EDUCATION AMENDMENT (NON-GOVERNMENT SCHOOLS) BILL 2009 Explanatory Statement

Northern Territory Explanatory Statements

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EDUCATION AMENDMENT (NON-GOVERNMENT SCHOOLS) BILL 2009

2009

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR EDUCATION AND TRAINING

EDUCATION AMENDMENT (NON-GOVERNMENT SCHOOLS) BILL 2009
SERIAL NO. 61

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill seeks to amend the Education Act to provide for the repeal and replacement of Part 3 of the Act relating to advisory councils and Part 7 of the Act relating to non-government schools. It also includes various consequential and transitional provisions.

The amendments abolish the Education Advisory Council (EAC) and replace the existing provisions in the Act relating to advisory councils with new provisions for advisory councils. The Northern Territory Board of Studies (NTBOS) now plays an increasing role in providing advice to government on education issues, while the Non-government School Ministerial Advisory Council (NGSMAC) commenced operation in March 2004 to provide advice on non-government school matters and the Northern Territory Indigenous Education Council advises government on Indigenous education matters.

There have been no amendments to Part 7 of the Education Act (the Act) since the late 1980s, and the non-government school (NGS) sector in the Northern Territory has grown significantly over that time. In recent years other jurisdictions have reviewed their legislative requirements for non-government schools and made amendments to strengthen the registration and operational requirements for such schools.

The objective of the proposed changes is to better align the operations of government and non-government schools, of schools within the NGS sector, and to bring the NGS sector in the Territory up to date so that it is consistent with best practice in other jurisdictions.

NOTES ON CLAUSES

Clause 1. Short Title

This is a formal clause which provides for the citation of the proposed legislation. The Bill when passed may be cited as the Education (Non-Government Schools) Amendment Act 2009.

Clause 2. Commencement

This clause explains that the Act will come into effect on 1 January 2010. This Bill adopts the terminology contained in proposed amendments in the Education Amendment (Youth Participation) Bill 2009, so it is necessary for this to commence immediately after the Education Amendment (Youth Participation) Bill 2009 on 1 January 2010.

Clause 3. Act amended

The Bill seeks to amend the Education Act.

Clause 4. Amendment of long title

This is a minor amendment of the kind normally dealt with in statute law revision legislation.

Clause 5. Amendment of section 4 (Definitions)

This is a minor amendment of the kind normally dealt with in statute law revision legislation.

Clause 6. Repeal and substitution of Part 3

This clause seeks to repeal and replace Part 3. Part 3 provides for the establishment and administration of advisory councils. Clause 5 proposes the repeal of the current provisions of the Act relating to an Education Advisory Council and other advisory councils. They are replaced with a new Part 3 establishing the Minister’s authority to form advisory councils as necessary, to provide administrative assistance to such councils, and to allow councils to determine their procedures.

Clause 7. Amendment of section 21 (Compulsory education)

This is a minor amendment of the kind normally dealt with in statute law revision legislation.

Clause 8. Amendment of section 42 (Functions of colleges)

This is a minor amendment of the kind normally dealt with in statute law revision legislation to modernise the language used in the legislation.

Clause 9. Repeal and substitution of Part 7 of the Act

This clause proposes the repeal and replacement of part 7 of the Act. Part 7 as it stands sets out the provisions governing the registration and ongoing administration of non-government schools in the Northern Territory. The new part 7 enhances the factors an applicant must address in an application and the requirements to be complied with thereafter for the operation of non-government schools. It provides stronger registration and operational requirements and better aligns the government and non-government school sectors. It also addresses a number of minor consequential issues.

The proposed part 7 contains more robust requirements relating to student health, safety and wellbeing; critical incident management; alignment with government policies; and brings the legislation into line with best practice standards for dealing with issues such as discipline, complaints and resolution of disputes.

In respect of governance matters, the proposed new provisions set out the requirements for governance and school performance management, reporting standards, requirements for governing bodies, school self improvement and staffing qualification.

The new provisions establish basic principles with which non-government schools must comply with in order to establish and maintain registration. The philosophy and objects of the governing body of a non-government school and the school's educational programs must be consistent with the basic principles described in the new section 61B.

In the new part 7, there are 11 new divisions as follows:
1) Preliminary Matters
2) Requirement for Registration
3) Application for Registration
4) Registration Assessment Panel
5) Chief Executive Office’s power in relation to application
6) Financial Assistance and other support
7) Operation of non-Government schools
8) Assessment and Investigation
9) Variation, suspension or cancellation of registration
10) Review
11) Other Matters

Division 1 - Preliminary Matters

The proposed new Division 1 establishes definitions for the interpretation of Part 7 of the Act, sets out the registration requirements and establishes the basic principles under which a non-government school will operate.

