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)
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
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.