Education Amendment Bill (No 2)

I am happy to take a call in this the closing section of the Committee stage debate on the Education Amendment Bill (No 2), which amends the Act from 2004. It is a very sad day, I think, for the teaching profession in New Zealand and for democracy within the education community in New Zealand. I do not think that the name of this bill actually reflects adequately just how bad this legislation is going to be.

This legislation, of course, instils a low-trust model within the teaching profession, a low-trust model when it comes to university governance, and an anti-democratic model in all of those areas as well. It has been strongly opposed by the teaching profession, by the universities, and by all of the others who submitted to the Education and Science Committee. I think that only about 14 of the hundreds of submissions the select committee received were in favour of this legislation.

I also want to talk, in my comments on these clauses, about the commencement of this legislation and to express my deep concern and the concern, I think, of the Opposition that this bill, in effect, uses what is commonly referred to as a “Henry VIII” clause, in the sense that it gives the Government the ultimate discretion to change the law at will. That is something that this Parliament looks very, very unfavourably upon, and yet it is used in this legislation quite liberally. It gives the Government the power by Order in Council to change the law. That is something that we have for a long time been discouraging Parliament from doing. In fact, the National Party, when it was in Opposition, railed against the Government having these types of provisions in legislation. In fact, increasingly in recent times we have seen the National Government using exactly those sorts of provisions in legislation, and they are not good.

Constitutionally, this is a bad bill because it removes the power from Parliament to create the laws of New Zealand and hands it to the executive. It means that the executive—the Ministers of the Crown; well, the Governor-General by Order in Council, which means on the advice of the Ministers of the Crown—can change the law at will without reference back to Parliament. That is something that is discouraged and that should be discouraged. It is named after Henry VIII because, of course, he would get Parliament to pass legislation that would give him ultimate power. It would allow him to change the law at will, and therefore he had no further need for Parliament. That is something that we do not want to have and, therefore, we jealously guard against these types of provisions. There is no good reason for this.

It is not as if the Government did not see this coming, and it is not as if it did not have plenty of time to prepare, because, of course, it introduced this legislation a very long time ago, and then, despite its rush through the select committee, and the Government not giving the select committee any additional time to consider the legislation, even though there were so many submitters who wanted to be heard, it brought it back to the House well in advance of the last election with the intention of progressing it before the last election, and its own utter incompetence meant that the bill did not get progressed before then. The Government could easily have deferred the report back on this bill in order to give all of those submitters who did not get the opportunity to be heard the opportunity to be heard on this legislation. I think that is the real irony of this legislation coming in to effect by Order in Council or as late as September 2016. So it is nearly 2 years before this legislation would be fully implemented.

Given the Government has now given itself this power to defer the implementation, the real question is why it did not, therefore, take an extra month or so to allow the literally hundreds of submitters who were turned away by the select committee the opportunity to have their say on this legislation, because there were heaps and heaps and heaps of people who wanted to have a say on this who were not given the opportunity to do so. I can say that I sat through days on end of select committee hearings on this legislation, and, as much as it was tiring and exhausting, I would happily do so again because that is the essence of democracy.

I think Parliament and the Government do a great disservice to the people of New Zealand when they simply stop listening and say: “No, we have heard enough. We are just going to go ahead and ram through legislation without further reference.”, particularly when it is controversial, particularly, as is the case with this legislation, when those who are ultimately subject to it are paying for the body themselves but have no say over its governance—and I am referring specifically to the Education Council of Aotearoa New Zealand—and particularly, in the case of the provisions relating to tertiary institutions, when, once again, they have been overwhelmingly opposed to it. Why rush the legislation through when in fact, clearly, there is no rush, because if there were any great rush this would be coming in straight away after it had been passed by Parliament and received the Royal assent? Unfortunately, that is not going to be the case, so this is bad law.

Finally, I guess if I could just wrap up and summarise the concerns that have been raised—and they have been many and varied—thus: the lack of democratic representation on university councils and on the Education Council of Aotearoa New Zealand is very concerning, it is heavy-handed, and it is anti-democratic. The requirements that it now places on the teaching profession are also heavy-handed. It is a very low-trust model that disempowers teachers and says to the teaching community that it cannot be trusted and that therefore the Government needs to seize control of that profession in a way that it does not do with just about any other profession in the country. It would not do it to the medical profession—doctors or nurses or any of those others—and would not even do it to real estate agents. Therefore, why is it doing it to the teaching profession? There is no justification for it.

