Teachers Registration and Standards Act 2004

The Act defines several key concepts that are central to its operation. Unprofessional conduct (s 3) means a contravention of this Act or the repealed provisions, a contravention of a condition of registration, a contravention of a code of conduct or professional standard published or adopted under section 31B, incompetence, or disgraceful or improper conduct. Prohibited person has the meaning given under the Child Safety (Prohibited Persons) Act 2016, and such persons are automatically disqualified from holding registration: a working with children check must be current within five years (s 21(1)(c)). A practising teacher is defined as a person in employment for which registration is required under this Act. Prescribed service includes a school-based preschool or stand-alone preschool under the Education and Children's Services Act 2019, an education and care service under the Education and Care Services National Law (South Australia) consisting of or including pre-school education, or any other service prescribed by regulation. Pre-school education means the provision of courses of education, training and instruction to children who have not yet attained compulsory school age under the Education and Children's Services Act 2019. The Act distinguishes between full registration and provisional registration: a person is eligible for registration if they have prescribed qualifications and experience and meet other requirements, and are not a prohibited person (s 21). A person may be eligible for provisional registration if they lack necessary experience but are otherwise eligible (s 21(2)). The Teachers Registration Board is established under section 5 with at least 10 and not more than 14 members appointed by the Governor, including at least six practising teachers nominated by specified unions, and other members including a legal practitioner and a parent of a school student (s 9). At least half the members must be registered teachers. The Board must be constituted of equal numbers of women and men as far as practicable (s 9(6)). A unique identifier is a number issued under the Child Safety (Prohibited Persons) Act 2016, which must be recorded on the register (s 28(2)(ba)). The professional standards for teachers are those developed from time to time by the Board for the purposes of registration (s 3). Working with children check means a check under the Child Safety (Prohibited Persons) Act 2016. The Act also uses the term teacher broadly in Part 7 to mean a person who is or has been employed as a teacher, whether or not registered (s 32(2)). The concept of condition is defined to include a limitation (s 3). Director of a prescribed service means the person responsible for providing educational leadership and managing day-to-day operations of the prescribed service.

The Act directly affects every person who provides or offers to provide pre-school, primary or secondary education for payment or other consideration in South Australia (s 20(1)). This includes classroom teachers, specialist teachers, relief teachers, and any person performing the duties of a principal of a school or director of a prescribed service (s 20(2)). Employers of such persons are also directly regulated: they must not employ or allow an unregistered person in those roles (s 20(3)). Employers include government departments, Catholic Education Office, independent schools, and any other entity that engages teachers. The Act imposes notification obligations on employers: they must notify the Board within seven days of dismissal or resignation of a practising teacher arising from unprofessional conduct, incompetence, being a prohibited person, or lack of a current working with children check, and also must notify if they become aware of impairment, allegations of misconduct, or the teacher not being fit and proper (s 37). Former employers must notify within 12 months of ceasing to be an employer if they become aware of certain matters (s 37(3)). The Act affects holders of a special authority to teach under Part 6: these are unregistered persons granted limited authority to teach under specified conditions, and they are subject to similar obligations including notification and working with children checks (s 30). Children and young people are the ultimate beneficiaries: the Act’s paramount consideration is their welfare and best interests (s 7). The Teachers Registration Board itself is a key entity: its members are appointed by the Governor and must include practising teachers, a legal practitioner, and a parent representative (s 9). The Registrar, appointed by the Governor, manages the staff and resources and implements Board policies (s 15). The Commissioner of Police must provide information about criminal convictions and other matters relevant to fitness to teach (s 50). Teacher regulatory authorities in other Australian states and New Zealand are recipients of information and collaborate with the Board (ss 6(e), 40(1)(d)). The Director of Public Prosecutions and the Commissioner of Police must establish arrangements for reporting of offences that raise serious concerns about fitness (s 51). Designated entities listed in Schedule 1, including unions, employer bodies, parent associations, and the Commissioner for Children and Young People, are consulted on Board nominations (s 9(5)). Persons who are registered teachers (or formerly registered) are affected by the ongoing conditions, annual fees (s 26A), renewal obligations, and the requirement to notify of certain events (s 24(2)). Finally, any body corporate that employs teachers may face liability: members of governing bodies and managers can be personally liable for offences by the body if they knew or ought to have known of the risk and failed to exercise due diligence (s 59).

