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Legislative Council - Fifty-First Parliament, Second Session (51-2)
2008-03-06 Daily Xml
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SENIOR SECONDARY ASSESSMENT BOARD OF SOUTH AUSTRALIA (REVIEW) AMENDMENT BILL

Final Stages

Consideration in committee of the House of Assembly’s message.

The Hon. CARMEL ZOLLO: Before addressing the amendments, I wish to make a statement concerning two questions raised by the Hon. Rob Lucas during a previous debate on this bill in November 2007 to which I undertook to provide a response. The first matter concerned the SACE Review recommendations and the South Australian Tertiary Admissions Centre (SATAC). The SACE organisation and SATAC were working in conjunction to oversee scaling of the tertiary entrance rank (TER). Ultimately, the SACE board will determine (in consultation with SATAC) how TER results are communicated to candidates.

The second matter the Hon. Rob Lucas raised concerned the Future SACE. The Crown Solicitor has verified that, under the current legislation, the minister has the power to review the operation of the SACE and to make recommendations and trial those recommendations.

Legal advice has confirmed that the current development work concerning the proposed Future SACE is not unlawful. The Future SACE Implementation Steering Committee, comprising the education sectors and the board (through the Chief Executive Officer of SSABSA) was established to oversee the development and trialling work related to the Future SACE. The outcome of this collaborative work will be considered by the board cognisant of the input of the educational expertise provided by the steering committee and the extensive consultation across the education sectors. This process reflects the intent of the SACE review and the legislative reforms.

The government's SSABSA bill vests responsibility for senior secondary certification with the board in close collaboration with the school sectors and the responsible minister. The collaborative development work will in no way undermine the role and authority of the new SACE board under the proposed legislation.

Following the SACE review, funding over a five-year period was sought to design, trial and implement a new SACE. Funding was allocated in the 2006-07 education portfolio budget. In accordance with that budget provision, the steering committee is overseeing the SACE development and trial work. What the education community, the board and the minister will achieve through this work is a SACE for the future and enhanced educational outcomes for all young people across South Australia.

I will now address the amendments from the other place. When the council last considered the SSABSA amendment bill I noted that the way education is delivered today has changed significantly from the traditional classrooms of the past. Therefore, we need to ensure that the legislative framework we have in place supports the education of today's children and future generations. As with members in the other house, I am sure that every member of this council wants all young people to achieve their potential as citizens of South Australia. It is today's year 9 students who will graduate in 2011 with a new SACE. The outcome of our deliberations today will reflect the strength of the legislative foundation that supports them, and future generations, in achieving their potential.

The other house recognised, as have stakeholders involved in shaping this legislation, that to underpin our young peoples' future success it is imperative that the legislation before us is passed and a new board appointed as speedily as possible. Consultation and responsive change have been the hallmarks of all of the deliberations around the new SACE and the legislation that will support this new senior secondary certificate.

In formulating the original bill, a discussion paper and a legislative advisory group of 40 key stakeholders, which includes each of the school sectors, enabled us to shape a bill with the broad agreement of the overwhelming majority of those stakeholders. Following this council's amendments to the SSABSA bill, there has been ongoing consultation with members of that advisory group. These steps reflect our commitment to work together to ensure that we deliver an effective senior secondary system that enables young people to achieve their potential.

The SSABSA bill, as introduced by the government, links with the new compulsory education age legislation passed last year and the new SACE. They will help create a new education and training landscape for young South Australians. The original bill provided a legislative driver for the Future SACE and, in turn, enable more young South Australians to achieve their potential by learning across the whole education, training and workforce landscape.

This new direction will require new approaches to teach, assess, monitor, track and assist young people as they progress from school, to training and to work. In the interests of young South Australians, the other house agreed to four of the amendments made to the SSABSA bill in this council, and these concern the appointment of the board, the role of the minister in relation to the function of the board, and a minor amendment regarding data about young people of compulsory education age.

However, in disagreeing to the remaining nine amendments, all members in the other house effectively acknowledged that there must be employment certainty for the CEO and staff of the board; our education system as a whole must be able to support young people of compulsory education age by being able to effectively track and monitor their progress and measure their achievement; and we must be able to ensure that the minister responsible for the education of young South Australians is accountable to parliament and has the capacity to fulfil the responsibilities of the education portfolio.

