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Legislative Council - Fifty-Fourth Parliament, First Session (54-1)
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Bills

Education and Children's Services Bill

Committee Stage

In committee.

(Continued from 14 February 2019.)

Clause 54.

The CHAIR: Honourable members, we are now on clause 54. The honourable Leader of the Opposition has moved his amendment No. 1 [Maher–1]. The Treasurer wishes to make a few comments to the committee.

The Hon. R.I. LUCAS: Can I seek your indulgence and the indulgence of the committee, given it has been nearly a month since we last visited this. During the extensive committee stage of the debate, a number of members asked a long series of questions. I want to acknowledge that the Minister for Education, on 12 March, has supplied what looks like a nearly 20-page series of responses to those questions to honourable members. They do not just canvass issues that relate to clause 54; they canvass issues that were raised in the earlier clauses and indeed some of the other issues that are coming up later on.

I could seek leave to table these responses. I do not propose to read all of these answers because that would take an hour or so. I will seek leave to table it in a moment. I am happy, if any particular member has a particular answer to a particular question that they want to get on the public record on behalf of the minister, for them to repeat the particular question during the appropriate clause of the committee, and I will provide the minister's response to that particular question.

There may well be a particular answer to a particular question that a member might want to see on the public record in the Hansard debate on behalf of the government. I certainly would understand that. If the member, at the appropriate clause, wanted to raise that particular question, I am happy to place on the record on behalf of the government the particular response. I seek leave, with the concurrence of the committee, to table a copy of a letter from the honourable Minister for Education, John Gardner, dated 12 March, to all members of the Legislative Council, providing answers to a long series of questions which have been asked on this particular bill.

Leave granted.

The Hon. K.J. MAHER: I thank the Leader of the Government for outlining the response that he has and I thank him for tabling that. I think we are at a bit of a disadvantage, not having an idea of what those questions are to know whether we should ask further about them. I wonder if it is possible for copies to be made so that members can have the benefit of those documents. Can the minister inform what date they were sent around?

The Hon. R.I. LUCAS: It was signed on 12 March and emailed to all members of the Legislative Council on the 13th, so if your offices cannot find it please give us a yell and we will download another couple of hard copies for you, if you like. In particular, to those members who are asking the whole series of questions, which was obviously the honourable member, the Hon. Ms Bonaros I think—it does not really matter—there was a series of members who asked a series of questions and they are all referred to in that tabled reply.

If any member does have any problems with their staff not being able to locate that email on 13 March from the Minister for Education's office, or the Minister for Education himself, please indicate and we will get some hard copies circulated for the committee.

The Hon. K.J. MAHER: I have moved the amendment standing in my name already, and as we recommence I will reiterate. Members will remember that this is about the review committees for the closure of a school, and what our amendment does is seek to restore an AEU representative on such a committee.

The Hon. R.I. LUCAS: On behalf of the government, as I think I have indicated before in either the second reading or on clause 1 of the committee stage, the government formally opposes this particular amendment. The government's bill removes the right of the AEU, currently in place under the Education Act, to participate on a review committee established to consider the closure or amalgamation of a school or schools. Appropriate representation of staff in these matters is tremendously important; however, the very fact of somebody's membership or otherwise of an individual body should not determine their eligibility to represent their fellow staff members.

The government's position is that identifying the Australian Education Union singularly is contrary to our preferred model. The bill provides that a school review committee will consist of a number of members, one of whom will be a person representing the staff of each school to which the review relates, elected or nominated by the staff of each such school in accordance with the regulations. Staff who have not chosen to be a member of the Australian Education Union should not be excluded from participating on a review committee in this way.

There is nothing to preclude an Australian Education Union member from being elected or nominated by other staff of the relevant schools to represent them on a school review committee. The department has advised that there is no practical barrier to removal of automatic AEU representation on school review committees.

I think, as I have indicated—and I will not labour the point—on behalf the government, we certainly have no problem, ultimately, if staff members collectively choose an AEU rep to be their representative; that is indeed their prerogative and their choice but, equally, they should have the prerogative and choice, if they so wish, to choose other perhaps long-valued staff members with considerable experience who might, for whatever reason, have chosen not to be a member of the AEU.

The Hon. T.A. FRANKS: We are on clause 54, amendment No. 1 [Maher-1], but the Treasurer's response did not actually address the issue. What I would like to clarify is why the government has chosen to take this review system, where a school is facing amalgamation or closure, and previously the process was somebody not from that school. So the arguments about teachers being represented by a union member or not a union member of their school is actually not relevant to this debate. It was always that this particular position was allocated for an AEU delegate not from the schools with regard to either this amalgamation or closure decision. Why has the government taken that process?

The Hon. Connie Bonaros asked many questions about this the last time we had the debate, and I cannot see the answers in the list. If the government could put on record why they have changed an entire process—aside from this argument of pro-union/anti-union—why we are subsuming into a review and amalgamation process that was in fact inserted into the act for very good reason of somebody not involved, and not with a stake at the schools involved, and transposed this anti-union provision into that particular process.

The Hon. R.I. LUCAS: We did touch on this in the previous debate. The position of the government is that staff at the school that is looking to be closed or amalgamated should have the right to be represented on a committee that is looking to amalgamate, close or merge them, whatever is the appropriate thing. The member is right to say that the former legislation is that the staff at that particular school, under their model, was that an AEU rep from another school, not from the particular school that was being considered for merger, would be on the committee. That is an entirely defensible position for the Labor Party and for other parties to take, if they wish.

What the government is saying is that, if you are in a school that is facing merger or closure, we think that you might actually support having one of your staff members on that committee putting a point of view on behalf of your staff. Now the head teacher or principal is there, but it is not always the view that perhaps staff members believe that their views are being represented by the boss, as they might see it—the principal or head teacher of the school.

As the Hon. Ms Franks says, the model she is indicating is a different one, and the government happens to take a view that, if you are actually in a school and you are a member of the staff in that particular school, why should you not be able to participate in a closure or merger decision? It is a pretty simple proposition. I would have thought that on most occasions many members would agree with the position that, if you are confronting closure, merger or those sort of momentous decisions, you should be in a position to be able to have your voice represented on that particular committee. If you do not want to support that, then you do not want to support the government's position; you can support the amendment from the Labor Party.

The Hon. T.A. FRANKS: I foreshadow that I have a similar amendment to amendment No. 1 [Maher-1], but my amendment inserts, contains and keeps the AEU representation not from the schools involved in addition to the government's proposed members of the staffing of the schools involved in the decision. I assume I can move that formally at this stage, given that we are on this clause—clause 54, amendment No. 1 [Franks-3]?

The CHAIR: My understanding is that we are not quite there yet, the Hon. Ms Franks, but you could speak to it.

The Hon. T.A. FRANKS: I am speaking to it; I just wanted to see if I could. I am foreshadowing it, and asking the government whether it is its view that the AEU representation not from the schools involved needs to be removed, and what it proposes to do to replace that particular delegation if so. Does it see any harm in having the school staff who are subject to the closure or amalgamation involved, in addition to the current situation where there is also AEU delegation?

The CHAIR: We are only on amendment No. 1 [Maher-1], but the Hon. Ms Franks' amendment No. 1 [Franks-3] states a person not being a teacher at a school nominated by the Australian Education Union. The two amendments are not in conflict but they relate to the same issue.