The Act imposes a central duty on any person who wishes to teach for payment: they must be a registered teacher or hold a special authority (s 20). Registered teachers have ongoing duties including the condition that a working with children check be conducted at least once every five years (s 24(a1)). They must also comply with mandatory conditions in section 24(2): if charged with or convicted of specified offences, if dismissed or resigned following allegations of unprofessional conduct or incompetence, if dismissed or resigned following allegations of improper conduct relating to a child, or if they become a prohibited person or five years have elapsed since a working with children check, they must notify the Board in writing within 14 days. Contravening such a condition is an offence with a maximum penalty of $5,000 and an expiation fee of $315 (s 25). Registered teachers must pay an annual fee (s 26A), inform the Registrar of any change of name or address within 28 days (s 28(4)), and notify of a new working with children check within 7 days (s 28(4a)). They must surrender their certificate of registration when conditions change or registration is suspended or cancelled (s 29(2)). The Board or Registrar may require a teacher (or employer) to provide information relating to the teacher’s employment (s 27). Failure to comply is an offence (maximum $5,000). For employers, key duties include not employing unregistered persons (s 20(3), maximum $10,000), and notifying the Board of specified matters as soon as reasonably practicable and within 7 days (s 37). An employer who fails to comply without reasonable excuse commits an offence punishable by up to $10,000 (s 37(5)). Employers are protected from liability for notifications made under section 37(6). Holders of a special authority to teach must also notify of working with children checks within 14 days (s 31(5)) and name/address changes within 28 days (s 31(4)). The Board has the right to impose conditions on registration (s 24(1)) and to vary or revoke them (s 24(3)). It also has the right to conduct investigations (s 34), hold inquiries (ss 35, 38), and impose disciplinary sanctions including reprimand, fines up to $5,000, suspension, cancellation, and disqualification (s 35(2)). Teachers have rights under the Act: they are entitled to natural justice in Board proceedings under Part 8, including at least 21 days’ written notice of proceedings, particulars of allegations, and a reasonable opportunity to call and give evidence, examine witnesses, and make submissions (s 42). They may be represented by legal counsel or another person (s 47). Decisions under Part 5 (registration) and Part 7 (disciplinary) are appealable to the Administrative and Disciplinary Division of the District Court within one month (s 49). If the Board does not give written reasons at the time of decision, the time for appeal runs from receipt of those reasons (s 49(4)). Persons may also apply for a written statement of reasons (s 49(3)). In disciplinary inquiries, the Board is not bound by the rules of evidence (s 45(a)), but must observe natural justice (s 42(1)). A teacher may be required to submit to a medical examination where incapacity is suspected (ss 34(1b), 38(2)), and refusal may lead to suspension (s 38(3)). The Act also provides a limited privilege against self-incrimination: a person must provide information or material even if it would incriminate them, but that material is not admissible against them in proceedings for an offence, except for false or misleading information (s 56).

