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Legislative Council - Fifty-Second Parliament, First Session (52-1)
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EDUCATION AND EARLY CHILDHOOD SERVICES (REGISTRATION AND STANDARDS) BILL

Committee Stage

In committee.

(Continued from 22 November 2011).

Clause 1.

The Hon. R.I. LUCAS: The minister's second reading explanation indicates that one of the key initiatives in this bill relates to publicly rating services against the new National Quality Standard. Can the minister indicate on which clauses it would be appropriate to put questions in relation to the government's policy on rating early childhood services, in particular in schools, against the National Quality Standard?

The Hon. I.K. HUNTER: I am advised that the ratings are covered by the national law and that the appropriate place to ask questions about that will be at schedule 1.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. R.I. LUCAS: In the explanation of clauses, the government outlines that the definition of in-home care services (which is defined as early childhood services) includes babysitting services, so that the regulatory regime that the government envisages is to cover all babysitting services. Can the minister indicate what babysitting services the government is proposing to regulate? That is the first question, and we will take it from there.

The Hon. I.K. HUNTER: In developing the bill it was intended that the definition of 'in-home care services' would capture those services that are currently licensed as babysitting agencies. These services are currently regulated under the Children's Services Act 1985. The legislation will not capture individuals operating as babysitters; rather, the legislation will continue to regulate businesses operating as babysitting agencies.

The Hon. R.I. LUCAS: What in the legislation prevents the government from limiting the regulation of babysitting services? I note that the explanation of clauses does not refer to babysitting agencies: it refers to babysitting services specifically. I refer the minister to the explanation of clauses, which provides:

This clause defines 'early childhood services' for the purposes of the Act. Those services include in-home care services (i.e. babysitting services)...

What is it in the legislation, in this national regulatory regime, that would prevent the government, if it so chose, to extend beyond the category of services it calls a babysitting agency?

The Hon. I.K. HUNTER: I am advised that under clause 4, in this section 'in-home care services' means services of a kind specified by the regulations for the purpose of this definition. The regulations will be determined in the normal process at the state level, but they will be subject to the usual parliamentary scrutiny. So they will come back through the parliamentary process.

The Hon. R.I. LUCAS: Are those regulations, in relation to the definition of 'in-home care services' currently finalised? Have they been put out for consultation?

The Hon. I.K. HUNTER: My advice is that the government is consulting with the sector, and that will continue. The next meeting, I think, is next week.

The Hon. R.I. LUCAS: Under the proposed arrangements, clearly commercial agencies operating from commercial premises will be covered, so one assumes that they will be licensed under the regulations. However, if an individual babysitter who provides a babysitting service on a commercial basis—because he or she is charging for it—has an ABN number, will that bring that particular babysitter or babysitting service within the purview of the proposed regulations?

The Hon. I.K. HUNTER: My advice is that the answer is no, because it will depend on the definition that is inserted into regulations, which, as I said, will come through parliamentary process.

The Hon. R.I. LUCAS: We do not have those regulations yet, so my question is: the government is saying that it will be a babysitting agency, it will not be a babysitter, but what if a babysitter is doing this on a commercial basis for a number of people? Any of us who have had children go through babysitters will know of people who do this on a very regular, professional basis. In our own personal circumstances we had the services of a babysitter who, on occasions, would look after the child for perhaps a week if the family were away, and I know that same babysitter would travel interstate to work for people there, looking after children, for three or four weeks at a time, and then come back to South Australia and look after our children and other children as well. Is the minister indicating that a babysitter providing that sort of babysitting service on a commercial basis will not be subject to the regulations?

The Hon. I.K. HUNTER: Clearly, from what I have said previously, it is not the government's intention to cover a person in that situation. It is to cover babysitting agencies, not individuals.

The Hon. R.I. LUCAS: If that is the case how does the government, in the proposed regulations, seek to distinguish between someone who is operating as a commercial babysitter each and every week as opposed to what the government says is an agency? What is the distinguishing feature between an agency and the babysitting service that I have just outlined to the minister?

The Hon. I.K. HUNTER: My advice is that we would do it in exactly the same way as we do it now under the current Children's Services Act, that is, by regulation—a regulation which is being consulted on now with the sector and which will come back through the parliamentary process.

The Hon. R.I. LUCAS: How is the distinction made at the moment, then, because in both circumstances a commercial transaction is being transacted? Clearly the babysitter is providing a babysitting service. He or she is being paid for that service. How do the current regulations distinguish between that person and what the minister is saying is an agency?

The Hon. I.K. HUNTER: The definition says that if it is in the child's own home, it is not covered by that regulation. However, if it is in the home of the babysitter, it might be considered to be a family day care service provided by a single educator who is not part of the FDC scheme, and they would be covered.

The Hon. R.I. LUCAS: In the circumstances with which many of us would be familiar, where sometimes your child does go to the babysitter's place for babysitting, the minister is saying that that is proposed to be regulated under the government's regulatory regime?

The Hon. I.K. HUNTER: My advice is that it depends really on the number of children in care and also the number of hours of care. It can be defined however we choose under the regulations, and that is why we are consulting with the sector now on how those regulations should be drafted.

The Hon. R.I. LUCAS: Is the minister indicating that, if I run a commercial operation of babysitters and employ them but I send the babysitters into the homes of the families, that will not be covered under the regulations?

The Hon. I.K. HUNTER: No, because that is business conducted as an agency.

The Hon. R.I. LUCAS: The minister indicated earlier that the distinction was going to be whether or not the care was provided in your home. In the circumstances I have just outlined, the care is being provided in the home of the family. The commercial agency or business is employing babysitters, perhaps taking a commission, and those babysitters provide the service in the home of the family as, indeed, the individual babysitter who may well come to your home and take some payment for the babysitting service as well. How do the current regulations distinguish between those two circumstances?

The Hon. I.K. HUNTER: The Hon. Mr Lucas may not have understood my earlier answer because the situation he was posing talked about a sole operator, not an agency employing several people, which is exactly what happens now, I am advised. The agency is regulated, and it is the responsibility of the agency as its role to regulate its employees.

The Hon. R.I. LUCAS: I guess that, from my viewpoint, the issue will ultimately be determined when we see the final shape and structure of the government's regulation on this issue. This issue has been raised with me. Given that the explanation of clauses does refer to babysitting services, concern has been expressed as to what the government's regulatory regime will in fact mean.

I take the minister on the basis of the advice that he has been given, that is, that it will be no different to the current set of circumstances, and certainly I think that people working in the industry would hope that that will be the case. At this stage, I guess, no purpose is going to be served by getting any further responses from the minister other than we will need to wait and see the actual regulation and the implementation of the regulatory regime to see whether or not the assurance the minister has given members in the house that there will be no change in terms of the current arrangements, whether that in practice is what we see under the proposed national regulatory regime.

There are some who have some doubts. They have seen these proposed national regulatory regimes. They have heard the assurance but then, to their cost, see what happens at the end. The issues have been raised. The minister has given an assurance on behalf of the government. All we can do is accept that at this stage and monitor the shape and structure of the government's regulation when it is finally promulgated.

The Hon. I.K. HUNTER: I concur with most of what the honourable member had to say. I remind the committee that the sector strongly supports our approach in our consultation process that we have had with them.

Clause passed.

Clauses 5 and 6 passed.

Clause 7.

