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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
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Bills

Education and Children's Services Bill

Second Reading

Adjourned debate on second reading.

(Continued from 27 September 2017.)

The Hon. S.E. CLOSE (Port Adelaide—Minister for Education and Child Development, Minister for Higher Education and Skills) (11:03): To pick up where I left off, I will overlap slightly with what I said previously, which is just to make sure that I am sufficiently thanking all those who have participated in this debate and those who have worked hard on the bill, both when it was introduced and then subsequently in order to assist with this second reading reply. I will therefore make some points responding to many of the questions that were raised during the second reading stage.

A number of issues have been raised in relation to the changes to school governance proposed in the bill, with overarching concerns raised about empowered decision-making by school communities. It should be noted that new in the bill in clause 7 is an object that explicitly promotes the involvement of parents and other members of the community in the provision of education and children's services.

Additionally, the bill will transition remaining school councils, of which there are now 11, from advisory bodies to becoming governing councils. It has been asserted that the provisions relating to affiliated committees in the bill will see them treated as subsidiary bodies to the governing councils, although they may see themselves as independent. These arrangements were framed differently in the version of the bill released for public consultation. However, in response to feedback received from the peak body for affiliated committees, the SA Association of School Parent Clubs, clause 39(1) of the bill now replicates the current section 86(1), this being that the minister may authorise the establishment of committees to be affiliated with the school council.

In the absence of an affiliated committee, a governing body may, as some do, establish a subcommittee to undertake roles similar to those undertaken by an affiliated committee, such as fundraising and providing a forum for consultation with the school community. That is a matter entirely for the parent community and relevant governing council.

Also raised was the issue of the minister's ability to appoint a person to a council. It was noted that this is not an unfettered power but only related to specific circumstances, such as in clauses 38(3)(b) and 17(2) of the bill. Clarification of ministerial appointments to governing councils was requested, however. I can confirm that under the bill the minister is able to do this in the following circumstances: under clause 17(2), in establishing a school-based preschool the minister must appoint a suitable number of parents of children attending a school-based preschool to the governing council of the school; and under clause 38(3), in the event an election of council members fails, the minister may hold a supplementary election or appoint members of the council.

For completeness, it should be noted that under clauses 46(3) and 51(2) the minister may make arrangements for the election or appointment of the governing council's elected or appointed members where a new council is formed due to closure or amalgamation of schools and where a governing council is dissolved in relation to disciplinary reasons. This is consistent with the current arrangements set out in section 85 of the Education Act.

The member for Morialta has indicated that he will be filing an amendment to at least require a supplementary election before allowing a ministerial appointment to be made on a governing council and perhaps allowing for the governing council to make its own nomination where a supplementary election does not result in a position on a council being filed. I will be open to considering such an amendment.

The member for Morialta has also identified that clause 38(3) will allow the minister to make appointments if an election of members of the governing council fails because no person nominates or no votes are cast. This clause then provides for either the conduct of a supplementary election or for the minister to appoint members. This is another matter that the member for Morialta has indicated for potential amendment to clarify that a supplementary election must be held prior to any ministerial appointment being made. Again, I am open to considering such an amendment.

The opposition has stated that there are currently clear provisions at section 84(1)(a)(i) of the Education Act requiring that parents comprise the majority of members, except in an adult education school, and at section 84(1)(a)(iv) that the presiding member not be a member of staff of the school or a person employed in an administrative unit for which the minister is responsible. I have filed an amendment, amendment No. 4 in the second set of amendments filed in my name, that will clarify that the presiding member must be a person responsible for a student and that they are not able to be an employee of an administrative unit for which I am responsible except where there is no other member willing to be the presiding member and this may only occur with the chief executive's approval.

The member for Morialta also stated that participation of councils in a scheme for the resolution of disputes between the council and the head teacher should be reinstated in the new legislation as one of the matters to be mandated in the constitution, together with other existing requirements. These are currently set out in section 84(1)(e) of the Education Act. I have amendments Nos 1, 2 and 5 in the second set of amendments filed in my name that seek to address this.

