Education Amendment Bill

Hon ANNE TOLLEY (Minister of Education) Link to this

When this bill was last debated I was outlining the position of King’s High School, Dunedin and the building of its performing arts centre, which the Hon Trevor Mallard’s Supplementary Order Paper 99 addresses. I was pointing out that the school built a performing arts centre that was 60 percent larger than was required for a school of its size. It had paid a rate that was 168 percent higher than the industry benchmark rate for this type of facility. It paid almost $4.5 million for the centre, compared with the ministry’s current valuation of $1.2 million. The situation the school is in now, of course, is that it took out a loan to complete the building of the centre. I am advised that the financial position of the school is healthy and that it is not in any trouble. I understand that it has investments of about $374,000 in the bank, so there does not seem to be any immediate reason, financially, for us to take this extraordinary action here today.

It is also unclear whether the change that the Hon Trevor Mallard has made in his Supplementary Order Paper would resolve the issue that the Ministry of Education would be in breach of the Public Finance Act 1989 if it provided funding in the clear knowledge that it would be used for a purpose other than which it had been appropriated for. So the point is made that the clause is still vague and creates some ambiguity. I repeat that allowing one school board to use 5-yearly agreement funding for a different purpose is a highly likely way of raising expectations across the sector that similar provisions would apply to all school boards. This is not a good way to make policy. It is policy on the hoof made around particular circumstances, and for that reason the Government does not support the Supplementary Order Paper.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

There is a saying that an old friend of mine used with me on one occasion, and it went something like: “Slow horses, fast women, and lost causes.” I think this matter might be in the last category, but it is important to put on the record the Opposition’s reason for voting in this way. I will directly address the chief Government whip as I do this, and indicate to him that there will be four or five further opportunities this year when the Government introduces bills around the Public Finance Act, validation, and matters that are normally uncontroversial, and that the Opposition would normally support and not insist on a Committee stage for. But we will keep bringing in amendments to this effect in relation to finance bills until the Government sees sense in this area.

There is actually not a lot of debate around the Education Amendment Bill. Most of what the Minister of Education, the Hon Anne Tolley, says is true: the mistakes occurred in my time as Minister; the recommendations to the board occurred in my time, and probably in the time of David Benson-Pope. The matter was considered by Mr Maharey and Mr Chris Carter, and neither of them made the decision that I think is appropriate.

The Minister is right that three other schools are in this category: Kaikorai, Cashmere, and Rangiora. This amendment does not take account of those schools, but I make the point that their issues could be solved by the Minister if she chose to do so. The Minister made some points about the costing and size of the school facility. She said that the facility is 60 percent larger than a school of that size would normally have, and she is absolutely right, but it is a joint school facility for King’s High School and Queen’s High School. It is not a hall for one school; it is a centre for two schools, and the Minister left that out. She went on about the costing of the facility, and it was expensive. I happen to know quite well a house in south Dunedin, which is not very far away from the site of the facility, and there is no doubt that it is hard to put in foundations in that area. Because of modern requirements, about three-quarters of a million dollars’ worth of slab had to be put down for the facility to be built on, and that added to the cost. So we have to take those two factors into account. The Minister spoke about the full cost, but unfortunately she got mixed up between building costs and fitted-out costs. She added the fit-out costs into the building costs and was confused on that point, as well.

Notwithstanding all of that, as a result of the poor advice given to a previous board by a previous principal, we now have a situation whereby a school is paying $4,900 every month—not every year, but every month—to the Westpac bank, when, at the same time, it has a credit sitting in the ministry. If there was a little bit of flexibility on the part of the Government, that credit could be used, and it would not cost the taxpayer one extra cent. That money is set aside and ring-fenced for that school. The money is sitting there, and the school has indicated that the use of that money would be its highest priority. I think that it is a relatively simple issue.

I accept that the school made mistakes in my time. I think that the Ministers who followed me took the ministry’s advice in a way that they should not have. I think it is fair to say that some parts of the ministry are more rigid and think less about the quality of education and the purpose of operational funding than others. My view is that on occasion the property division of the ministry can be fairly narrow in its thinking, rather than having the flexibility to ask what the best thing is for kids, and what best educational outcome can come from the situation. The amount of $4,900 is enough for another staff member, and enough for a couple of nearly full-time teacher aides to work with kids with disabilities. That amount gives the school the ability to buy five computers every month and to do some routine maintenance. Lots of things, from my perspective, can add much more to the quality of education at King’s High School than giving $4,900 every month to Westpac. I reiterate to Government members opposite that I am not asking the Government to appropriate any extra money.

