Education and Children's Services (Barring Notices and Other Protections) Amendment Bill

Committee Stage

In committee.

Clause 1.

The Hon. H.M. GIROLAMO: In answering questions in the other house, the minister highlighted the fact that there has been a significant increase in the number of barring notices issued: 59 in 2020, 46 in 2021, 137 in 2023 and 108 in 2024. There has also been a steep increase in formal warnings and respectful communication reminders issued. Are you able to provide an explanation behind the sharp increase and what factors or circumstances have contributed to the higher number of barring notices issued in both 2023 and 2024?

The Hon. E.S. BOURKE: I am advised that obviously this is something that is not just isolated to South Australia; this is something we are seeing across the nation and also in the fact that the department is now being far more proactive in supporting schools in this reporting process. It is one of those things that is providing extra support so people can provide those concerns to people and those reports, but it is also a concerning trend that we are seeing across the nation, which highlights again why this bill is so important because we need to be modernising this bill so it does suit the needs of the year 2025 and beyond.

We are seeing significant changes in what you could class as intrusion of personal space through social media and that concern of the continuous intrusion on a person's workplace does not just stop at the boundary of the school gate anymore. It is going beyond the school gate and for many people it is going into their homes and they are unable to escape what they feel are at times can be relentless comments and personal attacks that are being put towards our workforce.

The Hon. H.M. GIROLAMO: Which stakeholders and groups were consulted during the development of this legislation and did it include educational staff as well as parents and other organisations and what was the timeframe allocated for public consultation?

The Hon. E.S. BOURKE: I feel the minister and his department have put a fair bit of work into this space so thank you for asking this question because I think it is an important one. The amendments proposed in the bill were developed in consultation with the AEU, the South Australian Secondary Principals' Association, the South Australian Primary Principals Association and the South Australian Association of School Parent Communities.

An exposure draft of the bill was released for public consultation through the YourSAy website for four weeks, from 16 September to 15 October 2024. I understand the minister directly contacted 25 external stakeholder groups to announce the release of the draft bill and invited them to take part in the consultation.

The offer to meet was extended to all stakeholders and meetings were held with the Australian Education Union, the South Australian Primary Principals Association, the South Australian Secondary Principals' Association, the Association of Independent Schools of South Australia and the South Australian Association of School Parent Communities. A total of 10 written submissions were received from stakeholders and a survey included on the YourSAy website seeking feedback on the key changes had about 47 respondents.

The Hon. H.M. GIROLAMO: How does this bill ensure a balance between protecting children and the rights of teachers and upholding the rights of individuals who are subjected to barring notices?

The Hon. E.S. BOURKE: My understanding is a barring notice is not usually the first port of call to go to. There are a few steps that are in place prior to getting to that point. I think everyone involved in this circumstance does not want to get to that point. There are a few incidences when the situation is at a level where it does go straight to that level, and it should be for the safety of everyone involved. There are abilities for people to appeal or, as I understand, seek further clarification. One could be through the minister, I am advised, and the other could be through the designated person.

The Hon. S.L. GAME: I rise briefly to speak on the Education and Children's Services (Barring Notices and Other Protections) Amendment Bill.

The ACTING CHAIR (The Hon. D.G.E. Hood): Well, you would like to make a contribution at clause 1.

The Hon. S.L. GAME: Yes, please. I would like make a contribution at clause 1—thank you, Mr Acting Chair. The measures proposed in this bill will grant powers to school leaders and the minister to respond more effectively to abusive behaviour towards school staff. The significant increase in violence and abuse directed towards principals, teachers and school staff is alarming and unfortunately the need for further protection is necessary for the safety of all who work in education, both currently and in the future.

It has been reported that many of these incidents occur during sporting or recreational activities away from school premises, which is something this bill intends to address. The disturbing increase in the use of online community forums to defame and harass specific schools and staff has also prompted these updates to the legislation.

Consequently, the bill seeks to extend the type of behaviour that will justify designated persons, such as principals and directors, issuing notices to bar persons from educational premises to include vexatious communications with or about staff and offensive behaviour targeted at students involved in an educational activity away from school premises.

