Education (Update) Amendment Bill

I want to take one very quick call at the beginning to deal with a stand-alone issue before I get into the issues around school governance—that is, to deal with a question around seclusion, because these provisions were added as the bill progressed. In my view, there is one remaining outstanding issue that I would like to work through. It is to do with the definition of “seclusion”. I just want to talk through that. The definition of “seclusion” as incorporated in the bill says: “seclude, in relation to a student or child, means to place the student or child involuntarily alone in a room from which he or she cannot freely exit or from which the student or child believes that he or she cannot freely exit.” There are some definitional issues around here that have prompted quite a bit of debate, including after we had deliberated on this section of the bill at the select committee because it was a bit of a last-minute addition.

The issue is really around the phrase “which the student or child believes that he or she cannot freely exit”. As schools and principals have pointed out, the authority-type relationships that exist within schools create some different understandings and expectations to what we might have as grown adults, in the sense that schools are concerned that this could be interpreted as if it gives a child an instruction to stay in a room and not leave. Because of the power relationship that exists there, the schools are concerned that that could be interpreted by the child as them not being able to freely exit. While the door might not be locked, for example—the door could be closed—the schools are concerned that the power dynamics that exist could result in the student being under the impression that they could not freely exit, and therefore the school could find itself in violation of the actual wording of this bill, if not the spirit.

The spirit is a good one, and one that we are absolutely in support of, which is that seclusion has no place in schools but “time out” does. “Time out” is a legitimate strategy in a school, and I know that schools use it. The kids who get amped up are told to go into a room, calm down, have some time by themselves, and come back when they have recomposed themselves. That is a legitimate behavioural management strategy—one that protects the teacher, the student, and the other students in the class. We do not want to create an environment in which schools cannot use that as a strategy because they are concerned that they might fall foul of the seclusion prohibition. I am not going to talk any further about that because it literally just relates to the issues of clarification around how that could be interpreted, to ensure that we do not end up inadvertently preventing schools from using a legitimate behavioural management strategy.

Given the way the member Chris Hipkins has characterised that, I think it would be helpful if we just dealt specifically with that before going on to the other parts of this theme. The first thing to know is that that definition has been carefully worked out by a cross-sector working group made up of representatives from the disabilities sector and from the Post Primary Teachers Association, the New Zealand Educational Institute, and the School Trustees Association, all of whom have completely understood the context in which this applies. It is important in terms of defining “seclusion”, because what we are saying is not allowed is to include those words “involuntary” and “belief”.

That then puts the concomitant responsibility on ensuring that communication is really clear when teachers are—as the member has already identified—using the desirable practice of time out or the continuum of other strategies that teachers have available to them to manage poor behaviour, or to help a student self-manage and destress. So I will be expecting the Ministry of Education to issue guidelines on those communications—again, worked out with the sector—to ensure that a vulnerable student understands what they can or cannot do related to managing their own behaviour.

So I hear what the member is saying and I hear what others have said in expressing concern about this. It has been difficult for the sector to advise on exactly what the definition should be, but we want to clearly be able to draw a line and say: “This is what seclusion looks like, and it is unacceptable.” Therefore, these self-managing or facilitation techniques are included in how we ensure that schools get support to communicate in ways that both the child and the teacher and, actually, the other children in the classroom can appreciate and respect what is going on. Thank you.

Yes, just on that point—because I think it is really critical—maybe some of these people are raising issues around whether it is saying “You may not leave.” versus “You cannot leave.” to the child. I am actually strongly of the view that some of our students—especially those with learning support needs—take things very literally, but I actually could accept the way Supplementary Order Paper (SOP) 250 is written myself. I think that it is OK, but I am also aware that other people do not accept that, and so I am interested in whether there is any room to kind of look at “cannot” versus “may not”, because we do not want our kids to think they cannot physically leave a room. That is the whole point of getting rid of seclusion.

I guess what the teachers are saying to us is “Sometimes we want the authority to say ‘You may not leave this room.’”, but I hear the Minister on the issue of this having been talked through in terms of the legal implications, and I just hope that it does not end up being a legal battle over the words “may not”, which are not in the clause, and “cannot”, which is there at the moment. But I am taking a child’s rights approach.