The Hon. T.A. FRANKS: Put simply, amendment No. 1 [Franks-3] would allow those people to be represented in an amalgamation or closure review. Is the government steadfastly opposed to having only one representative role or will it accept the addition of the AEU one on top of this proposed change?

The CHAIR: So, Treasurer, the amendment is not in conflict. They are putting another—

The Hon. R.I. LUCAS: I understand, but I am sequentially moving through the committee stage in terms of having an amendment before us. In order to assist the committee and assist the Hon. Ms Franks, when we come to her amendment the government will be opposing that as well. The potential natural consequence of the Hon. Ms Franks' amendment is that we may end up with two AEU reps on the committee; that is, the one from the amendment she is proposing from another school that is an AEU rep, and the one elected from the staff.

As I have indicated before, it would be my expectation that more often than not it would be an AEU rep, because the AEU indicates it has very strong membership in terms of the teaching force; I suspect that more often than not the staff representative will be an AEU rep. A combination of the two amendments would potentially see two AEU reps on the review committee, one potentially from the school and one potentially from another school. When we come to that particular amendment the government's position will be to oppose that as well.

The Hon. T.A. FRANKS: It might be three or four AEU reps, because we are talking about schools being either amalgamated or closed, and you would hope that each of the schools would have some sort of representation as well as what we have currently, which was an external representation to ensure that people did not, in fact, have vested interests. How will the government ensure there are no vested interests in these decisions? What consultation did it do regarding the need to get rid of that position of impartiality in this review and amalgamation or closure process?

The Hon. R.I. LUCAS: I am not sure how any government gets rid of vested interests in issues of education and amalgamation. I do not have an answer for that particular question. However, the member is right to say that if there are three schools being contemplated merging there could be three AEU reps, or there could be three staff reps or any combination thereof under that provision. If it were a straight school closure where you are just looking at the closure of a particular school it would be one, but the member is correct to say that there could be two or three, depending on the number of schools involved.

The Hon. K.J. MAHER: In relation to that point, under what the government is proposing—let's say it is four schools that are looking to be amalgamated; it could include junior schools and a senior school in two locations, four schools in total—is the minister saying that there will necessarily be, under the government's proposal, at least four people representing schools that are elected or nominated by the staff of each school? Can the minister explain again—because that was the point we left on last time—the difference and why the drafting has chosen to say 'elected or nominated' rather than just 'elected', what work the 'nominated' has to do?

The Hon. R.I. LUCAS: My advice is that in the example the member has raised there would be four staff persons elected or nominated by the staff. The second question, which is 'or nominated', I do not know that we ever came to a satisfactory landing on what work the words 'or nominated' did, what circumstances they canvassed. I am advised that the phrase 'or nominated' has been included deliberately, that is, where you have a very small school and you might only have one nominee from a very small number of staff, they would just be nominated; there would be no election.

The Hon. J.A. DARLEY: For the record, I will be opposing amendment No. 1 [Maher–1].

The Hon. K.J. MAHER: I am interested to tease this out. In the example of a small school—I think we talked about this last time—it is not just the teachers but any employee of the school who is capable of being appointed; is that correct?

The Hon. R.I. LUCAS: Yes.

The Hon. K.J. MAHER: Even in that case where there is one person who nominates, in my experience that will constitute elected unopposed, so I am still not sure what 'nominated' does, rather than being elected unopposed. Why 'nominated'?

The Hon. R.I. LUCAS: I can just relay the advice I have that 'nominated' has been deliberately chosen to cater for those circumstances.

The Hon. K.J. MAHER: Can I further check what the government is proposing in its clause 54 for this review committee? The review committee, under 54(2), requires that it be appointed by the minister. Does the minister have any discretion then in the appointments that the minister makes under clause 54(2)(d)?

The Hon. R.I. LUCAS: I think the plain reading of the legislation. I have certainly seen similar drafting in other pieces of law. The minister is required to nominate in accordance with the following subclauses. It makes it clear that the subclause provides that they will be either elected or nominated by the staff of the school. It is not an issue for the minister to choose his or her favoured person from the staff to be the nominee.

The Hon. C. BONAROS: I indicate for the record that SA-Best will be supporting the Hon. Tammy Franks' amendment in this instance and not the opposition's amendment.

Amendment negatived.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–3]—

Page 40, after line 30 [clause 54(2)]—Insert:

(da) a person (not being a teacher at a school to which the review relates) nominated by the Australian Education Union (SA Branch);

I thank members for their indulgence in the previous debate, because I think the two were so entwined that they did deserve to be heard somewhat in concert.

This amendment inserts, in addition to the government's proposed changes to where a review process is put in place for a school amalgamation or closure, that in addition to the government now selecting somebody from the school—who I note may or may not be a teacher, and I certainly have some concerns that that does not necessarily have the best outcomes for the education of this state, but regardless of that—it will also keep the current independent AEU delegate as part of that process.

The reason that a delegate from the AEU is so important, and in this case an independent delegate outside the school or schools involved in these decisions, is because they are difficult decisions; they are decisions that are impactful and personal to those communities but they are decisions that also demand the corporate knowledge that a body like the AEU brings to the table, and the professionalism and expertise that a body like the AEU brings to the table in these very difficult decisions which actually affect the education options and standards of our schools overall.

In the spirit of compromise, the Greens offer the government the ability to keep that great corporate knowledge and keep that independence and expertise but also get their new changes where they have stripped away the words 'AEU' and in fact inserted additional staff representation into these processes. With that, I formally move the amendment.

The Hon. R.I. LUCAS: I will not repeat myself but the government's position is to oppose this particular amendment. I might just point out to the Hon. Ms Franks that in previous discussions she indicated that there was a possibility that the staff representative could be someone other than a teacher. My recollection is that the AEU actually represents school services officers who are not teachers. So under the proposed amendment that the honourable member is moving it does not designate that it has to be a teacher member of the AEU; the AEU could actually nominate a school services officer delegate to represent.

If that is of concern to the honourable member—it is not a concern to the government—she should be aware that the particular amendment that she canvasses, if my recollection is correct that the AEU represents not just teachers but school services officers as well, it may well be that the AEU delegate is able to be somebody other than a teacher in relation to it.

For the reasons I have outlined previously, the end result of the honourable member's amendment, if it was passed, is that instead of having potentially one AEU representative on the committee we may well end up with an additional AEU representative on the committee, and that is not a proposition that the government supports.

The Hon. T.A. FRANKS: Can the Treasurer explain how the government's new bill provides for an AEU representative to be on these committees?

The Hon. R.I. LUCAS: I am only repeating myself. The staff can represent anyone they wish. The staff could elect a member of the AEU if they wished; it is up to them.

The Hon. C. BONAROS: Can we just clarify that: by extension then they could elect somebody who is not a member of the union? Under the Hon. Tammy Franks' amendment we could end up with a union member, or we would end up with a union member, but we would also end up with someone potentially who is not a member of the AEU, a union member.

The Hon. R.I. LUCAS: We went over the first part of the honourable member's question last time, and I think the Hon. Ms Franks or someone asked the question last time, under the government's bill could the staff elect someone, a teacher or a staff member? Does a staff member include a non-teacher, that is, a school services officer, for example? The answer to that question was, yes, that is the case. The honourable member has raised concerns about that in her comments today and has moved another amendment in relation to ensuring there be an AEU delegate or representative on this review committee.