The proposed section 61 contains the various definitions specific to this Part.

Section 61A is a very important section, as it sets out the registration requirements for a non-government school. These provisions are notably different from those in the current Act, where eight criteria for consideration in an application for registration are listed and provide merely for the basic form of an application, as set out in the current section 63.

The Bill proposes that they be replaced with new section 61A.

Proposed sections 61A (a), (b) and (c)
The governing body must be body corporate and cannot be a natural person. The school must be administered by a body corporate comprised of directors who are of good character and are appropriately skilled for the proper administration of the school. The philosophy and objects of the body corporate must be consistent with the basic principles contained in the proposed section 61B, and the methods of governance must be appropriate for the educational programs, year levels and size of the school.

Under the current Act, information in relation to governance is only sought regarding the name and address of the institution, the method of management, and the name and designation of a person for the services of notices under the Act. (Sections 63 (1) (a), (b), and (h)).

Proposed sections 61A (d), (e)
The school’s facilities must be adequate for the purposes of the educational programs provided at the school and for ancillary activities. In addressing the buildings and facilities to be provided, the school must comply with relevant building standards, safety, land-use and other standards and legislation relevant to the school and its buildings. The school is also required to carry adequate insurance for its facilities and any liabilities that might arise.
Under the current Act, the governing body is only required to provide information regarding the building and facilities to be used. (Section 63 (1) (f)).

Proposed sections 61A (f), (g), (h), (i), (j) and (k)
S61A (f) and (g) would require new and existing NGS to have adequate finance and other resources for their operation and business planning in place in order to qualify for and maintain registration. They will be required to keep financial and other records and report to the community and Chief Executive Officer (CEO). As a result, under the Act as amended by the Bill there would be enhanced capacity to ensure the ongoing viability of a school.

Currently a school is only asked to give its financial position at the time of application for registration, and proposed means to finance the continued operation of the school. (Section 63 (1) (g)).

Proposed section 61A (h) and (i) will require all NGS to have appropriate staffing levels, with staff appropriately qualified and of good character. S61A (j) requires the school’s curriculum and methods of assessment to meet NT Board of Studies requirements. Under the current Act, the school is only asked to provide information on the qualifications of teachers, and the curriculum offered. (Section 63 (1) (c) and (d)).

Section 61A (k) is a new provision, establishing procedures for financial management, performance management and accountability, including strategic planning, assessment and reporting of the school’s performance to the community and the Chief Executive Officer. Under these new proposals, for the first time, the public will have the opportunity to give input into the registration process.

Proposed sections 61A (l), (m), (n), (o) and (p)
S61A (l), (m), (n), (o) and (p) are all new provisions that will require NGS to comply with NT government requirements in relation to age of school entry, discipline, meeting the needs of students with a disability and meeting health, safety and wellbeing requirements for staff and students. Proposed section 61A (p) (ii) of the Bill proposes procedures to obtain a criminal history report for each member of staff. This will also be supported by the new measures for child protection under the Care and Protection of Children Act. Schools will also be obliged to adopt appropriate procedures for resolution of complaints and disputes, and for contingency plans to meet emergencies.

Proposed section 61A (q)
A new provision, as part of the monitoring of schools and to complement external assessments, Section 61A (q) requires the school to conduct an annual self-audit.

Proposed section 61A (r)
Proposed section 61A (r) establishes the power to make regulations. It will provide the capacity to prescribe other matters as requirements for registration in regulations made under the Act.

Proposed section 61B Consistency with basic principles
This proposed section is a new and important development for NGS. In line with other jurisdictions which have recently updated their legislation, the NT will require NGS and their educational programs to reflect specified Australian values. These basic principles will include adherence to principles of democratic government; equality of all people before the law; freedom of religion, speech and association, and tolerance. NGS who do not abide by these basic principles will not be eligible for registration.

Including such a requirement would give the CEO the power to not register (or to deregister) schools where there is concern about the school’s failure to maintain these principles.

Division 2 - Requirement for Registration

Division 2 contains requirements for registration. The proposed sections 62, 62A and 62B set out the consequences of a non-government school operating without registration.

The proposed section 62 states that a non-Government school must be registered in order to operate. In order to operate and maintain registration, its governing body must ensure compliance with the registration requirements and conditions of registration. This section is added to resolve any ambiguity in the current Act.

The proposed section 62A creates offences and penalties for the governing body and head teacher of a school operating without registration. In the case of a governing body the penalties are severe. The purpose of this is to discourage the unregistered operation of a school, and thus to protect the quality of education provision.

