In brief - Victorian Teaching Profession's Code of Conduct now includes guidance around teachers engaging in relationships with former students. Schools should obtain legal advice when investigating and acting upon alleged breaches in this complex area.
The Victorian Institute of Teaching has released a new version of the Victorian Teaching Profession’s Code of Conduct (VIT Code) which includes critical new provisions regulating the professional conduct of teachers in Victoria that place post-education restrictions on teacher-student relationships.
Ban on relationships with former students
One major change in the Code is the express guidance around teachers engaging in relationships with former students. Recognising the unique position of influence and trust that must not be violated or compromised between teachers and students, Principle 1.5 of the Code addresses the previously ambiguous situation where a teacher commences a sexual relationship with a student shortly after the student has completed their schooling.
The Code addresses this scenario in the following way:
“A professional relationship may be compromised if a teacher
socialises with learners (including online and via social media) outside of a professional context
invites learners back to their home
has a sexualised relationship with a former learner within two years of the learner completing their senior secondary schooling or equivalent. In all circumstances, the former learner must be at least 18 before a relationship commences.” [emphasis added]
The amendments to the VIT Code would appear to be designed to address the outcome of litigation several years ago in Reverend Laurie Pearson as of the Association of the Canonical Administrators of Padua College v John Martin  VSC 696, where it was alleged that a teacher had groomed a former student while she was a student at a Catholic school, on the grounds that a subsequent sexual relationship developed once the student completed Year 12. The teacher sued the school under the Victorian Equal Opportunity Act 2010 (Vic.) and successfully argued he had been discriminated against on the grounds of “lawful sexual activity”. The teacher was awarded $90,000 compensation due to economic loss.
Statutory exemptions to unlawful discrimination in the Equal Opportunity Act and Fair Work Act
While the outcome in Martin was a finding of discrimination, there are now certain statutory exemptions to unlawful discrimination that may apply to religious bodies and religious schools in Victoria. For example, under section 83 of the Equal Opportunity Act, an act done because of a teacher’s religious belief/activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity that would otherwise be discriminatory may be lawful if the act “conforms with the doctrines, beliefs or principles of the religion” or “is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion”.
Similar exemptions are contained in the Fair Work Act 2009 (Cth) in relation to adverse action based on discriminatory grounds.
While these statutory exemptions have been criticised as operating to the detriment of teachers in a range of hypothetical employment scenarios, the question remains whether the exemptions are broad enough to be applied positively for the purposes of child welfare, allowing schools to defend certain decisions where teachers compromise contemporary professional expectations involving young people.
Given the complexity of discrimination and adverse action statutory exemptions and the interaction of particular circumstances with the amended VIT Code, including the risk of legal claims by teachers, schools should obtain legal advice when investigating and acting upon alleged breaches of the VIT Code in this complex area.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.