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House of Assembly - Fifty-Second Parliament, First Session (52-1)
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EDUCATION AND EARLY CHILDHOOD SERVICES (REGISTRATION AND STANDARDS) BILL

Introduction and First Reading

The Hon. J.W. WEATHERILL (Cheltenham—Minister for Education, Minister for Early Childhood Development, Minister for Science and Information Economy) (12:56): Obtained leave and introduced a bill for an act to provide for a national legislative scheme regulating the provision of education and care services; to make provision for local matters associated with the provision of education and care services; to ensure the provision of quality education services to children in the state by providing for the registration of providers of such services; to regulate the provision of education services and early childhood services for the purpose of maintaining high standards of competence and conduct by providers; to make related amendments to other acts; and for other purposes. Read a first time.

Second Reading

The Hon. J.W. WEATHERILL (Cheltenham—Minister for Education, Minister for Early Childhood Development, Minister for Science and Information Economy) (12:57): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Education and Early Childhood Services (Registration and Standards) Bill 2011 (the Bill) will provide a new modern legislative framework for the registration and regulation of all education and early childhood services in South Australia. This Bill is part of this Government's ongoing commitment to the reform of our education and early childhood legislation including the Education Act 1972 and Children's Services Act 1985, which are now 39 and 26 years old respectively. The Bill will provide a legislative framework that underpins a streamlined approach to supporting the effective and efficient delivery of quality services to maximise benefits for children, their families and communities.

It is essential that we support parents by ensuring their chosen early childhood education and care services are of a high quality and provide the right foundation for children and young people. This has always been a priority for this Government. Australian and international research clearly demonstrates the importance of the early years in a child's brain development and on their future intellectual and social potential. We know that children who have access to stimulating and nurturing environments have better outcomes throughout their life, including enhanced self-esteem, improved educational outcomes and fewer health and social problems.

The lifelong benefits of quality early childhood education and care are well documented and the Bill helps South Australia fulfil its obligation to ensure children are given the best possible start in life.

The South Australian Government signalled its intention to improve outcomes in the regulation of education and early childhood services when the second legislation reform discussion paper was released for public consultation in 2008. This sought the South Australian education and early childhood sectors' and the broader community's views to help inform the drafting of legislation to support a quality education and care system for children and young people and this State's future. The discussion paper stressed that a collaborative partnership between sectors and communities involved in the education and care of children and young people is the hallmark of our approach to the delivery of quality education and early childhood services in South Australia.

The discussion paper proposed establishing a clearer, simpler, and more coherent legal framework for regulating the services that educate and care for children. The basis for the Bill is the strong feedback received in support of this approach.

As this Government has argued since that time, there is increasing recognition both at the State and national level of the need for legislative frameworks that support, not hinder, the effective and efficient delivery of services to maximise benefits for communities. Reducing red tape and focussing on how services can better assist families, children and communities is at the heart of this reform.

The Bill is the product of a two-year process of development through extensive consultation. An initial draft of the Bill was released for public consultation in October 2009. Over the intervening period it has been re-cast to address the scope and application of the commitments South Australia has made nationally under the Council of Australian Governments (COAG) in regard to the early years. The Bill has been the subject of intensive targeted consultation during the first half of this year. This has resulted in a number of improvements based on detailed and valuable input from stakeholders, particularly the Independent and Catholic schooling and early childhood sectors.

Consistent with the approach to consultation taken over the development of the Bill, all stakeholders have been invited to provide advice relating to the matters which will fall within the scope of subordinate legislation under this Bill. It is important to note that their input into this process will be vital in shaping any prescribed matters developed under the new Act.

The Bill provides the legislative underpinning for nationally consistent standards to ensure quality education and care is provided in long day care, family day care, preschool and out of school hours care services. These national standards were agreed by COAG in December 2009 and articulated in the National Partnership Agreement on the National Quality Agenda for Early Childhood Education and Care (National Partnership Agreement), to which South Australia is a party. This Agreement includes the introduction of the new National Quality Standard through National Regulations. These cover seven quality areas:

educational program and practice;

children's health and safety;

physical environment;

staffing arrangements;

relationships with Children;

collaborative partnerships with families and communities;

leadership and service management.

