Bills

Education and Children's Services Bill

Conference

The Legislative Council, having considered the recommendations of the conference, agreed to the same.

Consideration in committee of the recommendations of the conference.

The Hon. J.A.W. GARDNER: I move:

That the recommendations of the conference be agreed to.

In so moving, I thought I should place a few points on the record, which I think enhance the argument in favour of accepting these suggestions that the conference has put forward on the three outstanding clauses that were not agreed to between the Legislative Council and the House of Assembly prior to the conference being called.

Those three clauses had outstanding matters, which members of parliament had strong points and principled views on. I think that throughout the course of the debate, both in the second reading and the committee stage over the last year, there was ground given by all sides of the parliament and there were suggested amendments put forward by all sides of the parliament.

This is a bill that truly does have its mark left on it by every corner of both houses of this parliament, and with three clauses remaining to find resolution on there was further ground given in the conference of managers by, I think, pretty much all sides. That was in appreciation, I believe, of the significant benefits that this bill will provide to our children and young people in South Australia, our teaching service and our children’s service providers—all the staff working in all our education facilities in South Australia—our families and South Australia as a whole.

The benefits of this bill are significant, and it is those benefits as a whole that provide the reasons why members were able to give ground on issues that they may have felt passionately about—because they did not want to deny our children and young people the benefits.

I thank the members of parliament and the member for Port Adelaide and Deputy Leader of the Opposition in particular, who has a very significant stake in this bill, and I thank the Labor Party, who came some way towards the middle. I thank the Greens, the members of SA-Best and the Hon. John Darley, who came some way towards the middle. I thank my colleagues in the Liberal Party, who were all willing to give ground on certain matters which we felt quite strongly about in the best interest of getting the bill through.

In speaking in favour of these three final amendments and the proposals put forward in the conference of managers, I feel it is worthy that I remind the house of some of those reasons and the benefits of the bill. Just before I do that, I also want to thank a couple of people from outside the parliament for their contribution to this stage. I will start with the people who have been working within the education department, some of them for a number of years, in putting this together.

As I said previously, the formation, the genesis, of this bill came from a parliamentary committee inquiry commissioned under Malcolm Buckby as education minister in the order of two decades ago. It was in 1972 that the current Education Act was formed. After 27 years, it was certainly considered, at that stage, that modernisations needed to take place. After 47 years, I am really looking forward to today seeing that work culminate.

In recent years within the education department there is a cadre of people with expertise who have been nurturing the formation of this bill, in particular in its most recent form since 2016, when the member for Port Adelaide was the minister and since the election in its amended form, with some of those particular changes that our government brought to it. I identify them as Joanna Blake, Jamie Burt, Kelly Tolhurst and Audra Field in particular, amongst others, working under the leadership of Karen Weston and Peta Smith most recently. I also thank parliamentary counsel and my staff both in government and opposition who have assisted me in putting my work together.

This bill does a number of things that I will reflect on briefly. It also makes numerous technical, legal and operational improvements to the current framework that I do not propose to reflect on. The bill for the first time sets out objects and principles, which the current act does not and which the Children's Services Act does not. Amongst other things, the objects of the bill include ensuring the education and children's services provided in this state are of high quality and meet the needs of all groups in the community.

The objects promote the involvement of parents and persons other than parents who are responsible for children and other members of the community in the provision of education and children's services and they acknowledge the efforts of all teachers and educators. The bill sets out various principles that must be taken into account in relation to the operation, administration and enforcement of the bill. Most notably, the bill provides that the best interests of children and students are the paramount consideration.

There are a number of administrative improvements that the bill provides on which members should reflect when they are considering the three amendments that we are being asked to support today. It consolidates the positions of director-general under the Education Act and the director of children's services under the Children's Services Act into the position of the chief executive. Currently, they are held by the chief executive. It consolidates those three separate titles into one. It more clearly sets out the functions of the chief executive.