The Hon. R.I. LUCAS: This issue has been raised with me as well from people associated with school councils (as I knew them) or governing councils. This clause is 'Limitation of liability for volunteer members of governing authorities'. The explanation of the clauses says:

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.

When one looks at subclause (2), prescribed offence means:

(a) an offence against section 42, 63(1), 75(2) or 76; or

(b) any other offence prescribed by the regulations for the purposes of this section;

Clearly, from the first response we do not know what the regulations will specify, so that could be a multitude of offences that may well be prescribed by the regulations. Subclause (2) goes on to say:

volunteer member of the governing authority of a school means a person who is acting as a member of the governing authority on a voluntary basis (whether or not the person receives out-of-pocket expenses).

I seek an assurance from the minister that the liability provisions, as they relate to volunteer members of governing councils or governing authorities, are exactly the same as the existing liability provisions that apply to school council or governing council members.

The Hon. I.K. HUNTER: While I am awaiting a response from parliamentary counsel on that specific question, can I just say that the state government values the contribution that volunteers make in our schools, particularly those who support the governance of our schools by being members of our school governing councils. For this reason, the bill does not provide for volunteer members of a governing council or school board to be held liable for breaches under the legislation, except where their individual council or board is deemed to be the governing authority of a school.

Unless a voluntary member of a school governing authority knowingly or actively colludes in committing a prescribed offence under the bill, they have the protection from liability for prescribed offences, such as operating an unregistered school or noncompliance with a board-imposed condition, or an unregistered school purports to be registered, or noncompliance with a ministerial exemption condition, or any other offence prescribed by the regulations. They are very specific and they are designed to protect those voluntary members of the governing authority. We are just checking with parliamentary counsel about whether there is any difference or whether those provisions are identical, and we will have that shortly.

The Hon. R.I. LUCAS: While the minister is awaiting that advice, I note that he used the words, 'the volunteer member of the governing council knowingly knew or was actively involved' from the briefing note he just read from. I note that paragraph (c) provides:

the volunteer member failed to exercise due diligence to prevent the commission of the offence.

That raises issues of perhaps not knowing and not being active but just having failed to exercise due diligence. That may or may not be appropriate; I am not arguing the toss. If that is the existing situation, then so be it, but I think paragraph (c) tends to throw a different light on it than the words minister has just talked about where he used words such as 'knowingly' and 'actively', etc.

Paragraph (c) raises the clear implication that, if you fail to exercise due diligence to prevent a commission of an offence, you can be held liable. What I seek from the minister is in relation to that, but, in the construction of this total liability for volunteers on councils, this is exactly the same as the existing liability provisions for volunteers on school councils. If it is more onerous on school councils then, clearly, I think there will be some concerns from school councillors. They would seek from the minister his justification as to why it should be made more onerous for a volunteer on a school council than it already is. If the assurance is that it is exactly the same or less onerous, then I would have thought that there could be no criticism from volunteer parent members of school councils.

The Hon. I.K. HUNTER: I will answer the honourable member's question in two parts. I, too, would be concerned if his proposal was correct, but what you cannot do is read paragraphs (a), (b) and (c) alone; they are actually to be read in conjunction because, at the end of paragraph (a) and (b) is the operative word 'and'. So, they have to occur together. Paragraph (a) provides:

(a) the volunteer member knew, or ought reasonably to have known, that there was a significant risk that such an offence would be committed; and

(b) the volunteer member was in a position to influence the conduct of the governing authority in relation to the commission of such an offence; and

(c) the volunteer member failed to exercise due diligence to prevent the commission of the offence.

In relation to the earlier question, my advice is that the provisions in this act are entirely different from the provisions in another act. The provisions in this act were drafted specifically for this legislation and designed to protect volunteer members. Provisions in another act, which might have some bearing on volunteer members in relation to governing councils, were drafted with the primary objective of the regulation of schools.

The Hon. R.I. LUCAS: That does not answer the question at all. I appreciate the fact that the Education Act or current pieces of legislation as they relate to the members of governing councils of schools have been drafted for whatever is their particular purpose.

This has been drafted to cover a whole variety of bodies, and that is one of the problems with this type of overarching national regulatory regime; that is, you are covering a multitude of sins, if I can put it that way. That is why I am specifically asking about volunteers on school councils. I repeat my question, that is, can the minister give us an assurance tonight that these are no more onerous liability provisions on parent members of school councils than those that exist under current statutes? I think that is not an unreasonable question to put to a minister who is asking us to support a new regulatory regime, which he said he has been consulted upon and supported by everybody. I am not entirely sure of that.

In my brief discussions in the last couple weeks, as I indicated in the second reading, I found that there are some elements of the package that certainly surprised some people when I spoke to them. They raised the question, in the discussions I had, as to what, if any, difference there was in relation to this. As I said, I make no assertion, but it is a not an unreasonable question, and I seek the minister's response.

The Hon. I.K. HUNTER: My advice with respect to that question is that it cannot be answered in the way in which the Hon. Mr Lucas would like it to be because the role played by voluntary members on governing councils is different in respect of this act from any other act where they may be mentioned. The role that voluntary council members play in this legislation is distinctively different from the role they would play in governing a school.

The Hon. R.I. LUCAS: I was going to propose a course of action that might allow us to move on and still, I guess, take further advice on this issue. Can the minister indicate how, in this legislation, the role for the parent on a school council is different from the current role of a parent on a school council under the various other existing state statutes?

The Hon. I.K. HUNTER: I will give it a bash. Voluntary members of a governing council, under the Education Act, are jointly responsible with the principal for the governance of the school. As such, the liability protection afforded to them relates to that role. Under this act, the role they play relates to the regulation and provision of education services, and so the liability protection under this act relates purely to that part of their respective duties.

The Hon. R.I. LUCAS: I have some sympathy for the minister. This is essentially a legal question. I suspect the minister's adviser is clearly not a legal adviser but is more in the education domain. I think this is an important issue and I was going to propose a course of action the minister may or may not be attracted to.

I think it is not an unreasonable question that I am putting on behalf of parents and school councils. When I come to some issues in relation to rating schools, etc., which are part of this regulatory regime, I am assuming there will be some responsibility, clearly on behalf of the principal and the teachers in relation to this, but also some responsibility for governing authorities as well, or certainly some involvement.

I am wondering whether a sensible course of action, minister, might be—and I do not want to delay this bill—that we move beyond this particular clause but, overnight, the minister seeks legal advice to the questions that I have put and that we conclude all the other clauses because I think there are only two amendments to be moved this evening. If the minister was prepared to report progress at the conclusion of the committee stage, with the prospect of recommitting this particular clause once he has received any legal advice that he might get, we could have a brief discussion at that stage and that may well then not unduly delay the passage of the legislation.

If the minister was minded to agree to that course of action, that would certainly resolve my issues. I would be happy to receive the government's legal advice on the question that I have put, and I accept the fact that the minister does not have somebody in the position at the moment providing that sort of specific legal advice that I have sought.

The Hon. I.K. HUNTER: I thank the honourable member for that advice on how to proceed; it is not something that I am attracted to. It is important to say that schools are not rated. The rating and assessment only applies to a nationally regulated early childhood centre, and what we are proposing here is a minimal regulation regime for schools. I do take on notice the part of his question that seeks further advice and I will try to get that advice to him as early as possible.