The Debelle recommendation for the establishment of a legal fund for governing councils which are in dispute with the department has been raised in comments about the bill. I clarify that the arrangements for this are published in paragraph 10A of section 5 of the Administrative Instructions and Guidelines, which are published in accordance with section 96 of the current Education Act. This sets out that the department is able to provide funds to pay for independent legal advice.

Where the governing council is in dispute with the department, the department will not fund legal advice for disagreements between members of a governing council and has passed a formal resolution at a properly constituted meeting of the council resolving that the council is in disagreement with the department. The resolution must specify the questions upon which the council is seeking legal advice and is operating within the scope of its designated role and function. The governing council chairperson must write to the department stating that the council is in dispute with the department and include the questions upon which the council is seeking legal advice.

It is not the role of the department to consider whether the funding criteria are met, nor to assess the governing council's legal questions. The department's role is to forward the legal questions to the Crown Solicitor within five days of receipt, to keep the minister and the department's chief executive apprised of the nature of the dispute and whether the Crown Solicitor has certified the provision of independent legal advice and to provide funding for the legal advice if the Crown Solicitor deems this appropriate. The Crown Solicitor will determine whether the funding criteria have been met, including whether the questions are of a legal nature, and the independent legal practitioner where appropriate.

New disciplinary arrangements are set out in clause 48 of the bill, which will allow the minister to give broad direction to governing councils. The member for Morialta has indicated that he is not convinced that there are clear examples of why these powers will be necessary in addition to the other powers the minister already has. This clause allows for a ministerial direction in limited circumstances and only where detriment has been caused to students or parents of the school. The direction that can be issued is limited to correcting or preventing such detriment.

The opposition is of the view that clauses 50 and 51 broaden the powers of the minister to suspend a governing council beyond what the act currently allows. They have indicated that they will be considering amendments to maintain current arrangements providing for the restriction or exercise of a specified power of the performance of functions for a particular period of time. Section 97 of the Education Act provides for the removal of members of the council, including all members in relation to whole of council actions or decisions—for example, under section 97(c)(iii), if the council has failed to comply with directions or administrative instructions of the minister under this act.

There is no provision to suspend a council while any such matter is investigated or while consideration is given to whether members of the council or the whole council should be removed and reconstituted. While the powers and functions of a council may be suspended temporarily in urgent circumstances, there is no provision currently that allows for the continuation of relevant council business while such powers are suspended.

The purpose of clause 50, together with clause 48, was to provide alternative ways of dealing with disciplinary issues on a council without having to resort to the drastic step of removing council members or all council members and to provide for administrative arrangements in the case that the council has been suspended. The approach in the current act is a blunt instrument when it comes to governing councils. The approach the government has taken in the bill is to provide for a more nuanced series of instruments to deal with matters that are less severe than removing the whole governing council.

The bill includes new powers for the chief executive of the department to direct that a child be enrolled at a particular school without consultation with that child's parents. This is a departure from the current section 75A of the Education Act, which allows the chief executive to direct that a child be enrolled at a particular school on the basis of their disability and requires that such consultation occur. As noted by the member for Morialta in his second reading contribution, an undertaking to address this was given at a briefing on the bill. As indicated at that time, I have included a requirement for such consultation to occur in amendment No. 6 of the second set of amendments filed in my name.

Consistent with the provisions in section 75A, this requires that reasonable steps are taken to consult with each person responsible for the child. Expiation of fines relating to non-attendance has been raised as a concern, particularly that an expiation notice is a blunt instrument that is easier than conducting a family conference. I would like to put on the record that this bill broadens options in dealing with parents who do not send their children to school.

Expiation notices would be able to be used in circumstances where the parents have refused the substantial support offered by the department and other agencies to assist their child to get the schooling they deserve. Issuing expiation notices will be a lever to get parents to put their child in school without the need to pursue court proceedings. The amount of the expiation will be set out in regulations, which will be developed following the passage of the bill and will be subject to consultation.

In regard to family conferences in relation to students at non-government schools raised in the member for Morialta's second reading contribution, and in particular the interplay between these provisions and the non-government school sector, I would like to clarify that family conferences are able to be conducted in relation to the non-attendance of all students, including those at non-government schools. Such conferences are intended to be an escalation of a response where efforts by the school to address non-attendance issues have failed.