The head teacher is also guilty of an offence if the head teacher knows the school is unregistered. In drafting the legislation no penalty was envisaged for a teacher in such a school because it is considered that a teacher may not have been in a position to determine whether the school was registered or not. The penalty is a one off amount and not per day.

The proposed section 62B makes it an offence for a person to knowingly represent that an unregistered non-government school is registered. This provision is intended to protect the public interest by discouraging fraudulent representations in relation to the registration status of a non-government school.

Division 3 - Application for Registration

Division 3 sets out requirements in relation to an application to register an NGS. The matters to be addressed and the information required under these new provisions is much more extensive than the information previously required of applicants for NGS registration in order to make a comprehensive decision about the commencement and likely ongoing successful operation of the school.

In order to assist an intending applicant for registration of a new non-government school, the Bill contains a provision whereby to assess the likely outcome of their application for registration, they may ask the CEO to conduct a preliminary assessment. The proposed section 63 represents a new optional stage in the application process and is designed to improve the quality of applications.

An application for registration, under proposed section 63A, must be submitted to the Chief Executive Officer at least one year before the school is to commence providing educational programs. This is thought a reasonable time period, and consistent with processes in other jurisdictions, in order to allow a considered assessment of the full implications of the application, and to give the proponent of the application time to commence establishing the school once registration has been granted. However the Chief Executive Officer can reduce this time period.

The proposed section 63B sets out the matters to be addressed in the application for registration. While these essentially mirror the proposed section 61A registration requirements, applicants must set out how the school proposes to satisfy the registration requirements and demonstrate how the applicant proposes to ensure ongoing compliance with the registration requirements.

Once an application under section 63B has been fully completed in the correct form the Chief Executive Officer must give the applicant written notice of its receipt under section 63C. The purpose of this provision is to commence the time period for the assessment, so that a decision can be made in a timely manner. This gives assurance to the applicant that the matter will be considered without undue delay. Under proposed section 63D the Chief Executive Officer may ask for additional information as necessary. If an applicant fails to provide such extra information within a specified period, the application lapses.

Division 4 - Registration Assessment Panel

Division 4 contains four new sections providing for the establishment of a Registration Assessment Panel (the Panel).

The proposed section 64 establishes the composition of the Panel. The Panel will consist of representatives of one or more agencies, and also representatives of the Non-government School sector as decided by the Minister.

The proposed section 64A sets out the functions of the Panel.

The proposed section 64B requires the Panel to advertise its consideration of an application for registration and to invite written submissions from the public. The purpose of this provision is to make the public aware of all applications for registration in order that interested parties may make submissions should they wish to do so.

The proposed section 64C establishes the matters the Panel must consider in its deliberations. The Panel must consider the applicant’s ability to comply with the registration requirements and NT law. The Panel members must also consider the effects of the proposal on the existing schools in the catchment area, community support and criticism of the proposal, available government infrastructure and resources and other matters that are prescribed in regulations.

In assessing the likely impact of the proposed school on existing schools in the catchment area, the Panel may have regard to:
� changes to their enrolments;
� adverse changes to their curriculum offerings; and
� their future viability.

A significant negative educational impact may mean any one or more of the following:

Ÿ the likely closure of a school, or identifiable section of it that would otherwise be unlikely to close; or
Ÿ the likely loss by a school of staff or other resources sufficient to leave that school, or clearly identifiable section of it, unable to offer a curriculum that meets curriculum requirements; or
Ÿ the likely loss to a school of at least twenty percent of its existing enrolments in the year levels that coincide with the proposed school development.

Essentially the assessment is whether the education sector can sustain in the long run all of the education providers in that area. The aim is to ensure that there is a satisfactory balance between choice and diversity, the public interest, and ‘market forces’ in the education sector.

Considerable public funding is allocated to support non-government schools. The intent in considering the effects of proposals to develop new NGS on the existing schools in the catchment area is to ensure that the most efficient possible use is made of these resources, by reducing the risk of duplication and overcapacity. Consideration in the assessment process also serves to verify the likely ongoing financial viability of a new entrant into the non-government school sector.

Division 5 - Chief Executive Officer’s power in relation to application

Division 5 contains three sections and sets out the timeframe for consideration of an application for registration.

The proposed section 65 allows a nine month period for the CEO to approve or refuse an application. The CEO must have regard to the Panel’s recommendations and matters set out in the proposed section 64C. The CEO must give the applicant the reasons for his decision in writing. If the CEO decides that the school should be registered the CEO must issue a certificate of registration for the school.

