Education and Children's Services Bill

Final Stages

The Legislative Council agreed to the bill with the amendments indicated by the following schedule, to which amendments the Legislative Council desires the concurrence of the House of Assembly:

No. 1. Clause 3, page 10, after line 17 [clause 3(1)]—Insert:

Education Ombudsman means the Education Ombudsman appointed under Part 10A (and includes a person acting in that office from time to time);

No. 2. Clause 3, page 12, after line 4 [clause 3(1)]—Insert:

school discipline means the manner in which a school regulates or enforces standards of student behaviour and includes—

(a) suspension, exclusion or expulsion of students; and

(b) proactive practices for school staff in their interactions with students; and

(c) practices to reduce bullying in schools;

school discipline policy means the policies, guidelines, legislative requirements and other matters relating to school discipline with which Government schools are obliged to comply;

No. 3. Clause 32, page 29, line 12 [clause 32(1)]—Delete 'Government'

No. 4. Clause 54, page 40, after line 30 [clause 54(2)]—Insert:

(da) a person (not being a teacher at a school to which the review relates) nominated by the Australian Education Union (SA Branch);

No. 5. Clause 82, page 56, line 26 [clause 82(1)]—After 'may' insert:

, with the approval of the governing council of the school,

No. 6. Clause 83, page 57, line 15 [clause 83(1)]—After 'student' insert:

enrolled or attending at a Government or a non-Government school

No. 7. Clause 106, page 68, line 34 [clause 106(2)(b)]—After 'regulations' insert:

and 1 a nominee of the Australian Education Union (SA Branch)

No. 8. New Part, page 79, after line 17—Insert:

Part 10A—Education Ombudsman

Division 1—Preliminary

123A—Interpretation

In this Part—

education service means a service consisting of the provision of—

(a) preschool education; or

(b) primary or secondary education;

education service provider means a person who provides an education service.

Division 2—Appointment and conditions of office

123B—Education Ombudsman

(1) There is to be an Education Ombudsman.

(2) The Education Ombudsman is appointed on conditions determined by the Governor and for a term, not exceeding 5 years, specified in the instrument of appointment.

(3) The Governor may remove the Education Ombudsman from office on the presentation of an address from both Houses of Parliament seeking the Education Ombudsman's removal.

(4) The Governor may suspend the Education Ombudsman from office on the ground of incompetence or misbehaviour and, in that event—

(a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and

(b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Education Ombudsman's removal has not been presented to the Governor, the Education Ombudsman must be restored to office.

(5) The office of Education Ombudsman becomes vacant if the Education Ombudsman—

(a) dies; or

(b) resigns by written notice given to the Minister; or

(c) completes a term of office and is not reappointed; or

(d) is removed from office by the Governor under subsection (3); or

(e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

(f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or

(g) becomes a prohibited person under the Child Safety (Prohibited Persons) Act 2016; or

(h) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or

(i) becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office.

(6) Except as is provided by this section, the Education Ombudsman may not be removed or suspended from office, nor will the office of the Education Ombudsman become vacant.

123C—Remuneration

The Education Ombudsman is entitled to remuneration, allowances and expenses determined by the Governor.

123D—Acting Education Ombudsman

(1) If for any reason—

(a) the Education Ombudsman is temporarily unable to perform official duties; or

(b) the office of the Education Ombudsman is temporarily vacant,

the Governor may, by notice published in the Gazette, appoint a person to act in the office of the Education Ombudsman and a person so appointed has, while so acting, all the powers, functions and duties of the Education Ombudsman.

(2) A person who is a Public Service employee may be appointed under this section to act in the office of the Education Ombudsman while remaining a Public Service employee for a term not exceeding 3 months and may, on the expiration of that term, be reappointed (provided that the terms of appointment do not exceed 6 months in aggregate in any period of 12 months).

(3) Subject to this Act, the terms and conditions of appointment and employment (including the salary and allowances) of the person appointed under subsection (1) will be as determined, from time to time, by the Governor.

123E—Staff

(1) The Education Ombudsman's staff consists of—

(a) Public Service employees assigned to work in the office of the Education Ombudsman; and

(b) any person appointed under subsection (3).

(2) The Minister may, by notice in the Gazette—

(a) exclude Public Service employees who are members of the Education Ombudsman's staff from specified provisions of the Public Sector Act 2009; and

(b) if the Minister thinks that certain provisions should apply to such employees instead of those excluded under paragraph (a)—determine that those provisions will apply,

and such a notice will have effect according to its terms.

(3) The Education Ombudsman may, with the consent of the Minister, appoint staff for the purposes of this Part.

(4) The terms and conditions of employment of a person appointed under subsection (3) will be determined by the Governor and such a person will not be a Public Service employee.

(5) The Education Ombudsman may, by agreement with the Minister responsible for an administrative unit of the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit.

123F—Delegation

(1) Subject to this Act, the Education Ombudsman may delegate a function or power under this Act (other than a prescribed function or power) to a specified body or person (including a person for the time being holding or acting in a specified office or position).

