Teaching Service Act 1980

The primary cohort is the Teaching Service itself, statutorily defined as persons employed under Division 2 of Part 4 (s 44(1)). This includes "officers" (those employed other than as temporary employees — s 4(1)) and temporary employees engaged under s 50. School principals are singled out for distinct performance pathways (s 93I) and are defined as persons appointed to that position (s 4(1)).

The Secretary of the Department of Education is both the central rights-holder and duty-bearer. Virtually every substantive power — appointments (ss 47, 47A, 48, 49, 50, 51), transfers (s 51A), discipline, performance management, suspensions (s 93L), terminations (ss 77, 77A, 93T), and determinations (s 13) — is vested in the Secretary. The Secretary acts for the Crown in industrial matters (s 11) and may delegate most functions (except the delegation power itself and s 100 functions) to officers, temporary employees, Public Service employees or TAFE staff (s 8).

The Minister receives notifications on major industrial matters (s 15) and holds residual departmental authority preserved by s 94. The Crown is the deemed employer (s 44(2)), yet the Act expressly preserves the Crown's right to dismiss (s 97), subject to appeal rights under other statutes.

Indirectly affected parties include children in government schools (protected by the paramountcy principle in s 5A and the Part 4B machinery), taxpayers (via the efficiency mandate in s 6), and industrial associations or organisations that may enter agreements under s 14. Aboriginal applicants receive statutory preference for non-senior positions where merit is equal (s 47(1A)). Retired officers may be re-appointed without examination or probation (s 49).

Former officers and temporary employees remain subject to the Act post-resignation or retirement for misconduct allegations (s 93P) and may be reinstated or re-employed under s 93W if they regain clearance. The Industrial Relations Commission is excluded from senior-position appointment challenges (s 47A(9)), promotion appeals beyond the Secretary (s 60), and Part 4B terminations (s 93Z). Courts and tribunals are ousted from reviewing protected functions (s 93ZA).

Public Service employees and TAFE staff may receive delegations or acting appointments (ss 8, 9). The Teacher Housing Authority interacts with rent deductions (s 92(2)). Personal representatives, spouses, children and dependent relatives receive death benefits for untaken extended leave (s 81).

Officers and temporary employees owe duties of compliance with the Act, regulations, and procedural guidelines (s 93C(1)(a)). They must report bankruptcy or arrangements for creditor benefit (s 92A), obtain permission before undertaking other paid work (s 92B — casual temporaries exempted), and immediately notify the Secretary of charges or findings for imprisonable offences (s 92C(1)). Supervisors share the offence-notification duty (s 92C(2)). Unauthorised-person status must be reported by both the individual and supervisor (s 93U).

Rights are conditional. Officers enjoy merit-based senior appointments (s 47A(4)), limited promotion appeals on procedural irregularity (s 60), and extended leave entitlements after 10 years (s 79(1)), with proportionate payments on early termination for non-misconduct reasons after five years (s 79(3)). Temporary employees receive four weeks' notice or pay in lieu for non-misconduct termination (s 50(6)) but have no probationary or appeal rights equivalent to officers. Both classes benefit from the child-protection paramountcy principle (s 5A) and industrial agreements that bind without individual appeal rights (s 14(2)).

The Secretary's duties include advertising senior vacancies accessibly to external applicants (s 47A(3)), determining merit by reference to nature of duties, abilities, qualifications, experience, standards and personal qualities (s 47A(5)), and observing procedural guidelines consistent with fairness (s 93D(2)–(3)). Before disciplinary action, officers must receive written notice of allegations and an opportunity to respond (s 93D(3)(a)), plus a further opportunity to make submissions on proposed penalties (s 93D(3)(b); s 93F(3)). Performance reviews must occur annually (s 93G(1)).

Rights are curtailed by ouster clauses. No judicial review lies for senior appointments (s 47A(10)), Part 4B terminations are automatic and unreviewable except via Child Protection (Working with Children) Act pathways (s 93V), and protected functions under Part 4B cannot be challenged (s 93ZA). Suspension without pay is available pending misconduct investigations, charges, interim bars or clearance issues (s 93L), with salary forfeiture unless the Secretary directs otherwise.