The Hon. R.I. LUCAS: I will ask most of my questions on rating later on, but schools are rated. I am sure the minister is aware of the fact that the federal government and the state government have signed up to regulatory regimes in relation to My School ratings. This bill refers to education services. I will be asking specific questions when we get to—my colleague tells me—clause 10 and then schedule 1, when we talk about the application of the education and care services national law provision.

I am just unclear on what the minister suggests. The minister says he is going to take legal advice, but he says he is not attracted to the notion that I am putting. Is the minister proposing that he is going to take legal advice and what, receive it tonight, is he? My proposition was that we would recommit this clause tomorrow, having done the whole of the rest of the clauses. He said he is not attracted to that notion. I am not sure what he is suggesting, if he is going to take legal advice.

The Hon. I.K. HUNTER: Whilst I am waiting for advice I should reiterate my point: schools are not rated in the way the Hon. Mr Lucas believes that they are. They are perpetually registered. The rating the Hon. Mr Lucas speaks to is part of another system entirely and not related to this bill. I indicate that I will still seek the advice that the Hon. Mr Lucas asks for, but my intention tonight is to make progress on this bill.

The Hon. R.I. LUCAS: If we go past this clause now how do we then address the issue when the minister gets the advice later on in the evening? How does the minister propose to do that? If we pass through this particular clause and the minister gets the legal advice later on tonight how does he propose that we then return to the issue?

The Hon. I.K. HUNTER: I am advised that the liability that pertains, or could pertain, to volunteers relates to any offences they may commit and it can be discussed at any of the clauses that deal with any of the offences in the bill.

Clause passed.

Clauses 8 and 9 passed.

Clause 10.

The Hon. R.I. LUCAS: My colleague, the shadow attorney-general, advises me that this issue of the national law is in schedule 1 and that in clause 10 we actually apply the Education and Care Services National Law. So the issues that I was wanting to raise about the National Quality Standard and rating, I understand, can be now raised under this particular provision. I refer the minister to minister Weatherill's (or whoever the minister is handling the bill now, but originally it was minister Weatherill) second reading speech, which states:

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.

I refer the minister specifically to the last sentence of the minister's second reading speech. He says that this regulatory authority will be responsible for two services: one is education and one is care. Education relates to government and non-government schools. The minister also says that this authority will assess publicly rating those services—that is, education services—against the new National Quality Standard.

Can the minister explain how he reconciles the minister who championed this bill, who basically said in the second reading that the authority will publicly rate educational school services against the new National Quality Standard, with the advice he gave the committee just a few moments ago, when he said the rating will only be in relation to childcare services?

The Hon. I.K. HUNTER: I am advised that under the national law those services that are covered include: preschool, long day care, family day care and out of school hours care, and they are referred to as education and care services. There is an Education and Early Childhood Services Registration Standards Board which covers three separate and different regulatory areas.

The Hon. R.I. LUCAS: The definitions of education and care service talks about a school providing full-time education to children up to the age of 13. It provides:

education care service means any service providing or intended to provide education and care on a regular basis to children under 13 years of age other than—

(a) a school providing full-time education to children, including children attending in the year before grade 1...

Is the minister indicating that this regulatory authority will have no oversight over schools, both primary and secondary?

The Hon. I.K. HUNTER: My advice is that the Education and Early Childhood Services Registration Standards Board of South Australia will have responsibility for non-government schools and government schools under the South Australian regulatory authority for schools. Under the national law, they have responsibility for other areas, as I mentioned before: the centre-based child care and family day care schemes and out of school hours care and preschool.

My advice is that the national law applies to, as I said: family day care, long day care, preschool, out of hours school care, rural and mobile care services, occasional care services, and in-home care services. The bill before us, the Education and Early Childhood Services (Registration and Standards) Bill 2011 provides for all government and non-government schools in South Australia.

The Hon. R.I. LUCAS: That is my question: it does provide for all government and non-government schools in South Australia. The minister's second reading says that the new South Australian regulatory authority will be responsible for matters in relation to education and care and publicly rating services against the new National Quality Standard. It is still not clear to me why the minister is arguing that this new regulatory authority will not have oversight of government schools and non-government schools and that in some way it will only be for childcare services.

The Hon. I.K. HUNTER: The board will have responsibility for those services, but it will be under different regulations. The national regulations will apply to those areas that I talked about earlier: family day care, long day care, preschool, etc. They have those regulations covered under the national law. The bill before us today, which puts down different regulations, will apply to government and non-government schools registered in South Australia.

The Hon. R.I. LUCAS: In terms of the new National Quality Standard that the minister has talked about, is the minister indicating that it only relates to childcare services?

The Hon. I.K. HUNTER: That is correct, but that includes those services I mentioned earlier: family day care, long day care, preschool and out of school hours care.

The Hon. R.I. LUCAS: The minister is indicating that, in the current rating regimes for schools that the federal and state governments have entered into, there will be no oversight of those rating regimes by this regulatory authority that is referred to in this bill?

The Hon. I.K. HUNTER: My advice is that that is correct.

The Hon. R.I. LUCAS: In relation to the rating services for childcare and preschool services, can the minister outline the government's proposition as to how preschool services, for example, will be rated? Will there be the equivalent of a My School or a MyCare website where these particular services are rated in accordance with the National Quality Standard and made publicly available to parents?

The Hon. I.K. HUNTER: My advice is yes, and they will be done on the MyChild website.

The Hon. R.I. LUCAS: Will oversight of that website be the responsibility of the South Australian regulatory authority?

The Hon. I.K. HUNTER: My advice is that the actual regulation of the services will be done in this state, whilst there will be some cooperation between the national body and the state body to ensure that there is a seamless transition of information.

The Hon. R.I. LUCAS: Yes, but my question remains: who, in essence, will control the information that goes up on the MyChild website? Is that the regulatory authority? Is that the federal government agency or is that the South Australian government agency that will ultimately determine what information goes up on the MyChild website?

The Hon. I.K. HUNTER: My advice is that it will be done jointly. The national body will work with the board here. Under the national law, both have responsibilities for provision of accurate information.

The Hon. R.I. LUCAS: Yes, but ultimately, somebody has to put the information up on the website. Who has that control on a day-to-day basis? Is that the state department and agency or is it the federal department and agency? I understand this bit about how everyone is going to cooperate with everyone and we will all hold hands and sing Kumbaya together, but ultimately somebody has to have the authority and the responsibility to load up information to say that this particular service is five star or three star or whatever the rating is going to be. Somebody has the authority to put up the rating for the particular childcare service. What I am seeking from the minister is whether that is the state body or the federal body?

The Hon. I.K. HUNTER: My advice is that that function will lie with the national authority under clause 225(1)(i). Their responsibility is to publish, monitor and review ratings of approved education and care services. The proposed national regulations outline the five star rating levels: these are excellent, exceeding national quality standards, meeting national quality standards, working towards national quality standards or significant improvement required. These terms were settled on following feedback during the national public and sector consultations held earlier this year.

ACECQA, as it is known, is a national authority with responsibility for overseeing and coordinating the new national early years quality system. It is comprised of 13 members nominated by each state and territory and the Australian government and will have early childhood education and care and other relevant expertise from across Australia. Members were agreed to by all commonwealth, state and territory ministers before the then ministerial council for education and early childhood development and youth affairs, now the Standing Council for School Education and Early Childhood.