I am just pointing out that, if my recollection is correct, the AEU represents teachers and school services officers (non-teachers). If that is correct, this particular amendment moved by the Hon. Ms Franks would have the same issues she has raised in relation to the government's amendment. The AEU could nominate a teacher or a non-teacher; it is up to them who their delegate would be.

The Hon. C. BONAROS: But the amendment does address the concern that has been raised by the government, in that non-AEU members—we will just call them 'teachers'—are not represented on the panels. That is the concern we have been raising. Any teacher ought to have the same ability to be represented on those panels.

The Hon. R.I. LUCAS: The Hon. Ms Franks' amendment does not assist the government at all in relation to the issue. The government's bill is its preferred position, which is: staff can elect whomever they wish to represent them. They could elect a teacher who is a member of the AEU. They could elect a long-serving teacher who is not a member of the AEU, and that is entirely their prerogative. They could also elect a school services officer who is a member of the AEU—a union member—or they could elect a school services officer who is not a member of the AEU.

Under the government's preferred bill, all of the choices and prerogatives would rest with the staff in terms of who they want to represent them. The amendment the Hon. Ms Franks is now asking the committee to consider provides, in addition to that, we should guarantee another position for the AEU in relation to a person from outside of the school to serve on the committee.

The point that I am making is that this person could be a teacher or a school services officer. Under the amendment, if it is passed, that would be an issue entirely for the AEU. They could choose who they wanted their delegate to be.

The Hon. J.A. DARLEY: Just for the record, I will be opposing amendment No. 1 [Franks-3].

The Hon. K.J. MAHER: To assist the committee, for the record, the opposition will be supporting the Franks amendment.

The committee divided on the amendment:

Ayes 11

Noes 8

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A. (teller)
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Parnell, M.C.
Scriven, C.M. Wortley, R.P.
NOES
Darley, J.A. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lensink, J.M.A. Lucas, R.I. (teller)
Ridgway, D.W. Stephens, T.J.
PAIRS
Pnevmatikos, I. Wade, S.G.

Amendment thus carried; clause as amended passed.

Clauses 55 to 81 passed.

Clause 82.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–1]—

Page 56, line 26 [clause 82(1)]—After 'may' insert:

, with the approval of the governing council of the school,

I am sure that many members have also been contacted by constituents who would rather have an opt-in model for religious and cultural activities than the opt-out model that is in the bill. I have spoken to the government about the rationale behind having an opt-out model and have agreed that if the model were changed to opt-in there would be no point in having religious and cultural activities because the majority of children would be excluded.

I have said before that the principal is best placed to decide what is appropriate for their school; however, many parents felt that consultation was lacking. As such, I have moved this amendment that states that, if a principal decides to set time aside for religious and cultural activities, the principal must first get the approval of the school's governing council. Governing councils are in the best place to represent the best interests of the school community and the students and are well placed to scrutinise the principal's decision.

The Hon. T.A. FRANKS: I move:

Amendment No 1 [Franks–2]—

Page 56, line 24 to page 57, line 12—Delete Division 4 and substitute:

Division 4—Special religious instruction

82—Special religious instruction

(1) Subject to this section, special religious instruction may be given in a school.

(2) Special religious instruction may only be given during the following periods on any day:

(a) before the provision of curricular instruction has commenced on that day;

(b) during any lunch break on that day;

(c) after the provision of curricular instruction has finished on that day.

(3) To avoid doubt, special religious instruction must not be provided to a student, or class of students, at any time that curricular instruction is being, or is scheduled to be, provided to the student or class of students.

(4) The principal of a school must give written notice of any special religious instruction that is to be given to particular students at the school to a person who is responsible for each such student.

(5) Attendance at special religious instruction is not compulsory for any student.

(6) Special religious instruction does not form part of the curriculum determined by the Chief Executive for the purposes of this Act.

(7) Nothing in this section limits the operation of the Child Safety (Prohibited Persons) Act 2016 or any other Act that imposes requirements or limitations on working with children.

(8) To avoid doubt, nothing in this section prevents school premises from being used for religious purposes other than special religious instruction.

(9) In this section—

curricular instruction means instruction provided in accordance with the curriculum determined by the Chief Executive for the purposes of this Act;

special religious instruction means instruction provided to students by churches and other religious groups and based on distinctive religious tenets and beliefs.

The Greens move this amendment, noting that, in this bill, there is a change between the opt-in and opt-out approaches to religious education. The Greens ask why religious education is being offered instead of curriculum, where comparative religion and religious studies of that nature are certainly part of the curriculum. Why is religious education being offered instead of curriculum? This amendment by the Greens would ensure that, during what should be curriculum time, only curriculum is offered and not religious instruction. At this point, I note—again pre-empting the debate—that we are very attracted to the Bonaros amendment to repeal clause 82.

The CHAIR: The Hon. Ms Bonaros, as I understand it your amendment is not really an amendment but is actually opposing the clause.

The Hon. C. BONAROS: It is, Mr Chair, but I would like the opportunity to speak to it.

The CHAIR: Yes, that is right. I am not denying you the opportunity to speak; I am simply indicating, for the benefit of the members, that you have drafted in this way to indicate to members that you are going to be opposing the clause. So it is opportune for you to speak at this time.

The Hon. C. BONAROS: That is correct, and I think it is fair to say that we have been spoiled for choice, in terms of this particular provision in the bill. The amendment that I am moving seeks, as you say, to oppose the clause, which is our position, and has the effect of removing clause 82 in its entirety from the bill, if that position were to be supported.

The government has provided a response in its series of responses to questions posed about the bill before the break, including the effect of the removal of clause 82. I want to read out one of those responses, which states that if clause 82 were to be removed it would remove the certainty that principals can set aside time for religious and cultural activities to be conducted by prescribed persons during time normally set aside for curricular instruction and would remove clear provision for the notification of parents of such activities and the exemption of students from participation.

It goes on to state that clause 82 makes it clear, despite the general principle in clause 7(4)(g), that education provided by government schools is to be secular. A principal can set aside time for religious activities to be conducted by a prescribed person, or class of persons, based on the prescribed person's particular religious beliefs or values.

Clause 82 provides a framework for the delivery of these activities, which allows for informed parental decision-making and provides appropriate protections for students. Clause 82 sets out a specific requirement to notify parents and other persons responsible for children at the school of the intended conduct of such activities and provides them with a right to seek exemption from participation for their child on conscientious grounds. In addition, it provides that children exempted from participation in such activities cannot be made to suffer any detriment from not participating and must be offered an alternative activity related to the curriculum. Without clause 82, this framework for informed parental decision-making would not appear in the legislation.

The first thing that strikes me in that answer is the reference to the secular nature of our schooling and then the rights of parents to seek exemption on conscientious grounds, which I would have thought you do not need if we have a secular curriculum in our schools.

I would argue that religious instruction is at odds with the idea of a secular public school system. It certainly can be argued that the only reason clause 82 is included in the first place is that, if it were not for such a clause, such instruction would amount to a contravention of the act. The practical effect of the removal of clause 82 by way of the amendment that I have proposed is that it is then up to the chief executive to set the relevant rules relating to such activities, or indeed the individual school principal, subject to departmental guidelines.

The issue then becomes if this is necessarily a bad thing, and I do not believe it is. I am of the view that these matters should be in the purview of individual schools familiar with their cohort of students and school communities, and that principals have the intelligence to determine the framework that best suits the schools that they are responsible for.