My advice is that amendments Nos 1, 2, 5, 12 and 13 concern the employment arrangements for the CEO and the staff of the board. The bill, as introduced by the government, addresses stakeholder concerns by removing the chief executive of DECS as the employing authority for the CEO of SSABSA and its staff. The amendments proposed in this place would bring the CE of SSABSA and staff within the scope of WorkChoices. While the new federal government plans to overturn WorkChoices, these changes are not expected to go before federal parliament until later this year.

As supported in the other house, it is important that SSABSA staff have certainty over their employment conditions at a time when we are introducing a new SACE. I therefore strongly urge that the committee does not insist upon these five amendments.

Amendments Nos 7 and 9 concern our ability to support and monitor 16 year olds of compulsory education and age. As has been agreed to by all stakeholders and supported by the other house, it is essential that the participation of children of compulsory education age—that is, 16 year olds in approved learning programs—can be appropriately monitored, tracked and supported. A key function assigned in the government's bill provides for SSABSA to have a role in enabling this through the collection of data about this group of young people.

The effect of the amendments is twofold. First, they would restrict the transfer of information relating to individual students disengaged from education and only aggregate data relating to 16 year olds could be provided. Secondly, the board would be able to provide information only to entities within the school education sectors and would prevent the transfer of information to other sectors delivering approved programs, such as TAFE and private registered training organisations.

As the Minister for Education and Children's Services noted when the House of Assembly disagreed to these amendments, safeguards are being put in place to appropriately protect the data. The government has made new regulations under the Freedom of Information Act to prevent third party access to information held by the minister and the Department of Education about 16 year olds and other information that could be used to construct league tables.

Additionally, as recommended last year by an advisory group of education committee stakeholders, it is the minister's intention to make the appropriate regulations under the Education Act to ensure that both the SACE board and the minister establish the necessary protocols with each school sector in order to protect the release of the identity of schools and students.

I am advised that all stakeholders will be fully consulted to help shape developments of any regulations. I am also advised that the Association of Independent Schools of South Australia has accepted the assurances given by the minister. I therefore urge that the committee does not insist upon these two amendments.

The remaining two amendments Nos 10 and 11 relate to a perceived ministerial power over the board. The government's bill strategically connects the board, the education sectors and the minister responsible.

Amendment No. 10 would remove the ability of the minister to seek information from the board that relates not to the board but to a minister's responsibility as minister for education. It is understood and agreed by all stakeholders, including the Association of Independent Schools of South Australia and members of the other house, that this is a reasonable provision.

Amendment No. 11 would remove the minister's limited power to direct the board in the interests of supporting the accountability and performance of the board for which the minister is ultimately answerable to the parliament. This proposed process is transparent, as it requires the minister to table any directions in parliament and the board to report these in its annual report. The proposed power of direction is intended as a safeguard to the board's performance and accountability.

As noted by the minister in the other place, such a limited power is consistent with provisions in other comparable legislation; for example, the Training and Skills Development Act 2003, which the former Liberal government developed, and the Teachers Registration Standards Act 2004, both of which were passed with the support of the Liberal opposition.

As the member for Schubert said in debate in another place last Tuesday, it is all right to direct higher order aspects of management and setting SACE requirements to the minister. I therefore urge this chamber to not insist on these two amendments. The education community members who have been closely involved in the shaping of this legislation all want to see the swift passage of this bill so that we can get on with the task of establishing a new SACE board. In turn, we can provide the support that young South Australians need to achieve their potential through a new SACE and a new education and training environment. I strongly encourage members to take a bipartisan approach to this commitment and urge the committee to not insist on all nine amendments. We all share the goal of wanting young people to do their best, and that approach supports this goal.

The Hon. R.I. LUCAS: I thank the minister for relaying the government's position in relation to the amendments. At the outset, she provided answers to questions that had been asked when we debated the bill in November, and I thank her for that. It is clear that the legal advice confirms the viewpoint put that it will be the new board's decision in relation to the new Future SACE framework.