Key features of the scheme will be improved staff-to-child ratios, which will give each child more individual care and attention, higher staff qualifications, which will ensure staff have the skills to lead activities that help children learn, develop and participate fully in the programs on offer and a transparent ratings system which will give parents access to information about the quality of services so they can make more informed choices about the services their children attend

The foundation of this COAG Agreement was the establishment of a jointly governed, unified National Quality Framework for early childhood education and care and school-age care to replace existing separate licensing and quality assurance processes administered by States and Territories and the Commonwealth.

Australian Governments have agreed that the National Quality Framework will become operational from 1 January 2012 and will include a national system of provider and service approvals and supervisor certificates, the staged introduction of improved staff-to-child ratios and staff qualifications, the introduction of a quality assessment and rating system based on a National Quality Standard and the establishment of a new national body to oversee the implementation of the Framework.

The legislative approach taken in this State through the Bill is designed to have a positive impact on providers of all education and care services ensuring the regulatory framework is implemented and applied consistently across Australia. The Bill will streamline and enhance the regulatory system within this State by providing for the application in South Australia of the Education and Care Services National Law Act 2010 (the National Law) as a law of the State of South Australia, as well as the regulation of other early childhood services not within the scope of the national early childhood reforms and the registration of both Government and non-Government schools in South Australia.

The National Law establishes the elements of the National Quality Framework, including adoption and transition processes, application processes and monitoring and compliance requirements. The National Law also sets out the roles and responsibilities of the Australian Children's Education and Care Quality Authority (ACECQA) and the Regulatory Authorities for the States and Territories. The new South Australian Regulatory Authority will be responsible for matters including approving persons and services that provide education and care, monitoring compliance with the National Law and assessing and publicly rating services against the new National Quality Standard.

Under the National Quality Framework, an approval to provide an education and care service is valid in all participating jurisdictions. This means a person or organisation will not have to receive separate approval for each State or Territory in which they wish to operate.

The National Law provides for a certification process for supervisors of a service, whereby the holder of a supervisor certificate is deemed fit proper to manage the day-to-day operation of a service. Like approved providers, these supervisors will have their certification recognised nationwide. This is an important reform as Australia's workforce becomes ever more mobile.

The National Law will also provide, in certain circumstances, for a system of waivers which will allow early childhood providers to operate and deliver services to their communities under strictly controlled conditions if they do not fully meet a standard.

In regard to family day care, it is the scheme, not the individual family day educator, that will be subject to provider and service approval. This will be a change for South Australia. The Department of Education and Children's Services (DECS) is currently the sole sponsor of family day care in this State and officers of the department will continue to regulate family day care educators within DECS schemes while being regulated themselves under the National Law. The Bill also provides for the regulation of individual family day care educators who are not part of a scheme.

To further reduce regulatory burden, existing approved providers and services and certified supervisors will be moved over in a seamless transition from the old system to the new.

The regulations which will be made under the National Law are currently being finalised following extensive national consultations. These regulations will provide further detail on the National Quality Standard, the assessment and rating system, staff to child ratios and fees associated with the National Quality Framework. As provided for in the National Law these will be made by the Ministerial Council for Education, Early Childhood Development and Youth Affairs and subject to parliamentary processes required in each jurisdiction. In South Australia these and any other required regulations will be tabled in Parliament once the legislation has been enacted.

Passage of this Bill, which applies the National Quality Framework in South Australia, reaffirms the high priority that this Government places on the health, welfare, safety and education of our children.

The Bill will also replace the myriad of regulatory systems under which providers of education and early childhood services currently operate. The Bill replaces the current Non-Government Schools Registration Board with the Education and Early Childhood Services Registration and Standards Board (the new Board).