The Act creates a range of criminal offences and provides for enforcement through the courts and the Board’s disciplinary powers. The most serious penalty is for failing to comply with an investigation requirement under section 34(1a): maximum $10,000 or imprisonment for one year. Similarly, failing to comply with a summons or misbehaving during proceedings attracts the same maximum (s 44(3)). The maximum penalty for a person (including an employer) who teaches without registration is $5,000 for an individual teacher and $10,000 for an employer who employs an unregistered person (s 20). Claiming to be a registered teacher when not also carries $5,000 (s 20(6)). Contravening a mandatory notification condition is punishable by up to $5,000, with an expiation fee of $315 (s 25). Failure to comply with an information requirement by a registered teacher or employer is $5,000 (s 27), with an expiation fee of $315. Failure to notify change of name or address is $1,250 (expiation $160) for registered teachers (s 28(4)) and similarly for special authority holders (s 31(4)). Failure by a special authority holder to notify of a working with children check within 14 days also carries $1,250 (expiation $160) (s 31(5)). Employer notification offences under section 37 attract a maximum of $10,000. The Act provides for continuing offences: a person convicted of an offence that is a continuing act or omission is liable to an additional daily penalty of up to one-tenth of the maximum penalty for each day the act or omission continues, and a further offence if it continues after conviction (s 58). An omission to do something required is taken to continue until the thing is done (s 58(2)). Offences of false or misleading information (s 54) and procuring registration by fraud (s 55) each carry a maximum of $10,000. The Board may impose a fine of up to $5,000 as a disciplinary measure (s 35(2)(b)), which is recoverable as a debt (s 35(3)). The Board may also impose conditions, suspend, cancel, or disqualify a teacher permanently or for a period (s 35(2)(c)(d)). Importantly, the Registrar may suspend a teacher’s registration without a hearing if a working with children check is not current (s 33A) or if the teacher is charged with a prescribed offence or reasonably suspected to pose an unacceptable risk to children (s 34A). A suspension under section 34A requires Board review within 60 days; if no review occurs, the suspension is automatically cancelled (s 34A(3)). Members of governing bodies and managers of a body corporate may be personally liable if the body corporate commits an offence (other than regulatory offences) and the member knew or ought to have known of the risk, was in a position to influence conduct, and failed to exercise due diligence; they may be prosecuted even if the body corporate is not (s 59). There is a general defence under section 60: it is a defence to prove the offence was not intentional and did not result from a failure to take reasonable care. This defence does not apply to the governing body/member liability offence (s 60(2)). Finally, the Registrar must notify employers and relevant bodies of suspensions, cancellations, and inquiry outcomes (s 40), and must notify of charges or convictions raising serious concerns (s 52).

The Act operates alongside several other South Australian and national laws. Most significantly, it is interconnected with the Child Safety (Prohibited Persons) Act 2016. A person who is a prohibited person under that Act is automatically ineligible for registration (s 21(1)(d)) and their registration is automatically cancelled by force of section 24A. The Act requires a working with children check (under that Act) to be conducted within the preceding five years for eligibility (s 21(1)(c)). The Board must notify the central assessment unit under the Child Safety (Prohibited Persons) Act of disciplinary actions (s 40(1)(e)). The unique identifier issued under that Act must be recorded on the register (s 28(2)(ba)). The Act also interacts with the Education and Children's Services Act 2019, particularly regarding the definition of prescribed service and pre-school education. References in the Act to that Act have been amended over time (see amendment history). The Act also refers to the Education and Care Services National Law (South Australia) for education and care services that include pre-school education. The Act does not replace criminal law: section 36 provides that disciplinary action under Part 7 is not a bar to conviction and punishment for the same conduct constituting an offence, and vice versa (except that a fine cannot be imposed under Part 7 if the person has been found guilty of an offence in respect of the same conduct). The Act interacts with evidence law through section 46, which requires the Board to consider whether to make an order under section 13 of the Evidence Act 1929 when a student or vulnerable witness is giving evidence. The Act also relates to the Public Sector (Honesty and Accountability) Act 1995 by providing that a Board member is not taken to have a conflict of interest merely because the member shares an interest common to teachers generally (s 12). The Act contemplates interaction with teacher regulatory authorities in other Australian states and New Zealand: the Board must confer and collaborate with them (s 6(e)) and notify them of disciplinary actions (s 40(1)(d)). It also may receive information from them and share information under Part 9A. Information sharing provisions (Part 9A) override other Acts and laws to permit disclosure reasonably necessary to prevent harm to a child (s 49A) and allow prescribed information to be shared among a defined set of persons and bodies for child safety purposes (s 49B). The Act also interacts with the Local Government Act 1999 by including local councils as State authorities for information-sharing purposes (s 49B(7)). The regulations may make provisions of a saving or transitional nature consequent upon the enactment of the Child Safety (Prohibited Persons) Act 2016 or the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (s 61(2a)). Finally, the Act preserves any other power of investigation or inquiry that exists apart from the Act (s 34(4)).