A number of functions assigned to the minister under the existing act are now to be assigned to the chief executive and recast, reflecting both the operational nature of those functions and a change in conventions for prescribing ministerial functions in legislation. It sets out in the legislation what is otherwise done by delegation. Functions transferred to the chief executive include providing for the education and training of teachers, providing or arranging residences for the accommodation of teachers and students, providing or arranging transport of students to and from government schools and issuing administrative instructions to governing councils.

Information sharing is a critical reason why we must support these remaining amendments and support the bill. It will enable the chief executive to require information about a specified child from schools, preschools and children's services centres, both government and non-government, that the chief executive reasonably requires for the purposes of this act. The bill establishes provisions that permit the sharing of information between schools—again, government and non-government—preschools, other children's services, the department and other state authorities, where that information would assist the recipient to perform official functions relating to the education, health, safety, welfare and wellbeing of a child or to manage risks to a child or class of children.

The bill will enable the chief executive to require further information from parents or people responsible for children about their child that is reasonably required for the administration and operation of the act, including, for example, medical information or personal information relating to a child. It provides for a principal of a school to which a child is to be enrolled to request from the principal of the child's previous school a report on the child, including academic progress, information relevant to the safety and wellbeing of that child, or indeed the safety and wellbeing of other children at that school.

Principals will be required to provide this information, and that implements recommendation 8.14 of the Royal Commission into Institutional Responses to Child Sexual Abuse. The information sharing provisions are entirely new to this act. None of them were in the old act or the old Children's Services Act. In relation to preschools and children's services centres, one of the key things this bill does is enable us to actually institute new ones.

Since 2012, under the Children's Services Act, the relevant provisions for establishing new government preschools under the Children's Services Act were actually removed in 2012 in anticipation of consolidated education and children's services legislation—optimistic anticipation as it turned out—but seven years later we are here, and we are very excited about that. The bill includes a number of changes to the governance provisions of government preschools and children's services centres to ensure greater alignment of preschool and school governance, making it easier for parents to transition from participation on preschool governing councils to school governing councils. It introduces further measures to ensure parents and others responsible for children will form the majority of members on the governing council of the preschool or the children's services centre, where possible.

The bill codifies existing policy in relation to circumstances under which the minister may close a preschool or children's services centre, and it prohibits corporal punishment in government and non-government preschools and children's services. This is a new provision. Corporal punishment is currently prohibited in preschools and children's services under the Education and Care Services National Law, but these new measures, however, will enable corporal punishment in preschools and children's services centres to be treated as assault under the Criminal Law Consolidation Act, consistent with the approach in schools.

In relation to government schools, the bill introduces improvements to ensure that the presiding member of the governing council of a school is a parent or other person responsible for a student while, of course, providing a measure for alternative chairs to be allowed where there is no parent willing to be the presiding member. As a consequence of the Debelle inquiry, and the government's election commitments, this bill establishes a fund for governing councils to access to pay for the costs of independent legal advice incurred or to be incurred in relation to disputes between governing councils and the departments. Access to the fund is to be managed independently by the Crown Solicitor.

The bill includes new provisions for the minister to establish special purpose schools, such as schools for education, youth training centres, prisons and hospitals, which allows the minister to tailor governance arrangements to suit those schools for which standard arrangements do not sensibly apply, and it enables parents and other persons responsible for children at a school to vote to amalgamate with one or more other schools. Currently, amalgamation can only occur after a school review has taken place.

I advise that, in relation to the formation of committees to conduct reviews into schools in a particular area, the bill will continue to provide for that. As a result of the conference of managers, the Australian Education Union will provide a nomination to serve on that committee rather than the original proposal in the bill, which was to be a teacher nominated from the teaching service. It was resolved at the managers' conference that the AEU will have 14 days to nominate such a person and then, given the time constrictions, if they do not nominate within 14 days the minister will nominate somebody, but we anticipate no stress or anxiety in that 14 days, being sufficient time to nominate a suitable person.