The grounds upon which these barring notices can be issued has also been broadened to include where a designated person reasonably believes that a person poses a risk to the safety of others. Additionally, the bill will make it an offence to behave in a disorderly or intimidating manner on premises and increase all offences under part 8 of the act, from $2,500 to $7,500. These are all important measures to prevent abuse and violence in educational settings and to penalise those who engage in this abhorrent and unacceptable behaviour. I also just want to note that I will be supporting the amendments from the Hon. Frank Pangallo.

The Hon. C. BONAROS: It seems like there were a few of us who did not get into the second reading speeches. I rise to indicate that I will be supporting this particular bill and note the reasons for it. I appreciate the lengthy detail the minister has provided us in addition to the guidelines and so forth that accompany it. I note also, though, as I did in the previous bill, the issues that once again have been raised by the Law Society with respect to this and would ask the minister to confirm what, if any, changes were made to any draft bills based on the submissions that were provided by the Law Society or anybody else?

The Hon. E.S. BOURKE: Whilst in all consultation there will be varying views, I am advised that there was an overwhelming majority of support from stakeholders in regard to the measures in this bill. Some stakeholders suggested areas where the bill could be improved, and a small number of stakeholders expressed concerns about other aspects of the bill, which is very normal in regard to consultation.

We know that there were concerns from some that originally there was a boundary for people not to come within 10 metres of the relevant premises. We know that some people felt that it was too close or too far and a compromise was reached, I believe, after consultation looking at the Victorian legislation and what they did in regard to similar concerns where they have a 25-metre boundary regarding the relevant premises for people to be barred from. It was because of that feedback regarding trying to find a compromise distance that 25 metres was reached.

I also understand that, on 19 September 2024, the First Nations Voice to Parliament was invited to provide comment on the bill as part of the consultation. The Voice secretariat was also contacted by the department at the time by telephone and email, which included an invitation to meet that was not ultimately taken up. A written submission on the bill was received from the Voice on 17 October. While generally supportive of the measures in the bill, the Voice provided suggestions to ensure that the provisions operate in a culturally sensitive way, recognising the unique perspective and needs of First Nations people and not to impact First Nations people.

In response to that feedback received from the Voice, the bill was amended to include considerations of particular needs of Aboriginal students and children, their families and Aboriginal members of staff in relation to guidelines issued by the minister in relation to barring notices. The Department for Education has also considered how the operational concerns raised by the Voice may be addressed in revised policy and procedural documents.

The Hon. R.A. SIMMS: I rise briefly to indicate that I will be supporting this bill. I am conscious I have to leave fairly soon to attend an event so I may not be here for the duration of the debate, so I want to indicate that my voting intentions are the same as the government with respect to the bill but also regarding the amendment that the Hon. Frank Pangallo has moved: I will not be supporting that. I do understand the argument that the Hon. Frank Pangallo has made with respect to procedural fairness.

I did give his proposal some consideration during the week between sittings, but I have had quite clear feedback via the AEU that represents teachers that this is something that is really requested and will assist teachers, and I am concerned that the proposal of the Hon. Frank Pangallo, while I know it is not his intention, could unduly cause some more stress for those teachers and also potentially create an additional administrative burden for the tribunal to deal with. I note that there is an appeal provision within the bill and the opportunity to appeal to the minister. Certainly, my view would be that we continue to keep a watching brief on this and if there end up being significant issues, there may well be an opportunity to revisit that down the track.

The Hon. T.A. FRANKS: I just put on the record as well my support for the bill. I also note, regarding the Hon. Frank Pangallo's amendments, I will not be supporting the one in regard to those people who can issue the notice, but I will be supporting the SACAT amendment because I believe procedural fairness and proper review of decisions that are made that impact people's lives are incredibly important.

The Hon. J.S. LEE: I have already spoken about my support for this bill. I just want to indicate that I have also considered the Hon. Frank Pangallo's amendments. I will not be supporting his amendments, although I note that his intent is very good. I feel that when it comes to managing relationships within a school setting, the autonomy and the responsibility at the leadership level of the school need to be respected.

Also, it is often difficult situations where the relationships between parents and school leaders, as well as those who may be holding grudges, need to be managed at that level in a speedy manner to reunify those students and parents and the leadership team of the school. That is how I feel about it. I indicate I will support the bill but I will not be supporting the Hon. Frank Pangallo's amendments.