The Minister says that that measure does not meet the Public Finance Act requirements, but I am now briefed by two experts that it does. She says it is a terrible way to validate expenditure when it has not been properly validated in the past. I went to get a pile of legislation from the library on this issue and I pulled out at random the Appropriation (2007/08 Financial Review) Act 2009—and I emphasise 2009—passed under her Government. The Act validated tens of hundreds of millions of dollars of expenditure. The money was not appropriated; it was spent and validated.

It is the essence of our constitution that it is the role and the right of Parliament to validate expenditure or to amend its legislation, and there is no doubt that a specific amendment like this on a particular issue overrides the Public Finance Act for that issue only. No one should pretend that that is something unusual or does not happen often. As I pick up the legislation I see, on page 14, that the Department of Conservation had $44.988 million worth of expenditure validated in this way, and the Inland Revenue Department had $123.897 million worth of expenditure validated in this way. I emphasise that the expenditure in respect of education would not normally result in extra expenditure like those examples did.

In my concluding comments I will say to some of the smaller parties in the Chamber that I appreciate people who come to these things with an open mind. I appreciate Catherine Delahunty, who did things very quickly. But I especially appreciate the work that Sir Roger Douglas has done on this matter. Sir Roger Douglas and I very rarely agree on anything controversial. It is not often these days, to use the old expression, that we go in the lobbies together, but I can say that he can work out pretty quickly that something is silly in respect of a Government organisation. He can work out when money meant to be spent in one particular area is being spent on the wrong thing. I appreciate the ACT Party support for this amendment. It is something that we have worked through. Sir Roger Douglas helped to get the wording right so that it met his bill and did the right thing.

I say to the Māori Party that I am very, very disappointed. Kaikorai Valley College is a mid-decile school, which for Dunedin is relatively low. It sits in the poorest part of Dunedin.

Hon MARYAN STREET (Labour) Link to this

In speaking to Part 2 of the Education Amendment Bill I will highlight the transitional provision in relation to police vetting. The Education and Science Committee spent some time, as I understand it, considering the matter of police vetting. There is a provision in Part 1, new section 78CB(2), that states: “The board of a State school, or the management of a school registered under section 35A, that is required … to obtain a Police vet of a person must apply for the vet no later than 2 weeks after the person begins work at the school.” That amendment to the Act came about as a recommendation from the Education and Science Committee. Its members had determined that the previous amount of time was too long and it needed to be shortened so that a police vet would occur within at least 2 weeks of non-teaching staff starting work, and that has been incorporated in the legislation.

Part 2 contains a transitional provision, and I would be interested to know from the Minister of Education what kinds of provisions will be put in place to allow this clause to be implemented. Clause 76, “Transitional provision in relation to Police”, states: “the board of a State school, or the management of a school registered under section 35A, or a service provider of a licensed early childhood service (as the case may be) must, within 4 weeks after the date on which this Act comes into force, apply for a Police vet of any person in respect of whom—(a) a Police vet is required … and (b) no Police vet has been obtained within a period of 3 years immediately before the commencement of this Act,”. In other words, it is a tidying-up clause that requires schools to initiate the process of police vetting within a period of 4 weeks after the date on which this legislation comes into force.

The question I have for the Minister of Education is: what consideration has been given to the communication strategy that is required in order for this to happen? Clearly the Ministry of Education, I presume, will be communicating with every school immediately after the passage of this legislation. This legislation will pass in due course because Labour is supporting it, despite our disappointment at the non-inclusion of some clauses that we were particularly keen on. However, it will pass, and I trust that there will be some communication to the schools and institutions that draws their attention, with some sense of immediacy, to the need to apply for a police vet of any person, particularly where no police vet has been obtained within a period of 3 years immediately before the commencement of the Act. So these are tidying-up provisions to make sure all the police vetting processes are in order.

Although I am sure the Minister can answer the question quite readily, this is still an important consideration, and it is one of those parts of legislation that sometimes do not receive a lot of attention but for the assiduousness of officials, who are obliged to draw this to the attention of schools. Obviously in this instance a vet is not an animal doctor, nor is it even an animal doctor who looks after police dogs, but it is a process of scrutiny and assessment of the fitness of people—teaching and non-teaching staff—who have access to children in our schools and early childhood education centres.