Family conferences would be triggered in respect of selected cases that have been referred to attendance and engagement social workers in DECD. The minister has a role of ensuring the attendance of all children at school, and the DECD supports the minister in this role. This is primarily achieved through the case management role undertaken by attendance and engagement social workers in DECD for government schools. Both the chief executive and the relevant principal are to give effect to decisions made at the family conference. Therefore, a representative of the chief executive needs to be party to decisions made at such conferences.

The bill continues to make provision for religious instruction by churches and other church-related organisations. In reflecting the cultural diversity of government schools, the provision has been broadened to recognise that what is, for some, religious instruction, for others is more intercultural. In so doing, the bill aims to give school communities greater control over what happens at their school by providing the principal with the authority to set aside time for religious or intercultural instruction provided by prescribed organisations.

In response to feedback received in the consultation and to the department generally, parents will ultimately be responsible for deciding whether their child should attend religious or intercultural instruction. As for any other school activity for which their consent is required based on the information provided, they will need to determine whether they consent for their child to attend or to participate. In drafting these provisions, consideration was given to the broad range of responses received during public consultation on the bill, including submissions calling for the removal of provision of religious seminars and submissions in support of them.

Over 50 per cent of the submissions on this particular topic called for the removal of provision of religious seminars. A smaller number of submissions supported their continuance. There were a number of submissions that suggested improvements if provision of seminars was to continue to be included in the bill. In addition to setting out an opt-in arrangement for such activities, the bill also provides that children whose parents have not consented to their participation in such activities will not suffer detriment and must be offered alternative curriculum-related activities.

In his second reading contribution, the member for Morialta raised again the question of Christmas carols in government schools. In order to settle this matter, the first government amendment filed in my name includes an additional object of the act which recognises the diversity of the student body in this state and, additionally, articulates a principle that schools, preschools and children's services are free to celebrate events that are of significance to their communities.

The opposition has indicated that they are aware that there is a suggestion that there is a new model being developed intended to refocus children's centres away from education and towards health services and health professionals. Clause 121, which allows for a person to be employed to provide health, social or other non-education services in schools and children's services, was cited as an example of this.

As previously provided in writing, I confirm that the Teachers Registration and Standards Act 2004 requires a school principal, preschool director or teacher at a school, preschool or prescribed service to hold a teacher registration. Accordingly, any teaching or leadership position in a school, preschool or children's centre must be held by a registered teacher. Additionally, there is no proposal to change the leadership arrangements for children's centres. Leaders of children's centres will continue to be preschool directors.

The final issue raised by the member for Morialta related to clause 134, which deals with the community use of school facilities, noting that the Debelle report recommended:

…that the Department impose a contractual obligation upon third parties using a site of the Department to give notice to parents of children using services provided by the third party should a member or employee or volunteer of that organisation be arrested and charged with a sexual offence…

This clause has been introduced into a range of DECD agreements with third parties using DECD sites, and this work will continue as the applicability of the clause is considered for all existing agreements. The template to be used by schools in establishing shared use agreements has been written to include the clause, and the guide sheet has been developed to support both schools and community groups to understand what this clause requires. The community use agreement is available through the DECD website. Additionally, there are clauses in the current use of school or preschool facilities agreement form that impose contractual obligations on third parties using DECD sites to give notice to parents.

In conclusion, as mentioned previously, there are two amendments filed in my name. Although I have previously described some of the matters that these amendments address, I would like to clarify that they provide for, first, clarification on the operation of clause 35, which prohibits corporal punishment in early childhood services (this amendment sets out that this prohibition relates to government services); and, secondly, the amendment of language in clause 110 to change references from 'dismissal' to 'termination', consistent with such references in the bill.