The Act was originally passed in 2004 (Act No 57 of 2004) and commenced on 20 January 2005 for most provisions, with Parts 2, 4-9, sections 50-60 and schedules commencing on 31 March 2005. Since then, it has been amended multiple times. The Statutes Amendment (Public Sector Consequential Amendments) Act 2009 made minor amendments to section 12, effective 1 February 2010. The Education and Early Childhood Services (Registration and Standards) Act 2011 amended definitions and sections relating to preschool and early childhood services, effective 1 January 2012. The Statutes Amendment (Directors’ Liability) Act 2013 substituted section 59(1) and added section 59(1a) and 60(2), effective 17 June 2013, to provide for liability of members of governing bodies and managers of bodies corporate. The Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (Act 64/2017) made extensive amendments effective 1 July 2019, including inserting definitions of prohibited person, unique identifier, and working with children check; amending eligibility criteria to require a current working with children check and not being a prohibited person; inserting automatic cancellation for prohibited persons (s 24A); adding conditions relating to working with children checks; inserting suspension for lack of working with children check (s 33A); and requiring employers to notify if a teacher is a prohibited person. The Teachers Registration and Standards (Miscellaneous) Amendment Act 2018 (Act 25/2018) substituted section 20, inserted the power to suspend when charged with certain offences or posing unacceptable risk to children (s 34A), and allowed appointment of acting Registrar (s 15A), effective 20 December 2018. The Education and Children's Services Act 2019 made consequential amendments to definitions, effective 1 July 2020. The most substantial recent amendment was the Teachers Registration and Standards (Miscellaneous) Amendment Act 2020 (Act 38/2020), which commenced on 1 July 2021. This amendment made numerous changes: it inserted a new Part 3A on accreditation of initial teacher education programs (s 19A); substituted section 7 to make children’s welfare the paramount consideration; substantially restructured Board membership (substituted s 9, added s 9A); added power to employ staff (s 15B); inserted Part 6A on codes of conduct and professional standards; added new notification conditions for dismissal or resignation following incompetence allegations (s 24(2)(a)(iia)); changed the term of registration from 3 years to 5 years (s 26(1)); introduced annual fees (s 26A); inserted sections 31A (information requirement for special authority holders) and substituted section 31 (register); expanded the Registrar’s power to require medical examinations (s 34(1b)); added automatic review of suspension under s 34A; substituted employer notification obligations in section 37; inserted Part 9A on information sharing; and added Schedule 1 of designated entities for Board nominations. The regulations also amended Schedule 1 in 2021. The Act has also been subject to transitional provisions, including vacation of Board membership on commencement of the 2020 amendments and continuation of 3-year registrations for certain pre-commencement applicants (Sch 1 of amending Act).

