Media – mainly on Sundays – and bloggers especially Cam Slater have been frustrated with Teachers’ Council rules that make it very hard to hear cases in public. I share their concerns. There is almost no way to have suppression orders because the maximum fine for a breach is $1k which deters no one.
The Council is understandably reluctant to risk identifying victims especially of sexual abuse but their rules don’t let them identify accused and not the victim – and won’t change with the current fine level.
This breeds rumours and false conclusions.
I’ve got two SoPs one very simple which increases the fine to $100k and would leave the Teachers’ Council to rewrite the rules. The second, below, is more comprehensive and adopts the position that Simon Power is promoting for the Courts. It has a presumption of an open hearing.
A month or so ago I tabled an earlier draft at the select committee , and sent one to the Minister – received and used advice from officials.
Will be interesting to see if Anne Tolley is prepared to move on this or whether she is prepared to continue to protect abusers.
Likely to be voted on next week – interested in comments on both policy and drafting.
Education Amendment Bill (No 2)
—————–
Proposed amendments
Hon Trevor Mallard, in Committee, to move the following amendments:
Insert new clause 18A:
“New subsections for section 139AW
The following subsections (4) to (7) are inserted after subsection 139AW(3):
(4) Subject to the provisions of subsection (5) and of any other enactment, every sitting of the Disciplinary Tribunal dealing with any proceedings in respect of serious misconduct shall be open to the public.
(5) Where the Disciplinary Tribunal is of the opinion that there is a real risk of prejudice to a fair trial, or to prevent undue hardship to the victims, or where publication would identify another person whose name is suppressed by order or by law, or where publication would endanger the safety of any person, or where publication would cast suspicion on other people that may result in undue hardship, or to prevent extreme hardship to the teacher, or where publication would be likely to prejudice the interests of the maintenance of law, including the retention, investigation, and detection of serious misconduct, it may make any one or more of the following orders:
(a) an order forbidding publication of any report or account of the whole or any part of—
(i) the evidence adduced; or
(ii) the submissions made:
(b) an order forbidding the publication of the name of any witness or witnesses, or any name or particulars likely to lead to the identification of the witness or witnesses.
(c) an order prohibiting the publication, in any report or account relating to any proceedings in respect of serious misconduct, of the name, address, or occupation of the teacher accused of, or found to have committed, serious misconduct, or of any other person connected with the proceedings, or any particulars likely to lead to any such person’s identification.
(6) An order made under subsection (5)—
(a) may be made for a limited period or permanently; and
(b) if it is made for a limited period, may be renewed for a further period or periods by the Disciplinary Tribunal; and
(c) if it is made permanently, may be reviewed by the Disciplinary Tribunal at any time; and
(d) must take into account any views of a victim of the serious misconduct, or of a parent or legal guardian of a victim of the serious misconduct, conveyed in the same manner as if such victim was a victim of offending in accordance with section 28 of the Victims’ Rights Act 2002.
(7) Every person commits an offence and is liable on summary conviction to a fine not exceeding $100,000 who commits a breach of any order made under subsection (5) or evades or attempts to evade any such order.
Insert new clause 18B:
“New subsections for section 139AZB
The following new subsection (1B) is inserted after subsection 139AZB(1A):
(1B) Any interested party may appeal to a District Court against a decision of the Disciplinary Tribunal made under section 139AW(5)
Insert new clause 18C:
“Subsection 139AZ(2) is deleted
Section 139AZ is amended by omitting subsection (2):
(2) A person commits an offence, and is liable on summary conviction to a fine not exceeding $100,000, if, without lawful excuse, he or she breaches an order made by the Disciplinary Tribunal under rules made under section 139AJ that—
(a) provide for a hearing to be held in private; or
(b) provide for evidence at a hearing to be given in private; or
(c) impose restrictions on the publication of any information relating to a particular hearing
Explanatory Note
These amendments clarify that the default position under this Act is that disciplinary proceedings are open and transparent, unless a suppression order is in place. The regime for suppression orders set out in these amendments is based on the principles set out in a recent Law Commission report.
An earlier set of amendments to this effect in my name were considered by the select committee. This set of amendments is substantially redrafted to take into account the changes recommended by the Ministry of Education at select committee stage.
