The Education and Workforce Committee has examined the Education and Training Bill and recommends by majority that it be passed with the amendments shown.

At present, the Education Act 1964 and the Education Act 1989 support the operation of the early childhood, schooling, and tertiary education systems. Important parts of these systems are also regulated by provisions in other legislation. The State Sector Act 1988 contains some employment-related matters for education services. Vocational training is covered by the Education (Vocational Education and Training Reform) Amendment Act 2020,¹ and the Education (Pastoral Care) Amendment Act 2019 addresses regulatory gaps relating to the pastoral care of domestic tertiary students.

This bill would consolidate the legislation into a new Education and Training Act, which would be simpler, less prescriptive, and with modernised language. It would repeal and replace the 1964 and 1989 Acts, along with Parts 7, 7A, and 7B of the State Sector Act. The bill would also replace the provisions of the Education (Update) Amendment Act 2017 that are subject to delayed commencement.

The bill would implement policy changes that have been identified through the Education Portfolio Work Programme. It would also make the amendments required to support the Government’s response to the final report of the Tomorrow’s Schools Independent Taskforce.

This commentary covers the main amendments we recommend to the bill as introduced.

As introduced, this bill replicated provisions from two bills that were still being considered by the House. Those bills have subsequently received Royal assent as the Education (Pastoral Care) Amendment Act 2019 and the Education (Vocational Education and Training Reform) Amendment Act 2020.

We have updated this bill to reflect the final form of the relevant provisions in those Acts. We do not discuss these amendments because they merely replicate other legislation.

We also do not discuss minor or technical amendments, or provisions that were inadvertently omitted when the bill was drafted.

Clause 17 of the bill would add a preliminary stage to the licensing process for early learning services. Potential service providers would need to apply to the Minister of Education for approval to apply for a licence to operate any of the following:

• an early childhood education and care centre

• a home-based education and care service

• a hospital-based education and care service.

The Minister could decline approval to apply for a licence on the basis of specified considerations. The purpose of this new stage is to enable planning of the overall network of early learning services, with a focus on ensuring that they reflect the needs of communities.

Clause 41(1) relates to exceptions to the usual attendance requirements because of well-being concerns. It provides that a parent, the school principal, and the Secretary for Education could agree to reduce a student’s hours of attendance as part of a well-being transitional plan. A parent (which includes a guardian) would need to make the request, which would have to be agreed by all parties. A medical practitioner or psychologist would also need to provide written support that the reduction was needed to help meet the student’s well-being needs. Under clause 41(4), the plan could not be renewed or cover a period of more than six months.

We recognise that some students with disabilities or additional learning support needs may need longer than six months to ensure that they can cope with full-time attendance. However, this must be balanced against ensuring that a student’s well-being needs are being met and parents do not feel coerced into agreeing to reduce attendance hours. We think that these considerations could be balanced by amending clause 41(4). Our proposed amendment would allow a well-being transitional plan to be renewed for a further period of up to six months. The renewal would need to be requested by the parent and agreed to be in the best interests of the student by the parent, school principal, and the Secretary. Input from a medical practitioner or psychologist would not be needed for a renewal.

We recommend replacing clause 41(6) to clarify that transitional plans made under clause 41(2) could not be renewed. These are plans that help transition students aged five years into school.

We also recommend inserting clause 41(1A), which would give the Secretary discretion to accept requests for plans and renewals of plans from a student’s full-time caregiver where they are not also the parent or guardian.

Under the 1989 Act, teachers and other authorised staff members can physically restrain students in certain circumstances. The bill would amend the legal framework for using physical restraint in schools to provide more clarity and certainty.

Clause 95 would replace the term “physical restraint” with the term “physical force” and sets out when it could be used. A teacher or authorised staff member could use physical force on a student only if it was necessary to prevent imminent harm to the student or another person. Harm would be defined as “harm to health, safety, or well-being of the student or the person, including any significant emotional distress suffered by the student or person”. The teacher or staff member would need to reasonably believe that no other options were available to prevent the harm. The physical force would need to be reasonable and proportionate in the circumstances.

Subpart 9 of Part 3 would establish a scheme for resolving serious disputes that students and whānau have been unable to resolve with their school. At present, students and whānau who are unable to resolve disputes can go to the Ombudsman or the High Court. However, neither option deals with disputes quickly and the High Court is unaffordable for most people.

We recommend amending clause 202 to make it clear that the scheme would only apply to State schools.

Clause 204 would enable the Minister to recommend that the Governor-General make regulations to establish dispute resolution panels. These would consist of local community members and expert members.

As introduced, we consider that the bill is unclear that dispute panels would only hear complaints or disputes relating to school board decisions. We recommend amending clause 203 to make this clear.

We also recommend amending clause 207(1) to make it clear that students under the age of 16 who are in State care or not in the care of their whānau could pursue a dispute. They would need the support of a recognised caregiver or guardian.