Just on the issue of seclusion, I have Supplementary Order Paper 308, which just goes a little bit further, because I am very passionate about this. It is, rightly, removing the issue of seclusion and the opportunity to use seclusion, which is different from time out. We found out that a larger number of schools than we realised were doing it. I have a Supplementary Order Paper that talks about providing some alternatives in the law.

I know there are guidelines and there has been discussion, but families came to the Education and Science Committee and said that “If you take away seclusion, which we really want you to do, please give us something in the law so that we can go back when things go wrong or we can encourage schools.” So my alternative is that we should have nationally funded and compulsory professional development that equips schools and boards of trustees with the ability to identify and implement alternatives to the seclusion of a student or child, as defined in the legislation, and supports schools and boards of trustees to understand fully inclusive practice as a human rights issue for every child.

We know that there is huge diversity in schools’ understanding of inclusion at the moment. We know that there is great professional development, but it is opt-in, so it is not compulsory. We know that initial teacher education—our young teachers have had less than 3 hours in a 3-year degree on what inclusion is. We are taking away something that is very wrong and that we really need to get rid of—and I am all for it—but we really need to make sure that the schools know what to do next, legally. I know the guidelines will help, but I really think that unless we actually commit to how—we must really seriously connect to this professional development process, and that is about boards of trustees as well schools. It is about understanding fully. If you understand the fully inclusive practice of inclusion, then you have an alternative to seclusion.

Right now, I think we are taking away something that should never have happened, but I am not sure that schools—and I have seen some of this in the media—are very clear about what to do. So sending them a guideline will work only as well as their understanding of that guideline. If there is no compulsory professional development to understand what inclusion is from a human rights perspective, because that school has not sent its teachers to the ‘tips for autism’ course, or has not had that professional development and has not seen it as a priority—it is for those schools that I have put up this SOP, so that we actually cover off everything. I am all for this. Let us get rid of this abhorrent approach, but let us make sure that there is an alternative strategy so that schools do not feel that they have got nowhere to go.

So I will be interested in whether we need to do anything about the “may not”/“cannot” stuff. I am also interested in the views of people and the Minister in the chair, Hekia Parata, on my SOP, because alternative support is absolutely critical. Thank you.

Kia ora, Mr Chair. Thank you very much to the Minister for the contribution there. I agree with my colleagues and say that New Zealand First will be supporting Supplementary Order Paper (SOP) 308 from Catherine Delahunty. We will be doing so because this must end, but it cannot end without that gap being filled. What is happening with regard to professional development at the moment is that the School Trustees Association, certainly, has been given funding to better invest in upskilling our boards of trustees. This particular issue has not been an issue high on the agenda of that training at this time. But also if the professional development for staff is not funded by the Secretary for Education—and we have had it in numeracy and we have had it in national standards, and so on and so forth—from a central fund, then this will have to come out of the operations grant, and that is just another stretch on the operations grant.

So New Zealand First will definitely be supporting Supplementary Order Paper 308, because it must end, but if I understood the Minister correctly—and I absolutely believe that if I am right—then what we are saying is that a teacher can place a student inside a time-out zone and make a statement like: “When you’ve calmed down, you can come and see Mrs Kelly at reception.” That is a different way of saying “You may not leave this room.”—do you see what I mean? That is the sort of professional development—I know it might seem minor, but it may not occur to a person in the instance of aggression or the high tension of when, you know, the teacher has got 30 other students over there and is trying to deal with this. So if we can give guidance and give professional development around this concept to teachers, then we need to do so, rather than just remove what has been a terrible practice to date.

Also, the boards of trustees—this would come under their discipline policy. This is part of the area where boards of trustees need to be upskilled around their own policy around discipline, because the seclusion laws that are here now should be included in the discipline policy so that it makes it clear that that is not available. But it outlines clearly how time out, as opposed to a Kiwi suspension—because now what we have got is we have got those two things working in parallel. We all know that a Kiwi suspension is not appropriate, and that is outlined in the YouthLaw discipline procedures booklet, but we are talking about time out. How do boards of trustees—particularly, new boards of trustees—understand that to be the case? How are they going to recognise the difference, and how do they realise their responsibility about professionally developing their staff? So we support that SOP.

