6A operates by automatic statutory dismissal rather than by discretionary penalty (s 32K(1)). The dismissal is self-executing and not susceptible to challenge on procedural fairness grounds (s 32K(3)). The Secretary may, however, later take disciplinary action against a person who regains authorised status if the underlying conduct warrants it (s 32O).

Suspension pending investigation or working-with-children outcomes may be on full pay or with pay withheld; withheld pay is forfeited to the State unless the Secretary directs otherwise (s 32D(3)–(4)). Excess staff may be transferred or, if no suitable position exists, have their services dispensed with (s 18(1)(b)). Probationary appointments may be annulled without triggering Part 6 (s 12(3)).

The Act contains broad protection clauses. Anything done in good faith and with reasonable care under Part 6A is immune from action, liability, claim or demand (s 32P). Decisions under Part 6A are largely shielded from judicial review (s 32R).

The Act is deliberately positioned outside the general public-sector employment regime. Section 4(2) states that the Government Sector Employment Act 2013 provisions relating to Public Service employees do not apply. It interacts with industrial law through s 22(3), which subordinates Secretary-determined conditions and regulations to relevant awards and agreements, yet s 24(3) makes association agreements binding on all staff regardless of membership. Section 7A(2) and s 32J(1) expressly prevail over the Industrial Relations Act 1996 and “any other Act or law”.

Child protection legislation is paramount. Part 6A is expressly tied to the Child Protection (Working with Children) Act 2012. Terms such as “charged person”, “unauthorised person”, “clearance” and “child-related work” take their meaning from that statute (s 32I(2)). Automatic dismissal under s 32K operates independently of, and without the need for, the disciplinary processes in Part 6 (s 32J(2)). The paramountcy principle in s 7A applies “despite anything” in the Industrial Relations Act 1996 or any other law.

Public interest disclosure law is incorporated by reference: detrimental action offences and the meaning of “detrimental action” are drawn from the Public Interest Disclosures Act 2022 (s 29(3)). Misconduct includes taking such detrimental action (s 29(1)(c)–(d)).

The Interpretation Act 1987 supplies definitions and interpretive rules (note to s 3(1)). Regulations made under s 38 can create offences punishable by up to 5 penalty units (s 38(3)) and can override other entitlements on termination under Part 6A (s 32K(6), s 32N(5)).

Transitional provisions in Schedule 1 ensure that pre-2006 disciplinary charges continue under the old regime (cl 4) while new Part 6 applies to earlier conduct (cl 3). The 2016 amendments permit discretionary reinstatement of certain persons dismissed under the former s 32K (cl 6 of Sch 1).

The most significant amendments occurred in 2006 via the Education Legislation Amendment (Staff) Act 2006. That Act substituted an entirely new Part 6, introduced the objects clause (s 27), defined “misconduct” and “remedial action”, created the procedural guidelines regime (s 30), and inserted the performance management division (ss 32A–32B). It also added ss 7A–7E (child protection paramountcy, bankruptcy and secondary-employment reporting, offence notification, and the prohibited-persons list) and inserted Part 6A to give automatic effect to working-with-children bars. These changes were driven by contemporary child-protection scandals and a policy desire to align school support staff rules with the stricter regime already applicable to teachers under the Teaching Service Act 1980.

The Child Protection (Working with Children) Act 2012 and subsequent 2012, 2016 and 2022 amendments refined Part 6A. The 2016 amendments introduced the concept of “charged person”, adjusted the definition of unauthorised person, and added cl 6 to Schedule 1 permitting the Secretary to reinstate certain pre-2016 dismissals. The 2022 updates to the Public Interest Disclosures Act 2022 flowed through to the expanded definition of misconduct in s 29.

The Industrial Relations Amendment Act 2018 (No 3) repealed obsolete ss 19 and 20, amended s 21 to remove an expired transitional power, repealed s 32H, and inserted ss 34A and 34B dealing with abandonment of employment and unknown addresses. These were housekeeping measures to modernise language and remove spent provisions.

Each wave of amendment has been motivated by the twin imperatives of child safety and administrative efficiency, progressively enlarging the Secretary’s discretion while contracting the availability of external review or compensation.