Clause 207(3) would require an application for dispute resolution to be made in writing. To align with best practice and reduce barriers to accessing the dispute panel, we recommend inserting clause 207A to allow applications for dispute resolution to be made orally. For accuracy and transparency, an oral application would need to be put in writing as soon as practicable and include a statement summarising the nature of the serious dispute. It would also need to include what steps the applicant had taken to resolve the dispute before seeking to refer the matter to a dispute resolution panel.

Clause 122 sets out the revised objectives for boards of trustees when governing schools. Under clause 122(1)(b)(iii), a primary objective of a board would be to ensure that the school takes all reasonable steps to eliminate racism, stigma, bullying, and discrimination within the school.

We recommend amending this clause by inserting “any other forms of” before “discrimination”. This would ensure that other forms of discrimination would also be covered.

The bill would remove the requirement for boards to notify through a local newspaper that there was a vacancy, and that they proposed to fill it by selection. Instead, clause 13(5) of Schedule 22 provides that boards would have to give notice of a vacancy, and the proposal to fill it, to the school community and the wider community. This would enable schools to choose the most appropriate method of notification.

We note some submitters’ concerns that schools could use their discretion to notify the vacancy in a way that would not reach all affected parties. We recommend amending clause 13(5) of Schedule 22 to specify that the notification would need to be in a way that best meets the needs of the school community and the wider community.

Schedule 19 sets out provisions related to enrolment schemes for State schools. Under the bill, responsibility for developing, consulting on, and reviewing enrolment schemes would shift from boards of trustees to the Secretary for Education.

Clause 4(3) of Schedule 19 would require boards of trustees to determine the views of a range of people and organisations and convey them to the Secretary for the development of an enrolment scheme. We were advised that the Tomorrow’s Schools Independent Taskforce report recommended the removal of the consultation obligations for boards. Therefore, we recommend deleting this clause.

As a result of our recommended deletion, we recommend amending clause 4(2) to require the Secretary to take reasonable steps to understand the views of the school’s community when developing a scheme. We also recommend amending clause 4(4) to make it clear that, after the Secretary has developed an enrolment scheme, they would need to consult the board. This would be in addition to the Secretary’s consultation with other parties required under clause 4(4).

We recommend amending clauses 4(2), 4(4), and 4(5) of Schedule 19 to make it clear that the enrolment scheme that the Secretary is developing and consulting on is only “proposed”.

The bill would enable the Teaching Council to renew practising certificates for teachers who were re-entering the profession after taking a break from teaching, while ensuring they were competent to teach. Clause 10(6)(b) of Schedule 3 is intended to provide that teachers who lack satisfactory recent teaching experience could undergo a refresh process in some circumstances. It is intended that the arrangements would be prescribed in rules made by the Teaching Council.

However, we note that clause 10(6)(b)(i) refers to rules specifying the requirements for a return to teaching pathway rather than a refresh process. Also, the bill as introduced contains no provision for rules to be made to set the requirements for this process.

We recommend amending Schedule 3, clause 10(6)(b)(i) by replacing “return to teaching pathway” with “refresh process”. We also recommend a related amendment to clause 458 to require the Teaching Council to make rules setting out the requirements for the refresh process.

Clause 584 of the bill would enable the Minister to issue eligibility criteria relating to the appointment of school principals. Before issuing the criteria, the Minister would need to consult national bodies representing the interests of a range of specified groups.

We recommend amending clause 584(2) to also require the Minister to make reasonable efforts to consult children, young people, and their parents, whānau, and their communities.

Under clause 585, boards could develop additional criteria that were specific to the appointment of a principal at their school. The school community would need to be consulted about the additional criteria, which could not be inconsistent with the criteria set by the Minister.

To avoid confusion with the “eligibility criteria” issued by the Minister under clause 584, we recommend removing the reference to “eligibility” in clause 585(1).

Clause 426 of the bill would prohibit anyone from offering or awarding the National Certificate of Educational Achievement (NCEA) outside New Zealand. Two exceptions, which are currently allowed, would continue. They are for distance schools that are awarding NCEA to domestic students based offshore and in countries where New Zealand has inter-government agreements that enable secondary schools in those countries to award NCEA. At present, New Zealand only has these agreements with Pacific Realm countries.

We recommend amending clause 426 and its related heading by replacing “award” and “awarded” with “provide” and “provided”. This is because schools provide rather than award NCEA.

Subpart 6 of Part 4 of the bill would enable the Governor-General by Order in Council to establish and disestablish workforce development councils (WDC) for one or more specified industries. This would be based on the recommendation of the Minister.

Clause 347(1)(f) specifies that a function of a WDC would be to decide whether to endorse programmes developed by providers for approval by the New Zealand Qualifications Authority (NZQA). We understand that this clause is intended to ensure that the WDC supports programmes primarily aimed at meeting the needs of an industry for which the WDC is responsible. The support would indicate that the programme would meet the industry’s needs.