The CEO must also set out the conditions he imposes on the registration specifying educational programs the school may provide, the year levels of the students the school may enrol and other matters as decided by the CEO.

Under the new section 65B the registration would lapse if the school has not commenced operation within two years from the date of its registration.

Division 6 - Financial assistance and other support

Division 6 contains only one proposed section, section 66 which establishes that government financial assistance may be provided to or withdrawn from a registered non-Government school. The scope also exists for the provision of support in other forms, such as the use of government owned assets or facilities. This provision is intended to make best possible use of government resources by allowing non-Government schools to use government facilities or to receive in-kind support from time to time.

The proposed section 66 (3) specifies that government financial assistance will not be provided to a non-government school that is operated for profit. The intention of this provision is to remove the opportunity for government funding to be used for non-educational purposes, such as by distributing any profits or surpluses to shareholders or owners of NGS.

As defined in the proposed Section 63B (3), a non-Government school is deemed to be not operated for profit only if profits made from the operation of the school are used entirely to advance the school's philosophy and objects as stated by its governing body for the purposes of this Act. There are currently no schools that are operating for-profit in the Territory.

Division 7 - Operation of registered non-Government schools

This Division sets out the mechanisms for ensuring that schools registered under the legislation comply with the registration requirements and the conditions of registration.

The proposed section 67 requires non-government schools to comply with the registration requirements and conditions of registration.

The proposed section 67A requires a school to maintain student records and to provide reports on students at specified times in regard to attendance and educational performance.

The proposed section 67B sets out requirements for keeping proper financial records, issuing annual financial statements prepared in accordance with Australian Accounting Standards and providing them to the CEO. It also prescribes penalties for a failure to comply with those requirements.

The proposed section 67C sets out the requirements for the format and content of the annual report that each registered NGS must make to the CEO each calendar year. There are penalties for a failure to comply with these requirements as well.

The new section 67D contains provisions for self audit. The schools themselves will engage in a system of annual self audit approved by the CEO to monitor their conditions of registration and to assess the success of the school’s educational programs. Schools may seek to have approved for their use existing tools such as the systemic Catholic School Improvement Renewal Framework, or choose to use the DET Accountability and Performance Improvement Framework.

The results of the annual self-audit must be given to the CEO at his request. This provision for self-audit is designed to assist schools to monitor their school performance improvement, and to complement the external routine assessment that is proposed to be conducted on a five-yearly basis.

Division 8 - Assessment and Investigation

Under the new provisions, powers to conduct routine assessments or special investigations are established. Inspection powers are broadened to provide for both periodic inspections and reviews of non-Government schools and also for investigations of non-compliance with a school’s registration requirements or conditions.

The proposed section 68 establishes the CEO’s power to appoint assessors. He may limit the assessor’s authority to routine assessments or special investigations or a particular aspect. The CEO may appoint an employer, officer or staff member of a system school to act as an assessor for system schools.

Under the proposed subsection 68 (4), the Minister may establish and maintain a panel of nominees for appointment, invite nominations to the panel from NGS to provide a fair representation of the non-government school sector, and direct the CEO to choose appointees, or a specified proportion of appointments, from that panel.

Under the proposed section 68A, the CEO must ensure that a program of routine assessment takes place so that each non-Government school undergoes an assessment at least once every five years. The aim of the routine assessment is to ensure that non-Government schools comply with their registration requirements and conditions. If the CEO suspects that a non-Government school is not complying with its registration requirements, under subsection (3) he may authorise a special investigation and under subsection (4) he must direct one or more assessors to carry out a routine assessment or special investigation.

These routine assessments are aimed to be complemented by the school’s own system of annual self-audit, as provided for in the proposed section 67D, and to ensure the school has an ongoing approach to monitoring the success of its educational programs.

Powers of assessors are set out in the proposed the proposed section 68B. They require an assessor to give notice that he intends to enter the school at least five business days before doing so in order to carry out a routine assessment. However if the assessor needs to carry out a special investigation and the specific circumstances warrant, he may do so without giving notice if he thinks it might jeopardise the investigation. This is to ensure action may be taken without delay. Staff members of non-Government school must provide information and produce relevant documents to an assessor for a routine assessment or special investigation. A person who fails to do so is subject to a penalty equivalent to 20 penalty units.

The proposed section 68C requires an assessor who has completed a routine assessment or special investigation to prepare a report and give a copy of the report in draft form to the governing body of the school and to allow the school the opportunity to respond within a specified time. The assessor must then prepare a final report taking into account comments made by the school in response. The final report must then be given to the CEO. In the case of a routine assessment, the report must be lodged within a month after completion of the assessment. In the case of a special investigation, the report must be provided to the CEO within seven days of completion of the investigation, unless the CEO allows for a longer period.