Nothing could be more important than the fitness of both teaching and non-teaching staff to be in contact with children right up to the age of exit from secondary school, in a teaching or non-teaching capacity. So the transitional provision requires some assiduous application of the ministry to advertise this provision to schools in order that they comply. In fact, the Education and Science Committee thought this was so important that it reduced the time from the 8 weeks that was in the legislation in its first iteration to 4 weeks. That requires even speedier compliance than was originally envisaged by the Minister. I presume from the Minister’s nodding a moment ago that she is very much in favour of this shortened time frame. I assume that her instruction will be very clear to officials to ensure that not only are the usual communication channels followed—the gazetting and things of that sort—but also there might even be additional communication to principals and boards of trustees that this requirement needs to be complied with within 4 weeks. That is a reasonably short order, but it is one of the essential components if we are to keep our learning institutions—our early childhood education centres and our primary and secondary schools—safe for the children who attend them.

The shortening of the period contained in this transitional provision is a good move by the Education and Science Committee. Obviously it has perceived the urgency of this provision, and the urgency of the issue behind it. There is nothing more important than the safety of the children in our schools and early childhood education centres, and the process of establishing the fitness of people who come into contact with them—not simply teaching staff but also non-teaching staff—must be paramount. So the process that determines the fitness of those people needs to be enacted, it needs to be complied with, and it needs to be satisfied in every letter and every respect.

The transitional provision in relation to police vetting is an essential part of Part 2. My colleagues may well speak to other parts of Part 2, but it seems to me that it is appropriate to draw the attention of the Committee to the importance of even a simple transitional provision. It is something that every principal of every school and every chair of every board of trustees needs to know about so that they can ensure compliance within the shortened time frame. As I say, Labour supports having a shortened time frame for this compliance period, and supports this transitional provision, not only for its mechanics but, obviously, for its greater import and purpose in protecting the safety of children in our schools.

I support these provisions, together with the provisions of Part 1, which deal not only with the appropriateness of teaching staff but the police vetting of non-teaching and unregistered employees, and the police vetting of contractors and their employees. Thank you.

SUE MORONEY (Labour) Link to this

As a member of the Education and Science Committee, which considered the Education Amendment Bill, I will rise and speak to Part 2. Because it is now some time since the select committee considered the wording in this legislation, a lot has happened since then, and I wonder whether committee members may have had some different views if we had known then what we know now.

Part 2 requires early childhood education centres to have some additional costs put on them for going through some vetting procedures, and to do those procedures, as my colleague Maryan Street just said, in a truncated period of time compared with what the original legislation said. Of course, at the foremost of the minds of select committee members at the time, when we wanted that time period truncated, was the safety of children, which is as it should have been. We wanted to make sure that there were as few loopholes as possible. But that was before we learnt that there were to be Budget cuts for the early childhood education sector. I think that now, on reflection, as I look at this entire bill, and in particular at Part 2, the costs that are contained in there for the sector were not a major concern for committee members at the time, because we believed then that the Government would not tamper with early childhood education funding. We believed that the funding was in place because the Government had promised that. National had promised it before the election and we had no reason to doubt that, but this week we suddenly learnt that the early childhood education sector is costing too much. Suddenly the Government has decided, just this week, that the early childhood education sector is costing too much and that funding must be cut from the sector.

In Part 2, the sector is required to undertake police vetting procedures that it has not been required to undertake up until this point. The timing of that will be incredibly important because Part 2 concerns the transitional provisions, and because we do not know when this legislation will come into effect—it commences on the day after it receives the Royal assent, so there is no named date in the bill—we do not know whether its enactment will occur before the Budget. It is unlikely to be enacted before that. It could be, but the transitional provisions are likely to be set in place and be requirements for the early childhood education sector following the Budget. We do not know, because the Government will not say, what cuts-to-funding situation the sector will be placed in by then. As a member of the select committee, I find myself in a very difficult position: I am supporting this legislation because that is the right thing to do for the safety of our children, but I am now very, very worried about the sector’s capability to put these measures into place—to go through these police vetting processes, and to make sure that that is done thoroughly and property—because I do not know, and neither does the sector, the level of the funding cuts that it is facing in the Budget coming up on 20 May.

Here we are today, in the Committee stage, debating with a new piece of information. When we were debating in the Committee stage last week I felt less worried about the funding position of the sector than I do this week. I do not know when we will be debating this bill’s third reading, but I wonder what on earth we will be facing then. What situation will the sector be in? Where will its capability be to deliver what we supported in good faith in the select committee and what the submitters told us about in good faith? The submitters wanted these changes to be put in place, as well, but they did not know—and neither did we on the select committee—about the plans that the Government had for cutting funding to the sector. The reason we did not know about those plans is that National had promised that it would not tamper with early childhood education. It said that it would keep the same level of subsidies and it would keep the same fee controls in place. It promised that before the election, but now those promises look shallow. They are ringing completely hollow. Now, all the Government can do is talk about how much it will cost it to support children through early childhood education. Well, for goodness’ sake. When the Government keeps saying that it wants to improve participation and have more children in early childhood education, of course the cost will be larger.