The Hon. R.I. LUCAS: Please do not tell me that the South Australian acronym is SACECQA. I assume it probably will be. Is it the intention of the government that, for example, the babysitting services that we talked about earlier, which is an early childhood service, will also be rated by this national agency? Similarly, where individual family day care services are provided, is it the government's intention that each of those individual family day care services will be rated in accordance with the rating framework?

The Hon. I.K. HUNTER: My advice is no.

The Hon. R.I. LUCAS: To both?

The Hon. I.K. HUNTER: To both.

The Hon. R.I. LUCAS: So the indication is that the government will not be rating family day care and will not be rating babysitting services. I assume it will be rating long day care, and I assume it is going to be rating preschool services. Will it, for example, be rating out of school hours care services and vacation care services?

The Hon. I.K. HUNTER: My advice is that family day care schemes will be rated, but that individual providers will—

The Hon. R.I. LUCAS: You just said they would not be.

The Hon. I.K. HUNTER: No; family day care schemes will be rated, but the individual providers will not be.

The Hon. R.I. LUCAS: What is the value of rating a scheme? If you are having kids looked after it is in a family day care provider, it is not a scheme. Let me seek further clarification of what the government intends in relation to this. The minister originally said in response to my question that family day care service providers would not be rated; he is now saying the family day care scheme will be.

If I am sending my child to a family daycare service, I am sending it to an individual who is providing family day care in his or her home for a small number of children. That is a family day care service provider and there is a range of family day care service providers, each providing different categories or qualities of service, one would imagine. Can the minister explain what the government means by rating a family day care service scheme?

The Hon. I.K. HUNTER: What I mean is precisely what is in place now. They now are accredited by the National Childcare Accreditation Council, which currently accredits schemes, That same provision will flow through to the rating service for the scheme, but not for the individual providers.

The Hon. R.I. LUCAS: What is the scheme?

The Hon. I.K. HUNTER: The scheme is the coordination unit that monitors and supports the individual providers.

The Hon. R.I. LUCAS: So is the minister saying that the bureaucrats within the government department are going to be rated in terms of how well they coordinate, as opposed to the quality of the five-star service in the individual family day care service provider?

The Hon. I.K. HUNTER: Yes, as they are currently done.

The Hon. R.I. LUCAS: What is the current rating of the family day care service provider scheme in South Australia?

The Hon. I.K. HUNTER: Currently it means they either meet the accreditation standards or they do not.

The Hon. R.I. LUCAS: The minister earlier indicated the rating was going to be a five-star rating, so is the minister now conceding there is not a five-star rating at the moment; it is just either you are accredited or you are not?

The Hon. I.K. HUNTER: There is a range of levels, I am advised, in the accreditation standards, but they are not as comprehensive as what is envisioned in this act. The new provisions in terms of the ratings are designed to provide parents with more and better information about the service quality to be provided.

The Hon. R.I. LUCAS: I take it that is code for 'It is not rated five-star at the moment. It is either that you are registered or you are not.' In the minister's second reading explanation he said that the bill also provides for the regulation of individual family day care educators who are not part of a scheme. The minister has just explained that we are not going to rate the individual family day care educators. Can the minister indicate what the government is intending or means by that?

The Hon. I.K. HUNTER: My advice is the national law defines a family day care scheme as two or more family day care providers. If there is an individual provider that is not supervised by a coordination unit, they may be captured as would be, for example, in-home care services, occasional care services, rural and mobile care services. They are captured under state regulations.

Clause passed.

Clause 11 passed.

Clause 12.

The Hon. I.K. HUNTER: I move:

Page 25, line 3—Delete 'section 10' and substitute 'section 11'

This is a technical amendment. I understand that it was included in the early amendments of the Hon. Michelle Lensink which were then withdrawn. It corrects a clerical error which stemmed from an amendment to the bill in the House of Assembly.

The Hon. J.M.A. LENSINK: Yes, that is correct. It was in an earlier version of one of the Lensink amendments. It arises, I understand, from amendments that were moved and accepted in the other place by my colleague the member for Unley, Mr David Pisoni. So, we support the amendment.

Amendment carried; clause as amended passed.

Clauses 13 to 15 passed.

New clauses 15A to 15C.

The Hon. J.M.A. LENSINK: Just by way of explanation to the committee, there have been three sets of amendments in my name. The first set sought to pursue three policy areas, one being a general delay in a number of provisions for a two-year period. Those are not included in version 3.

The other two points were to include the minister's commitments which were made to Childcare SA; those being that firstly she agreed when she met with them on 4 November that the class ratios for toddlers—that is, children aged from 24 to 36 months—would be 1:8 until 2020 and thereafter would revert to the default which is 1:5; also to clarify the issue of ratios where staff go on breaks; and also that staff who are working towards particular qualifications would be considered as participating towards those qualifications. Those final issues that I have discussed (not the general two-year delay) are what we have sought to have included. I would like to thank the government for allowing a delay in debate from the previous sitting week. I think it has probably been useful for all honourable members in this place.

One of the issues that I think has been of contention with the sector—it is always very difficult when you are dealing with a sector that does not come with a unified voice—was whether the consultation was adequate, and I would have to say that there varying views from various parts of the sector, probably reflecting the areas from which they come.

I would like to thank the people who have come to see me personally; I understand they would have sought to have meetings with other honourable members as well. They have all been very, very passionate advocates for their particular position, and some have advocated that we not pursue these amendments.

I thank those who have emailed me—and I apologise to those to whom I have not replied—have asked that we not pursue the two-year timeframe, so they will be pleased that we are not. There have been a number of different stakeholders, whether they be Childcare SA (who I think initially raised the issues in the media), Early Childhood Australia, a number of directors who largely represent the community sector, and United Voice.

The second set of amendments had some technical corrections, so 1 and 2 have been dropped in favour of the third set, which is before us. I have spoken about the minister's commitment, and I would just like to read into the record what the minister said on the Sonya Feldhoff program on 4 November when she said:

I'm told that a lot of the pressure will be felt by the sector in the 2 to 3 year old age group. Our current ratio there is one to 10, and the proposed ratio is one to five...nobody argues about the 1 to 10 being an unacceptable level, and in fact nobody argues in principle really about the fact that we need to do as much as we can to improve the quality of care...what I've done this morning is I met with these representatives and what I offered in acknowledgement of their concerns was to push out that ratio. Instead of having it complied with by January 2016 we'll aim for a ratio of one to eight by 2016 and we'll push out that ratio to one to five by 2020.

I think it is fair to say that there are probably professional differences in the sector. It is something that I was familiar with while dealing with aged care; there are some tensions—I think that is probably the polite way to put it—between the private providers and some of the not-for-profit or community areas, and I think the concern of costs still remains with certain providers.

A good friend of mine who has a three year old and a four year old who are frequently in child care was raving to me on the weekend about the cost of child care, so I think I think that some childcare operators who say that the cost of child care is no longer an issue for parents need to be introduced to my friend.