I am now going to come back to SOP 298, which is an SOP in my name that removes the capacity of the Minister to appoint a trustee as a presiding trustee. So I come back to the question that I was asking previously—wrongly—in the last theme. New Zealand First has no argument whatsoever about the ability of the Minister to appoint a trustee on to the board of trustees as an early intervention model. We understand that—absolutely get it.

But why, as the chair—as I mentioned before, I was the chair of Mahurangi College for many, many years. As the chair, I had no greater status than any other member of the board. I had only one vote. It was my job to make sure that the roles and responsibility of the board were met. I certainly had to sign off on all the documentation that had to be filed with the Government, with the Ministry of Education, but there were two things that were my role more than anyone else’s role.

The first was one of the most important relationships in the school, and that is the relationship between the chair and the principal. The concern is that the reason why the Minister or her officials have suggested that the Minister be able to appoint the chair is to take control of that relationship. If that is not the case then that is great, but if we could have an explanation as to why the chair, as opposed to a member of the board of trustees, who has the capacity to vote like everybody else and can put it there already—I would suggest that if the Minister has chosen an appointee, they carry status. They carry status. They would have an effect on the conversations around the table.

The other thing that the chair is the voice to the media. They, actually, then, when an incident happens in the school—the general practice is that the principal is the day-to-day manager of the school and normally would be the first to comment to the media. But it is the role of the chairperson of the board of trustees to then be the face of the parental organisation that actually speaks to the media next. So “Why the chair?” is the question.

Can I ask the Minister also around—and we are now talking about clause 81, and it is inserting new section 98A, “Minister may approve alternative constitution in certain cases”. This is around combining boards of State schools. One of the suggestions in one of the regulatory impact statements on this particular clause was that when boards are combined by the Minister, the make-up of the boards will become too unwieldy. They suggested that the principal, who is a trustee by right; the staff trustee; and the student trustees for secondary schools be removed to actually make any combined board more workable. Can I ask the Minister, around this capacity to create alternative constitutions, what she sees that that means for four schools, or two schools, or whatever. Has she taken on board those statements in the regulatory impact statement that suggest that the staff, principal, and student voice should be removed to make these combined boards more workable? That would be of extreme concern to New Zealand First. Thank you.

Mr Chairman, I was not quite—–

The CHAIRPERSON (Hon Trevor Mallard): The member can speak from anywhere.

I know. I was not quite anticipating that, but my notes are down here at my desk, so I am very pleased to take a call on this particular section. I have only a relatively brief contribution on this, around the changing of the rules around school boards of trustees. I realised as I was preparing to speak on this that many of the points that I wanted to raise around statutory interventions regarding boards we had actually grouped into the first theme, so I cannot talk about them in this one. But I do just want to say—

The CHAIRPERSON (Hon Trevor Mallard): Correct.

—I will ask for the Committee’s indulgence for just a moment—that I support the additional interventions. I think they are a welcome thing.

It does actually relate to schedule 2, which sets out the power and functions of a school board of trustees and how it can operate. One of the concerns that has been raised by boards in executing these functions is that if they ask for additional advice from the Ministry of Education, the default position has been to appoint a limited statutory manager, when many of them have been saying “Actually, we could execute these functions much more appropriately if there was some gentler intervention available to the Government and to the Minister.”, and I welcome the changes to that.

I have got some questions around the online meeting provisions, if you like, and the ability, effectively, for a board to pass a resolution but not in a meeting. Subclause (13) of clause 40, “Meetings”, in the new schedule 6 being inserted by clause 147 into the Education Act 1989, says that “A resolution signed or assented to in writing (whether sent by post, courier, or electronic communication) by all members is as valid and effectual as if it had been passed at a meeting of the board correctly called and constituted.” The question that I have got is whether unanimity is too high a threshold for that.

School boards, under this provision, would need to convene a meeting to make a single decision if one member of the board dissented from that decision, and it seems to me that that is quite a high threshold. If the decision is a relatively straightforward one and the board is trying to avoid the unnecessary expense and complication—bearing in mind that these are volunteers we are talking about—by passing a resolution by email when, for example, it is getting a written confirmation of the members’ agreement, why unanimity? Why not simply say—maybe the threshold for an absentee decision, a decision without a meeting, should be higher than at a meeting. But if the resolution could be passed by a majority at a meeting, why would it need unanimity for that resolution to be passed using a non-meeting mechanism?