The Hon. H.M. GIROLAMO: Continuing on with questions, what process will be in place to ensure that designated persons are not misusing barring powers due to personal conflict or bias?

The Hon. E.S. BOURKE: I understand the bill provides for ministerial guidelines to be published in respect of barring notices that designated persons must comply with in issuing a barring notice. The guidelines will include guidance in respect of procedural fairness and the circumstances in which it is appropriate to issue a barring notice. I am also advised that a barring notice issued by a designated person can also be revoked at a point if they feel it is appropriate, so there are flexibilities within this process as well.

The Hon. H.M. GIROLAMO: Will there be training or guidelines provided for the designated person to ensure consistency and fairness in regard to barring notices being issued, and will schools receive any additional resources or guidelines relating to this change?

The Hon. E.S. BOURKE: In regard to providing support, the government schools, principals and other site leaders are required to liaise with the department in all cases when they are considering a barring notice, and advice will be provided to them about the most appropriate responses in the circumstances.

The Hon. H.M. GIROLAMO: Are incidents that result in barring notices recorded in detail, including the nature or circumstances leading to the required notice, and are these provided to the department? Will the new development or changes that we are discussing today increase the administrative workload for teachers and school staff?

The Hon. E.S. BOURKE: My understanding is that this will be following a current process that is already in place. Most people who would already be providing barring notices would have an understanding of this process and how it operates.

The Hon. F. PANGALLO: Does the minister independently review these barring notices? Is it the actual minister who does it or is it done by bureaucrats in the department?

The Hon. E.S. BOURKE: I understand that over the last three years there have been 15 reviews in total. It is my understanding that over the last three years the minister has amended one barring notice and revoked or overturned the decision of two barring notices. The process is, at the end of the day, that the review is undertaken at that final stage by the minister, as I am advised, but over the last three years there have been 15.

The Hon. F. PANGALLO: The question was: does the minister himself review the barring notice? In other words, do they look through the file? Do they conduct their own analysis or do they just rely upon the advice they get from their bureaucrats or their legal department before making a decision? How can you call it an independent review when it is actually the Minister for Education?

The Hon. E.S. BOURKE: My understanding is the minister will obtain information from the department and other services but will make the decision independent of the department. As I have highlighted in my previous response, over the past three years the minister has amended one barring notice and revoked or overturned decisions in two barring notices.

The Hon. F. PANGALLO: But simply being the Minister for Education and then calling it an independent review, there is a clear conflict of interest there, is there not?

The Hon. E.S. BOURKE: I am advised that the minister can take on advice from the department and other forms of information but at the end of the day it is an independent review of the minister under section 94.

The Hon. F. PANGALLO: That advice that the minister will take will virtually rubberstamp the original decision, will it not? How often has a minister, apart from one you mentioned, personally overturned one?

The Hon. E.S. BOURKE: As I have highlighted in the previous responses, there is an opportunity for the minister to overturn them but also to seek that information from those relevant resources.

The Hon. F. PANGALLO: When the barring notices are issued, are they also notifiable to SAPOL, for instance?

The Hon. E.S. BOURKE: I guess that would depend on the circumstance. At a guess, if SAPOL were involved at a criminal level—I am advised that they could be involved at that level, but at the level of a barring notice it really comes down to the discretion of the school community.

Clause passed.

Clauses 2 to 7 passed.

Clause 8.

The Hon. F. PANGALLO: I move:

Amendment No 1 [Pangallo–1]—

Page 7, after line 19 [clause 8, inserted section 93]—After subsection (1) insert:

(1a) A barring notice may only be issued by a designated person who was not directly involved in the incident or incidents that form part of the ground or grounds on which the notice is proposed to be issued.

I thank the honourable member, the Hon. Sarah Game, for expressing support for this. Essentially, what this amendment seeks to do is that if there is a barring notice it can only be issued by a person who was not directly involved in the incident or incidents that form part of the grounds or grounds on which the notice is proposed. In other words, if it was the principal of the school who issued the notice, then the principal should recuse themselves and allow somebody at arm's length to oversee that situation.

The Hon. E.S. BOURKE: I thank the honourable member for the amendment he has put forward. The government will not be supporting the member's amendments that he has put forward. In regard to this particular amendment, it amends clause 8 to prevent a designated person from issuing a barring notice—as the member has just highlighted—if they were directly involved in the incident or incidents that formed the grounds on which the notice is proposed to be issued.