I would also like to table some information that was provided by one of the private childcare providers from Childcare SA in relation to their costs which their sector faces which are probably not faced by the other sectors. So, I asked them to provide that to us so that we could have an idea of the differential. I will not name the childcare centre, because it may be commercially confidential, but he says:

Hi Michelle

With respect to your question regarding costs which may not be bourne by Community Centres I detail below these costs...as an example:

Payroll Tax per annum $12,350

Land Tax per annum $9,932

Council rates per annum $7,056

Water rates per annum $3,374 (not sure if Community Centres pay this)

Rent per annum $101,156 (we recently bought the property but previously paid rent to a landlord as many centres do)

Total $133,868

Also, Community Centres receive capital grants from government, [and] are eligible for grants from Councils etc for which the private sector cannot participate. Other organisations such as banks etc often have a lower fee structure for not for profit organisations.

Keep in mind that despite these additional costs for the non-government private Centres our fees are similar to those charged by Community Centres—sometimes lower, sometimes higher, often the same.

So, I think it is worth giving that part of the sector the benefit of the doubt. I do not think it is in the interests of anybody for childcare centres to close based on cost. I do not think it is in the interest of any families to not be able to continue to avail themselves of child care because they are pushed beyond that tipping point, which is one of the things that I fear.

While that may be dismissed by some parts of the sector, I am very, very well aware of the bias—I think that is fair to say—that occurs among some sectors. Certainly, the ABC childcare issue, with that service going broke, has put a bad slant on the private sector, but I think there are a lot of very good providers. I would like to name in particular Barb Langford, who runs a number of Montessori centres, which are certainly not cheap to operate. She does an exemplary job. I think we should make room for all players within the sector and allow parents a choice. I therefore commend these amendments to the chamber. I move:

New Division, page 29, after line 17—Insert:

Division 2—Modifications

15A—Interpretation

A term or phrase used in this Division and that is defined in the Education and Care Services National Law (South Australia) or the national regulations has the same meaning as in that Law or those regulations, or in the relevant provision of that Law or those regulations (as the case requires).

15B—General provision

The Education and Care Services National Law (South Australia) and the national regulations made under that Law are modified to the extent necessary to ensure consistency with this Division.

15C—Modifications

(1) When calculating the educator to child ratio at a centre-based service, any time (not exceeding 15 minutes) during which a particular educator is present on the premises of the service will be taken to be time spent by the educator working directly with children at the service or time in attendance at the service (as the case requires and whether or not the educator is replaced during such time).

(2) A requirement under the Education and Care Services National Law (South Australia) or the national regulations that a particular educator hold an approved diploma level education and care qualification will, in relation to any meal break (not exceeding 1 hour) taken by the educator, be taken to be satisfied if the educator is replaced during the meal break by an educator who holds—

(a) an approved certificate III level education and care qualification; or

(b) any other qualification approved by the Minister for the purposes of this subsection.

Note—

See regulation 126.

(3) A provision in the national regulations (being a specific provision applying to South Australia) setting out educator to child ratios for children over 24 months and less than 36 months of age at a centre-based service applies in place of regulation 123(1)(b) until 31 December 2019.

Note—

See regulation 326.

(4) A requirement under a provision in the national regulations (being a specific provision applying to South Australia) that a person hold a particular acceptable tertiary qualification in children's services or early childhood education will be taken to be satisfied if the person is actively working towards such a qualification.

Note—

See regulation 328.

Regulation 10 of the national regulations sets out what it means to be actively working towards a qualification.

The Hon. I.K. HUNTER: The government does not support the amendments in the name of the Hon. Ms Lensink. First of all, can I say that I am grateful to the Hon. Ms Lensink for the cooperative way that we have been able to manage this bill. It is important that I go back and make these points about the national nature of the bill.

The bill before the house today is about improving and ensuring the quality of South Australian child care. It enables South Australia's commitments made under the National Partnership Agreement on Early Childhood Education and care, agreed to by all Australian jurisdictions. It gives effect to the Council of Australian Governments' decision made in December 2009 to establish a jointly governed unified National Quality Framework for early childhood education and care and outside school hours care.

This new framework that the bill enables South Australia to participate in replaces existing separate licensing and quality assurance processes. It will ensure high quality early childhood education and care and will contribute to improving outcomes for all children, especially those from disadvantaged or at-risk backgrounds. The framework agreed to by COAG and committed to by South Australia provides for a streamlined unified regulatory system with a national act and national regulations.

The opposition's proposed amendments do not assist the establishment of the framework committed to by all states and territories and the commonwealth. The legal infrastructure for this is now in place in all other jurisdictions, except one, which I am advised will be introducing legislation this week. The South Australian government cannot support, and neither should anyone in the council support, the amendments which will detract from the national legislative framework agreed to under COAG.

In relation to the second amendment moved by the Hon. Michelle Lensink, the government does not support that amendment either. What has been agreed to by COAG and what has been delivered by this bill, without amendments, is the establishment of a nationally consistent scheme. This will be of benefit to all children. This will fundamentally improve outcomes for them and support families in choosing and having access to quality care, no matter where they live or work in Australia.

Agreeing to the amendments would be to use the South Australian act to modify specific provisions in the national regulations for a period of time. With a national system with clear national regulations, this is not required and, I understand, not needed because the minister will amend the national regulations. It is important to say that the sector strongly supports the bill before us proceeding unamended.

All those who provide education and care services to Australian families deserve the improvements delivered by a nationally consistent framework, which is one national law and one set of national regulations which contain all the information they require about the regulation of their services. In the interests of better governance and Australia's interests as a whole, South Australia, through this parliament, has achieved improvements and consistent outcomes in the areas of health and licensing regulation.

If passed unamended, this bill will achieve another significant milestone by delivering an improved nationally consistent outcome for education and care regulation. While the South Australian government has agreed (in the other place) to ensure our parliament retains oversight of national regulations, it is unnecessary, cumbersome and confusing to place some of the detail within the South Australian act that will result from agreement to this amendment. Not only that, because these provisions are transitional in nature, the parliament will need to, unnecessarily, go to the trouble of amending the act to repeal these provisions when they are null and void and no longer required.

This bill, if passed unamended, will support the delivery of an integrated unified national system for early childhood education and care which is jointly governed and which drives continuous improvement in the quality of services and improves educational and developmental outcomes for children attending regulated services.

The national regulations allow the needs of all jurisdictions to be taken into account in the transition to full implementation of the National Quality Framework. For the last three years, during consultation on the development of the national law and regulations, providers of the education and care services that will be regulated have supported the streamlining of the licensing and accreditation systems within one national act and one set of national regulations. These providers will not appreciate this house's attempt to duplicate provisions which will be contained in the South Australian chapter of the national regulations. I repeat that the opposition's proposed amendments are unnecessary and, we believe, ill considered. They are an example of why South Australia's transitional provisions should be written specifically in the national regulations, not in the act.

The amendment before this house would amend the national regulations in three areas. The first relates to staff breaks, which are already provided for under the national law, with the policy detail having been released recently. The second concerns the staff-to-child ratio for two-year-old children in care. Agreement to this amendment would severely disadvantage the children of South Australia, who already have the worst ratio in this age group in the nation. If this house agreed to the opposition's amendment, it would maintain South Australia's current, worst-in-Australia ratio of one staff member to every 10 children for another eight years, until the start of 2020. All South Australians and all those two year olds deserve much better than that from this parliament. This amendment will put South Australia at a significant disadvantage to all other two-year-old children in Australia.

