Education and Training (Early Childhood Education Reform) Amendment Bill

Members, we now come to our final debate, which is the debate on clauses 1 to 3: “Title”, “Commencement”, and “Principal Act”.

Thank you, Madam Chair. I’m going to be a little bit unorthodox and start on clause 3, regarding amending the principal Act. The reason is to question whether in fact this is ultra vires because of the Legislation Guidelines 2021 edition, where any amendment to a principal Act must serve the purpose and objective of the original Act or the policy objective of the new Act. It should not be inconsistent or contradictory. I’m quoting there, pretty much, from what’s known as the LDAC. That is the best-practice guideline for writing legislation, and there is a caveat that, if an amendment significantly changes fundamental features, the policy rationale must be clear, and coherence with existing law must be addressed.

As the previous debates have shown, and as we can see with the regulatory impact statement (RIS), this really does call into question whether clause 3—or can say that this Act truly amends the Education and Training Act 2020. When I read section 4, the purpose of that Act is to support the learning and development of every learner. It honours the partnership under Te Tiriti o Waitangi, and it supports Māori-Crown relations, and it also talks about having equitable outcome for learners. We do not see, particularly around Te Tiriti, anything in the amendment that supports the principal Act, and in fact by omission, and has been heard from submissions, that is undermined and is completely inconsistent in our view.

When we look at the RIS, we can also see that the bill is undertaking large structural changes that may have been better with a new Act rather than something disguised as an amendment Act with a completely different policy purpose. In fact, we haven’t really heard what the problem definition is. I would quite like to hear it from this Minister. We didn’t hear it from the previous Minister in the chair, but that may help us to be able to understand whether this clause 3 actually does conform to the LDAC guidelines.

Going back to the RIS, we can see that the reform says it’s to improve regulatory effectiveness and reduce compliance burden. We haven’t had an explanation of what regulatory effectiveness means, and that certainly doesn’t sound like it supports the primary function of the Education and Training Act, section 4, which is around the learning and development of every learner, supporting and honouring Te Tiriti and so on—equitable outcomes. We do not know what a compliance burden is under this amendment Act. We don’t know what it means in relation to accident reports, food handling, police vetting checks, and so on. We don’t have a list of what is in and what is out.

Page 8 of the RIS talks again about the limited analysis of the impacts, costs, and benefits, so how do we know this does what it says it’s going to do on the tin when the very purpose that it is saying that is going to achieve does not align with the principal Act as far as we can hear, particularly with the emphasis given to the labour market facilitation?

The other issue, I guess, is the legal problem that this creates, because, in our view, given the weak answers to the previous debate on the regulatory decisions and also this misalignment that is clear with the principal Act, it does call into question judicial reviews. It probably calls into question the defensibility of future regulatory decisions, and we really want to know how the Minister can justify making these major legislative amendments when the RIS has acknowledged such limited analysis on page 8, and also the lack of consultation on page 48.

Those are questions that are quite fundamental, but I think it’s really important because, really, what we are seeing is a misalignment between this amendment and the principal Act. Why did the Minister not just introduce a bill to repeal the principal Act or create a new bill? Why are they calling it an amendment bill when it does not align and therefore is not good lawmaking if we apply the standards that are set out in the Legislation Guidelines 2021 edition? We will have more questions, too, on the title and commencement.

Thank you, Madam Chair. I rise to make a contribution to this debate on the title and commencement. When you look at the title “Education and Training (Early Childhood Education Reform) Amendment Bill”—we have a number of education and training amendment bills come through this House on a regular basis—it isn’t what it says on the tin. I think we need to think about other terms to more accurately reflect what this bill does.