Thirdly, there is a technical amendment to appellable decisions in clause 125, which specifies that the section does not apply to directions in relation to the closure or amalgamations in part 4, division 5 and part 5, division 3. Further to advice from parliamentary counsel, such decisions are not directions and so do not need to be specified. Finally, a new clause 135A has been included further to legal advice that indicated that any expiable offence must be prosecuted within six months. This amendment will instead allow for a period of two years for a prosecution where an expiation fee applies.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mr GARDNER: I have a question about clause 3 that we might consider further between the houses. In relation to the definition of non-government schools on page 10, it has been suggested by a stakeholder group that the current definition of a non-government school—that is, a school that is registered under the Education and Early Childhood Services (Registration and Standards) Act that is not a government school—might be slightly broadened to include that a non-government school means a school and an education and care service. I put that on the record, and the minister can answer if she wishes. We could discuss between the houses that a stakeholder group has suggested that amendment, and if the government wishes to comment, then they might.

The Hon. S.E. CLOSE: You are quite right; we will look at that between the houses.

Clause passed.

Clauses 4 to 6 passed.

Clause 7.

Mr GARDNER: My understanding is that in the original act there were no objects and principles listed as such. I indicate my thanks to the minister for her comprehensive response to questions I raised in the second reading contribution. I think we will get through the committee stage a lot more quickly than we otherwise might have and potentially even be finished by lunchtime today. I apologise if I repeat any questions she has already answered; she was moving at some pace.

We understand that there were no objects and principles in the previous act and the minister's intent, as described, was to establish some. Of course, these objects and principles do not just inform what follows in the act, but I imagine they will be referred to in future when ministers or chief executives of the department are identifying the policies and procedures that the education department will follow. My question is: what process did the minister use to arrive at this set of principles as outlined in the original bill?

The Hon. S.E. CLOSE: This has been in process since 2009, I understand. A discussion paper was prepared and all the stakeholders were consulted, and then it was included in the consultation that went via YourSAy.

The CHAIR: Another question, member for Morialta?

Mr GARDNER: No, we can move to amendments.

The CHAIR: I am looking at schedule 2, amendment No. 1 in your name, member for Morialta, which I presume you are moving. Are you going to move your amendment No. 1 on schedule 2?

Mr GARDNER: For the sake of clarity, there have been a couple of extra amendments that have just been tabled, so when we get to them I do not want us to get confused. The first—

The CHAIR: Hang on a second. It would be nice if the table knew about the extra amendments.

Mr GARDNER: I think the one the Chair has asked me to deal with is the first of those.

The CHAIR: We could take your word for it—

Mr GARDNER: I think that would be an excellent idea.

The CHAIR: —and do not think me churlish, but the table would like to see the amendments.

The Hon. S.E. Close interjecting:

Mr GARDNER: One of them deals with this clause a bit later on. It is an additional thing to one of your amendments.

The CHAIR: It has been put to me by the table that we could postpone this clause and work on other clauses while we are working out where the amendments are lying.

Mr GARDNER: At the end of the day, we have a couple of amendments that we can deal with quickly on this clause first, and then if we need to we can postpone, or we can postpone to—

The CHAIR: We are old-fashioned here; we have a certain order we like to deal with things. If you do not have clause 7 under control, we can move on to other clauses.

Mr GARDNER: I apologise to the house. We had a look at the amendments that the minister filed early this morning, proposed one further one, and that was requested a little while ago. We will get to it soon, so I move:

That we postpone clause 7.

The CHAIR: Do you know if your new amendments are going to affect anything else in the bill, or is it just clause 7?

Mr GARDNER: They will not.

The CHAIR: So we can move on to other clauses.

Motion carried; clause postponed.

Clauses 8 and 9 passed.

Clause 10.

The CHAIR: Minister, you are going to move your amendment and we are only going to consider it to the end of (a), because your amendment, member for Morialta, does not include anything after that.

Mr GARDNER: I am happy for us to deal with just the minister's amendment and mine will be unnecessary.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [EduChilDev–2]—

Page 15, after line 40—Insert:

(1a) Without limiting the provisions that may be included in a model constitution for governing councils of schools, each such model constitution must contain provisions requiring—

(a) the governing council to participate in a scheme for the resolution of disputes between the governing council and the principal of the school; and

(b) the members of the governing council to comply with a code of practice approved by the Minister.