Under the legislation the new Board will build on the excellent work undertaken to date by the Non-Government Schools Registration Board, while extending the regulatory system to all government schools, as well as preschools, out of school hours care, family day care and child care services in its role as the Regulatory Authority under the National Law. The new Board will also regulate the residual early childhood services not covered under the National Law, thereby effectively linking the administration of regulation of all services, within a single independent regulatory authority for all education and care services.

This system will eradicate the requirement for a single service provider who provides a range of services to relate to multiple regulatory bodies under a range of legislation. The National Partnership Agreement anticipates that in the future some residual early childhood services will move within the full scope of the National Law. The approach taken in the Bill of having broad structural consistency will support a smooth transition and minimise the impact on service providers if this occurs. The introduction of a single National Quality Standard for nationally regulated services will ensure the same quality standards are met by services across Australia.

The Bill establishes the new Board with a large degree of autonomy, which is balanced with a limited power for the Minister to give written direction to the Board. The Minister may not give a direction in relation to the registration of a school, determination of criteria for registration, particular proceedings before the Board or a complaint, and any direction given is required to be laid before Parliament.

The Bill establishes Board membership that is reflective of the services it will oversee. Board members will bring with them the experience and knowledge of the various services and sectors the Board will regulate. The Bill also provides for the appointment of skilled, high level staff who understand and will be the first point of contact for providers in the relevant sectors. The Early Childhood Services, non-Government Schools and Government Schools Registrars will work together with the Board and the sectors in the best interests of children and our community.

Together with application of the National Law, the objects of the Bill are to ensure the provision of quality education and early childhood services and the high standards of competence and conduct of providers of such services through a system of registration of schools. The provisions in the Bill that cover school registration improve on the current provisions in the Education Act 1972 that relate to non-Government schools, while setting out minimum entry requirements for the provision of schooling services.

When enacted, the Bill will repeal the provisions in Part 5 of the Education Act 1972 (the Education Act) which date back to the early 1980's. These provisions were inserted into the Education Act to regulate a considerably smaller non-Government schooling sector. It is widely acknowledged that these provisions no longer provide an appropriate foundation and do not cover public schools. The consultations undertaken have identified a need for greater clarity around the role, function and operation of the regulatory functions currently undertaken by the Non-Government Schools Registration Board. The Bill continues this Government's approach to removing the outdated legislative provisions in the Education Act and locating them appropriately in relevant legation. The Bill will also repeal relevant sections of the Children's Services Act 1985 which relate to the regulation of early childhood services, as these matters will fall within the ambit of the new South Australian Education and Early Childhood Services (Registration and Standards) Act.

Other key features of the Bill include:

sound objects and principles to guide the Board and the operation of the Act;

clauses to adopt the National Law as a law of South Australia, together with transitional and savings provisions to ensure a smooth changeover for services;

functions of the Board in relation to regulation of schools and early childhood services, including approving requirements for registration, maintenance of registers and preparation and endorsement of codes of conduct;

complaints handling processes, including the explicit provision for complaints to be referred back to schools in particular circumstances;

provisions required to effectively support the maintenance of high standards, including offences and disciplinary proceedings, with specific protections for members of school governing authorities who are volunteers;

provision of a range of compliance options ensuring the most appropriate and proportional response to issues that may arise, including powers for officers authorised by the Board to conduct investigations in relation to complaints;

protections for those regulated by the Act, including the right to internal and external review of decisions of the regulator which guarantee the principles of natural justice apply at the same time as ensuring the safety, health and wellbeing of children.

The principles of best practice regulation, of integration, of proportionality and efficiency, of responsiveness and flexibility, of transparency and accountability, of independence, of mutual responsibility, of consistency and cooperation with an awareness of the broader regulatory environment are all reflected in the Bill. The regulatory approach taken in this Bill is outcomes focussed, while maintaining the minimum standards for the safety and welfare of children and young people.

The passage of this Bill will enable South Australia to maintain its place nationally in leading and implementing progressive reforms. The National Law was passed by the Victorian Parliament on 5 October 2010. New South Wales passed legislation to apply the National Law on 23 November 2010. The Australian Capital Territory introduced a Bill to apply this legislation on 7 April of this year. All other State and Territory Governments will be moving to enact the reforms embodied in the National Law.

