Education Act Amendments

Education (Update) Amendment Act 2017 Date of Assent – 15 May 2017 But not all provisions of the Amendment Act have come into force – there were different commencement dates for various changes

Education Amendment Bill 2018 Defers commencement of new strategic planning framework to 1 January 2020. Other proposes changes to strategic planning framework (eg 3 year plans to coincide with BoT election cycles). Note, Government is also proposing to repeal provisions relating to Communities of Online Learning (which are not yet force)

QUESTIONS

Restraint of Students

Restraint of Students - Guiding principles Physical restraint is a serious intervention. If there is an alternative to physically restraining a student, use the alternative. All schools are required to provide a safe physical and emotional environment for students and staff.

Restraint of Students – Guiding Principles The Education Act sometimes permits teachers and authorised staff members to physically restrain a student. They must act reasonably and proportionately in the circumstances to achieve a safe environment for students and staff. Students’ rights are protected under NZBORA.

Restraint of Students Must not physically restrain a student unless— the teacher or staff member reasonably believes that the safety of the student or of any other person is at serious and imminent risk; and the physical restraint is reasonable and proportionate in the circumstances. (Section 139AC)

Restraint of Students The Education Act does not permit physical restraint of students to protect property. Defence of property can be a defence to criminal prosecution under the Crimes Act.

QUESTIONS

Performance Management of Tagged Positions

Code of Professional Responsibility New Code of Professional Responsibility and the Standards for the Profession are now in force. All teachers must be appraised against the new Standards.

Mandatory Reporting Education Council Rules 2016, amended Rule 9 came into effect on 19 May 2018: 9 Criteria for reporting serious misconduct (1) A teacher’s employer must immediately report to the Education Council in accordance with section 394 of the Act if the employer has reason to believe that the teacher has committed a serious breach of the Code of Professional Responsibility, including (but not limited to) 1 or more of the following: (a) using unjustified or unreasonable physical force on a child or young person or encouraging another person to do so: …

Tagged Teaching Positions Section 464 of the Education Act 1989 – ‘Tagged Positions’: ‘(c) The board must … (ii) state in advertisements for the positions that a willingness and an ability to take part in religious instruction appropriate to that school is a condition of appointment’

Tagged Teaching Positions Only teaching positions can be tagged. The number of ‘tagged positions’ varies in different schools. For tagged positions, willingness and ability to take part in religious instruction appropriate to that school is a condition of appointment.

Tagged Teaching Positions 467 Other special positions If an integration agreement records that any teaching position … is a special position that requires particular capabilities on the part of the teacher holding it, an advertisement for that position must require an appointee to possess those capabilities as a condition of appointment to that position.

Tagged Teaching Positions Advertising Appointment Induction Performance Management: Appraisal Professional Development Conduct and Competence Make this slide interactive. E.G. – How do you go about your induction process for tagged positions? Do your appraisals include assessment of the ‘tagged’ aspect of the role?

Tagged Teaching Positions Appointments: Get advertisement right to use wording from act Get appointment paperwork right (including tagged standards if used) Ongoing performance management: Appraise people annually against the standards. Make this slide interactive. E.G. – How do you go about your induction process for tagged positions? Do your appraisals include assessment of the ‘tagged’ aspect of the role?

Performance Management of Tagged Teaching Positions Ministry of Education Performance in Schools Guidelines. BoTs must take into account guidelines including by: ‘development and implementation of policies and procedures to ensure that the teachers and staff provide education and services which effectively meet the needs of their students consistent with the [school’s] goals and objectives’

Performance in Schools Guidelines BoTs should ensure that policies and procedures: ii. are appropriate to individual teachers, the school and wider community; iii. are developed in a consultative manner with teachers; iv. are open and transparent; v. have a professional development orientation; vi. are timely and helpful to individual teachers;

Performance in Schools Guidelines BoTs must ensure that the appraisal process includes: development of a written statement of performance expectations in consultation with each teacher identification and written specification of one or more development objectives to be achieved during the period

Performance in Schools Guidelines Performance expectations for teachers must relate to the key professional responsibilities and key performance areas of their position including: Teaching Responsibilities School-wide responsibilities (including pastoral activities) Management responsibilities

Education Council Code of Professional Responsibility and Standards for the Teaching Profession Code and Standards ‘The Code and Standards are not discrete - they are fundamentally linked and neither can be considered in isolation. The expectations for our practice (the Standards) and how we conduct ourselves (the Code) are integral to each other’ A possible model for Integrated Schools to follow for Tagged Teaching Positions

Possible Conduct Criteria for Tagged Positions COMMITMENT EXAMPLES OF DEMONSTRATING A HIGH STANDARD EXAMPLES OF NOT DEMONSTRATING 1. We are part of the whole school community. We use our specific strengths and skills to support and promote the Vision and the Mission of the School.   2. We are willing and able to deliver all areas of the New Zealand curriculum in a manner which reflects the School’s Special Character as described in the School’s Integration Agreement, Charter and other documentation. 3. We support, uphold and are actively involved in the total life of the School, by participating in and contributing to, where required, special events, approved by the Board of Trustees which uphold the Special Character of the School. 4. We are role models for pupils, colleagues, parents and caregivers - living the Vision, Mission and the Values of the School. 5. We refrain from doing or saying anything antithetical to the School’s Special Character. 6. We acknowledge that supporting and upholding the School’s Special Character includes the manner in which we conduct our personal lives.