Again, I am advised that the Minister for Education and Child Development has raised the concerns of the childcare sector with the Australian government and her ministerial colleagues, including the possibility of a longer transitional time, with reductions in the current ratio in 2016, with the aim of assisting services to move to the new national standards of 1:5 in 2020. However, as I have stated, these are matters for the national regulations, they are not matters for this bill.

The third part of the amendment would again force an unnecessary change to the national regulations in regard to staff qualifications. If this house agrees to the opposition's proposed amendment, it would take South Australia backward and lessen the current staff qualification requirements mandated in the South Australian childcare regulations. The national regulations, as drafted, maintain South Australia's current standard. The opposition is seeking to weaken the qualifications of staff. Again, this amendment will put South Australia's children at a disadvantage when compared not only to their peers in other states but also with their predecessors. This is simply unacceptable.

Since the establishment of the South Australian regulations in 1997, our contact staff and South Australia's licensed services must hold the appropriate qualification. The transitional regulation will maintain that until the new requirement commences in 2014. Agreeing to the amendment will allow those who have not completed their qualification to be counted as if they had. This is not necessary and will take the state backwards. The opposition's proposed amendments will not benefit the sector and will not reduce regulatory burden for education and care service providers, but may in fact result in confusion.

In South Australia, this bill, if passed unamended, will provide consistent national standards within a nationally cohesive scheme, embedded in the national law and its regulations. South Australia, and those who provide and use education and care services in this state, deserves transparent and easily accessible regulations. Under the national system, everyone else in Australia will be able to look to the national regulations and have access in one place to the detail about their operating requirements, including their transitional provisions.

South Australian providers and families will not be well served if this state's parliament unwisely details some ad hoc transitional regulations in this act which are replicated in the national regulations, together with all other requirements, as will be the case if the house agrees to this amendment. The opposition's proposed amendments clearly demonstrate why the national regulations are the appropriate place to describe the complex operational requirements that services must meet, particularly transitional provisions, which interact with the primary provision in the national regulations. These should not be dislocated and placed on the face of South Australia's act.

I urge members to listen to the voice of the Australian education and care sector, who have indicated strong support for the national regulations as developed. The national regulations, which include transitional arrangements for each state and territory, will assist services in maintaining and improving quality as they transition into the new system. The national regulations acknowledge and support the specific needs of different services in each jurisdiction. If members truly have the best interests of children, families and those who provide education and care services to them at heart, they will not support the amendments proposed by the opposition.

The Hon. J.M.A. LENSINK: They are strong words, minister. I think you may be over-egging the omelette. All we have sought to do is hold the minister accountable for her commitment to the sector. In the content of these national regulations, I do not see where her commitments are. Even the minister's explanation this evening has pulled back somewhat from the fairly strong commitment the minister gave to the sector on 4 November in saying that possibly these things can be amended.

My question is: how can the minister amend the national regulations? What is the date of the next ministerial council meeting? What sort of iron-clad commitment has the minister given, given that there is nothing in black and white, even in her letter to the industry that says she would do what she said in the paper and on radio?

The Hon. I.K. HUNTER: My advice is the minister has taken her concerns, first, to the Australian government for consideration, as she committed to representers of the sector. Other jurisdictions have sought changes to some transition provisions as well. The minister will also ensure that these concerns are fully considered as part of the national review of these reforms in 2014, which will occur prior to the implementation of the new ratios that are of concern to some child care providers.

The government is confident that the issues can and will be addressed, as has occurred in other jurisdictions. For example, the jurisdiction-specific draft transitional regulations for Queensland provide for staffing arrangements during rest periods or short absences and, in instances relating to ratios, for providers to maintain their current ratio for an additional period of time through applications to the regulatory authority. South Australia can take the same route.

The Hon. J.M.A. LENSINK: I thank the minister for that explanation, which I do not find satisfying at all, but I will leave other members to determine whether or not they do. But I would also like to address this issue about national arguments and COAG, and so forth, and having to have everything the same in every jurisdiction. We have had this debate before in this place. This parliament is sovereign to the people of South Australia and other states have not been so silly as to put blind faith in COAG processes and fall like lemmings over the cliff to ensure that they are identical to every other state. My understanding is that Queensland and Western Australia will not necessarily be adopting everything holus bolus, so I do not accept that argument.

There has been a bit of a moralistic argument advanced in this debate that if you really care about the best interests of children you will not support these amendments or you will ensure that this bill comes into force on 1 January. I say that I do not appreciate that sort of argument. I reject it. I think we are here to determine what is good policy, and what is good policy for one group is not necessarily good policy for all.

I could use the moral argument if the government wants to see child care centres close. There may be only one or two of them. I understand the one associated with Playford council is already not going to be able to fulfil the national standards so it is tendering out, and so forth. So we could use that argument, too. But I do not appreciate that sort of moralising, that somehow these amendments are going to severely disadvantage South Australian children and that South Australia would go backwards. I think that is an inappropriate argument to use.

Of course we are all here for the best interests of South Australians, but that does not mean we all have to fall into lock step and not allow some parts of the sector. As I said, the sector does not speak with one voice. The private sector may be only 20 per cent. In other states they are more, in fact. I was lobbied fairly recently by operators in New South Wales not to even pass the legislation here because that would enable them to have some additional force because they are not happy with what is happening there, to which I said I am not accountable to New South Wales operators: I am accountable to South Australian operators.

I do not think it is all hunky-dory. I do not think it is all happiness and goodness and light. People who read The Australian would have seen articles in The Weekend Australian where people are very concerned about increasing costs. I cannot see that these minor measures that may well ensure some operators are able to keep going and have a little bit of time to adjust are going to cause death and destruction in the childcare sector, particularly when all we are doing is seeking to hold the minister to account for what she is committed to, which she seems to be backsliding from.

The Hon. I.K. HUNTER: The minister is not backsliding in any way at all. In response to the honourable member's assertion that some providers may close, there is absolutely no reason any service needs to close. If they cannot meet a standard they can seek a waiver, and the system is one of continuous improvement to encourage and help providers improve their services over time.

The Hon. R.I. LUCAS: Can the minister clarify one of the questions that the Hon. Michelle has Lensink put? I disagree with the minister. I think she has got five reverse gears at the moment, rather than any forward gears. When would we in South Australia see the changes along the lines of the commitment she has given to the industry sector? Under the proposal that the minister has just outlined, in what year would we see the commitment she has given to the sector in terms of the transitional arrangements?

The Hon. I.K. HUNTER: My advice is that we will see them when the national regulations are made. They are currently in draft form. They are being consulted on with the sector and will appear in chapter 7 of the draft regulations.

The Hon. R.I. LUCAS: Is that early next year? Is it definitely in 2012?

The Hon. I.K. HUNTER: We anticipate that the regulations will be made before the end of this year.

The Hon. R.I. LUCAS: When those regulations are made, I assume the minister is saying she cannot guarantee that the minister's commitment to the industry that the Hon. Michelle Lensink has quoted will be in the regulations, but that she will be fighting to have them included in the national regulations? Is that the best or most favourable summation of the minister's position at the moment?

The Hon. I.K. HUNTER: I am advised that every jurisdiction has transitional provisions and they would have every reason to understand our transitional provisions. If Queensland has transitional provisions that can be agreed to, then why can't we as a state? The aim of it is to move all states and territories from where they are now in 2012, progressively, through to the end of this process in 2020.