This is ground breaking legislation, which will best underpin the delivery of our schooling and early childhood services, particularly those integrated services which provide a range of services from birth to the end of schooling.

This Bill will help to ensure that South Australians have confidence in the quality of all education, care and early childhood services for children and young people and for South Australia's future.

We are well on the road to legislative reform in the best interests of young South Australians.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause defines key terms used in this measure.

4—Early childhood services

This clause defines 'early childhood services' for the purposes of the Act. Those services include in-home care services (ie baby sitting services), occasional care services and rural or mobile care services. The scope of those services is to be set out in the regulations.

These services are not the same as education and care services within the meaning of the Education and Care Services National Law (South Australia), and are regulated under Part 3 of the measure rather than the National Law.

5—Parts of Act not to apply in relation to certain services

This clause provides that certain parts of the measure (being parts dealing with schools and residual early childhood services) do not apply to services that are to be regulated under the Education and Care Services National Law (South Australia).

6—Governing authority

This clause sets out who or what is the governing authority of a school.

7—Limitation of liability for volunteer members of governing authorities

This clause limits when a volunteer member of a school's governing authority can be liable for a prescribed offence (defined in subsection (2) of the section). For a volunteer to be liable, a prosecutor must first prove that the volunteer acted in a manner contemplated by the clause.

8—Responsible authorities

This clause sets out who is the responsible authority for various schools or classes of school. A responsible authority accepts liability for certain conduct on the part of a school if that school is not incorporated.

9—Objects and principles

This clause sets out the objects and principles for the measure. Further matters are set out in the Education and Care Services National Law (South Australia) as they relate to that Law.

Part 2—Adoption of Education and Care Services National Law

10—Application of Education and Care Services National Law

This clause applies the Education and Care Services National Law as a law of this State.

However, that National Law can be modified by or under this measure and will apply as so modified.

11—Exclusion of legislation of this jurisdiction

This clause excludes the operation of specified legislation to the Education and Care Services National Law (South Australia). The effect of the excluded legislation is preserved, however, by provisions in the National Law.

12—Meaning of certain terms in Education and Care Services National Law (South Australia) for the purposes of this jurisdiction

This clause defines terms used in the Education and Care Services National Law (South Australia) in respect of its application in this State.

13—Penalty at end of provision

This clause makes clear that a penalty specified in the Education and Care Services National Law (South Australia) is a maximum penalty.

14—Tabling of annual report

This clause requires the Minister to table in Parliament the annual reports of the National Authority under the Education and Care Services National Law (South Australia).

Part 3—Application of Education and Care Services National Law (South Australia) to residual early childhood services providers

15—Application of Education and Care Services National Law (South Australia) to residual early childhood services providers

This clause applies the Education and Care Services National Law (South Australia), as modified by Schedule 1 of the measure, to residual early childhood services providers. Those providers provide services that would not otherwise be covered by the national law.

16—Exemption from certain provisions of Education and Care Services National Law (South Australia)

This clause enables the Minister to exempt certain persons from the application of the Education and Care Services National Law (South Australia).

Contravention of a condition of an exemption attracts a maximum penalty of $10,000.

Part 4—Administration

Division 1—The Minister

17—Functions of Minister

This clause sets out the functions of the Minister under the measure. Further functions may be found in the Education and Care Services National Law (South Australia) in respect of services to which that Law applies.

18—Ministerial directions

This clause provides that the Minister may direct the Board in relation to certain matters.

However, the Minister cannot give directions in relation to particular matters before the Board, as set out in subsection (2).

The clause also makes procedural provisions in relation to directions.

19—Power of delegation

This clause provides a standard delegation power to the Minister, with the proviso that the Minister cannot delegate a function or power prescribed by the regulations.

Division 2—The Education and Early Childhood Services Registration and Standards Board of South Australia

Subdivision 1—The Board

20—Establishment of Board

This clause establishes the Education and Early Childhood Services Registration and Standards Board of South Australia (the Board).