Child-related rights and duties are elevated: accreditation revocation triggers termination (s 77(1)); suspension without pay follows accreditation suspension (s 77(2)). Officers may request (but not demand) transfers (s 51A(3)), and permanent transfers require consultation (s 51A(2)). Invalidity or incapacity may lead to retirement or transfer with consent (s 76(1)).

Disciplinary action is exhaustively defined in s 93B(1) as dismissal, directed resignation, reduction in salary or demotion, fine, caution or reprimand. The Secretary may impose these after dealing with misconduct allegations per procedural guidelines (s 93F(2)). Fines are deducted from salary or termination payments (s 93O(2)). Demotions require Secretary appointment to the lower position (s 93O(1)).

Part 4B imposes the bluntest sanction: automatic dismissal of unauthorised persons engaged in child-related work, effective immediately upon becoming unauthorised or upon the Secretary becoming aware (s 93T(2)). No compensation or industrial remedies are available (s 93Z), and the Industrial Relations Commission is stripped of jurisdiction (s 93S(1)).

Remedial action is non-punitive and includes counselling, training, monitoring, performance plans, warnings, and non-demotive transfers (s 93B(1)). It may be taken alongside or instead of disciplinary action (s 93F(4)).

Suspension from duty is available pending misconduct resolution or on clearance-related triggers (s 93L). Salary may be withheld and forfeited to the State unless the Secretary directs payment for pre-suspension periods (s 93L(3)–(4)).

Excess officers may have services dispensed with (s 72). Excessive salaries trigger reassignment or reduction with preferential return rights (s 73(2)). Probationary appointments may be annulled without appeal (s 48). Accreditation breaches lead to termination or unpaid suspension (s 77), with no obligation to provide alternative employment.

Enforcement is largely internal. The Secretary implements decisions at any time (s 93M). Allegations may proceed even after retirement or resignation (s 93P), with fines recoverable as debts (s 93P(3)). Bankruptcy or serious offence notifications (ss 92A, 92C) trigger Secretary oversight but carry no standalone penalty in the Act; consequences flow through misconduct provisions.

The Act preserves Crown dismissal rights (s 97) and Minister's directional authority (s 94). Regulations under s 100 may prescribe punishment and dismissal procedures.

The Act is expressly subordinate to the Industrial Relations Act 1996 except where it "otherwise expressly provides" (s 5). Section 5A makes child protection paramount despite that Act or any other law. Industrial matters are modified so that references to employers become the Crown, employees become Teaching Service members, and industry becomes the Teaching Service (s 10).

Senior position appointments and related disputes are excluded from being "industrial matters" (s 47A(9)) and attract a broad ouster of proceedings for prohibition, certiorari, mandamus, declaration or injunction (s 47A(10)), preserving only s 60 appeals. Part 4B prevails over all other Acts and laws (s 93S(1)), terminating employment without disciplinary process under Part 4A (s 93S(2)) and excluding Industrial Relations Commission jurisdiction for reinstatement or compensation (s 93Z).

Links to the Teacher Accreditation Act 2004 are pervasive: appointments require accreditation or equivalent qualifications (ss 47(1)(a), 50(1)(a)); revocation triggers termination (s 77(1)); suspension of accreditation permits unpaid suspension (s 77(2)–(3)). The Child Protection (Working with Children) Act 2012 supplies definitions for "charged person", "unauthorised person", interim bars and clearances (s 93R), and supplies the review pathway preserved in s 93V and s 93ZA(6).

The Government Sector Employment Act 2013 is referenced for acting Secretary appointments (s 9) and extended leave calculations via Schedule 2 to the Government Sector Employment Regulation 2014 (s 79(2)(c)). The Interpretation Act 1987 applies via the note in s 4(1) and supplies the de facto partner definition for s 81(7). Superannuation Act 1916 entitlements commence after extended leave (s 80(2)) and are additional to leave payments (s 81(5)).

Public Interest Disclosures Act 2022 definitions of detrimental action and offences are imported into the misconduct definition (s 93C(3)). The Act preserves other statutory or common-law appointment methods (s 44(3)) and does not affect rights under other Acts to appeal salary reductions or dismissals (s 97(3)).

Procedural guidelines under s 93D must yield to regulations made under s 100(6). Historical interaction with repealed Public Service and Teaching Service Acts is preserved for leave calculations (s 79(2)(b)).