I think it is worth noting—and the minister has certainly confirmed this in my discussions with him—that there are codes of conduct that are designed to deal with those principals or staff who overstep the boundaries in terms of who they allow into their schools to provide any form of activities. Even with this in place, if those activities are noncompliant with those codes of conduct, then there are ramifications for that. If the chief executive officer or a principal allows religious instruction of the kind contemplated in the bill, internal practices can then be put in place regarding consent and exemptions via administrative rules or directions, for example.

I might then go on to point out that, as a result of what I have just said, I do not agree with the government's position that clause 82 provides a framework for the delivery of such activities—not in the true sense at least. What it does is allow the principal to set time and/or students aside for religious instruction, but it says nothing about what that may look like. In fact, I do not think the accompanying regulations or guidelines have actually been drafted or implemented to that extent.

To the extent that it is a framework, it is really one setting out the rights of parents or carers to object. I would argue, given the extracurricular nature of this religious instruction, it is simply restating the rights a parent or carer already has. In any event, as mentioned above, the framework could just as easily be implemented administratively. Indeed, given the inclusion of an education ombudsman, which has been proposed, it could even be argued that the protections afforded by clause 82 become even less important.

It is deeply concerning that the content to be provided by those who seek to provide religious instruction in our public schools is not vetted for appropriateness by the department. Rather, on this issue, they are prepared to leave it to individual principals to negotiate whether that content is relevant and appropriate for their students. Indeed, this is something that I talked about with the minister, insofar as I thought consideration was being given to an amendment that would prohibit proselytising in schools. Those are certainly discussions that I entered into with the minister and something that I expected we would also see.

But again, if that does occur in schools, there are codes of conduct and there are guidelines that would deal with that. So, on the face of it, it should not be an issue. I think this flies in the face of the government's argument for the need to maintain clause 82 and not leave it to competent principals to determine the details according to the individual needs of their school. I think it is also important to remember that the provisions in clause 82 only serve a valuable purpose if the underlying ability to conduct religious seminars is included in the act.

If clause 82 is to be removed, as I am proposing, then there is no such statutorily authorised scheme of which parents need to be notified or exempted, as the case may be. I will point out, again for the record, in this instance this is my preferred position and we will certainly be moving to oppose this clause. Perhaps you might guide me here in terms of procedure, Chair. If this clause is not opposed then there are two alternatives that we can consider.

The CHAIR: For the benefit of honourable members, my proposed course of action is that I am going to seek the Treasurer's response and then allow any other member to speak, and then the Leader of the Opposition will probably indicate to me that he wants to speak. The Hon. Mr Darley has moved his amendment and so I will be putting the question that all words down to and including 'may' in line 26 stand as printed.

If an honourable member is inclined to support your position, the Hon. Ms Bonaros, which is to oppose, or the Hon. Ms Franks', then they would say no to that question and then, depending on where that vote sits, if it is a no—that is, it is not supported—I will then put in the question that the Hon. Ms Franks' position is advocating, which is that a new clause 82 be inserted. Does that make sense to the honourable member? The Hon. Mr Hunter?

The Hon. I.K. HUNTER: Can I just ask for some clarity on that. I think I have got you right. Let's think of a hypothetical situation: I want to support the Hon. Mr Darley's amendment. However, if that is not successful and it is voted down and then we come to the Hon. Ms Bonaros's amendment and that is not successful and is voted down, and Ms Franks' amendment is not successful and is voted down, we are going to be stuck with the government's original proposition. Is that correct?

The CHAIR: I do not wish to endorse the word 'stuck', as I am an independent chair, but I think that is correct.

The Hon. I.K. HUNTER: Is there any potential, then, to revisit the Hon. Mr Darley's amendment with that knowledge that the other two amendments were not successful?

The CHAIR: I think that honourable members would need to indicate whether they would be prepared to support a recommittal in those circumstances.

The Hon. K.J. Maher: Which would be in the hands of the committee.

The CHAIR: Which would be in the hands of the committee. Does that satiate your inquiries?

The Hon. I.K. HUNTER: It does for me, sir. Thank you.

The Hon. C. BONAROS: Can I indicate for the record that for us this is somewhat a process of elimination. Obviously, I have stated what our preferred position is. Our second preferred position is to support the Hon. Ms Franks' amendment, and if both of those fall over then our third position is actually to support the Hon. John Darley's amendment. But we cannot do that?

The CHAIR: It is my understanding that we will not be able to do that without a recommittal. The Clerk has kindly indicated that the Chair is on the right track. I have to seek that the words up to where the Hon. Mr Darley is seeking to insert words stand as printed and then I have to put the question that the Hon. Mr Darley's amendment seeks to achieve, which is insert words. They will not be able to vote for the Hon. Ms Franks' amendments, but you could, when I ultimately put another question, which is that clause 82 as amended be agreed to, still oppose that.

The Hon. T.A. FRANKS: For the record and for the clarity of thoughts of both the Chair and the rest of the council, the Greens are most attracted to the Hon. Connie Bonaros' amendment to delete the clause. We will certainly be supporting my amendment, should that fail, and would very much welcome a recommittal of the Hon. John Darley's amendment, should we find ourselves in that position, and would seek some clarification of whether a recommittal is possible.

The CHAIR: For the benefit of clarity, is the Treasurer—

The Hon. T.A. FRANKS: Can I seek further guidance?

The CHAIR: Yes, the Hon. Ms Franks.

The Hon. T.A. FRANKS: What would be the procedure if I do not proceed with my amendment?

The CHAIR: We can proceed that way. The recommittal will be required for your amendment, which is the deletion and then insertion of a new clause. In sequence, the first question is that all words down to and including 'may' in line 26 stand as printed. If you agree with the Hon. Mr Darley then you agree to those words standing as printed. Then the Hon. Mr Darley has moved, and we put the question, that the words he proposes to insert be inserted; that is, amendment No. 1 [Darley-1].

There are two stages: one, I have to seek the committee's view on those words that the Hon. Mr Darley is not seeking to amend stand as printed, and then I have to seek the council's view on the words that the Hon. Mr Darley seeks to insert. If that is agreed to, I then put the question. I am reliably counselled, the Hon. Ms Franks, that if you do not seek to move your amendment then I do not put the earlier question that I indicated, which is that all the words down to and including 'may', etc., stand as printed; I just put the question that amendment No. 1 [Darley-1] stand as printed.

The Hon. T.A. FRANKS: I withdraw my amendment.

The Hon. R.I. LUCAS: It is the government's wish to see, ultimately, that whatever the will of this chamber prevails. We are not interested in using any devices to not see the will of the chamber prevail. From that viewpoint, if it requires a recommittal eventually then the government will not have a problem with the recommittal—if that helps the committee resolve the issue. We are interested in trying to get through this as expeditiously as possible. It seems to be quite torturous, but complicated, I accept that, as to where we are.

Some members have already indicated where they are on the various amendments and that probably assists the committee. The government has not and the Labor Party has not indicated what their positions are, but the government's position is that we are opposing all the amendments now that the Hon. Ms Franks is not moving her amendments. That means we are opposing the two amendments of the Hon. Mr Darley and the deletion of a clause by the Hon. Ms Bonaros.