21—Composition of Board

This clause sets out the composition of the Board, providing for a diverse membership drawn from the relevant sectors.

22—Conditions of membership

23—Casual vacancies

24—Allowances and expenses

25—Validity of acts

Clauses 22 to 25 are standard provisions in respect of Boards and their membership.

Subdivision 2—Registrars and staff

26—Registrars of Board

This clause establishes 3 Registrars of the Board, reflecting the different sectors. They are—

the Registrar for the Government sector (the Government Schools Registrar);

the Registrar for the non-Government sector (the non-Government Schools Registrar);

the Registrar for the early childhood services sector (the Early Childhood Services Registrar).

27—Staff of Board

This clause sets out who may be employed by the Board as its staff, and deals with the entitlements of staff who transfer to the Board from the Public Service.

Subdivision 3—Functions of Board

28—Functions of Board

This clause sets out the functions of the Board under the measure. The Board may also have functions under the Education and Care Services National Law (South Australia) in its capacity as Regulatory Authority under that Law.

29—Complaint made directly to Board to be referred to school

This clause sets out what the Board must do if a complaint regarding a school is made directly to the Board rather than to the school. In short, the Board must refer the complaint to the school, however if the Board thinks the matter would be more appropriately dealt with by way of disciplinary proceedings under the measure, it can direct the appropriate Registrar to commence the proceedings without first referring the matter to the school.

30—Committees

The Board may establish committees to assist in its administration of the measure.

31—Power of delegation

This clause provides a standard delegation power to the Board, with the proviso that the Board cannot delegate a function or power prescribed by the regulations, nor its powers in respect of disciplinary proceedings.

Subdivision 4—Board's procedures

32—Board's procedures

This clause sets out procedures relating to how the Board operates. The provisions are essentially common to similar boards, however proposed subsection (2) requires a minimum number members of the Board representing particular sectors to be present at any meeting of the Board.

33—Conflict of interest etc under Public Sector (Honesty and Accountability) Act 1995

This clause provides that a member of the Board will not be taken to have a direct or indirect interest in a matter for the purposes of the Public Sector (Honesty and Accountability) Act 1995 simply because the member has shared interests common across persons in the relevant sectors generally.

34—Powers of Board in relation to witnesses etc

This clause sets out the Board's powers in relation to persons appearing, or required to appear, before the Board. The Board has the power to summons people, and a person who fails to comply with a summons, or commits other offences set out in subsection (3), may be liable to a fine of up to $10,000 or imprisonment for 6 months. It is a standard provision in relation to Boards of this type.

35—Principles governing proceedings

This clause sets out some principles applying to proceedings before the Board. Most importantly, whilst the Board may dispense with rules of evidence, it must nevertheless afford natural justice and procedural fairness to parties, and must keep parties informed of progress in the proceedings.

36—Representation at proceedings before Board

A party to proceedings may be represented by a lawyer, and the Board itself may be assisted by a lawyer in proceedings.

37—Costs

This clause allows the Board to impose a costs order on a party to proceedings. The order may be taxed by the District Court in the event of a dispute over the quantum of the order.

Subdivision 5—Financial matters, audit and annual report

38—Accounts and audit

This clause requires the Board to keep financial accounts and have them audited by the Auditor-General.

39—Annual report

This clause requires the Board to provide the Minister with an annual report, and sets out what the report must contain. The report must be tabled in Parliament.

Part 5—Registration of schools

Division 1—Registers

40—Registers

This clause requires the Board to keep a schools register and a register of schools that have been removed from the schools register and who have not been reinstated to that register.

The clause also sets out what must be included in the registers, and access to them by members of the public.

Division 2—Registration on schools register

41—Schools to be registered

This clause provides that a school must not provide education services (ie primary and secondary education) nor enrol students unless it is registered on the schools register.

A school, or the responsible authority for the school, that does those things in contravention of the section is guilty of an offence with a maximum penalty of $75,000.

42—Registration on schools register

This clause sets out when a school is eligible for registration on the schools register. The regulations may set out further requirements for registration, however the regulations will only be made once the Board has consulted with specified bodies and has recommended the making of the regulations to the Governor.