The provided text records amendments up to 2024 No 35, Sch 3.13 (updating s 92 rent deduction references). Major substantive changes occurred in 2004 (Teaching Services Amendment Act), 2006 (Education Legislation Amendment (Staff) Act and Education Legislation Amendment Act), 2012–2016 (child protection alignment), 2018 (miscellaneous grounds, address-unknown service, accreditation links), and 2022 (Public Interest Disclosures Act updates to s 93C).

The 2004 amendments substituted Part 2, repealed large tranches of Part 3 and old Part 4 divisions, introduced merit-based senior appointments (s 47A), reframed the Teaching Service definition (s 44), and replaced outdated commission structures with Secretary-centric powers. This was driven by a desire to modernise management, align with public sector reforms, and emphasise merit over seniority.

The 2006 insertions of Part 4A and Part 4B responded to child-protection scandals and perceived weaknesses in handling underperformance and misconduct. Part 4A created a streamlined disciplinary regime excluding cross-examination and hearings (s 93E) to reduce legalism while preserving fairness through guidelines (s 93D). Part 4B implemented automatic termination for barred persons, reflecting zero-tolerance policy post-Royal Commission into institutional responses to child sexual abuse precursors. The paramountcy principle (s 5A) was added to ensure child safety overrides industrial rights.

2012 and 2016 amendments aligned terminology with the Child Protection (Working with Children) Act 2012, expanded "charged person" definitions, adjusted reinstatement windows (s 93W), and added s 93L(2)(a1) suspension triggers. The 2016 Schedule 3 savings clause (cl 22) permitted reinstatement of certain previously dismissed persons, balancing fairness with ongoing risk.

2018 changes inserted s 51B (service on last-known address), s 77 and s 77A (accreditation and miscellaneous terminations), updated temporary employee provisions, and refined s 47 and s 50 accreditation references. These tightened accountability loops.

The 2022 amendments to s 93C incorporated Public Interest Disclosures Act 2022 concepts of detrimental action and internal disclosures, expanding misconduct to protect whistleblowers.

These changes reflect shifting policy from industrial-relations balance toward child safety, rapid response to risk, reduced judicial oversight, and alignment with broader public sector and safeguarding legislation.

The text itself does not cite decided cases; all analysis must be grounded in statutory language. However, the structure reveals legislative intent to minimise litigation. Section 47A(9)–(10) ousts industrial jurisdiction and judicial review for senior appointments, while s 93ZA comprehensively bars proceedings challenging protected functions under Part 4B, including decisions not to accept resignations or permit retirements. Subsection 93ZA(4)(b) expressly declares such exercises are not industrial matters. Section 93Z removes Industrial Relations Commission power to order reinstatement or compensation for Part 4B terminations.

Controversies implicit in the drafting include tension between child-protection paramountcy (s 5A) and industrial rights, resolved in favour of the former. The exclusion of procedural fairness at the point of Part 4B termination (s 93T(3)) has been a point of legislative design to achieve immediacy, balanced by preserved NCAT pathways under the Child Protection (Working with Children) Act (s 93V) and reinstatement rights if clearance is restored within 12 months (s 93W).

The broad misconduct definition (s 93C), extending to off-duty conduct and pre-appointment behaviour, expands employer reach. The prohibition on cross-examination and hearings in disciplinary processes (s 93E) was intended to streamline proceedings but raises natural justice questions; the Act counters this by mandating written notice and submission opportunities (s 93D(3)).

Ouster clauses have historically attracted judicial scrutiny in Australian administrative law, yet the text grounds their validity in express parliamentary language. The savings and transitional provisions (Schedule 3) have themselves been amended multiple times (2004, 2006, 2007, 2012, 2016), indicating ongoing calibration of retrospectivity, particularly for pre-commencement conduct (cl 18) and existing disciplinary charges (cl 19).

The preference for Aboriginal applicants (s 47(1A)) reflects equity policy but is confined to non-senior positions where candidates are equally eligible. Its interaction with merit-based senior appointments (s 47A) remains unaddressed in the text.

Most practitioners miss that s 5A's paramountcy principle applies not only to initial disciplinary decisions but to "any appeal against, or determining any claim arising from or in relation to, that action." This can override otherwise applicable industrial fairness considerations in Commission proceedings.