Mr GARDNER: The previous act had a dispute resolution mechanism required to be included in governing council constitutions. In my second reading, and in discussions with the minister, I indicated that the lack of a dispute resolution model in the new bill was inadequate, from the opposition's point of view. We therefore indicated that we would move an amendment to restore what was in the current bill, and the amendment tabled in my name does that.

The minister's amendment that we are now discussing is, to that point, identical to the one the opposition suggested. The additional point that the minister brings in, though, is that school constitutions must contain provisions requiring that 'the members of the governing council to comply with a code of practice approved by the minister'. There are some other amendments that we will deal with that are consequential to that, which establish further details about the code of practice.

The opposition is open-minded about whether or not this is beneficial. The opposition became aware of the introduction of the code of practice into the school governing council constitutions into the bill last night. That is fine; these things happen, and if there is an issue we can deal with it between the houses. I understand that the minister may have passed over this in her second reading response but, as I said, she was moving at some haste, so at this stage I invite her to explain the benefit, purpose or need for the codes of practice, which the opposition will then consider between the houses.

The Hon. S.E. CLOSE: The code of practice is currently provided for in section 84 of the Education Act, so we have moved it into this provision to make it straightforward.

Mr GARDNER: That sounds like a reasonable explanation, and we will proceed on that basis.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [EduChilDev–2]—

Page 16, line 3 [clause 10(3)]—After 'constitution' insert:

and each code of practice approved by the Minister

This is consequential on the decision we have just made.

Amendment carried; clause as amended passed.

Clauses 11 to 32 passed.

Clause 33.

Mr GARDNER: I think I raised this in my second reading speech; having printed it off, it turns out that speech went to 45 pages, and I have not had time to line up the questions I asked in that and the minister's responses given just 20 minutes ago, but there is the issue of these $20,000 fines. In this case, these are for the offence of a member of a governing council failing to disclose a conflict of interest and so forth.

The issue has been raised that these fines are higher than some others. As I indicated in my second reading contribution, the opposition does not propose to amend these fines but, for the record, can the minister identify the reason for the figure of $20,000 being chosen? My understanding is that it is to enable consistency with other similar offences under similar acts but, given that there are offences that have $5,000 fines or $10,000 fines in other acts, is there a cross-government approach that has been proposed to deal with those further offences as well?

The Hon. S.E. CLOSE: The fines were set on the advice of parliamentary counsel to be generally consistent. I cannot speak to any further changes the government might make on acts for which I am not responsible, but that is why that figure was chosen.

Clause passed.

Clause 34 passed.

Clause 35.

The Hon. S.E. CLOSE: I move:

Amendment No 3 [EduChilDev–2]—

Page 29, line 32 [clause 35(1)]—Delete 'stand-alone' and substitute 'Government'

Mr GARDNER: I invite the minister to explain the need for replacing 'stand-alone' with 'government'. I am not sure if there are any non-government preschools that would otherwise be captured, but if there were some clarity there that would be helpful.

The Hon. S.E. CLOSE: This is essentially a drafting decision to create consistency with the next clause.

Mr GARDNER: I cannot imagine that we would have any great objections, but we will have a look at it in more detail between the houses.

Amendment carried; clause as amended passed.

Clause 36 passed.

Clause 37.

Mr GARDNER: I am interested in this provision under clause 37(2):

Subject to this Act, the same body may be the governing council for 2 or more schools.

I am just curious if the minister can articulate in what circumstances that provision is likely to be used. I can think of one where schools might be merging potentially in that process, but other than that are there any other provisions where this would be used?

The Hon. S.E. CLOSE: My advice is that, although this has not happened, there is an effort for futureproofing in case there is such a need in the future.

Clause passed.

Clause 38.

Mr GARDNER: I move:

Amendment No 3 [Gardner–1]—

Page 31, lines 1 to 10 [clause 38(2)]—Delete subsection (2) and substitute:

(2) Subject to this Act, a majority of the persons appointed under subsection (1)(b) must be persons who are responsible for students enrolled in, or children who are to attend, the school unless the school is wholly or principally for adult students.