(2) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the ability of the Education Ombudsman (as the case requires) to act in any matter; and

(d) is revocable at will.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

123G—Independence

In performing and exercising functions and powers under this Act, the Education Ombudsman must act independently, impartially and in the public interest, and is not subject to the direction or control of the Minister or the Chief Executive.

Division 3—Investigations

123H—Matters subject to investigation

(1) Subject to this Act, the Education Ombudsman may investigate—

(a) any matter relating to the provision of education services by an education service provider; and

(b) any matter relating to school discipline,

whether the matter occurred, or relates to conduct occurring, before or after the commencement of this section.

(2) The Education Ombudsman—

(a) may make such an investigation—

(i) on receipt of a complaint; or

(ii) on the Education Ombudsman's own initiative; and

(b) must make such an investigation—

(i) on the referral of a matter by the Minister; or

(ii) on the referral of a matter by either House of Parliament, or any committee of either of those Houses, or a joint committee of both Houses of Parliament.

(3) The Education Ombudsman must not investigate a matter on a complaint unless satisfied that the procedures for resolving complaints or disputes, if any, of the relevant education service provider have been used appropriately but without resolution of the complaint.

(4) If an education service provider is a member of a representative organisation the Education Ombudsman must, before commencing an investigation under subsection (2)(a), attempt to resolve the matter in consultation with that representative organisation.

(5) The Education Ombudsman—

(a) may not decline to investigate a matter solely on the ground that the complainant is an employee or agent of the relevant education service provider or that the matter relates to the internal management of the relevant education services provider; but

(b) must decline to investigate a complaint if it relates only to a person's terms and conditions of employment.

123I—Conduct of investigation

(1) An investigation may be conducted in such manner as the Education Ombudsman considers appropriate.

(2) The Education Ombudsman may, at any time, require a complainant—

(a) to provide further information or documents; or

(b) to verify all or any part of the complaint by statutory declaration.

(3) The Education Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation.

(4) The Education Ombudsman may, if satisfied that the subject of a complaint has been properly resolved by conciliation under subsection (3), determine that the complaint should not be further investigated under this Part.

(5) The regulations may make further provision in relation to the conduct of investigations by the Education Ombudsman, including (without limiting the generality of this subsection)—

(a) prescribing circumstances in which the Education Ombudsman may determine not to conduct an investigation following receipt of a complaint; and

(b) making provision with respect to the procedures to be followed on investigations.

123J—Education Ombudsman to have powers of a Royal Commission

For the purposes of an investigation, the Education Ombudsman has the powers of a commission as defined in the Royal Commissions Act 1917 and that Act applies as if—

(a) the Education Ombudsman were a commission as so defined; and

(b) the subject matter of the investigation were set out in a commission of inquiry issued by the Governor under that Act.

Division 4—Reports and directions

123K—Reports

(1) The Education Ombudsman—

(a) may prepare a report of the Education Ombudsman's findings and conclusions at any time during an investigation; and

(b) must prepare such a report at the conclusion of an investigation.

(2) The Education Ombudsman may provide copies of a report to such persons as the Education Ombudsman thinks fit, and must, in the case of a matter referred to the Education Ombudsman under section 123H(2)(b)(ii), provide a report to the House or Committee that referred the matter.

(3) A report may contain information, comments, opinions and recommendations for action.

(4) No action lies against the Education Ombudsman in respect of the contents of a report under this section.

(5) The regulations may make further provisions in relation to reports under this section.

123L—Education Ombudsman may direct Minister in relation to school discipline policy

(1) The Education Ombudsman may, by notice in writing, issue a direction to the Minister in relation to school discipline policy.

(2) If, following receipt of a notice under this section, the Minister is of the opinion that, in the circumstances, failure to comply with the terms of the notice would be reasonable and justifiable, the Minister may determine not to comply with the notice (in which case the Minister must advise the Education Ombudsman of that determination, in writing, as soon as practicable).

(3) If the Minister fails to comply with the terms of a notice received under this section the following provisions apply:

(a) the Minister must, at the request of the Education Ombudsman, report to the Education Ombudsman within the time allowed in the request on the reasons for the failure to comply with the notice;

(b) if, following receipt of the Minister's report, the Education Ombudsman is of the opinion that the failure to comply with the notice was unjustified or unreasonable, the Education Ombudsman may make a report on the matter to the Premier;

(c) the Education Ombudsman may forward copies of any report to the Premier to the Speaker of the House of Assembly and the President of the Legislative Council with a request that they be laid before their respective Houses.

(4) A power or function of the Education Ombudsman under this section must not be delegated.

Division 5—Miscellaneous

123M—Annual report

(1) The Education Ombudsman must, on or before 31 October in each year, report to the Minister on the operation of the Education Ombudsman during the preceding financial year.

(2) A report under this section must include the information required by the regulations.

(3) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament.

No. 9. Clause 141, page 91, after line 10 [clause 141(2)]—Insert:

(ta) any matter relating to the functions and powers of the Education Ombudsman;

At 17:59 the house adjourned until Thursday 21 March 2019 at 11:00.