The Act itself does not provide a record of specific litigation, but it establishes a clear avenue for judicial review and appeal. Section 49 provides a right of appeal to the Administrative and Disciplinary Division of the District Court against any decision of the Teachers Registration Board made under Part 5 (registration decisions) or Part 7 (disciplinary decisions). Appeals must be instituted within one month of the decision, but if the Board does not give written reasons at the time, the time runs from when the person receives the written statement of reasons (s 49(4)). The Board must provide a written statement of reasons on application by a person affected (s 49(3)). This appeal right is available to any person affected by the decision, which would include teachers whose registration is refused, suspended, cancelled, or who are disqualified, as well as persons granted registration subject to conditions. The District Court’s Administrative and Disciplinary Division would hear these appeals de novo or by way of review, though the Act is silent on the standard of review. Given that the Board is required to observe natural justice (s 42) and is not bound by the rules of evidence (s 45), the District Court would likely consider whether the Board’s decision was procedurally fair and based on reasonable grounds. The Act does not provide for a right of appeal against decisions made under section 34A (suspension/variation of conditions when charged with prescribed offences or posing unacceptable risk), but those decisions are subject to internal review by the Board within 60 days (s 34A(2)). If the Board refuses or fails to review, the suspension is automatically cancelled (s 34A(3)). Decisions of the Registrar to suspend under section 33A (lack of working with children check) are also subject to appeal as they are decisions under Part 5? Section 33A is in Part 7, but the suspension is a decision under Part 7? Actually, section 33A is in Part 7 (Action to deal with unprofessional conduct or incapacity). However, the power to suspend under s 33A is exercisable by the Registrar and is not a decision of the Board. The appeal right under s 49 applies to decisions of the Board. A suspension under s 33A might be treated as a decision of the Board if the Registrar is acting as delegate? The Registrar is appointed by the Governor (s 15) and may have delegated functions. The Act does not specify whether an appeal lies from a Registrar’s suspension; but s 49(1) says “decision of the Teachers Registration Board”. A suspension by the Registrar under s 33A could be appealed only if the Registrar were validly delegated that power by the Board. The Act does not explicitly say the Registrar may be delegated this power. Section 34A suspensions are made by the Registrar directly, and the Act expressly provides that they are not subject to procedural fairness requirements (s 34A(8)(a)), which suggests they may be purely administrative and not appealable under s 49. However, a person could seek judicial review in the Supreme Court on ordinary administrative law grounds. Additionally, the Act provides that any act or proceeding of the Board is not invalid by reason only of a vacancy or defect in appointment (s 13). The Act does not list any case law; no specific cases are named in the source. Practitioners should be aware that the District Court’s Administrative and Disciplinary Division has jurisdiction over appeals, and decisions of the Board may also be subject to review by SACAT in some circumstances? The Act does not mention SACAT except in section 24A(3) which refers to the prohibition notice being set aside by SACAT. So appeals are to the District Court only.

Several provisions in the Act contain traps for the unwary. First, section 33(2) allows the Board, in determining whether there is proper cause for disciplinary action, to have regard to any evidence of the teacher’s conduct no matter when it occurred, including information that existed at the time of registration “regardless of whether that information was before or could have been before the registering body at that time.” This means that past conduct that was not disclosed or was overlooked at registration can later form the basis for disciplinary action, including cancellation or disqualification. Second, the Act gives the Registrar the power to suspend a teacher’s registration under section 34A without providing procedural fairness and without being bound by the rules of evidence, if the teacher is charged with a prescribed offence or the Registrar reasonably suspects the teacher poses an unacceptable risk to children (s 34A(8)). The Board must review the suspension within 60 days or it is automatically cancelled (s 34A(3)), but during that period the teacher has no right to a hearing and may be unable to work. Third, the automatic cancellation for prohibited persons under section 24A operates immediately and without any Board decision. The teacher becomes a prohibited person on the issue of a prohibition notice, or by being prohibited under a law of the Commonwealth or another State/Territory, or on being found guilty of a prescribed offence committed as an adult (s 24A(2)). The cancellation is void only if the prohibition notice is set aside (s 24A(3)). Fourth, the condition under section 24(2)(a)(ii) requires a registered teacher to notify the Board within 14 days of dismissal or resignation following allegations of unprofessional conduct. This applies even if the allegations are unfounded; the notification obligation is triggered by the fact of dismissal or resignation in response to allegations, not by a finding of guilt. Failure to notify is an offence under section 25 with a maximum penalty of $5,000 and an expiation fee of $315. Fifth, employers have a duty under section 37 to notify the Board of certain matters as soon as reasonably practicable and within 7 days. The obligation arises not only for dismissal or resignation but also if the employer becomes aware that the teacher’s capacity is seriously impaired by illness or disability, or