I identified the purpose of this in the second reading speech but, to be very clear, this amendment deals with the requirement, which the opposition believes is useful, for there to be a parent majority on school governing councils. The amendment specifically states:

Subject to this Act, a majority of the persons appointed under subsection (1)(b) must be persons who are responsible for students enrolled in, or children who are to attend, the school unless the school is wholly or principally for adult students.

Put simply, we want to maintain what is currently the situation of having a parent majority on governing councils.

The Hon. S.E. CLOSE: Subclause (2)(b), which is removed by this amendment, is intended to deal with circumstances where a school council is not able to be composed of a majority of parents, which does occasionally happen. To revisit my response to this, we are concerned that we need to be able to address the situation where a council is not able to be composed of a majority of parents. Also, subclause (2)(c), which would be deleted under this amendment, is intended for futureproofing in case there are instances in the future where the minister may wish to declare a school or a class of schools exempt from needing a parent majority on the council.

Ayes 19

Noes 21

Majority 2

AYES
Bell, T.S. Brock, G.G. Chapman, V.A.
Duluk, S. Gardner, J.A.W. (teller) Goldsworthy, R.M.
Griffiths, S.P. Knoll, S.K. Marshall, S.S.
McFetridge, D. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.
NOES
Bettison, Z.L. Bignell, L.W.K. Caica, P.
Close, S.E. Cook, N.F. Digance, A.F.C.
Hildyard, K.A. Hughes, E.J. Kenyon, T.R. (teller)
Key, S.W. Koutsantonis, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rankine, J.M. Rau, J.R. Snelling, J.J.
Vlahos, L.A. Weatherill, J.W. Wortley, D.
PAIRS
Pengilly, M.R. Hamilton-Smith, M.L.J. Redmond, I.M.
Atkinson, M.J. Speirs, D. Gee, J.P.

The Hon. S.E. CLOSE: I move:

Amendment No 4 [EduChilDev–2]—

Page 31, after line 10—Insert:

(2a) The governing council of a school must, in accordance with the governing council's constitution, appoint or elect one of its members to be the presiding member of the governing council, being a person who—

(a) except in the case of a school that is wholly or principally for adult students, is responsible for a student enrolled in, or a child who is to attend, the school; and

(b) is not a member of the staff of the school or a person employed in an administrative unit for which the Minister is responsible,

(however, the governing council may, with the approval of the Chief Executive, disregard the requirement under paragraph (b) if there is no other member willing to be the presiding member).

Mr GARDNER: I indicate that the opposition will supporting this amendment but then moving a further amendment. This amendment builds on what the opposition is proposing in amendment No. 4 in what I assume is schedule 2, which I will be withdrawing. Therefore—

The CHAIR: You will not be proceeding with it.

Mr GARDNER: —I will not be proceeding with it. However, the purpose of this amendment is to enable the chair of the governing council to not be somebody who is responsible to the minister. This is an important amendment that will ensure the independence of governing councils from inappropriate interference, or the perception of interference, or the feeling that they are going to be in a circumstance where the chair is the employee of the minister, as in an example described by Justice Debelle, where you might have some serious issues. It is therefore important to maintain a parental chair. I am pleased that the government has come to the table and is supporting this amendment. I will get to the further improvements that are necessary when we deal with the next amendment.

The CHAIR: Are you happy to respond to those comments before the member for Morialta moves his new amendment No. 1 on his new schedule 4? This is an amendment to your amendment.

The Hon. S.E. CLOSE: I think we are still discussing amendment No. 4, but yes, because I am accepting his new amendment, whichever procedure works for the Chair is fine by me.

Mr GARDNER: I move:

Amendment No 1 [Gardner–3]—

Page 31, after line 10 [inserted subsection (2a)]—After 'executive' insert:

and until such time as a person who is not a person referred to in paragraph (b) is willing to be the presiding member

The minister has, in her version of the amendment, said that the governing council may, with the approval of the chief executive, disregard the requirement that it be a parent rep if there is no other member willing to be the presiding member. That sounds, on the face of it, to be reasonable, but the opposition is very concerned about the circumstance. Sometimes, personality conflicts in these situations can present in a way that a parent representative might be willing to stand but might feel intimidated out of the idea of standing.