Once registered, a school's registration will remain in force until it is cancelled under the Act.

43—Board may impose conditions on registration

This clause permits the Board to impose such conditions as it thinks fit on the registration of a school, and to vary or revoke such conditions.

Failure to comply with a condition may ground disciplinary proceedings against the school.

44—Certificates of registration

This clause requires the Board to provide a certificate or certificates of registration to each registered school, and requires the school to display such certificates.

Failure to comply with the section may ground disciplinary proceedings against the school.

45—Removal from schools register

This clause sets out when a school must be removed from the schools register (ie, on the application of the school, because the school is no longer eligible for registration, or because the registration is suspended or cancelled under the measure).

46—Board may cancel registration

This clause allows the Board to cancel the registration of a school if the Board is satisfied that the school is no longer providing education services pursuant to the registration.

47—Reinstatement on schools register

This clause sets out how and when a school that has been removed from the schools register can be reinstated to that register. This cannot happen while the school is disqualified or suspended from registration by order of the Board.

48—Endorsement of registration with approval to enrol full fee paying overseas students

This clause requires the Board to endorse the registration of a school with an approval to enrol full fee paying overseas students if that school satisfies the requirements set out in the regulations.

An endorsement may be subject to conditions.

Failure to comply with the conditions may ground disciplinary proceedings against the school.

49—Removal of endorsement

This clause requires the Board to remove the endorsement of a school's registration with an approval to enrol full fee paying overseas students if the school so applies, if the endorsement is cancelled under this measure, or if the school no longer complies with the requirements for endorsement.

Division 3—Offences

50—Procurement of registration by fraud

This clause creates an offence for a person who dishonestly procures registration on the schools register, carrying a maximum penalty of $75,000 or six months imprisonment.

51—Improper directions to another member of governing authority

This clause creates an offence for a person who occupies a position of authority in an incorporated or trustee services provider (a term defined in the measure) to direct or pressure a member of the governing authority of the school, or the responsible authority for the school, to engage in misconduct, carrying a maximum penalty of $75,000.

52—Illegal holding out

This clause creates offences of holding out in relation to a school, or the registration or endorsement of registration of a school. The maximum penalty is a fine of $50,000.

Division 4—Review of registration

53—Review of registration

This clause requires the Board to review the registration of registered schools in accordance with the requirements set out in the regulations.

Those regulations, and hence the requirements, require the recommendation of the Board to be made.

Part 6—Record keeping and information gathering

Division 1—Records to be kept by registered schools

54—Interpretation

This clause defines terms used in Part 6 of the measure.

55—Records to be kept by registered schools

This clause requires registered schools to keep certain specified records, including records previously required to be kept under section 72N of the Education Act 1972.

Such records must be kept in accordance with the requirements set out in the regulations.

Failure to comply with the section may ground disciplinary proceedings against the school.

Division 2—Information gathering

56—Board may require information

This clause allows the Board, by notice in writing, to collect information from a registered school or a person who occupies a position of authority in a corporate or trustee services provider.

The person or school must not fail to comply with such a notice. To do so may ground disciplinary proceedings against the person or school.

Part 7—Disciplinary proceedings

Division 1—Preliminary

57—Application of Part

This clause disapplies the disciplinary proceedings under the Part in relation to a teacher if the relevant matter would constitute a proper cause for disciplinary action against the teacher under the Teachers Registration and Standards Act 2004.

58—Interpretation

This clause defines terms used in this Part of the measure.

59—Cause for disciplinary action

This clause sets out the matters that will constitute a proper cause for disciplinary action under the measure against registered schools, members of the governing authority of registered schools, persons who occupy a position of authority in incorporated or trustee services providers and responsible authorities for registered schools respectively.

Division 2—Constitution of Board for purpose of proceedings

60—Constitution of Board for purpose of proceedings

This clause sets out requirements as to how the Board will be constituted for the purposes of proceedings under Part 7 of the measure. The provision ensures that appropriate representation and expertise in relation to the various education sectors is present on the Board when a matter related to their sector is being heard.