This is a bill that transfers costs away from Government and on to the teaching profession by massively extending the powers of this professional regulatory body to include things that are currently covered by the employer, by the Crown, and transfers the cost of those on to the teaching profession itself. I want to know from the Government whether it is going to give teachers a corresponding pay rise in order to meet those additional costs, because you can bet your bottom dollar that within a few years teacher registration fees will be increasing significantly to pay for the costs of the additional compliance burdens introduced by this legislation.

This is a bad bill. It has been strongly opposed by just about everybody who is subject to it. Those concerns have fallen on deaf ears when it comes to this Government, and I would certainly encourage the current Government to think again and to go back and look at the overwhelming number of submitters who were opposed to this, to listen to their concerns, and to make the amendments necessary so that this regulatory body can actually have the support of the profession that it governs.

I will take a short call. I am not an expert on this part of the legislation. However, I think it is important to register at all points during this process that we are not happy, if we are not happy.

I thought that the previous speaker, Chris Hipkins, made excellent points about the Order in Council and the “Henry VIII” clause. Henry VIII, as we all know, was not a role model. He had a bad history with women—with his abuse of power. He was a serial monogamist with a tendency to chop people’s heads off and he was not a democrat. He was not a pretty sight. So I think the clause is aptly named a “Henry VIII” clause.

He killed a number of Catherines. I have always found that really disturbing. He also divorced some. He did not treat people well. I think the problem with the bill is that it is similar—not quite as Draconian, not quite as many axes, chopping, and divorces involved, but definitely a bad buzz. I think we would say it is a bad buzz. So “Henry VIII” clauses are not ones that we really want to focus on. They are part of a sad history. I am afraid that this bill is also going to be part of a sad history. Really, as Chris Hipkins outlined, this is not the kind of thing we should be doing regularly.

In terms of the title of the bill, the Education Amendment Bill (No 2) is an innocuous title that fails to describe what is really going on. As others have said, this bill undermines representation, undermines democracy, and lacks clarity of function. The title does not reflect the purpose of the bill, particularly in regard to university governance.

I have to say I was astonished to hear from every level of the university sector their feelings on this issue, expressed in the most surprisingly unacademic and intemperate language because they could not believe what was being done to them. This was from vice-chancellors right down to every form of representative. When there is that kind of unity, when there is that kind of determination, when everyone from what are normally different sides of the academic body come together and give us a message, it is unfortunate that the Government has refused to listen. The Government could not justify the position. There was no explanation. Steven Joyce has never explained it. It is just one of his bright ideas. But it was unforgettable—the coherent and completely united approach from the academics on that issue, as it was on the Education Council of Aotearoa New Zealand Bill.

However, I would just like to sum up rather than take up the time of the Committee, much as I am enjoying myself.

💬 Metiria Turei: We’re enjoying you.

Thank you very much. I would just like to sum up what the bill is about. It is incoherent, inconsistent, conjectural, undemocratic, unfortunate, and unsupported by the teaching profession. There may well be a fee boycott, and it is the Government’s fault. Thanks very much.

Kia ora, Mr Chair. Again, I will take just a short call on what is a very important bill. It is a bill that is another step on a process, on a pathway, on a pipeline, as the Minister of Education might like to say. It is a bill that shows, again, the direction that this Government wishes to take for education. Also, through taking the powers—and I believe that what we will hear the Government suggest is that using clauses like the “Henry VIII” clause and using things like an Order in Council creates this—it will suggest that it creates a more efficient Government and a more efficient system by which we can pass legislation. The Government is absolutely right. It certainly is more efficient. Democracy is one of the most expensive and the most time-consuming ways to govern a nation, but that is actually the way this nation wants to be governed.

This is not the first time. I think that if the country would like to go back and have a look over the 6 years that this Government has been here and how many times it has put Orders in Council into legislation, people would be somewhat stunned. That is a withdrawing from this Parliament around decision making. That is a concern. It should be a concern. This is actually a sad day for teachers. It is a sad day for education as such in New Zealand because it is another step on a pathway that this Government has taken.