For example, if a staff member or somebody else on the council has been the chair for the previous years, these things can sometimes have a culture of dominance, and that parent might feel intimidated out of standing for the position so that the otherwise ineligible person is able to continue. In that circumstance, I want to be abundantly clear that if, in a future meeting, the parent wishes to take up that responsibility, then their right to do so is asserted.

I am very pleased that the minister has had a look at this and that, in the very brief time she has had to see it, she has seen the potential merit in it. This amendment would ensure that the circumstance where an ineligible person—a staff member, really—takes the chair, they only continue until such a time as a person who is not ineligible is willing to be the presiding member. I think this probably neatly wraps up a solution.

The Hon. S.E. CLOSE: I am willing to accept this amendment. I am not sure that it is abundantly necessary but, in order to reassure anyone who is anxious, I am happy to accept it. What we have done in the amendment that is now being amended is make sure that we are entrenching the requirement for a chair of the governing council to be a parent—someone who is not employed—only allowing the fail-safe that should there be no-one willing to do that, we are still able to have a functional governing council. Of course, as soon as someone is prepared, who is a parent and not an employee, we would revert to that. I am happy to accept this amendment to my amendment.

Amendment to amendment carried; amendment as amended carried.

Mr GARDNER: I move:

Amendment No 5 [Gardner–1]—

Page 31, lines 11 to 18 [clause 38(3)]—Delete subclause (3) and substitute:

(3) If an election of members of the governing council of a school fails because no person nominates for the election, or no votes are cast in the election, then—

(a) the Minister must conduct at least 1 supplementary election in accordance with the governing council's constitution; and

(b) if that election or those elections also fail, the Minister may appoint such persons to the governing council as the Minister thinks fit (and subsection (2) will be taken not to apply in relation to the governing council in such a case).

This amendment deals with the circumstance envisaged in the bill whereby there are insufficient candidates or votes cast for the election of governing council members. The bill provides an opportunity for this circumstance to be dealt with, at the minister's discretion, by either (a) having a supplementary election, or (b) appointing such persons to the governing council as the minister thinks fit.

The opposition understands that there can be circumstances whereby such a mechanism is necessary. I have been to governing council meetings that have failed to make quorum. I have been to governing council AGMs where there has been a frisson of desperation as people try to encourage others around the room to just put their name down so that the meeting can be constitutional. We understand that these circumstances can happen. However, it is important that in the interests of empowered parental engagement in their schools, the priority be given to parental engagement and not ministerial appointment.

I am not suggesting for a moment that this minister would do this, and I am not saying that necessarily about other potential ministers from her party or other past ministers from her party, but at the other end of the spectrum the fact is that sometimes ministers get into disputes and arguments with governing councils and it can all be deeply unpleasant.

In those circumstances, I would hate to think that this would be a get out of gaol clause for a minister who wished to appoint some person from the department to the school council to pursue a certain policy agenda rather than a parent having the opportunity to come on at a subsequent stage. So our amendment requires that, while both of the opportunities to fill those positions are still available to the governing council, the supplementary election must take place first before ministerial appointments.

I realise that there are opportunities where a governing council might identify some people and say to the minister, 'We would like to appoint this person from the school community whom we have identified,' and that is probably the purpose for which the minister might argue that the second section is of benefit. I would say that the same end result can be achieved by just having the supplementary election and nominating that person.

The Hon. S.E. CLOSE: I am happy to support this amendment.

Amendment carried; clause as amended passed.

Clauses 39 to 41 passed.

Clause 42.

The Hon. S.E. CLOSE: I move:

Amendment No 5 [EduChilDev–2]—

Page 33, after line 4 [clause 42(3)]—Insert:

(ab) a provision requiring the governing council to participate in a scheme for the resolution of disputes between the governing council and the principal of the school; and

(ac) a provision requiring the members of the governing council to comply with a code of practice approved by the Minister under section 10(1a)(b); and

We have tried to do very similar things with the two amendments. Mine are slightly broader, taking into account the question of the code of practice, as discussed earlier.

Amendment carried.

The CHAIR: You are not proceeding with your amendment?