The Hon. R.I. LUCAS: If the minister is unsuccessful in her endeavours does this state parliament retain the authority to disallow the national regulations?

The Hon. I.K. HUNTER: My advice is yes.

The committee divided on the new clauses:

AYES (9)
Bressington, A. Brokenshire, R.L. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A. (teller)
Lucas, R.I. Stephens, T.J. Wade, S.G.
NOES (10)
Darley, J.A. Finnigan, B.V. Franks, T.A.
Gazzola, J.M. Hunter, I.K. (teller) Kandelaars, G.A.
Parnell, M. Vincent, K.L. Wortley, R.P.
Zollo, C.
PAIRS (2)
Ridgway, D.W. Gago, G.E.


Majority of 1 for the noes.

New clauses thus negatived.

Clauses 16 to 20 passed.

Clause 21.

The Hon. R.I. LUCAS: In the second reading I raised a series of issues in relation to the establishment of the new Education and Early Childhood Services Registration and Standards Board of South Australia and its role and responsibilities. When one looks at this section, the functions of the board are to regulate the provision of education services and to prepare and endorse codes of conduct for registered schools. Then there are various offences later on, when one comes to the disciplinary proceedings section, part 7, where a cause for disciplinary action is 'the school has contravened or failed to comply with a code of conduct applying to the school under this act'. There are the various offence provisions as well.

My question is: when the function of this particular board is the regulation and provision of education services, can the minister outline specifically what the government has agreed to in terms of its regulatory regime? Is it solely limited to issues of registration and the management of codes of conduct? There are other advisory functions that I am talking about to the minister but, in terms of its role in relation to schools in particular, is it solely related to the issue of registration and the issues of codes of conduct, or does the government intend, with the very broad first section which says 'regulate the provision of education services', to cover a much wider ambit than just that?

The Hon. I.K. HUNTER: My advice is, no, it is not intended to cover a wider ambit.

The Hon. R.I. LUCAS: Do the government's advisors accept that, if a future government sought to cover a wider ambit, it would be possible to do so given that the function is as broad as 'to regulate the provision of education services'?

The Hon. I.K. HUNTER: The function is regulated in regard to the requirements for registration; so, it is limited by that function.

The Hon. R.I. LUCAS: How does the minister justify that advice when clause 29 says:

The functions of the Board are as follows:

(a) to regulate the provision of education services and early childhood services;

There is a separate function, which is to approve the requirements for endorsement of registration, and a separate requirement to establish and maintain registers. The registration provisions are under paragraphs (b) and (c). Paragraph (a) stands alone in relation to the provision of education services. Does the government accept that a future government could widen the ambit of this particular registration and standards board more broadly than is currently intended?

The Hon. I.K. HUNTER: My advice is that paragraph (a) is not intended to stand alone. We do not believe that it does. Those regulations are governed through clause 43, which deals with registrations of schools. If there were any other requirements to be laid out in the regulations they would, of course, be subject to parliamentary scrutiny.

The Hon. R.I. LUCAS: With due respect to the minister and his advisors, I think that he is wrong, and time will tell. It is quite clear under clause 29:

The functions of the Board are as follows:

(a) to regulate the provision of education services...

It is not dependent on paragraphs (b) and (c). It stands alone. When one looks at the definition of 'education services' in the definitional clauses, it means:

(a) courses of instruction in primary or secondary education; and

(b) any other service declared by the regulations to be included in the ambit of this definition...

It is quite clear that the function of this board is to regulate the provision of courses of instruction in primary or secondary school. With due respect (I will not say 'with the greatest respect'), minister, it is my view that his advice is wrong—wrong in law and potentially wrong in practice. I will leave it at that in relation to that particular issue.

My specific question—and I am really approaching these clauses as a group; I am happy to do them individually if you want to—relates to clause 29, which is the code of conduct provision. Can the minister just confirm whether a code of conduct is disallowable by the parliament?

The Hon. I.K. HUNTER: The code of conduct, I am advised, is prepared or endorsed by the board. It cannot come into operation except with the written approval of the minister and a majority of the peak bodies prescribed by regulations for the purpose. It is therefore not disallowable. Under the bill, the board can prepare a code of conduct or endorse a code of conduct that has already been developed.

The authority to require a code of conduct is currently provided in the Education Act. However, this is approved by the minister, and the non-government schools registration board role is to ensure schools' compliance. For example, the National Code of Practice for registration of authorities and providers of education and training to overseas students currently applies to non-government schools under the Education Act.

What the bill does is appropriately locate responsibility for the development or endorsement of the code with the board in consultation with the broader education community and with the endorsement of the majority of the three centres it regulates: the Association of Independent Schools, Catholic Education SA and the Department for Education and Child Development.

To go back a step to comments the Hon. Mr Lucas said that he would leave for now, it is important that we say that the way that clause is to be read is that those issues are to be regulated through registration. That is how they are to be dealt with. The phrase 'endorsement' is defined in the act. Endorsement of a school's registration means an endorsement of a school's registration to enrol full fee-paying overseas students under section 49. It is a separate clause.

The Hon. R.I. LUCAS: It is my strong view that the minister is wrong and that his advice is wrong, and I guess it will be an issue for a future government or administration to ultimately determine that particular issue. I think he is wrong in terms of the advice he has just given the committee.

In relation to the code of conduct, I asked a question in the second reading and I think the minister has indirectly provided an answer to it. Where it says under clause 29 'a majority of the peak bodies prescribed by the regulations', is the minister indicating that those peak bodies will just be the three bodies to which he has just referred, that is, the Catholic education authority, the independent schools authority and the department for education? It will not include other peak bodies such as teacher unions, principal associations or parent associations, for example?

The Hon. I.K. HUNTER: The short answer is yes. The peak bodies the honourable member refers to are those bodies that will be prescribed under the legislation in clause 29(2)(b), specifically to approve, along with the minister, a code of conduct by registered schools that has been prepared or submitted for endorsement by the board.

The Hon. R.I. LUCAS: That is those three bodies you mentioned?

The Hon. I.K. HUNTER: That is correct.

Clause passed.

Clauses 22 to 28 passed.

Clause 29.

The Hon. R.I. LUCAS: I raised questions in the second reading and received a response, but I will quickly raise them again. Specifically, under clause 29 we are talking about preparing and endorsing codes of conduct. Under clause 30 and onwards there are issues about complaints being made by parents or others to the board. Under clause 30, if they get a complaint from a parent about how a child is being treated at a school, in the first instance the board would seek to refer it to the school. Subclause (2) states:

(2) However, if the Board is of the opinion that the subject matter...

(a) would...constitute a proper cause for disciplinary action under Part 7; and

(b) is of such seriousness that the matter should instead be the subject of a complaint laid under section 62,

the Board may direct the relevant Registrar to lay a complaint...

That is, the board would then handle the issue with the registrar for that particular area. The cause for disciplinary action is where the school has failed to comply with the code of conduct and, in paragraph (g), the school has not provided adequate protection for the safety, health or welfare of a student. I raised the question in the second reading and I raise it now in committee.

In the circumstances we have seen recently, where a secondary-aged student was assaulted on school premises by another student—injured badly, hospitalised, etc.—clearly that would in my view constitute a course of disciplinary action under clause 60 (or at least where an allegation that that is the case, that the school has not provided adequate protection for safety, health and welfare). Can I have confirmed from the minister that it is the government's understanding of the legislation before us that in those circumstances the board and the registrar would be a body charged with the responsibility to investigate such a complaint from a parent against the way a school has managed the occupational health and safety protection issues of students at that school?