The new section 68D establishes the format for an identity card to be carried by an assessor. A person is not obliged to comply with any directions of the assessor until he produces his identity card.

Division 9 - Variation, suspension or cancellation of registration

The proposed Division 9 contains three sections setting out the means and reasons by which registration of a NGS may be varied, suspended or cancelled.

Under the proposed section 68E a school’s registration may be varied, suspended or cancelled by agreement with the governing body.

Under the proposed new section 68F the governing body of a non-Government school may apply in writing to the CEO for a variation. Under subsection (4) the application must be submitted to the CEO at least twelve months before the variation is to take effect. The application needs only to address the matters in 63B to the extent the matters are affected by the variation.

The CEO may refer the application to the Registration Assessment Panel if he thinks the application warrants such treatment, such as where a more complex variation of registration is being sought. The Panel would assess the variation request in the same way as it assesses the application for registration of a new school, however only on those matters which are affected by the variation.

The CEO approves the variation by varying the registration or may refuse the application. He may vary the certificate of registration as he thinks appropriate and may also impose conditions on the variation. If the variation does not take effect within two years after the date of approval, the approval is no longer valid.

Under the proposed section 68G the CEO may vary, suspend or cancel the registration of a non-Government school if the CEO is satisfied that a breach of requirements or conditions of registration has occurred. Before taking any such action, under subsection (2) the CEO must notify the governing body of the school and allow them a reasonable time in which to respond.

Division 10 - Review

Under the existing Act, and as under these proposals, decisions of the CEO may be reviewed by the Minister.

It is proposed that there are three decisions of the CEO that are reviewable.

Under the proposed section 68H the CEO’s decision to refuse an application for registration, refuse an application for variation of registration or decision to vary, suspend or cancel registration may be reviewed.

Applicants may apply to the Minister to review any of those decisions and people who qualify to apply are specified in subsection (2).

An application must be made within 28 days from the date of the decision, setting out grounds for the application under the proposed subsection (3). Under subsection (4) the Minister may require that additional information be provided within a specified time. Under subsection (5) the application will lapse if the information is not provided within that timeframe.

Under the proposed section 68J (1), the Minister must allow both the applicant and the CEO opportunity to respond in writing to the review. Under section 68J (2) the Minister must consider those responses and may take into account anything he considers appropriate.

After reviewing the application the Minister must confirm, vary or revoke the decision. During the course of his consideration the Minister may amend a reviewable decision insofar as he needs to in order to effectively decide the application. Under subsection (6) the Minister must give written notice of his decision and his reasons to the applicant.

Division 11 - Other Matters

Division 11 contains four proposed sections ancillary to the earlier divisions.

The proposed section 68K requires the CEO to maintain a register of non-Government schools which is available to be viewed by the public on the website of the Department of Education and Training. The register must display information required under the Regulations, including the name and address of the school, the date it was established, its religious or other affiliation, the year levels of its students and any conditions imposed on its registration.

The CEO may give copies of entries from the register for a reasonable fee.

Under the proposed section 68L a person performing duties relating to registration of a non-Government school may not disclose confidential information except in the course of his duties. There is a substantial penalty for any breach of these provisions.

A non-Government school, under the proposed section 68M, must display its certificate of registration prominently on the school premises and it is an offence not to do so. The certificate of registration must be clearly visible to members of the public, for example, it may be displayed in the main office foyer.

Under the proposed section 68N an applicant for registration or variation of registration must not mislead anyone about the application and there is a penalty for a breach of the provision. Subsection (2) sets out what constitutes misleading information.

Clause 10. New Part 12

Clause 9 of the Bill proposes that a new Part 12 be inserted in the Act to provide for transitional matters.

The new Part 12 contains three proposed new sections, 77, 78 and 79.

Part 12 - Transitional matters for Education (Non-Government Schools) Amendment Act 2009

The Bill proposes the insertion into the Act of a new section 77 containing a definition of amending Act. The new definition relates only to Part 12. It is used to define those words when they appear in the following new sections 78 and 79 concerning the continuation of the registration of existing non-government schools.

Under the new section 78, those schools already operating at the time of the commencement of the new legislation will be taken as registered under Part 7 from the day of commencement of the Act. Conditions applying to schools will also continue to have effect.

The proposed new section 79 ensures that the program of routine assessment of non-government schools as established in the amended Act can begin and proceed in an orderly manner. It will mean that each non-government school will undergo a routine assessment within the first five years of the commencement of the legislation.

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