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House of Assembly - Fifty-Second Parliament, Second Session (52-2)
2013-09-11 Daily Xml
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Grievance Debate

DEBELLE INQUIRY

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:11): On 21 June 2013, Bruce Debelle AM QC provided a report to the Governor titled, Report of Independent Education Inquiry. The report comes from:

...an independent review in relation to the events and circumstances surrounding the non-disclosure to the school community of allegations of sexual assault committed by an employee of the Out of School Hours Care service at [the metropolitan school] against a child in his care in 2010.

The report is unequivocal in its damning assessment of the conduct of certain persons and agencies, some of which is the subject of a review of the department by Mr Peter Allen, a proposed review of the State Records Act by Mr Allan Moss, and a foreshadowed select committee of inquiry under consideration in the Legislative Council. I direct my attention today to the problems surrounding legal advice, culminating in recommendation 23, and I quote:

[That a fund be established] from which governing councils can draw from and obtain independent legal advice when the governing council is in dispute with the [council]...

The report included an examination of legal principles regulating the disclosure of allegations of sexual misconduct and, (b), findings of the misunderstandings of officers of the Department for Education and Children's Services. As to what constituted a suppression order and lack of knowledge of the Evidence Act there were two reasons why there was a failure to make a proper disclosure. The importance of the department and governing council having access to independent and reliable legal advice was highlighted in this review.

The law covering disclosure of information of allegations of sexual misconduct is complex, and includes legal restriction on publication, duties to victims and other children, consideration of possible defamation and the like. No one expects the department, employee or a member of the governing council to tiptoe through that legal jungle alone and without competent legal advice. We now know that the department did not get independent legal advice available from crown law. It relied on internal legislation and the legal services unit, managed by a non-lawyer, who gave the wrong advice, and parents were kept in the dark.

We also know the governing council was also a victim of this sorry saga. Independent legal advice was not given or even offered, and when it was provided flawed advice was given. Aside from the question of whether Mr Mackie's provision of advice may be in breach of the Legal Practitioners Act, which we consider should at least be considered to the DPP for consideration, there is also the burning question of why the department did not get independent advice when they had done so just weeks before for another case in another public school. Mr Debelle reported in paragraph 432 of his report, and I quote:

The Department had obtained [legal] advice on at least one earlier occasion on the question whether parents could be informed that a teacher had been arrested. That advice was obtained on 30 September 2010 when the Crown Solicitor gave clear and unequivocal advice that it was lawful to inform parents of a school in the north-eastern suburbs of metropolitan Adelaide that a teacher at that school (who was to be named in the letter) had been charged with serious criminal offences involving child pornography. The fact that the Department had received the advice obviously escaped the corporate memory of the Department.

Clearly, the Allen review will have, and the select committee, we hope, may have, a lot of work to do to cover these matters. The whole episode shines a spotlight on the role and responsibility, and exposure of legal liability, of governing councils.

The Education Act 1972 part 8, sets out the provisions of operation for state school governing councils. Any watering down of the role of the governing councils would not be welcomed on this side of the house. Mr Debelle clearly has raised concern and alerts to the question of just what their role is when he raises the question of: are they just 'an advisory body'? The broader issue attracts other events and circumstances in which governing councils and the department may have conflicts in their distinct responsibilities, or at least a tension, which should attract access to independent legal advice.

From schools in my own electorate, past and present examples include, firstly, a dispute between the principal and governing council which relates to section 84 of the Education Act. That had to be dealt with by an extensive inquiry by Mr Bill Cossey. Secondly, a dispute between the minister and the department on one side and the governing council and principal in coalition on the other side, on which an expensive consultancy report was undertaken. The third was a liability of a governing council as an employer of out of school hours care services within a school coming under the Children's Services Act 1985 and, again, more recently, the right of a member of a governing council to continue in that role, being a parent of a child at the school, when they are employed by the Crown Solicitor's Office. The Premier has apologised—

The ACTING SPEAKER (Hon. P. Caica): The honourable member's time has expired.

Ms CHAPMAN: —but he has got a lot of answers to questions to be dealt with.

The ACTING SPEAKER (Hon. P. Caica): The member for Ashford.

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