In relation to enrolment, the bill significantly increases the maximum penalties applicable, from $500 to $5,000, for the failure of a parent to enrol a child. This reflects the utterly critical importance of all our children and young people in South Australia being engaged with education. The bill provides for the chief executive to direct that a specified child be enrolled in a specified school if the chief executive is satisfied that it would, having regard to the child's health, safety or welfare, or the health, safety and welfare of students and staff at another school, be appropriate to do so.

In the case where a child is excluded from a school—for seriously assaulting another child at a school, for example—this measure will enable the chief executive to direct that, on their return from exclusion, the child be enrolled in a school other than the one their victim is enrolled in. Under the old Education Act, the chief executive is only able to direct the enrolment of a child with disabilities or learning difficulties. So this is a very important measure, which I think gives a further reason for why we need to support these amendments.

The bill provides for the chief executive to direct that a child enrolled in a specified government school be instead enrolled in another government school if the child was enrolled on the basis of false or misleading information, including information based on the residential address of the child or the child's parents. Currently, once the child is enrolled, even if on false or misleading information, that is the end of the matter if the child's parents wish them to remain enrolled there. This is an important measure that aims to deter a parent or other person responsible for a child from providing false or misleading information in the first place.

The bill also codifies and strengthens existing policy requirements for the enrolment of adult students by providing that a prohibited person under the Child Safety (Prohibited Persons) Act must not be enrolled at a school and that an adult person must not be enrolled at a school unless a working with children check has been conducted in relation to the person within the preceding five years. These provisions will not apply to a student who turns 18 while enrolled at the school.

In relation to attendance—and a number of these matters were election commitments, although I note and recognise that a number of them were taken up by the Labor Party towards the end of their time in office, and I thank them for doing so as well—the bill will significantly increase the maximum penalty for noncompliance with the requirement that a child of compulsory school age attend school and a child of compulsory education age participates in an approved learning program. The maximum penalties will increase from $500 to $5,000, ensuring that parents who were not concerned by the penalty before will now have a real reason to sit up and take notice and make best efforts to get their child to school.

The bill further provides that the parent or other person responsible for a child must provide a reason for the child's non-attendance at school or non-participation in a learning program within five days of the child's failure to attend school or to participate in a learning program as required. The bill modifies the defence available in respect of these offences to make them easier to prosecute. In doing so, the bill places a positive obligation on parents and other persons responsible for the children to take such steps as are reasonably practicable to ensure their child attends school or participates in a learning program.

There are new provisions to enable the convening of family conferences to address chronic non-attendance of a child at school or chronic non-participation in an approved learning program. This will be coordinated independently of the department and provide an opportunity for a student and their family to come together with the principal of their school, the department or other relevant persons to make voluntary arrangements to ensure the attendance of their child at school.

The option of family conferencing is not available under the current Education Act, so in addition to the penalty of a fine being available a really positive and proactive opportunity is provided for parents who feel disengaged from the process to come in and work with their child and the school to get a positive outcome. This is a really important part of the bill and the act.

There is a new requirement that a principal of a government or non-government school, or a head of an approved learning program, must now notify the chief executive if a child is persistently failing to attend school or participate in an approved program. This is important to ensure that children do not fall through the gaps. A student will be taken to be persistently failing to attend or participate if they fail to attend school or participate in a program without reasonable excuse for 10 days or more in a particular term. In relation to suspensions, exclusions and expulsions, the bill includes and updates the provisions for the suspension, exclusion or expulsion of students currently set out in the regulations.

Again, I thank the Hon. Tammy Franks and the member for Port Adelaide for getting us to the place where we are able to pass the bill and for putting forward the proposition of a significant review, which we went into in some detail last week. We will be working on the terms of reference and looking to appoint a reviewer in the coming weeks so that work can begin. One issue that was of particular contention going into the conference of managers was in relation to religious and cultural activities.