The Board must comprise at least 3 members for disciplinary proceedings, and a special member may be appointed by the Governor.

The clause also sets out procedural matters relating to the Board when conduct proceedings under Part 7.

Division 3—Proceedings before Board

61—Inquiries by Board as to matters constituting grounds for disciplinary action

This clause sets out when, and how, a complaint can be laid before the Board in relation to a matter alleged to constitute grounds for disciplinary action under the measure. Such a complaint can be laid by the relevant Registrar under the measure, or by the Minister.

The clause requires the Board to investigate the subject matter of the complaint.

If the Board is satisfied that there is proper cause for disciplinary action against a school or person, the Board may make 1 or more of the orders referred to in proposed subsection (4).

62—Contravention etc of condition

This clause provides that, if the Board imposes a condition in relation to a registered school or person under proposed section 61, it is an offence for the relevant school or person to fail to comply with the condition. The maximum penalty for the offence is a $75,000 fine.

63—Contravention of prohibition order

This clause provides that, if the Board makes an order prohibiting a person from taking certain actions under proposed section 61, it is an offence for the person to contravene the order. The maximum penalty for the offence is a $75,000 fine or six months imprisonment.

64—Register of prohibition orders

This clause requires the Board to maintain a register of persons who have been prohibited by order of the Board under Part 7.

65—Variation or revocation of conditions imposed by Board

This clause provides that the Board may vary or revoke a condition it imposed on the registration of a school under proposed section 61 on the application of the school.

66—Further provisions as to proceedings before Board under this Part

This clause sets out further procedural provisions relating to proceedings of the Board under Part 7 of the measure. In particular, Board must give 14 days written notice of proceedings to parties.

Part 8—Enforcement

67—Authorised officers

This clause provides that the Board may appoint a person to be an authorised officer for the purposes of the measure.

68—Powers of authorised officers

This clause sets out the powers of authorised officers under this measure.

In particular, an authorised officer may investigate a matter if he or she suspects on reasonable grounds that there is a proper cause for disciplinary action against a school or person, or that a school or person has committed an offence under the measure.

69—Offence to hinder etc authorised officers

This clause provides offences relating to authorised officers exercising powers under the measure. The maximum penalty for an offence against the proposed section is a fine of $5,000.

Part 9—Review and appeal

Division 1—Internal review

70—Internal review of certain decisions of Board

This clause provides a mechanism for the review of specified Board decisions, in contrast to the appeal provision in clause 71. The clause sets out what decisions can be reviewed, what can be done following a review and procedural matters relating to reviews.

Division 2—Appeal

71—Right of appeal to District Court

This clause sets out an appeal right to the District Court in relation to specified decisions of the Board. The provision sets out procedural matters in relation to appeals.

72—Operation of order may be suspended

This clause enables the Board or the District Court to suspend orders of the Board pending determination of an appeal.

73—Variation or revocation of conditions imposed by District Court

This clause allows the District Court to vary or revoke a condition on the registration of a school imposed by the Court.

Part 10—Miscellaneous

74—Use of certain terms or descriptions prohibited

This clause establishes offences comprising the use of specified terms or descriptions by a person or body who is not entitled to use them to describe a service the person provides. The measure specifies 'registered school' as such a term, but the regulations under the measure may prescribe further terms. The maximum penalty for an offence against the proposed section is a fine of $50,000.

75—Exemptions

This clause permits the Minister to exempt a registered school or person, or class of registered schools or persons, from provisions of the measure.

76—Statutory declarations

This clause allows the Board to require certain information provided to it under the Act to be verified by statutory declaration.

77—False or misleading statement

This clause creates an offence for a person to make a statement that is false or misleading in a material particular in any information kept or provided under this measure. The maximum penalty for an offence against this provision is a fine of $20,000.

78—Victimisation

This clause creates a right of action for a person who has been victimised because the person has provided information or made an allegation under the measure, or intends to do so. The clause also sets out procedural matters in relation to such actions.