that an allegation of unprofessional conduct has been made, or that the teacher is not fit and proper. This is a broad obligation that may catch scenarios where the employer has not yet concluded the matter. Failure without reasonable excuse is an offence with a maximum $10,000. Sixth, section 59 imposes personal criminal liability on members of governing bodies and managers of a body corporate if the body corporate commits an offence under the Act and the prosecution proves that the member knew or ought to have known of a significant risk that such an offence would be committed, was in a position to influence conduct, and failed to exercise due diligence. This applies to any offence other than regulatory offences. The general defence under section 60 (lack of intention and reasonable care) is expressly not available to such persons (s 60(2)). Seventh, the self-incrimination provision in section 56 provides a limited immunity: you must provide information or material even if it would incriminate you, but that information is not admissible in proceedings for an offence except for an offence relating to false or misleading information. This means that if you provide false information to avoid self-incrimination, you cannot rely on the privilege: the false information itself may be used. Eighth, section 58 creates continuing offences: each day the act or omission continues after conviction attracts an additional daily penalty of up to one-tenth of the maximum. For an omission (e.g., failing to notify), the omission continues until the thing is done. Ninth, the Act does not require the Board to hear an application under Part 5 before granting it (s 41(2)), but if the Board intends to refuse, it must provide natural justice. However, this means a teacher may not know why their application was refused unless they request reasons (s 49(3)). Tenth, under section 17(2), a delegation of the power to hold an inquiry under Part 7 may only be to a committee of at least three persons including two Board members (one a practising teacher) and one legal practitioner. This seems to prevent delegating disciplinary hearings to a single Board member or to staff. Finally, the definition of “teacher” in Part 7 is very broad: it includes a person who is or has been employed as a teacher whether or not registered. So a person who was employed as a teacher years ago but never registered can still be subject to disciplinary action for conduct during that employment.

For a practising teacher, compliance begins with ensuring that they hold current registration or a special authority if required by section 20. The registration must be renewed before expiry: applications must be made not less than one month before expiry (s 22(4)). A teacher must ensure a working with children check is conducted at least once every five years (condition under s 24(a1)). Failure to do so can result in automatic suspension by the Registrar (s 33A). Teachers should maintain a diary or calendar for the 14-day notification obligations under section 24(2): notify the Board in writing within 14 days if charged with or convicted of specified offences; if dismissed or resigned following allegations of unprofessional conduct, incompetence, or improper conduct relating to a child; if they become a prohibited person; or if more than five years have elapsed since a working with children check. The notification must contain details as specified in the condition (the Board will specify what details are required). Teachers must also notify change of name or address within 28 days (s 28(4)), and notify of a new working with children check within 7 days (s 28(4a)). Annual fees under section 26A must be paid as prescribed; default may lead to suspension. Teachers must return their certificate of registration if conditions change or registration is suspended or cancelled (s 29(2)). They should comply promptly with any information request from the Board or Registrar under section 27, and any requirement to undergo a medical examination if incapacity is suspected (s 34(1b)). If the teacher is the subject of a disciplinary inquiry, they should attend and exercise their right to legal representation (s 42, s 47). For employers, the primary compliance obligation is to ensure that any person they employ to teach or as a principal or director is a registered teacher or holds a special authority (s 20(3)). The employer should verify registration status before employment and at least every five years with the working with children check. Employers must establish internal procedures to ensure that they become aware of any of the trigger events in section 37: dismissal or resignation of a practising teacher for prohibited person status, lack of working with children check, unprofessional conduct, incompetence, or other prescribed reasons; or becoming aware of impairment, allegations of unprofessional conduct, or the teacher not being fit and proper. When such an event occurs, the employer must notify the Board in the manner and form determined by the Board, as soon as reasonably practicable and within 7 days (s 37(4)). Even if the employer is unsure, it is safer to notify. The employer is protected from liability for notifications made in good faith (s 37(6)). Employers should also consider the obligations under the information sharing provisions (Part 9A) and may proactively provide information to the Board if they reasonably believe it would assist in managing risk to children (s 49B). For body corporate employers, the governing body and managers should ensure that the entity has robust policies and training to prevent offences under the Act, given the personal liability exposure under section 59. All parties should be aware of the general defence (s 60) but not rely on it for director/member liability. Compliance also includes cooperating with any investigation by the Registrar (s 34) and any Board inquiry (s 35). Finally, any person affected by a Board decision should note the one-month appeal window under section 49 and the ability to request written reasons.