Again, I think everybody had fair-minded and positive suggestions about how we could resolve this impasse, and I thank the members of the conference for agreeing to the suggested compromise. The bill sets out clear provisions for a principal of a government school to set aside time for the conduct of religious or cultural activities undertaken by persons or a person of the class prescribed by regulations. It requires principals to give notice to parents or other persons responsible for a child at the school of the intended conduct of a specified religious or cultural activity involving the student.

This is new to the bill; it was not in the old act, and that is one of the important reasons why I think everyone in the parliament thought it was a valuable asset to the bill that parents ultimately be the decision-makers in relation to these matters. However, they can only be the decision-makers if they know about the activity taking place. We believe it is important that the activities can take place because they are an important part of our culture. Children living in our society are being exposed to activities, whether it be an Easter service or a visit to a mosque or a synagogue. These are valuable activities. The decision for the school to hold these activities is made by the principal, but it must ultimately be the parents who are the decision-makers.

As agreed in the managers' conference, the mechanism for this to happen is that there be provision for regulations to be made relating to obtaining the consent of persons who are responsible for students at the school for a student's participation in religious or cultural activities, or indeed that provision be made in relation to the exemption of students from participation. This will enable the government of the day to set the consent arrangements for religious and cultural activities in a manner they determine appropriate (opt in or opt out).

While the government has indicated previously that we prefer an opt-out provision, the opportunity provided by making this determination in the regulations rather than in the act itself also enables us to enhance that provision to make it easier for parents. For example, one of the things that I want us to look into is that at the moment consent for attendance at such an event is usually done on an ad hoc basis at the time of the event taking place.

Some parents wish to have a standing consent provided in that place, so I want us to be able to explore, either through the regulations or potentially through policy down the track, whether we could make provision for a standing consent to take place. That was certainly something that was suggested by a number of people at the managers' conference that we will be attracted to, so while we are not able to commit to it being in the regulations right now, we will certainly look into whether it could be done in government policy going forward.

Importantly, this compromise ensures that children exempted from participation in religious and cultural activities remain in the position where they will not suffer any detriment for not participating in the activity and are offered an alternative activity related to the curriculum during the period in which the activity is conducted. The scheme set out in the bill significantly modernises current arrangements for the conduct of religious education set out in the act and regulations.

The current legislation sets out that there shall be regular provision made for religious education in a government school under such conditions as may be prescribed during time set aside for instruction. It also provides for the conduct of religious seminars or gatherings. At the moment, the regulations allow for permission to be granted for a child to be exempted on conscientious grounds. At the moment, the regulations also set out the prescribed conditions for religious education. I will not go through them all, but let's just say that they are anachronistic. They reflect a curriculum that is no longer the curriculum that is taught.

The current provisions in the Education Act do not require a principal to give notice to parents of the intended conduct of that activity and do not ensure that people exempted from participation do not suffer detriment and are offered alternative activities related to the curriculum. This is a substantial step forward, and I thank all members of the conference for agreeing to support this. In relation to discipline, I can advise that the bill explicitly prohibits corporal punishment in government and non-government schools.

The current act does not have that prohibition. In relation to registration of student exchange organisations, the bill establishes legislative provision for the registration and oversight of student exchange organisations and confers this function on the Education Standards Board. This addresses legal issues and risks associated with the current arrangements for the registration of student exchanges organised by the department, which are a very important part of the work the department does.

The bill provides for protections for teachers, staff and students at schools, preschools and children's services, introducing new and improved measures to protect principals, teachers and other staff acting in the course of their duties. The bill extends these provisions to the staff of government and non-government schools, preschools and children's services. It makes it an offence for a person to behave in an offensive or threatening manner on the premises of a government or non-government school, preschool or children's service and sets as a maximum penalty of $2,500 for the offence.