79—Self-incrimination

This clause provides that if a person is required to provide information or to produce a document, record or equipment under this measure and the information, document, record or equipment would tend to incriminate the person or make the person liable to a penalty, the person must nevertheless provide the information or produce the document, record or equipment, but the information, document, record or equipment so provided or produced will not be admissible in evidence against the person in proceedings for an offence, other than in relation to certain record keeping and false statement offences.

80—Punishment of conduct that constitutes offence

This clause provides that the taking of disciplinary action under the measure is not a bar to criminal prosecution for the same conduct, and vice versa.

81—Continuing offence

This clause is a standard provision providing for continuing offences and aggregating penalties for same.

82—Offences by bodies corporate

This clause provides that, if a body corporate commits an offence against this Act, any person with management or control of the body corporate who failed to exercise due diligence to prevent the contravention that is the subject of the offence also commits that offence. The penalty for such an offence is that which would apply to an individual found guilty of the offence.

83—General defence

This clause establishes a defence to charges of offences against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

84—Immunity of persons engaged in administration of Act

This clause confers immunity from personal liability to a person engaged in the administration of this Act for an act or omission in good faith in the exercise or discharge, or purported exercise or discharge, of official powers or functions. However, if liability is otherwise found to exist, that liability rests with the Crown.

85—Application of fines

This clause requires fines imposed by courts and paid by defendants to be paid to the Board.

86—Confidentiality

This clause makes provision regarding ensuring the confidentiality of personal information obtained in the course of administering the Act. The clause sets out the circumstances in which such information can be divulged, and creates an offence for where it is divulged in contravention of the proposed section, with a maximum penalty of $10,000.

The clause also sets out what use can be made of the information, and provides a regulation-making power in relation to the disclosure of information.

87—Service

This clause sets out how documents and notices under the measure can be served on a person or body.

88—Evidentiary provision

This clause sets out certain evidentiary presumptions, whereby an allegation in a complaint relating to specified information will be considered proved unless the defendant offers proof to the contrary.

89—Regulations

This clause confers regulation-making powers in relation to the measure. Of note is the power to vary Schedule 1 of the measure to modify the Education and Care Services National Law (South Australia) as it applies in this jurisdiction, both to education and care services (within the meaning of that Law) and residual early childhood services.

Schedule 1—Modifications to Education and Care Services National Law (South Australia) for purposes of Part 3

This Schedule modifies the Education and Care Services National Law (South Australia) as contemplated by section 15 of this measure.

Those modifications take 2 basic forms: clause 2 of the Schedule excludes the operation of specified sections altogether in relation to residual early childhood services (ie, those services to which the National Law does not apply because they do not fall within the definition of 'education and care service' in that Law). Such exclusions include rating such services, provisions dealing with associated children's services, fees set at a national level and other matters not relevant to residual services.

Similarly, the national regulations under the National Law do not apply to those residual services.

The other form is the modifications made by clause 3, being modifications that change the way the law, as it applies to residual services, is to operate. In particular, those modifications allow State regulations to set the relevant standards and exemptions for the residual services.

Schedule 2—Related amendments and transitional provisions

This Schedule makes related amendments and transitional provisions as follows:

Part 1 is formal.

Part 2 makes a number of amendments to a number of Acts consequential upon the passing of the measure. Those amendments are predominantly changes to obsolete references. However, the Children's Services Act 1985, the Education Act 1972 and the Teachers Registration and Standards Act 2004 are amended to reflect the changes made by this measure in respect of the relocation of the registration and standards component of the regulation of education and children's services to this measure.

Part 3 makes transitional arrangements related to the passage of this measure. In particular, schools and early childhood service providers operating in accordance with the current Children's Services Act 1985 and Education Act 1972 are deemed to hold the requisite registration and approvals under the new measure. Similarly, staff of those services are deemed, in the circumstances set out in the Part, to hold the necessary certificates and approvals required under the measure. This ensures continuity of the provision of education and early childhood services.

Debate adjourned on motion of Mr Pisoni.


[Sitting suspended from 12:58 to 14:00]


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