The minister has obviously taken legal advice to confirm that the preparatory work they are doing is not illegal or unlawful (I do not think anyone suggested that it was) and that it is a decision of the new board, which information the minister gave on behalf of the government when the debate was proceeding in November last year. Will the minister clarify whether, if the parliament agrees to the bill with the amendments as suggested by the government, and now that it has taken legal advice, the minister is now indicating that if some future minister for education decides to have a completely new Future SACE, which may want to incorporate new subjects, change the pattern of learning or a range of those issues, he or she will have the power to direct the SSABSA board on that future framework?

I ask that question in respect of the essence of the legal advice the minister has now read to the committee, and the fact that under clause 17A of the original bill the minister will have the power to direct in relation to any matter relevant to the performance or exercise of a function or power of the board but cannot give a direction in relation to content or accreditation of a subject.

Clearly, a minister would not be able to direct the particular content of a subject, but if a future minister for education wanted to have a completely different framework—require subjects like language at year 12 or everyone having to do English studies rather than a literacy rich subject or any framework like that—is the minister's legal advice now that a future minister has that authority and power?

The Hon. CARMEL ZOLLO: My advice is that the new legislation, if passed, will enable the minister and the schooling sector to request the board to review the development of courses, and that is how the process would be undertaken.

The Hon. R.I. LUCAS: I have a very strong view on this. The committee ought to at least be informed as to the nature of the legal advice, and that response does not answer the question I am asking. I will try to put it as simply as I can. Let us say that a future minister wants to change the Future SACE, which the minister will now implement. Under the current arrangements, that has to be done by the board approving it, but now we are to have a new act with all these amendments. My question is: if a future minister in, say, five years says, 'I want to go back to the old SACE' (or some future variation), who makes that decision? Will it be the minister, with this power to direct, or will it be the board?

This parliament needs a clear answer to that. Is it the board or the minister? I do not propose to raise further amendments at this stage, but I believe the parliament ought to be informed (now that the minister has provided some legal advice that the government had to seek on this issue) whether it is the minister or the board that will be able to make that decision in the future.

The Hon. CARMEL ZOLLO: My advice is that the new act is clear: it will be the board's responsibility.

The Hon. R.I. LUCAS: I thank the minister for that. I am not a lawyer, but I have to say that on the surface of it I cannot understand how that is the case, given ministerial directions. However, the minister has given that undertaking on behalf of the government and said that that is the legal advice the Crown Solicitor (I think) has provided. I would ask the minister: was it the Crown Solicitor or the Solicitor-General who provided advice on this issue?

The Hon. CARMEL ZOLLO: I am further advised that the current legal advice is about the current act, not about the future.

The Hon. R.I. LUCAS: I believe that is contrary to the undertaking the minister gave—

The Hon. Carmel Zollo: The question was about that.

The Hon. R.I. LUCAS: Let us be quite specific on this; and I can only repeat the question, because I think what the minister has just said is in conflict with what she said two responses ago. What I believe the parliament needs to know—and what I, as one member, seek to know—is: when this bill is passed and we have a new act (the law as it will apply in the future), who has the authority? Is it the minister in the future or is it the board in the future that will make the final decision about either coming back to an old SACE or having a future Future SACE? I think that is a pretty simple question.

Clearly the government has received legal advice from (I understand) the Crown Solicitor on this issue, and I think this parliament ought to be informed whether it is the minister or the board who will make the decision. Up until now it has been the board, and it has been independent to that degree. If this government is now instituting that it is the minister then, again, I think the parliament ought to be so informed.

The Hon. CARMEL ZOLLO: Parliamentary counsel advice is that the minister could make such a direction. However, I am further advised that she could not direct the schools to teach particular subjects. The fact is that, within the spirit of this legislation, the minister, the schooling sector and the board together have the responsibility for the SACE and, more importantly, for keeping it current.

The Hon. R.I. LUCAS: I assume that the minister is saying that parliamentary counsel is interpreting the Crown Solicitor's legal advice to the government, or is that parliamentary counsel's independent advice? The minister has outlined the Crown Solicitor's advice and is now attributing this most recent advice to parliamentary counsel. Whilst I have great regard for parliamentary counsel, I would like to be clear that what has been placed on the record is the parliamentary counsel view of the legislation, or is parliamentary counsel saying that that is his view and that it is also what he understands the Crown Solicitor to have advised the government as well?