Because Part 6A dismissals are expressed to be automatic, immediate and immune from procedural fairness (s 32K(3)), and because s 32R largely ousts judicial review, reported challenges have been limited. The few decided cases have tested the boundaries of “child-related work” and the interaction with reinstatement rights under s 32N. Courts have consistently upheld the statutory language that a person whose substantive position involves child-related work remains subject to dismissal even while performing non-child-related duties (s 32K(4)).

Controversy has centred on the breadth of the misconduct definition. The inclusion of off-duty conduct (s 29(2)(a)) and pre-appointment conduct (s 29(2)(b)) has been criticised by unions as disproportionate. The prohibition on cross-examination and formal hearings (s 31) has been challenged on natural justice grounds, but the Act’s internal procedural guidelines have generally been held to satisfy the reduced fairness obligation imposed by statute.

The automatic forfeiture of withheld salary under s 32D(4) and the bar on compensation under s 32Q have attracted industrial criticism, particularly where a subsequent working-with-children clearance vindicates the employee. The 2016 Schedule 1 clause 6 reinstatement power was a legislative response to one such cohort of employees dismissed on the basis of charges that were later withdrawn or resulted in no conviction.

No superior-court decision has struck down any provision; the legislative drafting—repeated use of “despite any other Act or law” and express ouster language—has proved robust.

Most practitioners miss that s 7A applies not only to disciplinary decisions but to any action taken under the Act, including transfer (s 17), reduction of excess staff (s 18), and even confirmation of probation (s 12). A decision that appears neutral on its face can be challenged if child-protection considerations were not treated as paramount.

The interaction between s 7D and s 32L is another trap: the obligation to report serious offences or unauthorised status is duplicated, yet the legislation provides that reporting under one section satisfies the other (ss 7D(3), 32L(3)). Failure to appreciate this can lead to unnecessary duplicate notifications and disciplinary exposure.

Section 32K(4) is often overlooked. Even if an employee is temporarily assigned to non-child-related duties, the substantive nature of the position determines whether automatic dismissal is triggered. Employers sometimes assume a temporary reassignment insulates the employee; it does not.

The protection in s 32R extends to the purported exercise, non-exercise and threatened exercise of functions (s 32R(7)). This is wider than many analogous ouster clauses and has the practical effect of preventing interlocutory injunctions aimed at preserving employment pending a working-with-children tribunal outcome.

Finally, the savings provision in Schedule 1 cl 6 is a one-off discretionary power limited to persons dismissed before the 2016 amendments on the basis of then-current charges. It cannot be used for later dismissals, yet many HR units continue to cite it incorrectly.

Compliance begins with robust intake and screening. Before appointment, verify Australian citizenship or permanent residency (s 9), medical fitness (s 10), and current working-with-children clearance. Maintain an auditable record that child protection was the paramount consideration at every stage (s 7A).

For existing staff, implement systems to capture the mandatory reports required by ss 7B, 7D and 32L. The Secretary should issue and regularly update the procedural guidelines under s 30, ensuring they are publicly available and consistent with the minimum fairness standards set out in s 30(3). Performance reviews must occur periodically (s 32A) and, where performance is unsatisfactory, a formal performance improvement plan must precede any disciplinary action based on performance (s 32B(3)(a)).

When an allegation of misconduct arises, the Secretary must decide at the outset whether to proceed disciplinarily, remedially, or both (s 32(1)). All communications should be in writing, allegations must be particularised, and the employee must be given a genuine opportunity to respond before any finding is made. Suspension decisions under s 32D should be documented with reference to the risk that justifies withholding pay.

Organisations should maintain the prohibited-persons list (s 7E) and ensure that any person on it is not engaged. Where a clearance lapses or is cancelled, immediate action under Part 6A is required; there is no discretion once the statutory trigger is met.

Industrial agreements entered under s 24(2) must be monitored for consistency with the Act, particularly the child-protection provisions that cannot be overridden. Records of all deductions under s 35 (garnishee) must be kept meticulously, and the 5 % administration fee must be remitted to the Consolidated Fund.

Finally, because regulations prevail over Secretary-determined conditions (s 22(3)) and can create binding offences (s 38(3)), any internal policy must be cross-checked against the current Education (School Administrative and Support Staff) Regulation and amended guidelines. Regular legal audit of Part 6 and Part 6A processes is essential; the statutory language is unforgiving and the external review avenues deliberately narrow.