Not sure i agree with the $100,000 fine, that seems to be placing an extreme limit on suppression of freedom of expression.
In many cases that fine would exceed any fine that the offender would receive by an order of magnitude that far outweighs the naming of someone who is afraid of their own name.
There are some examples covered by these provisions that received home detention and a fine of less than $5000, but naming them would cop one of $100,000. Seems far too excessive.
The rest though you have my support on.
How does this fit in the assumption that one is innocent till proven guilty? Given that teachers are very vulnerable to gossip and can be destroyed even when found to be falsely accused.
Agreed with Whale oil, $100,000 is way over the top for any professional body. It would be dubious that any defamation/harm to the perpetrator or victims would hit this level. I would be dubious if the high court should be able to hit this limit. Perhaps suppression orders could be made mandatory until guilt is proved (public/union access to hearing). Once guilt is proven then the courts could issue a suppression order if applied for by affected parties.
oh great idea Jeremy so we then have courts conducted in secret…they used to do that…it was called the Star Chamber.
NZ is too small to try and keep secrets. it might have worked when pigeons were used to pass messages.
Not so whale – Open access for those interested enough to go along, but conduct the trial details out of the media spotlight. No matter the facts of the case, (esp sexual abuse) there are those who will persecute the innocent, imagine trying to get new job with kids “oh yea I wanted to get out of that school cause some jilted schoolgirl accused me of things, but I didn’t do it and was cleared, trust me eh?” The names of all participants should be suppressed until guilt is established. Then all details should be published. I would also put this in the courts where there is automatic suppression to protect the victim, even when this is against the victims wishes. You never did publish until guilt was established did you?
“NZ is too small to try and keep secrets. it might have worked when pigeons were used to pass messages.”
Of course it doesn’t help when those amongst us driven by notoriety deliberately set out to break name suppression orders.
I agree with ianmac. All people (even teachers) should be treated fairly and have a right to a fair trail. Innocent till proven guilty! NZ should be a fair court, not a place full of kangaroo courts!
@Whaleoil
“Not sure i agree with the $100,000 fine, that seems to be placing an extreme limit on suppression of freedom of expression. ” Is that what you call rumor and gossip. Indeed its freedom of expression but it something that can ruin innocents peoples lives through no fault of their own!
I do agree the fine is excess but we shouldn’t lower the fine just to make it afford for people to break the law and spread amongst the media/public!
“NZ is too small to try and keep secrets. it might have worked when pigeons were used to pass messages.”
Only because some will to go ahead and break the law and have total disregard for a justice system and have no respect for others privacy!
I think it is important to remember that the teaching fraternity is a very small one – the sniff of a suspicion – even when proven innocent – is enough to ruin a career – once tarred with a particular brush it is very hard for the innocent teacher to ever regain a job in education. The profession really struggles to attract men – esp in primary – so I wonder how we address this?
However, serious misconduct must be dealt with – and when proven guilty – name suppression should not be allowed. I am not convinced that it is fair to all concerned to publish the names of people when they have yet to be convicted. I wonder what is to be gained by doing so?
Its a tricky issue – because the other side of it, re misconduct, is that if you know a teacher is dodgy, it can be hard to strike them off the register – particularly if the teacher has been quietly sidelined, or is still fully registered while undergoing a court case or investigation – perhaps this is an area that needs tightened up where teachers are on leave with a restriction on registration.
So, there is the juxtaposition of protecting the innocent (both teacher and students) and making sure those that must be prosecuted are.
in Britain there has been a real problem with malicious false accusations against teachers by pupils who know that the teacher will be suspended, possibly for months, while the allegation is investigated. So teachers are scared to discipline students even for outrageous misbehaviour, and many suspended teachers will never return to teaching even when the accusations are proven to be false. Some have had nervous breakdowns due to the stress of it all. Still I’m sure the witchhunters are right – after all, youngsters never tell lies to get back at someone, do they?
my my what a fairyland some people live in.
Our justice system is supposed to be based on openess. Yet you call for closing down all information until such time as guilt is proven.