That is the government's position. It may assist the committee and other members if members are prepared to indicate where they are going to be. The process may be a bit easier if we understand that roughly. A vote or two might need to be recorded to demonstrate where the numbers are, but at least beforehand we may know where we are in terms of how you put these votes.

The Hon. K.J. MAHER: I suspect this may provide some clarity and assistance in the way we proceed. The opposition's position is that we will support amendment No. 1 [Darley-1], we will not support amendment No. 1 [Darley-2], we will not support amendment No. 1 [Franks-2] and we will not support the Hon. Ms Bonaros' amendment opposing the clause in total. Of the four different propositions before us on this clause, the opposition will be supporting amendment No. 1[Darley-1].

The Hon. C. BONAROS: I am afraid to speak. If it assists, our position is that obviously we still oppose the clause, but we would support the amended clause and then oppose the clause in its entirety.

The Hon. R.I. LUCAS: That is useful, because both the government and the opposition have indicated that they are not supporting the Bonaros amendment. So the Franks amendments have been removed, the Bonaros amendment will eventually not get up. Essentially, it would appear we are left with a majority around the table—the Labor Party, SA-Best, the Hon. Mr Darley, and possibly the Greens as well—supporting amendment No. 1 [Darley-1], which would therefore get up.

Whatever might expeditiously get us there, the government will formally oppose that particular position but we will recognise the numbers in the chamber, if that is what it is. We can discuss amendment No. 1 [Darley-2] later. That would appear to resolve these issues as expeditiously as we can.

The CHAIR: I will indicate what I am about to do before I do it. Given that the Hon. Ms Franks does not wish to proceed with her amendment, the question is now quite simple. I put the question that amendment No. 1 [Darley-1] be agreed to, and I will then put the question that amendment No. 1 [Darley-2] be agreed to. My reading of what honourable members have indicated is that amendment No. 1 [Darley-1] will be successful and amendment No. 1 [Darley-2] will not. I put the question that amendment No. 1 [Darley-1] be agreed to.

Amendment carried.

The Hon. J.A. DARLEY: I move:

Amendment No 1 [Darley–2]—

Page 57, line 5 [clause 82(6)]—After 'this Act' insert:

, and those activities must not be of an instructive nature, but be for the purposes of providing information and knowledge about a culture or religion (or cultures and religions), whether specifically or generally

This amendment also relates to religious and cultural activities, and simply outlines that if a principal decides to set aside time for religious and cultural activities these activities must be instructive and educative in nature.

I want to make the purpose of this amendment very clear. I believe there is a place in our schools for children to be taught about different cultures and religions. Australia is a multicultural country and it is this diversity that enriches our nation; however, these differences can lead to hate and mistrust.

I believe these negative feelings are due largely to misunderstanding and lack of knowledge. If children are taught about cultures and religions that are different to theirs, I believe it will lead to tolerance and kindness in the community. This can only be a good thing. As I said before, I believe that there is a place in our schools for religious and cultural activities. However, I do not believe that schools should be a breeding ground for recruitment for certain causes.

DECD currently has a policy with regard to political matters. The policy outlines that there should be no advocating of any political party or view, that political issues should be driven by educational programming and that a balanced view must be presented to students. I believe this should be the same for religious and cultural matters. This is the basis for my amendment: that religious and cultural activities are to be educative and informative in nature and are not to be used to recruit students to a particular cause.

The Hon. R.I. LUCAS: As I indicated earlier on behalf of the government, we are opposing all the amendments. We will be opposing this one and, from the earlier run-around, I think Labor is opposing this one as well. Formally, I will quickly put on the record the reasons why the government opposes this amendment. The amendment seeks to ensure that religious or cultural activities conducted for students under clause 82 are not of an instructive nature but rather are for the purpose of providing information or knowledge about a culture or religion.

This is not supported by the government as it would be, in the government's view, unworkable in practice. It is likely that most religious or cultural activities will to some degree be instructive in nature, whether that is morally or ethically instructive or practically instructive with respect to some of the practices or traditions of a particular religion or culture. Requiring principals to discern whether an activity proposed merely imparts information and knowledge or would be instructive in nature is likely to be unreasonable in the circumstances and may make the provision of religious and cultural activities actually unworkable in practice. For those reasons, we are opposing this amendment and the other ones.

Amendment negatived; clause as amended passed.

Clause 83.

The Hon. C. BONAROS: I move:

Amendment No 3 [Bonaros–1]—

Page 57, line 15 [clause 83(1)]—After 'student' insert:

enrolled or attending at a Government or a non-Government school

I note that this requires a recommittal of clause 32, because they are related. There are two amendments: amendment No. 1 and amendment No. 3 of [Bonaros–1], both relating to the same issue, and there was agreement to recommit clause 32 in order to deal with both.

In my second reading contribution, I referred to South Australia as one of only two jurisdictions that still, on the face of their legislation, allow corporal punishment in non-government schools to remain at least on their statute books. The other is Queensland. Corporal punishment in public schools has been banned since 1991, and with good cause.

I think we all agree it is an archaic and brutal practice that has no place in our schools. I note to that extent that there is federal legislation dealing with this as well. It does not belong in any of our schools. I note the practice has been prohibited at the federal level, but that has created a bit of an inconsistency with our state legislation which appears to allow it in, again, non-government schools.

For that reason, it is still important, I think, to align South Australian statutes with other jurisdictions and ban corporal punishment in private schools, and indeed to align them with our federal legislation. The effect of these amendments will be to bring non-government schools into line with SA public schools and the majority of other states. As I understand it—I hope I am correct—the government and the opposition are supportive of these amendments.

The Hon. R.I. LUCAS: The honourable member is correct. The government, I am advised, does not oppose this amendment as it further clarifies that clause 83 is intended to prohibit the imposition of corporal punishment in both government and non-government schools. Clause 4 of the bill sets out which provisions of the bill are intended to apply only to government schools and outlines that all other provisions are to apply to non-government schools.

However, the government does not oppose the inclusion of the specific clarification with respect to clause 83, and I think I gave the undertaking when last we met that we would, if necessary, recommit whatever that earlier clause was to resolve the issue.

The Hon. K.J. MAHER: The opposition will go one further: not only do we not oppose it but we positively support the amendment.

The Hon. T.A. FRANKS: The Greens okay that support.

Amendment carried; clause as amended passed.

Clauses 84 to 105 passed.

Clause 106.

The Hon. K.J. MAHER: I move:

Amendment No 2 [Maher–1]—

Page 68, lines 30 to 34 [clause 106(2)(b)]—Delete paragraph (b) and substitute:

(b) a committee established by the Chief Executive and consisting of members appointed by the Chief Executive with the agreement of the Australian Education Union (SA Branch) (1 or more of whom must be a nominee of the Australian Education Union (SA Branch)).

In speaking briefly to this, we spoke at some length, I think, on clause 54 in relation to the school closure or mergers clause and how that committee is appointed. This is the other clause about a committee in terms of appointment to promotional level positions. I am keen to hear the government's explanation about how a teacher can be appointed and that the school may get a choice about whether or not it may be an AEU representative. However, I am not sure that that applies to this; I think it is just nominated, rather than the school actually having any say.

Our amendment seeks to restore the role of the AEU by having one of those being someone nominated by the AEU. I think the Hon. Tammy Franks has amendments that do a very similar thing. I can indicate that if our amendment fails we will be supporting the Hon. Tammy Franks' amendment so that there is clarity about what the opposition will be doing.