The interaction between s 93L suspension (with salary withholding) and later Part 4B termination is treacherous: salary already withheld may be forfeited, yet s 93T(5) regulations can claw back leave or superannuation payments made for post-termination periods. Few realise that a person reinstated under s 93W is "taken to have never been dismissed" for all purposes (s 93W(4)(a)), potentially restoring continuity for long-service leave and incremental progression.

Section 47A(11) preserves s 60 appeals, but those appeals are internal to the Secretary, final (s 60(5)), and limited to "irregular or improper" process — a narrower ground than general merit review. The eligibility-list carry-over power (s 47A(8)) allows the Secretary to appoint from an old list to a "substantially the same" position without fresh advertising, a hidden flexibility that can sidestep external competition.

Temporary employees have no position (s 50(3)) yet are members of the Service; this affects superannuation, leave, and workers compensation status in subtle ways. The "last known address" service rule (s 51B) permits disciplinary instruments to be sent to an outdated address if the Secretary is unaware of the current one, potentially shortening effective notice periods.

The definition of misconduct now expressly includes detrimental action against persons who "may have made" or "proposes to make" an internal disclosure (s 93C(1)(d)), creating reverse onus risks in whistleblower cases. Section 93P allows post-resignation disciplinary action (including fines recoverable as debts), meaning a clean resignation does not necessarily close the file.

Many overlook that performance improvement programs are not a mandatory precursor to disciplinary action for non-principals if the Secretary has followed procedural guidelines and formed the opinion that performance remains unsatisfactory (s 93J(4)). Conversely, principals receive an explicit 21-day submission window before demotion or dismissal (s 93I(2)).

The Act's ouster clauses (ss 47A(10), 93ZA) are drafted to cover "purported" exercise, non-exercise, and threatened exercise of functions (s 93ZA(7)), closing off anticipatory injunctions. Finally, cl 22 of Schedule 3 (the 2016 savings provision) gives the Secretary discretionary reinstatement power for certain pre-2016 dismissed persons, but only if they are not currently unauthorised — a narrow window that has been under-utilised in practice.

Compliance begins with rigorous record-keeping. The Secretary must ensure all senior vacancies are advertised accessibly (s 47A(3)), merit assessments expressly address the five statutory factors in s 47A(5), and procedural guidelines are publicly available and followed (s 93D(5)). Delegations must be documented and exclude non-delegable powers (s 8(1)).

For misconduct and performance matters, written notification of allegations and proposed action is mandatory (s 93D(3)). Interviews, signed statements and investigations are permitted (s 93E(3)), but no formal hearing or cross-examination. Remedial action should be considered at every stage (s 93F(4)–(5)). Performance reviews must be annual and criterion-based (s 93G); unsatisfactory outcomes require documented performance improvement programs with clear terms and duration (s 93H).

Child-protection compliance is non-negotiable. All officers and temporary employees in child-related work must hold current clearances. Immediate notification cascades under ss 92C, 93U and 93R are required; failure itself may constitute misconduct. Accreditation status must be monitored; revocation or suspension triggers action under s 77 within statutory timeframes.

Industrial compliance requires that all determinations under s 13 and agreements under s 14 for major matters be notified to the Minister (s 15). Agreements bind universally (s 14(2)). Extended leave records must track pre- and post-1963 service, deductions for prior leave, and Schedule 2 Government Sector Employment Regulation calculations (s 79(2)).

Organisations should maintain an internal "not to be employed" list (s 7(1)(e)) and ensure address-unknown procedures under s 51B are used only after reasonable inquiry. Bankruptcy, outside-work and offence notifications must be actioned promptly, with procedural fairness observed before any adverse finding.

Schools and principals must report unauthorised-person status or serious offences immediately (ss 92C(2), 93U(2)). Human-resources units should integrate the paramountcy principle (s 5A) into all decision templates. Policies on s 92B outside paid work should reference the Secretary's guidelines.

Regular legal audits of delegations, procedural guidelines, and Part 4B processes are advisable. Training on the narrow grounds for s 60 appeals and the finality of Secretary decisions under s 60(5) prevents wasted internal resources. Because regulations under s 100 prevail over guidelines (s 93D(6)), subordinate legislation must be checked for updates. Finally, organisations should maintain separate files for performance, conduct and child-protection matters to facilitate rapid response to clearance cancellations or new allegations, given the automatic nature of Part 4B terminations and the broad definition of misconduct.