It would not be practical to prevent a designated person issuing a barring notice in relation to an incident in which they are directly involved. It is also not entirely clear from the amendment what would constitute direct involvement in an incident, and principals and other site leaders will be involved in some way in most incidents that occur at a school or on the site.

The government considers that principals and other site leaders who are designated persons at relevant premises following ministerial guidelines are best placed to make decisions as to whether they ought to issue a barring notice themselves or authorise another person to issue a barring notice.

If a principal or other site leader is subject to the offensive or threatening behaviour, it is entirely appropriate that they have direction to consider whether a barring notice should be given. It should not be the case that a barring notice could not be issued simply because the principal or other site leader was involved in the incident, whether that was because they were responding to the risk a person posed at the school or service or where subject to misbehaviour themselves.

The Hon. H.M. GIROLAMO: The opposition will not be supporting this amendment but I would like to thank the Hon. Frank Pangallo for putting these forward. It is an area that we have had great discussion around. Our concerns are similar to those that have been noted by the government, particularly in regard to principals who, if it has escalated to that level of requiring a barring notice, would be involved in the vast majority of these barring notices being issued.

Often in some schools, especially in smaller schools in regional centres, there would be only one or possibly two in those leadership roles and we would hope that if issues have escalated to issuing a barring notice, that the principal would in fact be hands on and involved. That is why we are not supporting this amendment.

Amendment negatived; clause passed.

Clause 9.

The Hon. F. PANGALLO: I move:

Amendment No 2 [Pangallo–1]—

Page 13, after line 1—Before subclause (1) insert:

(a1) Section 94, heading—delete 'Minister' and substitute 'SACAT'

I thank the Hon. Tammy Franks for her support for this amendment. I also thank the Hon. Sarah Game for expressing support for this amendment. Essentially, what it does is allow for a legitimate independent review rather than it going to the Minister for Education, who would clearly have a perceived conflict of interest in hearing a review.

It would actually go to an independent tribunal, namely, the South Australian Civil Administrative Tribunal (SACAT). To go to SACAT would not involve great costs for the persons trying to overturn a barring notice and they would be able to state their case before an independent tribunal member, whereas to do so under what is outlined here I think that people would tend to think that the cards are going to be stacked against them anyway.

The alternative, which would not appeal to any person or any families that may be subjected to this barring notice, would be a judicial review, to go to the Supreme Court of South Australia. That would cost an enormous amount of money and people would find that utterly unaffordable. Essentially—and I am surprised that this does not get support from other members in this place—it seeks to have an element of procedural fairness. I think that is what it intends to do, rather than be at the whim of education bureaucrats who will still most likely side with the original decision. That is the reasoning behind this amendment, to actually create a fair opportunity for people who may receive a barring notice to have it independently assessed.

The Hon. E.S. BOURKE: Again, I thank the honourable member for putting amendments forward, but the government will not be supporting this amendment. We feel the review process that has been put forward can provide a reasonable and timely process, and is not subject to any application cost. As was highlighted earlier, the minister has reviewed 15 barring notices over the last three years and has upheld reviews where there was sound reason to do so.

The Hon. H.M. GIROLAMO: The opposition will not be supporting this amendment but, again, thank you to the Hon. Mr Pangallo for his interest in this area. The main reason is that we often do have concerns around SACAT's ability to complete their workload as it currently stands, because of being stretched and all the rest. However, the minister does provide that element to be able to appeal these decisions, and I would hope it would be done in a more timely fashion than going through to SACAT.

As the minister indicated before, we have seen a dramatic increase in the number of these issues, and one area I would like noted for the record is that it is monitored by the minister and if we do find the current systems are not working, that we are able to potentially raise those again in the future.

The current process is the same as it was when we were previously in government. It is my understanding, and from discussions with the previous minister as well, that the ministers, both past and present, do take it very seriously when assessing these different reviews coming through in regard to barring notices.

Amendment negatived; clause passed.

Remaining clauses (10 to 12), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. E.S. BOURKE (Minister for Emergency Services and Correctional Services, Minister for Autism, Minister for Recreation, Sport and Racing) (16:58): I move:

That this bill be now read a third time.

Bill read a third time and passed.