The Hon. T.A. FRANKS: I have some questions for the government regarding clause 106 and how it will operate. What provisions will be made to ensure that someone nominated to be on one of these committees is not related, has a vested interest or has a conflict of interest in those situations where we are talking about people's careers?

The CHAIR: The Hon. Ms Franks, did you move your amendment?

The Hon. T.A. FRANKS: For the sake of clarity, I move:

Amendment No 2 [Franks–3]—

Page 68, line 34 [clause 106(2)(b)]—After 'regulations' insert:

and 1 a nominee of the Australian Education Union (SA Branch)

Given that I am moving it I will speak to it. My amendment is again a compromise. It maintains and retains the AEU nominee in addition to the government's proposed changes to simply have a nominated staff member of some garden variety.

The Hon. R.I. LUCAS: The member might want to tease out some further questions. She has raised the issue about potential conflicts of interest, including relatives. I am advised that under the proposed arrangement, there is:

(b) a committee established by the Chief Executive and consisting of members appointed by the Chief Executive (at least 1 of whom must be an officer of the teaching service elected or nominated by other officers of the teaching service to represent them on such committees in accordance with the regulations).

One would imagine, in relation to the question the member has raised, that the regulations would have to make it clear that anyone with a conflict, however that may be defined, might not be able to be a member of the committee. They would have to declare that or potentially they would not be there. There is equally the potential under the current act, whereby the committee consists of 'members appointed by the Minister with the agreement of the Australian Education Union.'

There is nothing specific in the current act nor in the proposed bill that directly relates to how one caters for conflicts of interest. One would assume that regulations, other guidelines, etc., would cater to those particular circumstances. That is a reasonable question that would relate to both the current act and the proposed bill in relation to ensuring that the committee would not comprise someone with a clear conflict.

Under the current act, the government would hope that the AEU would not nominate someone who had a clear conflict. Under the proposed bill, one would hope that the chief executive would not knowingly nominate somebody who had a clear conflict. I suspect it is less likely, in most circumstances, that a minister is going to know whether a particular panel member of the Eastern Fleurieu R-12 School committee is related to a potential applicant. However, they are reasonable questions and they would be need to be approached in a reasonable way, in terms of ensuring there are no conflicts of interest.

The Hon. T.A. FRANKS: Where a member of one of these committees is nominated, what will be their length of service?

The Hon. R.I. LUCAS: If I understand the member's question, until the appointment is completed. If you have a promotional position at a school, that is, you need to appoint a deputy principal or head coordinator or something, you appoint a panel to appoint the position. As soon as you have done that, your job is finished. It is not an ongoing task; it is for promotional level positions.

I am further advised that, in relation to the managing of complex issues, our Public Sector Act and Education Act guidelines require anyone who serves on panels, etc., to declare conflicts before they sit on panels of selection, or anything like that. In the event that someone seeks to hide it, I guess you are hoping that someone else at the local school or in the community would be in a position to say, 'Hold on. You're living with a potential applicant,' or, 'you're best mates with a potential applicant,' or, 'you're the brother or the sister of a potential applicant,' and in that way common sense would dictate that in most circumstances that would be out. But there would be a requirement that a panel member would declare a conflict of interest, as occurs with most other panel arrangements in the public sector generally.

The Hon. T.A. FRANKS: How many panels per year are envisaged to be established?

The Hon. R.I. LUCAS: We do not know. It just depends on how many vacancies in promotional level positions there are. It is not something that the minister or the government can dictate. If, in any particular year, 100 principals decide to retire, then you will have to have 100 separate panels to elect 100 different principals. If, in a particular year, no-one retires, which is highly improbable, then you will not have to. So it is entirely determined by factors beyond the minister and the government's control.

The Hon. T.A. FRANKS: Will a budget be provided, for example, to support returning officers for election to these panels?

The Hon. R.I. LUCAS: No, I do not believe so. I think they are handled as a normal practice of the local school. I will take further advice on how they are managed, but my general recollection of how these issues operate is that you appoint a panel, they meet a few times to interview and consider applicants, and they make a judgement and recommend the selection of a successful candidate. If there is any centralised budget for this, I will take it on notice and provide it to you, but it would not be my expectation.

The Hon. K.J. MAHER: Can I check for clarity—and I may have missed it in the discussion that has just gone on—in clause 106(2)(b) where it refers to one person of the committee being an officer 'of the teaching service elected or nominated by other officers of the teaching service', what does 'the teaching service' mean? I think the Treasurer has given an indication that it means of that particular school. Is that the case? Is that what 'of the teaching service' means?

The Hon. R.I. LUCAS: My advice is that the intention of this and in practice the way it operates is from teachers within the school. My advisers have raised the issue that if you have a really small school in the country and you only have two or three staff, or whatever else it might happen to be, in those circumstances it might allow a situation where you would appoint or nominate a teacher from somewhere else, from within a partnership; that is, evidently in the way the education department is structured there is a group of schools within a partnership, but in practice and in intention it is the teachers at the school who would elect someone from there. I cannot imagine why teachers at a particular school would be electing someone from another school to pick their principal or deputy principal.

The Hon. K.J. MAHER: Then who is it that makes the decision about whether the words 'teaching service' mean teachers of that school or teachers of a combination of four schools or teachers at another school? Whose call is it as to what the words 'teaching service' mean in any particular circumstance?

The Hon. R.I. LUCAS: It would probably be covered in the regulations. I would imagine it would be either the chief executive of the department, or under delegated authority to one of the regional directors (whatever they are called) or the education directors at the next level down, or further down, in the department. I imagine that it would be canvassed in the regulations. The intention and the practice would be that, in most of the circumstances that you could ever contemplate, it would be the teachers at the local school selecting a teacher from their local school to be involved in the panel to select the promotional position. I highlight that it is for a promotional position. It is not just a principal, it could be a deputy or an associate principal or whatever other promotional positions there are in a school.

The Hon. T.A. FRANKS: Did the minister take advice before answering that the definition of 'teaching service' would probably be covered in the regulations, or did he in fact refer to the current bill before us, which does define 'teaching service'? What is this 'probably covered in the regulations' answer from the minister? Is that on the advice of his advisers there, or is it something he is just making up on the run?

The Hon. R.I. LUCAS: I can assure the honourable member, and I am sure she would agree with me, that I do not make things up on the run when I am answering questions. My advice is that, in accordance with the regulations, under the bill it states:

(at least 1 of whom must be an officer of the teaching service elected or nominated by other officers of the teaching service to represent them on such committees in accordance with the regulations).

So it was not actually talking about the definition of the teaching service. It was talking about the process of how you might go about selecting—the sorts of questions the Hon. Mr Maher was raising with us.

The Hon. T.A. FRANKS: What requirement is there that one of these members of the teaching service be from the school at all?

The Hon. R.I. LUCAS: That is what we have just canvassed for the last 10 minutes with the Hon. Mr Maher.

The Hon. T.A. FRANKS: My understanding is that there is no requirement that the members appointed from the teaching service be from the school at all. Can the minister clarify that there will be no requirement that a teacher from the teaching service of the school involved in these decisions—for all this talk of democracy and representation by those most affected by the decisions, regardless of whether or not they are a union member, are we actually talking about a situation where those teachers at those schools who are now being promised this promised land, the holy grail of not having to be a union member but still being able to be on one of these panels, may not have a shot at being on these panels at all? Is that the case?