KELVIN DAVIS (Labour) Link to this

I will follow on from what my colleague Sue Moroney has been saying about police vetting, and about the need for support for principals and boards of trustees within schools to go through that process. It is quite a simple process, really, when we think about it, but unfortunately in schools many school leaders have been trained purely as teachers. They used to get very little training in the art and skills of being a principal, let alone training in the sort of legal stuff that principals now have to do. So there is a real gap in the knowledge of many principals between the art of leading the school in terms of the curriculum, and administrative work, much of which is based around legal needs.

The process of a police vet is quite simple; it is a matter of filling in a form and posting it off. But that and all the other requirements that principals have when they employ staff build up for principals, and often they do not do administrative tasks in the timely manner that they should. I support the fact that the time frame to apply for a police vet has been shortened from 8 weeks to 4 weeks. I think it could be done even faster. However, one of the problems of having a limit of 4 weeks in which the police vet is to be applied for is that there is a time period when a person is allowed to work in a school but when we are unsure whether the person has a criminal background. The application has to be filled out within 4 weeks, yet there is another 4 or 5-week lag in receiving the police vet back. It could mean that a teacher has been working in the school for close to a term, or for a quarter of a school year, without the school knowing the status of the teacher’s criminal history—hopefully the teacher would not have a criminal history—so there is that danger.

Going along the same lines of principals not having the legal background and training to allow them to follow the processes, I will flick back to the first part of the bill that talks about what happens when a police vet is returned. I am talking about section 319FA, inserted by clause 70, which states that principals “(b) must not take any adverse action in relation to a person who is the subject of a Police vet until—(i) the person has validated the information contained in the vet;”. This is really important, but quite often, because of our lack of legal knowledge as principals—

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I know this is a relatively narrow debate. Clauses 1 and 2 relate to the title and commencement date of the Education Amendment Bill. As we consider these clauses, it is important that we consider the title of the legislation, which is the Education Amendment Act 2009. I wonder about the habit of this Committee in relation to truth in legislation. I know that the ACT Party is very much for truth in legislation, but unfortunately we have a bill whose title clause says it will be the Education Amendment Act 2009. I am not sure whether there is a proposal on the part of the Minister of Education—I have looked on the Table and I have found no amendment from the Minister—to amend the title of the bill to the “Education Amendment Act 2010”.

It is worth focusing a little on what has happened here. I think the process at the Education and Science Committee was very good. I say to Allan Peachey that I thought he chaired the select committee well in its consideration of this bill. He got it through that committee in good time. If his work was appreciated even a little bit—well, if his work was appreciated, then he would be the Minister of Education—then I think the bill would have come back to the House and been passed through its remaining stages, and we would have been able to have an Education Amendment Act 2009, but unfortunately it is now 2010.

The other point I make to the senior Government whip is that this bill could have gone through its Committee stage in about 10 minutes. We moved a number of amendments in order to filibuster it. We hoped that the Minister would consider a particular issue and change her mind on it. We have debated Part 2 across some hours in the hope that the Māori Party would focus on it. But a large amount of parliamentary time has been used on a bill that, I think it is fair to say, everyone who understands it and who has considered it carefully, other than the Green Party, is voting for. The bill would have gone through quite quickly and would still have been entitled the Education Amendment Act 2009, as the title clause indicates.

I do not think there is much argument around the commencement date. The legislation comes into force on the day after the date on which it receives the Royal assent. I would be interested, though, in the Minister’s view of the title. Does she propose to put forward a Supplementary Order Paper to correct the title of the bill?

CHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

CHRIS HIPKINS (Labour—Rimutaka) Link to this

I am very happy to take a call on the Education Amendment Bill 2009, but I am disappointed that the Minister has not risen to her feet to respond to the very legitimate concerns that my colleague Trevor Mallard has raised with regard to the title of the bill. In fact, I look across the Chamber to Mr Allan Peachey, and I am sure that had he been sitting in the chair as the Minister, he would have taken a call and clarified this issue. He would not have let this sloppy process continue: the process of passing an amendment bill dated 2009, despite the fact that we are now nearly through the fourth month of the year, nearly one-third of the way through 2010. I do not think that Allan Peachey would have let the Government get away with that. I think he would have had much higher standards than that. Certainly, that is the feedback I have had from my colleagues who sit on the Education and Science Committee.