In many cases releasing the name of the offender brings forward more victims, but under the suggestions of some we should just remain ignorant of everything until the court process has been completed.
Anyone who says that the courts are still open for anyone who can trot along is living in lala land and most likely has never been in a court to witnes the farce that poses as justice being delivered.
Instead of closing everything down we should be opening everything up. If we live stream parliament why not live stream court? Why should openness only be the preserve of those who can bothered paying $60 for the carpark in the city to trot along to the court, let alone giving up their day so openness can be practiced.
There was a time that court rosters were routinely published, perhaps we should return to that.
Name Suppression is largely the domain of people afraid of their own names.
“my my what a fairyland some people live in”
Balance deleted Trevor
“Our justice system is supposed to be based on openess. Yet you call for closing down all information until such time as guilt is proven.”
I don’t think it best to go back to the times of witch hunts!
“In many cases releasing the name of the offender brings forward more victims, but under the suggestions of some we should just remain ignorant of everything until the court process has been completed.”
Yet that person may never have done anything and is being falsely accused and others may join in and attack them. False accusations are damaging but at the time they are taken seriously.
“Why should openness only be the preserve of those who can bothered paying $60 for the carpark in the city to trot along to the court, let alone giving up their day so openness can be practiced.” I think not paying a small fine is a bit different from a rape case don’t you think?
“Our justice system is supposed to be based on openess.”
Actually it’s based on a number of principes including
“innocent until proven guilty”
Those who have decided that “openess” (the right for people who will largely be unaffected by the outcome despite what they think to know all about it) cannot be subservient to the right to innocence until proven guilty.
This is a balancing act and some people are over simplifying it.
The same thing that drives people to search and search the internet for suppressed names (particularly when they hear it is someone famous”) is what undermines innocent until proven guilty.
the number of times I hear people say :”there’s no smoke without fire” as though that is somehow controvertible evidence of something saddens me. A falsity repeated many times and accepted by many people is still a falsehood. That a majority believe it is true does not make it less false.
This is a difficult area indeed, and not nearly as simple or cut and dried as some think…
Much like the knee jerk change to provocation laws… Wetherspoon actually failed in his provocation defence….so the system worked we had time to mull that one over… but off went that political knee.
incontrovertible
“Balance deleted Trevor”
Fair call
Innocent until proven guilty should mean that the defendant is allowed name suppression unless convicted.
Once their name is public, even if innocent, they are still guilty in the public mind.
Why are my comments in moderation?
Disappointing Trevor. You know as well as anyone that working in schools is hard enough and as a teacher, you are often subject to false accusations from students. I agree that when found guilty of a crime you should lose the right to suppression, but a false accusation hangs around for a lot longer than the not guilty handed out by the Teachers’ Council.
This is not the same as in other situations. This will just heighten the fear that men have with regards to becoming teachers. Currently around 30% of the workforce in primary schools are male – this will lessen this number.
Teachers have enough problems without every false accusation from vengeful pupils being made public.
““In many cases releasing the name of the offender brings forward more victims, but under the suggestions of some we should just remain ignorant of everything until the court process has been completed.””
This could be solved by lifting suppression between verdict and sentencing. Publicise the verdict and the name. People can come forward, more charges laid etc etc YES it means another trial but that is a price I will pay for preserving the right to be deemed innocent.
The only thing worse than being found not guilty when guilty, is to be found guilty when innocent. THIS is what we need to consider, which of us wants to be in that person’s shoes?
I’m pretty sure teachers dont make up the majority or even close to a third of the “types” who sexually abuse children?Does anyone have any stats broken into occupations for convicted sex offenders?
Do we keep stats for the numbers and “types” who are charged with such offences?
Frankly, to truly protect children requires more than this kind of regulation. It might give people the perception their children have become safer but I dont think it’s the reality.
Its the same false sense of security we have delivered in the law and order area.
This is ridiculous. Everyone is innocent until proven guilty. Scaremongering at its worst Trevor and teacher bashing too (there are more pedophiles out of schools than in). To be consistent let everyone sign up for similar openness – doctors/dentists/lawyers/members of Parliament (some of visit schools though only about once every three years around election time). Very poor thinking, very poor.