I mean, the fact is that the change of name that is inside this bill does more than just—and some people minimise that fact—take away the word “teacher” from the title. It is not just taking away the word “teacher” from the title; it is this creation of another body of individuals called educators inside this area of our society, who are starting to have quite a reasonable amount of sway. If we actually go back to the first reading of this bill around this concept of educators—actually, if we go back to the first Education Amendment Bill, New Zealand First pointed out then that there was no registry body for educators. There was no term inside legislation for educators.

The Government actually appears to have heard that statement and has found that it is moving down a pathway. Mr O’Connor mentioned when we had the submissions around the Education Amendment Bill that it was his belief that anybody can teach. He said that anybody can teach; it is a natural thing, so it does not really need anybody to be qualified. What this bill does is start to close the hole for the Government that was pointed out in the first Education Amendment Bill. Although not specifically in this bill, it starts that pathway of changing the process or the functions of this council so that when the Government needs to—and I believe it will be in the next 6 months—actually make this body the registry body for educators, not teachers, then we are going to see a continual shift away from this profession.

Inside this bill it talks about the functions that are being created by the Education Council of Aotearoa New Zealand to enhance and uplift the profession, and yet at the same time it destroys it. So it is a very sad day. It is another step on a path we should not be taking. It will be very efficient. There is no doubt about it. This Government is very efficient at pushing through legislation that takes away the rights of New Zealanders, whether it be in the workplace—the local supermarket, or any other workplace. So New Zealand First will oppose it as long as it can oppose it, but we hope that in 2017 there is change here so that we can undo some of this stuff.

I want to take a short call, particularly around clause 2, “Commencement”. My colleague Chris Hipkins has talked about what this means in terms of a number of the provisions, particularly in relation to the primary and secondary sector. I want to talk particularly about what the commencement is going to do in the tertiary sector.

Of course, the commencement of this legislation also triggers schedule 1, inserting new schedule 19, of this legislation and brings it into play. What we have here is a schedule that shows really what lies at the anti-democratic heart of this Government. If we have a look at the sequence of commencement and timings that went through under schedule 1, or new schedule 19 inserted into the legislation—we had some very learned contributions on this, around what springing this into action and the commencement of this schedule would be. So what does this schedule do? Well, essentially, what it does is it puts in place some transitional arrangements for the universities.

Actually, the changes that this legislation is proposing for the governance of our universities, as we have talked about in other stages of this bill, are fundamental. Quite complex transitional arrangements need to be put into play, because, of course, there are a range of constitutional rules that govern our universities, and in order to change those rules, there is a complex set of constitutional arrangements that need to be worked through institution by institution, which will differ from institution to institution.

The dates that were put on this really show how at the heart of the Government’s thinking there is an absolute commitment to stripping our institutions of their democratic functions and taking away representative functions. The dates that were imposed on our institutions were simply not doable. We had an incredibly good submission from the Auckland University of Technology on just this point, which showed in the case of its institution, not only its institution but a number of institutions, that putting through the required constitutional amendments in the institutions—the statutes that would need to go through and the elections that would have to be held under the various courts of convocation to elect council members—simply was not workable within the time frames that the bill was setting out. These are the time frames that will spring into force by the commencement of this legislation.

If we think about what a court of convocation is, many New Zealanders are enfranchised through this body. I am enfranchised at the University of Canterbury and I am sure many members of this Committee are enfranchised at various institutions around this country. One of the democratic functions of a university is that any graduate of that university has a right to vote for the members of that council. What we have in the main part of the legislation, in Part 1, is the Government reducing the size of those councils—with the ministerial appointments presently, until this bill is passed, sitting at around 20 to 33 percent of most of our institutional governance arrangements but under this new bill rising to between 33 and 40 percent.

My colleague the Hon David Parker has already at previous stages of this bill talked about what this would mean in the commercial world and about what having a 40 percent representation on a commercial board would mean—it is getting pretty close to a hostile takeover if you had that kind of level of representation on a commercial board. You already have the ability of elected members being stripped away by the substance of this bill. The very commencement dates put in place under this schedule show that in the thinking of the members opposite there is a lack of commitment to democratic processes.

The courts of convocation are something that have evolved through our university systems over a number of decades and a number of centuries, and they are there for a very important function. They are there because the graduates of an institution should have a say in the way an institution is governed. This legislation is content to not only place all that power in the hands of the Minister but also to make it nigh on impossible for the universities to get their constitutional arrangements up and running in time for the commencement of this legislation. This is not something that is tolerable. These are the very reasons why we are opposing it.

I move, That the question be now put.