I refer in particular to Standing Order 307, “Verbal or formal amendments”, which states: “In preparing the bill for the Royal assent”—which comes under clause 2, the clause stating that this bill will come into force once it has received the Royal assent—“amendments of a verbal or formal nature may be made and clerical or typographical errors may be corrected in any part of the bill by the Clerk.” Would this particular problem that we have raised be a clerical or typographical error, given that it has been brought to the attention of the Committee prior to a vote being taken on clauses 1 and 2? Could the error be regarded as clerical, or simply as a minor or typographical error, if the Committee already knew about it when it voted on it? The issue that my colleague has raised is quite significant.

Is the title appropriate? What would the consequences be if this bill’s title were to be changed to the Education Amendment Bill 2010 only after the Committee had voted on it, knowing that it was voting on something that was not, strictly speaking, correct? Would there be consequences for somebody who then changed that, arguing that the error was clerical or typographical, if in fact, the Committee had known about that problem when it voted on it? There could be some reasonably significant issues with that, so I think it is a shame that the Minister in the chair, the Minister of Education, has not taken the opportunities there. It would be a relatively small amendment. In fact, I could probably talk for the length of time it would take her to handwrite an amendment that we could then vote on; I am happy to keep going in order to give her the time to write an amendment. It will not take her very long—well, it might take her a while, actually. Trevor Mallard has done it, so in fact we can vote on an amendment to change this legislation to the Education Amendment Bill 2010, which would be a very sensible thing to do. We are from the Opposition and we are here to help.

It would be very unwise for this House to go ahead and pass legislation with factual inaccuracies in it right from the very beginning. We are talking about the very first line of the bill. I have to speak for a few more minutes, because Trevor Mallard apparently has to produce six copies of the amendment before we are allowed to vote on it. I will do my best.

I will give it a go by going back to the issue of the Royal assent. The commencement clause states: “This Act comes into force on the day after the date on which it receives the Royal assent.” Commencement dates are discussed by select committees quite a lot. I have been involved in all sorts of discussions about when it is appropriate for law to come into effect. The Regulations Review Committee has produced an entire report on that very issue, on the dates when legislation should come into effect. The Regulations Review Committee has made recommendations about making sure that the date when the bill can come into effect is clear within the bill. Of course there is a particular clause relating to a king—I cannot remember which one it was—

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I move that the Speaker be recalled in order to rule on the question of whether the change of date is a clerical error that can be corrected by the Clerk’s Office, or whether an amendment is necessary.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairman. None of us is suggesting that the bill should have been reprinted at this point. I think the question is whether it is automatic as we move to the third reading that we will get a reprint of the bill with the 2010 date in it at that stage, or whether there is the power in the Clerk’s Office to amend the bill on the way to the Royal assent. The Minister has nodded her head at both, and if we had a ruling from someone that that was going to occur, we would have finished here about 25 minutes ago, I think. My question is: is it an automatic process—

Hon DARREN HUGHES (Senior Whip—Labour) Link to this

I raise a point of order, Mr Chairperson. The Hon Trevor Mallard signalled to you about a motion of recall. Could you could advise the Committee at what point in this debate on the title and commencement clauses—which could have been finished a long time ago; I have come down to the House and I am surprised we are still on this, as it should be completed by now—the Minister is able to clear up the whole thing by putting forward an amendment that would guillotine the need for Mr Mallard’s motion? It seems to me that she could stand up and take a 10-second call and say that that is her intention, so at what point do we trigger a situation where the Minister is not able to do that and where Mr Mallard’s motion would stand?

CHRIS TREMAIN (Senior Whip—National) Link to this

I move, That the question be now put.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairperson. I know that I will be testing you a little bit here—

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairperson. I am not sure now whether I need to seek the leave of the Committee—I certainly do not want to put the Crown to the expense of reprinting this—to withdraw my amendment.

Hon DARREN HUGHES (Senior Whip—Labour) Link to this

The point that I think has been missed is that the bill has been going through the Committee stage for some weeks, and it is a question of whether there were any amendments to Part 1 or Part 2 of this particular bill. I am not sure whether there were any Minister’s amendments or amendments from the Opposition that affected Part 1 or Part 2.

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairperson. The question I have is this: do I have the right to withdraw it or do I need to seek leave?

Hon TREVOR MALLARD (Labour—Hutt South) Link to this

I raise a point of order, Mr Chairperson. You are in the middle of a closure motion. I think you have to put a vote.

Hon DARREN HUGHES (Senior Whip—Labour) Link to this

I raise a point of order, Mr Chairperson. With the time now being after 5 to 6, are you not required to report progress to the House?