We do not think the bill makes clear the situations when a programme must have WDC endorsement to be approved by NZQA. Therefore, we recommend amending clauses 347(1)(f) and 347(2) to clarify several matters. Providers could seek WDC endorsement of any programme. The Minister could also set parameters for the extent to which WDC endorsement of a programme is a pre-condition of NZQA programme approval.

The COVID-19 Response (Urgent Management Measures) Legislation Act 2020 was passed under urgency and received Royal assent on 25 March 2020. That Act contained amendments to the 1989 Act which enable the Secretary for Education to give directions in relation to COVID-19 measures to education entities. The directions mainly relate to the opening and closing of schools and the provision of online or distance learning as part of the response to COVID-19.

We recommend inserting Schedule 23A, which would incorporate these provisions into this bill.

To make the primary legislation less prescriptive, the bill provides for some matters to be dealt with in regulations. However, we consider that several provisions would be better in the primary legislation. Therefore, we recommend amending the bill to:

• shift clauses 4 to 7, 11, 12, and 16 of the exposure draft of the Education (Pastoral Care) Regulations at clauses 504, 504A, and 596A

• reinstate section 156C of the Education Act 1989 by inserting clause 194A

• reinstate clauses 2, 20 to 24, and 35 to 37 of Schedule 6 of the Education Act 1989 by inserting clauses 119A, 141A to 141E, and 150A to 150AC.

National members oppose this bill.

We support efforts to modernise and streamline existing education legislation, and we support a number of the specific provisions contained in this bill. However, we remain concerned about the rushed way in which this legislation has been considered and the potential impact of some of its provisions.

This bill was introduced fewer than six months ago and during three of those months New Zealand has been subject to a nationwide lock-down due to COVID-19. We are concerned that this bill has not had the amount of scrutiny that would usually be the case for such an extensive and wide-ranging piece of legislation. We believe this fast law-making could result in serious problems for the thousands of individuals and institutions who will be expected to implement and adhere to this new law.

The bill also includes a number of provisions we have specific concerns about; these include, but are not limited to, the following:

We oppose provisions to shift responsibility for developing, consulting on, and reviewing enrolment schemes away from locally elected school boards and to instead centralise these powers with the Ministry of Education. It is our view that school boards know their local communities best and it is appropriate that they are empowered to work with their local communities when defining and consulting on school zoning arrangements. This bill removes that autonomy, responsibility, and accountability. We are concerned that as a result of this bill, the Ministry of Education may impose conditions that do not take local community concerns into account and that are ill-suited to the needs of local families. We note that the committee heard from only 23 boards of trustees on this bill and we are concerned that this provision will undermine the autonomy of New Zealand’s diverse school communities.

We are concerned by the licensing changes this bill introduces for new early childhood education services. The bill introduces a new two-step process that gives the Minister considerable discretionary power when deciding whether to grant a new licence. We are concerned this may introduce undue uncertainty into the licensing process and may reduce the speed and flexibility with which new services can be established in response to community need. We note submitters’ concerns about the lack of detail about how the new application process will be applied and the potential disadvantages to new operators without a licensing history.

We are concerned that this bill removes school boards’ specific accountability for raising student achievement by making this one of four equal objectives. We note the concern of submitters that the National Educational Goals and National Administration Guidelines already take these objectives into account and should more properly be the basis of any shift in direction. While we recognise and absolutely support the need for school boards to take student wellbeing and inclusion into account, we are concerned that the manner of this change may allow boards to abrogate their responsibility for lifting student achievement. We further note that the other objectives are in fact critical enablers of lifting student achievement.

We remain unconvinced of the rationale for removing the ability for NCEA qualifications to be granted offshore. We note the importance of New Zealand’s export education sector, the education components of our free trade relationships, and the growing potential for remote teaching and learning opportunities. All of these could be put at risk by this limiting provision.

We note the concerns of multiple submitters about the changed rules relating to the physical restraint of children. National recognises the need for these provisions to be modernised to address the genuine concerns of teachers and schools; however we are concerned this new section may, particularly in the absence of any commitment to increased training or information provision, increase confusion from teachers and the wider school community about what constitutes appropriate use of physical restraint and force in educational environments.

We support this bill’s confirmation of the right of students in the schooling system to attend the school in which they are enrolled. However, we note and share the concerns of the Children’s Commissioner, the NZ Post Primary Teachers’ Association, IHC NZ, and others about the corresponding need for the Government to provide support and resources to ensure these changes achieve their intended purpose.

We support the provision of a new dispute resolution scheme but note the ongoing concerns of submitters about the way this scheme may operate in practice.

Finally, we are concerned that this bill incorporates all provisions of the Education (Vocational Education and Training Reform) Bill. We have previously set out our reasons for opposing this bill, which enables a radical centralisation of tertiary education and skills training provision in New Zealand to the determent of learners and industries alike.