Mr GARDNER: We will have a look at the codes of practices between the houses, as indicated. On that basis, the amendment is similar to that of the minister's, so we will not proceed.

Clause as amended passed.

Clauses 43 to 47 passed.

Clause 48.

Mr GARDNER: The minister spent a little bit of time in her response defending the inclusion of clauses 48, 50 and 51. The opposition does not at this stage propose to support those clauses. Without rehashing the whole of the second reading debate, clause 48 as proposed suggests that the minister may direct a governing council or affiliated committee if they are satisfied that the governing council of a school or an affiliated committee has refused or failed to perform a function under this act, or has performed a function or exercised a power in a particular manner that has caused a detriment to the students or a substantial section of the students or persons who are responsible for the students.

My first issue is in relation to this question of 'to the detriment'—the minister has to be satisfied that it is to the detriment of the students. Without rehashing my lengthy comments on the Debelle report in the second reading, my concern is that all that is required is that the minister be satisfied that something is to the detriment of the students. A previous minister seemed to suggest in this house that sexual assaults at school being identified to other parents at the school was to the detriment of those students.

For me, it is not satisfactory that a minister can just be satisfied that some of these activities of a governing council cause detriment. I invite the minister to provide examples of where clause 48 might be so directed. I think the example that she used in her response earlier was to describe the provisions in the current act as a very blunt instrument, giving only an all or nothing type of approach. I have had a quick look at the current act and I am not convinced of that analysis, certainly by comparison with this bill, which gives the minister such expanded powers.

I appreciate the government will be supporting this clause; the opposition will be opposing, but if the minister wishes to put anything on the record identifying an example of how this clause might be useful then I invite her to do so.

The Hon. S.E. CLOSE: It seems pretty clear in the current act that there are only very blunt instruments for engaging with a council where the minister is satisfied that detriment is being caused to students. I would draw the member's attention to the need for the governing council to refuse to perform any function under the act or perform a function or a power in a particular manner that causes detriment. Short of simply removing the council, there is currently not a lot that a minister is able to do.

An example that has not occurred but could occur, and is conceivable, would be some form of policy that is discriminatory against a particular group of students that the governing council determines is something that they want for their school. Importantly, this decision is appellable under division 2—Appeals to Administrative and Disciplinary Division of the District Court. This action is subject to that; therefore, any minister who acted in a capricious manner and did not have a strong amount of evidence of real detriment to students would be unlikely to make any such decision, which appears to be the opposition's concern.

This is not about exercising harsher control on governing councils; it is in fact about allowing for a more subtle relationship should there be matters that arise. The vast majority of the time in the vast majority of schools this will never, ever be an issue. What we want is to not be in a position of having to say, 'We are going to dissolve the entire council because you have made this decision.' What we want is to be able to work through that decision, and this enables that degree of subtlety for a future minister.

Mr GARDNER: I indicate that we will be proceeding with the amendment, but we will take on board the minister's example and give it further thought between the houses. However, at this stage I remain unconvinced, and I suspect that my colleagues in the opposition will also be unconvinced.

The Hon. S.E. CLOSE: May I ask, given that I sense a division coming, whether we are going to put the amendments together, because my objections are—

Mr GARDNER: We have to deal with them clause by clause, but we do not need to debate everything.

The Hon. S.E. CLOSE: Okay, I understand. Thank you.

The CHAIR: You could have asked us that bit, too. We are interested observers—we just want to be in the loop if we could be.

Ayes 22

Noes 19

Majority 3

AYES
Bettison, Z.L. Bignell, L.W.K. Brock, G.G.
Caica, P. Close, S.E. Cook, N.F.
Digance, A.F.C. Hildyard, K.A. Hughes, E.J.
Kenyon, T.R. (teller) Key, S.W. Koutsantonis, A.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R.
Snelling, J.J. Vlahos, L.A. Weatherill, J.W.
Wortley, D.
NOES
Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. (teller) Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. Marshall, S.S. McFetridge, D.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.
PAIRS
Gee, J.P. Redmond, I.M. Hamilton-Smith, M.L.J.
Speirs, D.
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