QUESTIONS

Human Rights and Integrated Schools

Legal Status of Integrated Schools Board of Trustees: Incorporated under the Education Act 1989; Crown entity. Principal responsible for day to day administration. (Section 76)

Supervision by Proprietor Proprietor has: responsibility to supervise maintenance and preservation of the education with a special character; (Section 416(3)(a)) right to determine what is necessary to preserve and safeguard the special character of the education; (Section 416(3)(a)) right to have access to the school at all reasonable times to ensure that the special character of the school is being maintained. (Section 456(2)(i))

Human Rights Legislation Schools are generally subject to: New Zealand Bill of Rights Act 1990 (when performing public functions): 19. Freedom from discrimination—(1) Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Human Rights Act 1993, s21: prohibited grounds of discrimination include sex, religious belief, race, age, disability, political opinion and sexual orientation

New Zealand Bill of Rights Act 1990 Section 5 - NZBORA standards may only be subjected to reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society. Section 4 - legislation that authorises behaviour inconsistent with the NZBORA must still be applied. Section 6 – If an Act can be given a meaning consistent with the rights and freedoms in NZBORA, that meaning must be preferred over any other meaning.

New Zealand Bill of Rights Act 1990 If the Education Act authorises a school to act in a manner inconsistent with the NZBORA, they are free to do so. However, if the Education Act can be given a meaning consistent with the rights and freedoms in NZBORA, that meaning must be preferred over any other meaning.

Education Act 1989, Pt 33 Section 475(1): If this Part deals with the same or a similar subject matter as other Parts of this Act, the State Sector Act 1988, or any regulations made under any of those Acts or under any enactment repealed by any of those Acts,— (a) express provisions in this Part prevail in respect of State integrated schools; but (b) this Part must be interpreted in a way that is consistent with the other Parts of this Act or any other enactments concerned whenever this construction is appropriate and reasonable.

Supervision by Proprietor Proprietor has: responsibility to supervise maintenance and preservation of the education with a special character; (Section 416(3)(a)) right to determine what is necessary to preserve and safeguard the special character of the education; (Section 416(3)(a)) right to have access to the school at all reasonable times to ensure that the special character of the school is being maintained. (Section 456(2)(i))

Human Rights Act 1993 As an employer, the BoT is directly subject to the HRA. Actions expressly authorised by legislation (including the Education Act) do not breach the HRA. Section 28 permits religious discrimination by integrated schools for tagged positions.

Setting Policies What are the purposes of the policy? Does the policy discriminate on prohibited grounds? Does any legislation expressly permit the discrimination? OR Do the purposes of the policy justify the discrimination?

Setting Policies Is the extent of the discrimination rational and proportionate having regard to the purposes of the policy? Does the policy discriminate no more than is reasonably necessary to achieve its purposes?

QUESTIONS

Health & Safety

KEY TERMS PCBU If you are a person/entity conducting a business or undertaking then you are a PCBU. Examples of PCBUs Proprietor Trust Board of Trustees

Duties of a PCBU PCBU has the primary duty of care; Must ensure, so far as is reasonably practicable, the health and safety of people under your charge; Must ensure the work environment does not pose health and safety risks; Must Ensure appropriate training for your staff and adequate facilities for your workers’ welfare.

KEY TERMS OFFICER An officer of a PCBU is any other person occupying a position in relation to the business or undertaking that allows the person to exercise significant influence over the management of the business or undertaking. Examples of officers Principal Management Trustees

Duties of an Officer An officer must exercise due diligence to ensure the PCBU complies with their duties and obligations under the Act. An officer of the PCBU must exercise the care, diligence and skill that a reasonable officer would exercise in the same circumstances.

Duties of an Officer Due Diligence includes Officers taking reasonable steps to: Acquire, and keep up to date, knowledge of work health and safety matters; Gain an understanding of the nature of the operations of the undertaking of the PCBU and generally of the hazards and risks associated with those operations; …

Duties of an Officer Due Diligence includes Officers taking reasonable steps to: Ensure the PCBU has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the undertaking; …

Duties of an Officer Due Diligence includes Officers taking reasonable steps to: Ensure the PCBU has, and implements, processes for complying with any duty or obligation of the PCBU under the Act; Ensure the PCBU has appropriate processes for receiving and considering information regarding incidents, hazards, and risks for responding in a timely way to that information

Liability Officers of a PCBU may be prosecuted for failure to properly conduct due diligence. Members of Boards of Trustees are expressly exempted from prosecution as officers. The Principal and possibly members of the SMT and the Proprietor management team will fall within the definition of an officer and are not exempted.

Liability Boards of Trustees can be prosecuted, but not fined. Prosecution will still attract adverse publicity. Reparation orders can be made.

Liability R v Board of Trustees of Sir Edmund Hillary Collegiate School. Caretaker property manager of the school injured while attempting to remove a tree. Board of Trustees pled guilty to a charge under the Health and Safety in Employment Act 1992. Court imposed a reparation payment of $40,000.

QUESTIONS