It seems to me that what we are trying to do here is to not unnecessarily require the volunteer parents, who sit on school boards of trustees to attend meetings when there are non-controversial matters, say, between meetings that could be dealt with by simple resolution—and I have been part of committees where resolutions are agreed to via email. Provided there is written confirmation that the majority of members agree—in fact, we do it in some select committee processes in this Parliament—that is a very sensible thing to do. It means we do not have to meet in order to agree on a mere formality. So that is a question—why the majority?

The second point that I want to ask is around the combining and splitting of school boards of trustees, and how these provisions relate to the provisions around communities of learning, which we are going to be debating further. Some of the anxiety that has been raised by people within the educational community is that the provisions in this legislation for communities of online learning, combined with the ability of the Minister to combine school boards of trustees, could lead by default to the community of learning becoming the default governance arrangement for schools in a particular area. That is an interesting debate to have, and I am actually open to the debate.

There are a whole lot of reasons why Tomorrow’s Schools has led to a sort of silo mentality when it comes to schools. There is an interesting debate about how we break out of that, and communities of learning is part of the discussion and this provision allowing the combining of boards is part of the discussion. What I am interested in is where the Government sees those two policies intersecting. Is it the Government’s desire to have the ability to create a single board of trustees for a community of learning? It seems to me that the two legislative instruments in this bill are being dealt with separately, and it is not always clear how they link. So I would be interested in the Minister’s comments on that.

If I could just go back to a couple of points raised by both Ms Martin and Ms Delahunty in respect of, in the first instance, seclusion. The first is that the bill provides for guidelines to be established already, so I do not think that an extra provision of that nature is necessary. Training is already in place. Workshops on managing challenging behaviour are available to schools, and it seems to me that schools should be in the position of saying “This is something that we really do need to get to grips with because we have these challenges.”, and the ministry will respond. Where there are behaviour management plans, the ministry can provide specialist advice—and will do so—to those particular schools.

In terms of the distinction between time out and seclusion, I agree with the members that it is really important. It does depend on body language as well as verbal communication, and also the context that has been established for kids. To say that a teacher cannot make a kid go into time out—whereas the seclusion that we are getting rid of was involuntary—there are already guidelines on how to use time out and what alternatives there are to seclusion. Those were circulated to all schools last year, when this issue became pressing. So guidelines, general training, and specific interventions are available.

On the matter of the appointment of a trustee—and, thank you; I agree that there are times when that might be necessary—again, I want to put this in the overall context of what the bill is seeking to do, and that is to provide a continuum of interventions. Right now, the threshold to intervene when a school is clearly in trouble is so high that the intervention is actually either a statutory manager taking over one, some, or almost all functions, or putting in a commissioner and removing the board altogether. So the bill sets out a continuum that begins at a much lower level that says: “Look, we think there’s a problem here. Can we come and work with you towards the appointment of a new trustee on to the board?”

The idea that that trustee might also be appointed as chair is still a much lower-level intervention than a commissioner. If a Minister were to make that appointment, it would be circumstance-specific, because that might be what is deemed to be required, but, moreover, that chair would have only one vote, whereas a commissioner, obviously, becomes the board. So it is in the context of greater flexibility of interventions, it is in the context of what is fit for the circumstance of that school, and it is in the context of not going to some of the more stringent options to help a school recover.

Coming to questions that have been asked most recently by Mr Hipkins—although there was also a reference by, I think, Ms Martin—a reduction in numbers would occur only where there were four or more schools that were combining and there was no suggestion that that should be particular positions on the board, and all of it would be after community consultation. The point of governance, of course, is to be effective, not simply to have as wide a representation—well, sorry, we do want to have wide representation, but it also has to be manageable.

In terms of a question asked by Mr Hipkins, there would be only two categories of reasons for combining boards: (1) where there were performance issues or (2) where it was requested. And, certainly, it does admit the possibility that, over time, communities of learning might say: “Actually, instead of having 10 boards, we’d like to have one with more effective representation—one with good community participation.” But it certainly does not prescribe that that should happen, and every question before a board must be decided by majority—which is what you were concerned about, Ms Martin.

I think I have covered all the questions that have been asked, and if I have not, I would be grateful to have them repeated to me. Thank you.

Clauses 98 to 116 and 144