The Hon. R.I. LUCAS: I can only repeat the answers I have given to the Hon. Mr Maher earlier; that is, the regulations ultimately will resolve these particular issues. However, in practice, the government's intention will be that, obviously, a teacher at the particular school we are talking about will be the one that will be selected to have a say in the promotional level position. There is no interest from the government in having a teacher from somewhere else in the state selecting a promotional level position for Ceduna Area School, or whatever it might happen to be.

In response to the question that the Hon. Mr Maher raised earlier which, on advice, as I said, would have to be potentially resolved by the regulations, if you had a very small school and you had a promotional level position and, for whatever reason—for example, someone just refused to serve on a selection panel and there was only one another staff member there—your regulations are going to have to cater for those circumstances.

In those circumstances, the advice I received was that you have a partnership of local schools. You might need to have the capacity in those exceptional circumstances to get a teacher from one of the nearby schools to assist with the process. For those of us who are well aware of regional communities and small rural schools, they are not all big city schools. There are some schools with one or two teaching staff in them who happen to teach six or seven class levels in the one classroom. Indeed, my wife was taught at one many years ago in the Mid North. There are these circumstances that are different to the normal circumstance that we cater for in big regional communities or in the city, and the department has to cater for all of these particular circumstances.

With great respect, I think people are looking for conspiracies where there are not conspiracies. The intention is to have a teacher from the local school, if this amendment were to get up, participate in selecting his or her promotional level person.

The Hon. C. BONAROS: Can I indicate for the record and in the spirit of compromise—something we in the centre are always attracted to—that we support the Franks amendment over the opposition's amendment in this instance.

The Hon. J.A. DARLEY: For the record, I indicate I will be opposing amendment No. 2 [Maher-1] and opposing amendment No. 2 [Franks-3].

The Hon. R.I. LUCAS: Given I was answering questions, I am not sure whether I actually formally put the government's position. I think it is clear from my responses that we are opposing both amendments—the amendment moved by the Hon. Mr Maher and the amendment moved by the Hon. Ms Franks.

The Hon. R.I. LUCAS: We have amendment No. 2 [Franks-3]. The first question I will put is that all the words in paragraph (b) down to and including 'regulations' in line 34 stand as printed. If you are supporting the Hon. Ms Franks' amendment, or no change, you say yes to that. If you support the Leader of the Opposition's amendment, you vote no.

The Hon. T.A. FRANKS: I think the Leader of the Opposition and I might have the same concerns. The Greens are certainly keen to support the opposition's amendment, but if in terms of process we are unable to have the option to first support the opposition's amendment and then put the Greens' amendment—we ask for clarification on whether or not that will be possible.

The Hon. R.I. LUCAS: To assist the committee, I think from what members have said the Hon. Mr Maher's amendment will fall just short of a majority in this chamber and therefore will not get up. That will then mean that those who then want to support the Hon. Ms Franks' amendment will support the Hon. Ms Franks' amendment and there may well be a majority for that, as there was on the earlier vote.

The Hon. K.J. MAHER: Before the Leader of the Government stole my thunder, I was going to raise that I will now formally withdraw my amendment and indicate support for the Franks amendment.

The CHAIR: That makes the question easier. I put the question that amendment No. 2 [Franks-3] be agreed to.

The committee divided on the amendment:

Ayes 11

Noes 8

Majority 3

AYES
Bonaros, C. Bourke, E.S. Franks, T.A. (teller)
Hanson, J.E. Hunter, I.K. Maher, K.J.
Ngo, T.T. Pangallo, F. Parnell, M.C.
Scriven, C.M. Wortley, R.P.
NOES
Darley, J.A. Dawkins, J.S.L. Hood, D.G.E.
Lee, J.S. Lucas, R.I. (teller) Ridgway, D.W.
Stephens, T.J. Wade, S.G.
PAIRS
Pnevmatikos, I. Lensink, J.M.A.

Amendment thus carried; clause as amended passed.

Clauses 107 to 123 passed.

New clauses 123A to 123M.

The Hon. T.A. FRANKS: I move:

Amendment No 3 [Franks–1]—

Page 79, after line 17—Insert:

Part 10A—Education Ombudsman

Division 1—Preliminary

123A—Interpretation

In this Part—

education service means a service consisting of the provision of—

(a) preschool education; or

(b) primary or secondary education;

education service provider means a person who provides an education service.

Division 2—Appointment and conditions of office

123B—Education Ombudsman

(1) There is to be an Education Ombudsman.

(2) The Education Ombudsman is appointed on conditions determined by the Governor and for a term, not exceeding 5 years, specified in the instrument of appointment.

(3) The Governor may remove the Education Ombudsman from office on the presentation of an address from both Houses of Parliament seeking the Education Ombudsman's removal.

(4) The Governor may suspend the Education Ombudsman from office on the ground of incompetence or misbehaviour and, in that event—

(a) a full statement of the reason for the suspension must be laid before both Houses of Parliament within 3 sitting days of the suspension; and

(b) if, at the expiration of 1 month from the date on which the statement was laid before Parliament, an address from both Houses of Parliament seeking the Education Ombudsman's removal has not been presented to the Governor, the Education Ombudsman must be restored to office.

(5) The office of Education Ombudsman becomes vacant if the Education Ombudsman—

(a) dies; or

(b) resigns by written notice given to the Minister; or

(c) completes a term of office and is not reappointed; or

(d) is removed from office by the Governor under subsection (3); or

(e) becomes bankrupt or applies as a debtor to take the benefit of the laws relating to bankruptcy; or

(f) is convicted of an indictable offence or sentenced to imprisonment for an offence; or

(g) becomes a prohibited person under the Child Safety (Prohibited Persons) Act 2016; or

(h) becomes a member of the Parliament of this State or any other State of the Commonwealth or of the Commonwealth or becomes a member of a Legislative Assembly of a Territory of the Commonwealth; or

(i) becomes, in the opinion of the Governor, mentally or physically incapable of carrying out satisfactorily the duties of office.

(6) Except as is provided by this section, the Education Ombudsman may not be removed or suspended from office, nor will the office of the Education Ombudsman become vacant.

123C—Remuneration

The Education Ombudsman is entitled to remuneration, allowances and expenses determined by the Governor.

123D—Acting Education Ombudsman

(1) If for any reason—

(a) the Education Ombudsman is temporarily unable to perform official duties; or

(b) the office of the Education Ombudsman is temporarily vacant,

the Governor may, by notice published in the Gazette, appoint a person to act in the office of the Education Ombudsman and a person so appointed has, while so acting, all the powers, functions and duties of the Education Ombudsman.

(2) A person who is a Public Service employee may be appointed under this section to act in the office of the Education Ombudsman while remaining a Public Service employee for a term not exceeding 3 months and may, on the expiration of that term, be reappointed (provided that the terms of appointment do not exceed 6 months in aggregate in any period of 12 months).

(3) Subject to this Act, the terms and conditions of appointment and employment (including the salary and allowances) of the person appointed under subsection (1) will be as determined, from time to time, by the Governor.

123E—Staff

(1) The Education Ombudsman's staff consists of—

(a) Public Service employees assigned to work in the office of the Education Ombudsman; and

(b) any person appointed under subsection (3).