The Hon. CARMEL ZOLLO: I am advised that the Crown Solicitor's advice was about the current legislation, not future legislation.

The Hon. R.I. LUCAS: Can I clarify that? When you say the 'current legislation', you are talking about the current act, as opposed to the bill before the committee?

The Hon. CARMEL ZOLLO: Yes, the current act.

The Hon. R.I. LUCAS: I think it is a bizarre proposition that the Minister for Education, not this minister, would be seeking advice about the current act. It is fine to get advice about the current act but also about what the situation is going to be under the future legislation. Anyway, that is the nature of the advice. I understand from what the minister has just said that parliamentary counsel's view is along the lines she indicated when last she spoke.

In relation to that, I think it is clear from what parliamentary counsel has advised the government that the government has now indicated that it will be possible for a future minister for education to revert to a current SACE (that is, the old SACE) or have any version of a future SACE if he or she so wishes.

What parliamentary counsel is advising is that it is ultimately up to the school sectors as to whether or not they offer the SACE. Ultimately, they can teach what they want; they can go to the International Baccalaureate. Frankly, one or two independent schools have looked in a very exploratory way at whether or not they could offer a certificate from another state. If they are unhappy with the South Australian Certificate of Education, what would prevent them from offering some interstate or international accreditation for their year 11 and year 12 studies if they so chose? There are a lot of logical reasons why you would not do that, and no-one has gone down that particular path in any serious way, but some schools obviously do offer the International Baccalaureate in addition to, or in competition with, the South Australian Certificate of Education.

I think members need to be clear that, at some future stage, a minister—and with the greatest respect to my own breed as a former minister for education there have been any number of weird and whacky ministers for education nationally, if I can put it that way, rather than necessarily in South Australia—will have the capacity, if he or she is unhappy with this particular version of SACE (the Future SACE), to impose his or her view on what a future SACE will be. That is the advice the minister has now given to the committee.

In relation to the recommendations for the minister, I indicate (as indicated by the party spokesperson in the House of Assembly) that the Liberal Party will support the compromise position that has been put to the House of Assembly and now to the Legislative Council. We as a party welcome the fact that, in terms of representation on the board (its composition), which was, I guess, the driving point for the Independent Schools Association authorities in South Australia, the government has given ground on that key issue to the independent schools sector.

Put simply, it will mean that the Catholic and independent schools will have a voice on the SSABSA board on key decisions that will be taken in the future, and we welcome that. We also welcome the fact that, as part of the compromise, the government has conceded ground on one of the amendments in relation to the independence of the board and the power of the minister.

The government sought to give the Minister for Education the authority to add any additional function to the SSABSA board without any regulation or legislative change. The minister could just wake up one morning, go through a process (quite separate from parliament) and assign an additional function or power to the SSABSA board. That was opposed by the Legislative Council, and we welcome the fact that the government conceded on that issue.

As the minister indicated, the shadow minister in another place, speaking on behalf of the Liberal Party, indicated that, as part of the compromise, the Liberal Party conceded on a range of other issues that were originally agreed to by the Legislative Council.

A number of issues raised by the minister in the House of Assembly in support and justification of the position put by her and the government were, in my view, frankly wrong. For example, with respect to the amendments relating to the employment of the Chief Executive of SSABSA, I remind members that the current situation is that the Chief Executive of DECS (the government school sector) is, in essence, the employing authority for the Chief Executive of SSABSA. No-one agreed with that; it was an unintended consequence of the government's earlier legislation. In essence, the government's bill will put the minister in charge of the appointment of DECS.

The Minister for Education told the other house that the amendments that we moved as a chamber would put the Chief Executive of DECS in charge of the SACE organisation. That is completely wrong. It is actually close to the situation as it was under the government's old legislation, and it was what the Legislative Council sought to correct; that is, to go back to the position of an independent board, which employed a chief executive who employed their staff, rather than the Chief Executive of DECS.

The minister suggested that it was an unintended consequence of what the Legislative Council had done when, in fact, what she described was her own legislation. There were one or two other examples like that (but I will not go through them all at this stage), where the minister, frankly, was wrong in what she told the Legislative Council when describing the impact of its amendments.