The bill makes it an offence for a person to use abusive, threatening or insulting language towards, or behave in an offensive or threatening manner towards a principal, director, teacher or other staff member of the school acting in the course of their duties. It sets the maximum penalty again at $2,500. Such behaviour would include abuse of staff in relation to the course of their duties when it is not necessarily on school grounds, as long as it is in the course of their duties.

That replaces the current offence of behaving in an offensive or insulting manner towards a teacher under section 104 of the Education Act, which has a maximum penalty of $500 or an expiation fee of $100, and regulation 8 of the Education Regulations, which makes it an offence for a person to misbehave on government school premises.

We have seen incidents—and I am sure the shadow minister would agree—where some people behave utterly appallingly on school grounds, completely oblivious to the extraordinary damage they are doing not just to the teachers, the principals and other staff to whom they demonstrate that behaviour but also to other children, their families and to their own child as a consequence. We must improve the protections for our school staff and students because some incidents are just extraordinary. By coming into force, this bill will hep us to deal with some of those situations.

The bill includes provisions for dealing with trespass on school premises and extends them to the premises of non-government schools, government and non-government children's services and preschools. Provisions for trespass on school premises are provided under the regulations at the moment, but they only apply to the premises of government schools.

The bill updates and replaces existing provisions for the barring of individuals from the premises of schools under the regulations and extends them also to include non-government schools, preschools and children's services, as well as the government preschools and children's services. It increases the penalty for non-compliance with a barring order from $200 to $2,500.

The bill also provides powers for authorised persons to deal with people behaving in an unacceptable manner, or posing an immediate threat to the safety of another person on the premises of a government or non-government school, preschool or children's service. Again, the regulations at the moment only provide that for the premises of government schools.

In relation to the teaching service—and this deals with the last measure that was dealt with by the conference of managers—the bill updates, improves and modernises employment provisions for the teaching service, bringing together employment arrangements for government school and preschool teachers and leaders. It improves the alignment of employment provisions for the teaching service with employment provisions under the Public Sector Act 2009.

Some of the more significant changes that I am very optimistic will help us improve our system across South Australia include provision for the chief executive to offer special remuneration to attract and retain school and preschool leaders and teachers of a high standard, and provision for the chief executive to employ a broader range of staff to be employed in schools and preschools to provide services to students, permitting schools to engage, for example, nurses, social workers, youth workers, psychologists and other professionals to meet the specific needs of their school communities as appropriate.

It continues to provide for the establishment of committees to consider applications for promotional level positions in the teaching service. As agreed at the management conference, the bill, under the proposed amendment, will provide for the Australian Education Union to continue to nominate a member of those committees. Again, that 14-day rule in relation to appointments to the review committees would also apply in this service. I think we have come to a reasonable compromise. The government has moved towards the position proffered by those opposite in recognition of the fact that certainly the Legislative Council were very firm in their views.

I think all members, other than the government and Mr Darley, were in support of the amendments moved, I think by either the Labor Party or Tammy Franks, in the other place. We recognise that was the will of the Legislative Council. I thank those opposite for coming to a reasonable compromise on so many of these things, and we have come to a compromise on this point.

Finally, in relation to confidentiality provisions, the bill includes confidentiality provisions that provide protections against the inappropriate disclosure or misuse of personal information obtained in the course of official duties while providing various exceptions to enable appropriate information sharing when it is reasonably necessary. Neither of the current acts—the Education Act and the Children's Services Act—include those provisions.

For all those reasons, it is important that this bill passes. I have set out the weight of reasons that we are supportive of this bill. In the context of the weight of the importance of these measures, I indicate that the government supports the compromises put forward by the conference of managers, including those on issues where the government had previously expressed a different view. I am particularly thinking of the two in relation to the privileged position of the Australian Education Union. That will continue as it does at the moment.

Those opposite and other parties have argued very firmly for that, and it was certainly our view that that was not going to bend. In relation to the significant benefits in the bill, the government has come to the point of view where we will accept those amendments and I therefore commend the motion to the house.

Motion carried.