(2) The Minister may, by notice in the Gazette—

(a) exclude Public Service employees who are members of the Education Ombudsman's staff from specified provisions of the Public Sector Act 2009; and

(b) if the Minister thinks that certain provisions should apply to such employees instead of those excluded under paragraph (a)—determine that those provisions will apply,

and such a notice will have effect according to its terms.

(3) The Education Ombudsman may, with the consent of the Minister, appoint staff for the purposes of this Part.

(4) The terms and conditions of employment of a person appointed under subsection (3) will be determined by the Governor and such a person will not be a Public Service employee.

(5) The Education Ombudsman may, by agreement with the Minister responsible for an administrative unit of the Public Service, make use of the services of the staff, equipment or facilities of that administrative unit.

123F—Delegation

(1) Subject to this Act, the Education Ombudsman may delegate a function or power under this Act (other than a prescribed function or power) to a specified body or person (including a person for the time being holding or acting in a specified office or position).

(2) A delegation under this section—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the ability of the Education Ombudsman (as the case requires) to act in any matter; and

(d) is revocable at will.

(3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated.

123G—Independence

In performing and exercising functions and powers under this Act, the Education Ombudsman must act independently, impartially and in the public interest, and is not subject to the direction or control of the Minister or the Chief Executive.

Division 3—Investigations

123H—Matters subject to investigation

(1) Subject to this Act, the Education Ombudsman may investigate—

(a) any matter relating to the provision of education services by an education service provider; and

(b) any matter relating to school discipline,

whether the matter occurred, or relates to conduct occurring, before or after the commencement of this section.

(2) The Education Ombudsman—

(a) may make such an investigation—

(i) on receipt of a complaint; or

(ii) on the Education Ombudsman's own initiative; and

(b) must make such an investigation—

(i) on the referral of a matter by the Minister; or

(ii) on the referral of a matter by either House of Parliament, or any committee of either of those Houses, or a joint committee of both Houses of Parliament.

(3) The Education Ombudsman must not investigate a matter on a complaint unless satisfied that the procedures for resolving complaints or disputes, if any, of the relevant education service provider have been used appropriately but without resolution of the complaint.

(4) If an education service provider is a member of a representative organisation the Education Ombudsman must, before commencing an investigation under subsection (2)(a), attempt to resolve the matter in consultation with that representative organisation.

(5) The Education Ombudsman—

(a) may not decline to investigate a matter solely on the ground that the complainant is an employee or agent of the relevant education service provider or that the matter relates to the internal management of the relevant education services provider; but

(b) must decline to investigate a complaint if it relates only to a person's terms and conditions of employment.

123I—Conduct of investigation

(1) An investigation may be conducted in such manner as the Education Ombudsman considers appropriate.

(2) The Education Ombudsman may, at any time, require a complainant—

(a) to provide further information or documents; or

(b) to verify all or any part of the complaint by statutory declaration.

(3) The Education Ombudsman may, at any time, decide to attempt to deal with a complaint by conciliation.

(4) The Education Ombudsman may, if satisfied that the subject of a complaint has been properly resolved by conciliation under subsection (3), determine that the complaint should not be further investigated under this Part.

(5) The regulations may make further provision in relation to the conduct of investigations by the Education Ombudsman, including (without limiting the generality of this subsection)—

(a) prescribing circumstances in which the Education Ombudsman may determine not to conduct an investigation following receipt of a complaint; and

(b) making provision with respect to the procedures to be followed on investigations.

123J—Education Ombudsman to have powers of a Royal Commission

For the purposes of an investigation, the Education Ombudsman has the powers of a commission as defined in the Royal Commissions Act 1917 and that Act applies as if—

(a) the Education Ombudsman were a commission as so defined; and

(b) the subject matter of the investigation were set out in a commission of inquiry issued by the Governor under that Act.

Division 4—Reports and directions

123K—Reports

(1) The Education Ombudsman—

(a) may prepare a report of the Education Ombudsman's findings and conclusions at any time during an investigation; and

(b) must prepare such a report at the conclusion of an investigation.

(2) The Education Ombudsman may provide copies of a report to such persons as the Education Ombudsman thinks fit, and must, in the case of a matter referred to the Education Ombudsman under section 123H(2)(b)(ii), provide a report to the House or Committee that referred the matter.

(3) A report may contain information, comments, opinions and recommendations for action.

(4) No action lies against the Education Ombudsman in respect of the contents of a report under this section.

(5) The regulations may make further provisions in relation to reports under this section.

123L—Education Ombudsman may direct Minister in relation to school discipline policy

(1) The Education Ombudsman may, by notice in writing, issue a direction to the Minister in relation to school discipline policy.

(2) If, following receipt of a notice under this section, the Minister is of the opinion that, in the circumstances, failure to comply with the terms of the notice would be reasonable and justifiable, the Minister may determine not to comply with the notice (in which case the Minister must advise the Education Ombudsman of that determination, in writing, as soon as practicable).

(3) If the Minister fails to comply with the terms of a notice received under this section the following provisions apply:

(a) the Minister must, at the request of the Education Ombudsman, report to the Education Ombudsman within the time allowed in the request on the reasons for the failure to comply with the notice;

(b) if, following receipt of the Minister's report, the Education Ombudsman is of the opinion that the failure to comply with the notice was unjustified or unreasonable, the Education Ombudsman may make a report on the matter to the Premier;

(c) the Education Ombudsman may forward copies of any report to the Premier to the Speaker of the House of Assembly and the President of the Legislative Council with a request that they be laid before their respective Houses.

(4) A power or function of the Education Ombudsman under this section must not be delegated.

Division 5—Miscellaneous

123M—Annual report

(1) The Education Ombudsman must, on or before 31 October in each year, report to the Minister on the operation of the Education Ombudsman during the preceding financial year.

(2) A report under this section must include the information required by the regulations.

(3) The Minister must, within 12 sitting days after receiving a report under this section, have copies of the report laid before both Houses of Parliament.

I see this as consequential; it inserts the details for an education ombudsman at part 10A. I note that many weeks ago now we voted on what was treated as the substantive clause, even though that was a more administrative one. The impact of an education ombudsman would be most important, and my speech will not do it justice today because the time is short and I think we should get on with the debate.

The Hon. R.I. LUCAS: The government position was that we opposed this package of amendments, but we lost the earlier vote and we accept the will of the parliament in relation to the committee. We do not propose to divide, but we are still opposed.

The Hon. C. BONAROS: For the record, I indicate our support for the amendment.

New clauses inserted.

Clauses 124 to 140 passed.

Clause 141.

The Hon. T.A. FRANKS: I move:

Amendment No 4 [Franks–1]—

Page 91, after line 10 [clause 141(2)]—Insert:

(ta) any matter relating to the functions and powers of the Education Ombudsman;

I note that this is consequential with regard to the education ombudsman.

Amendment carried; clause as amended passed.

Schedule 1 passed.

Clause 32—reconsidered.

The Hon. C. BONAROS: I move:

Amendment No 1 [Bonaros–1]—

Page 29, line 12 [clause 32(1)]—Delete 'Government'

The Hon. R.I. LUCAS: Consequential on the earlier debate, there was support in the chamber for it.

Amendment carried; clause as amended passed.

Title passed.

Bill reported with amendment.

Third Reading

The Hon. R.I. LUCAS (Treasurer) (18:09): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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