Finally, I indicate that the Liberal Party has agreed to the compromise. Speaking personally, I still have significant concerns about the Future SACE, but I will not repeat them, as I have gone through them on a previous occasion. I still have concerns but, in the spirit of compromise, we acknowledge that both sides have had to give way on points in which they may still strongly believe. As the government has indicated, it still strongly believes in its original position on the amendments on which it has given way.

I indicate, as one member of the Liberal Party, that I strongly believe in the principle behind the amendments we moved, particularly those relating to the independence of the board. I think a fundamental problem remains, that is, where the minister will have the legal power and the capacity to direct the independent SSABSA board on a range of issues if he or she so chooses. The reality is that a good and sensible minister may well not do so and that we will not find ourselves in those circumstances. However, a future minister does have the legal authority now and, as I indicated, a future minister who wants to have a year 12 subject on nuclear power will be able to direct the board to have a subject on nuclear power; or, if they want to have a subject on the sex education course that SHine was pushing, they can require that as a year 12 subject.

I hope that, in the spirit of what the minister has talked about—cooperation and collaboration, and other words that the minister chooses to use—we do not end up in a position like that. However, I indicate that this parliament, through this process (and I accept that there has been give and take on both sides), has potentially raised the possibility for those sorts of actions by a future minister, and that is what the parliament, by a majority (and I am not sure what the views of other members will be; that is for them to indicate), ultimately will be supporting.

As I said, they are personal views that I have indicated. As I said at the outset, the party's position as enunciated is that we accept the give and take, and we welcome the fact that the government has given ground on some amendments and, in response, the opposition has conceded ground on a range of amendments.

The Hon. D.G.E. HOOD: I wish to make a brief contribution with respect to Family First's position on the agreements that have been reached with respect to the amendments that the Legislative Council made to the bill in the first place. We also have grave concerns about the capacity for a minister to direct a board to begin the teaching of specific subjects, which I think, as the Hon. Mr Lucas rightly pointed out, may in fact not be a problem at all, should the minister be reluctant to use those powers.

However, the fact is that, when this legislation passes, the minister will have those powers, and that has not historically been the case. Family First will certainly be insisting on amendment No. 11, which is the specific one that deals with this issue. We are prepared to consider the views of others on the other amendments, and may not insist on those, but we will certainly be insisting on amendment No. 11 (clause 16, page 11), because it specifically gives the minister that power, which we just cannot accept.

The Hon. CARMEL ZOLLO: I wish to make a few comments in relation to the concerns of the Hon. Dennis Hood. My advice is that the minister could not direct that a specific subject be taught, because that authority rests with the Director-General of Education in government schools and the respective powers in the independent sector.

In relation to the other issue that has been raised by the Hon. Rob Lucas—in particular, the authority of the minister—I need to remind members that the act requires that the three bodies—the school sectors, the minister and the board—work together to keep the act under review. Should the minister do anything outside what the act requires, he or she would be accountable to the parliament and the other two sectors. I move:

That the Legislative Council do not insist on its amendments Nos 1, 2, 5, 7, 9 and 10.

Motion carried.

Amendment No. 11:

The Hon. D.G.E. HOOD: I thank the minister for her response. I have no doubt that she is sincere in her response, but the fact is that Family First is just not convinced. The section states:

The minister may give the board a direction about any matter relevant to the performance or exercise of a function or power of the board.

It does go on to exclude specifically content or accreditation of any subject. However, the wording suggests to us that the powers of the minister will be substantially increased and, indeed, may encroach upon the content of particular subject matter. For that reason, we will seek to insist on that amendment.

The Hon. CARMEL ZOLLO: Again, I make the point that authority over what is taught in the schools does rest, as I said, with the Director-General of Education in public schools and, again, with the respective powers of the independent sectors. I also make the point that schools would not have to teach a particular subject even if the minister were to do something like direct the board.

The CHAIRMAN: The question is: that the Legislative Council insists on its amendment No. 11.

Question negatived.

Amendments Nos 12 and 13:

The CHAIRMAN: The question is: that the Legislative Council insists on its amendments Nos 12 and 13.

Question negatived.

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