The Hon. I.K. HUNTER: Bullying is an issue that affects the whole community, obviously including schools, and is something the government and Department for Education and Child Development takes very seriously. The department requires all government schools to have an anti-bullying policy in place and that all staff and students are aware and understand the mechanics of the policy. These policies are developed with the school governing councils, parents and student representative councils.

Research conducted by Edith Cowan University shows that SA has the lowest rate of bullying in the nation. Nevertheless, the incident to which the honourable member refers at a high school in the northern area resulted in a report being commissioned by the minister which reviewed the department's processes and procedures relating to bullying in schools, known as the Cossey Review.

A number of recommendations made by this review are now being implemented in our government schools which target ways of reducing bullying in schools, including: keeping safe child protection curriculum to teach students about respectful relationships and how to remain safe (this is the department's key preventative program to target bullying and violence); training of more than 170,000 teachers focusing on teaching respectful relationships, which is important in reducing bullying; support for schools to manage bullying; 273 school counsellors' salaries; 37 behaviour specialists; a parent complaint unit to assist families with concerns; and an enhanced focus on cyber safety initiatives through $100,000 of cyber safety grants provided to 45 government and non-government schools to support innovative ideas to keep students safe from cyber bullying.

In instances where the board determines it is a matter related to registration, or it contravenes the condition of registration, re clause 43(1)(b), or provide adequate protection, and the matter is of sufficient gravity, the board's decision to take any action under clause 62 is subject to the requirements that the board must act fairly and in good conscience. It must work with the sector and must take into consideration the prescribed principles in determining an outcome. Any actions taken by the board must be consistent with the intent of the legislation and hold up to judicial scrutiny and review.

Notably, the test used by the board is a balance of probabilities, as it would be inappropriate for the board, in its capacity, to apply the other test of 'beyond a reasonable doubt'. This test pertains to matters of a criminal nature. These clauses operate and must be considered in line with the objects and principles of the act, which include that providers of education services and early childhood services should not be burdened by regulation more than is reasonably necessary and the actions of the board in relation to minimising or responding to a particular risk should be proportionate to the potential harm posed by the risk.

It should be noted that complaints in government schools follow an escalation process. The usual course is for the school to handle the complaint in the first instance and take any reasonable action to help resolve the issues. The complaint may then be escalated to the regional office for further consideration or review. If the issues remain unresolved, the department—usually the school operations unit—may liaise with both the regional office and the school leadership to facilitate appropriate resolutions. The board may be aware of or come across certain types of complaint; however, it is not aimed to hold inquiries or interfere with a decision or directions made at the local level.

The necessary protections are available. There may be instances where formal action is required, and there could be instances where the complaint needs to be referred to the board for consideration; for example, as a disciplinary matter or a registration issue. However, the school remains first point of call to determine and facilitate the courses of action best suited to handling the complaint in the interests of the children and the school community.

The Hon. R.I. LUCAS: It is admirable what the government is doing in its policies in relation to bullying, but can I just clarify? My question is: in the circumstances I have outlined, under the bill—if it is passed—can a parent take such a complaint to the board, and is there a possibility that the board itself and the registrar would, under the proposed regime, conduct the inquiry which, of course, would be different to the current circumstances where one can just go to the police or to the district superintendent, someone else within the government department?

The Hon. I.K. HUNTER: My advice is that all complaints will first go to the school in the first instance, unless the complaint is related to the registration of services. If the complaint is related to the provision of educational services and if it is serious and would, if proved, constitute a proper course for disciplinary action, the board may consider the issue. However, in the first instance, the complaints are referred back to the school and the school will work with police and the department to work out who is most appropriate to address the issue.

The Hon. R.I. LUCAS: That is code for, yes, it is possible. I think it is important that parents are aware—and I think many are not—of what the implications of some of the provisions in the legislation are. I think that it is clear from the way in which this has been drafted that parents in the position of the incident to which I have referred (and there have been many others of a similar nature) do not want to go to the education department. Under this arrangement that the government is providing, this board does have the power and authority to conduct investigations of those circumstances and can take disciplinary action against schools, and I will come to that when we get to clause 62. I might as well raise that now because the minister has referred to that in response, I think, as well. We might as well handle it altogether.

The powers of the board having grounds for an inquiry for disciplinary action under clause 62, the board has the power, on the balance of probabilities, to cancel the registration of a school. Can I clarify that the minister is acknowledging that, if the board conducts an inquiry and, on all the tests and on the balance of probabilities, finds proper cause, the board can cancel the registration of a government school in South Australia?

The Hon. I.K. HUNTER: I am advised that clause 62 includes giving power to the board, if after conducting inquiries in accordance with the act it is satisfied that there is proper cause for disciplinary action against the respondent (a school, for example), to do a number of things, including impose conditions, cancel a registration or suspend the registration for not more than one year.

The Hon. R.I. LUCAS: The board can also disqualify the respondent from being registered under the act, as I understand it.

The Hon. I.K. HUNTER: I need to add that its actions have to be proportionate to the problem that it is addressing.

The Hon. R.I. LUCAS: I accept that, but does the minister acknowledge that the board, as long as it is proportionate and whatever else the minister has just said, does have the power to disqualify a government school from being registered under the act, or under subclause (4), and can cancel a government school's registration?

The Hon. I.K. HUNTER: That is clearly the case.

Clause passed.

Clauses 30 to 90 passed.

Schedules 1 to 3.

The CHAIR: Are there any questions on any of the schedules?

The Hon. R.I. LUCAS: My only remaining question is under clause 7. The minister was going to get legal advice. He indicated to me that there were any number of clauses during the committee stage where he would be able to provide me with the legal advice in relation to the question I asked on parent members on school councils.

The Hon. I.K. HUNTER: My advice is that the liability provisions in this bill are appropriate to the offences.

The Hon. R.I. LUCAS: That is a non-answer, and the minister knows it. That is not the legal advice. It does not clarify the position at all. All that is saying is that the government is standing on its hind legs and saying that it is appropriate to the offences. The government has that view, and it is fair enough; it can have that view. The question was explicit, and that was: is the government placing any additional liability—

The Hon. I.K. HUNTER: Can you ask the question again?

The Hon. R.I. LUCAS: The question I put back on clause 7 was whether the liability provisions that we are imposing in clause 7 of the bill, going on memory, on parent members of school councils is any more onerous than the existing liability provisions that apply to parents on school councils at the moment under existing statutes.

The Hon. I.K. HUNTER: My advice is they are not more onerous. These are liability protections: they are not liability provisions. They are protections for the volunteer members of school councils. They are not more onerous than that which currently pertains, is my advice.

The Hon. R.I. LUCAS: I thank the minister for that advice. The fact that they are protections is just the reverse or the mirror argument. If the protections are actually lower, then they clearly become more onerous, but if the minister is assuring the committee and the chamber that they are no more onerous on parents who are currently members of school councils, then that was the answer to the question that I am seeking. Thank you.

Schedules passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. I.K. HUNTER (Minister for Communities and Social Inclusion, Minister for Social Housing, Minister for Disabilities, Minister for Youth, Minister for Volunteers) (22:21): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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