There were a number of contributions made through the select committee process, but also through this committee of the whole House stage, and I think the Associate Minister of Education didn’t adequately resolve those questions—in particular, Te Tiriti o Waitangi. As numerous people said, our kōhanga reo and our puna reo have a very, very specific cultural pedagogy and language pedagogy built on the foundation of Te Tiriti o Waitangi. I get that that side is allergic to Te Tiriti o Waitangi; they’re allergic to the constitutional founding document of this country and can’t see that, actually, by including that in this legislation, it could go some way to helping to do the policy intent of this bill. We had a number of questions in the committee of the whole House which did highlight that as well.

If you’re not going to have Te Tiriti o Waitangi as a part of the bill, how is the Director of Regulation going to ensure language quality assurance, cultural competency, if that isn’t factored in? The ability to be able to speak te reo, the ability to do that in a fluent way which is matched with expertise, is something that would be required in order for this Director of Regulation to be able to do their job properly. My first suggestion for an amendment to the title and commencement is: “The Education and Training (Allergic to Te Tiriti o Waitangi Early Childhood Education Reform) Amendment Bill”, because I think that will address more accurately the concerns that were brought to the select committee process but also brought in contributions by members across the Chamber today, as well.

The other thing I would like to think about, as well, is around the opaque nature of some of the questions that were posed. I think they were reasonable questions that were posed to the Minister, questions around the impact of ratios—that came up a number of times. I’m sure it was me that was bringing it up, as well, because when I talk to early childcare providers, they talk about making sure that the working conditions of our teachers are the learning conditions of our tamariki. If you have good working conditions for your teachers, those are good learning conditions for your tamariki and mokopuna, so making sure that the ratios are well set for our babies and for our toddlers is incredibly, incredibly important. When we put questions to the Minister about whether this Director of Regulation would be able to intervene if they found that there were unsafe working conditions, the answer was “Well, actually, they don’t make policy; they just follow up on complaints.”, so on and so forth, and kick the can down the road, when there is an opportunity to actually address that and to make this bill more useful.

At the heart of it, this bill is ideological. I get it; we come to this House with ideas where we want to change our communities and our societies for the better, but those changes have to be practical. Those changes have to work. When we made contributions from this side of the committee to ask the Minister “Well, actually, how is this going to work? How is it really actually going to work? You’ve got this Director of Regulation—how does it work with the Secretary of Education and the Deputy Secretary of Education?”, what I can see is that this person will roll up to kōhanga reo, puna reo, and also to other places, and not have the skills to be able to do it, not have the ability to actually engage not just with Māori but with everybody else, as well. The real risk here is that the regulation that this Minister wants to dismantle within the Ministry of Education will just be replicated somewhere else.

My other question to the Minister is around the commencement date. Given these concerns that have not been resolved by the previous Minister in the chair, will the Minister push out the commencement date so that these issues are resolved? After the Royal assent of this bill, what is in place to make sure that this Director of Regulation, and everything else with them, will be able to do the job properly? We cannot see that. I do not commend this bill.

Thank you, Madam Chair. I just want to follow from my colleague Teanau Tuiono and just to also check with the Minister if the Minister is happy to consider one of my amendments on the commencement date, particularly because, in the commencement date, this Act comes into force two months after Royal assent, but as my colleague Teanau Tuiono and also as the previous speaker, Ingrid Leary, has expressed, there are actually still a number of issues that haven’t really been teased out throughout this stage. I think the Minister’s response actually doesn’t give the committee any confidence that the right settings are in place to ensure that something like this could be done within a two-month period. My question to the Minister is whether the Minister would consider my amendment, which pushes out, not by long—not saying that it shouldn’t, but it pushes it out from two months after Royal assent to six months after Royal assent. We have seen a number of other bills brought to the House which introduce new roles into a particular agency, etc., that do allow for a six-month period.

Now, my second thing is around the title. I do have another amendment on this that I genuinely want to engage with the Minister on, because, when we’re looking at the bill, the title itself, in terms of early childhood education reform, doesn’t necessarily express the content of this bill, mainly—

Simon Court: That’s why we suggest you read it, Lawrence.

Dr LAWRENCE XU-NAN: Would you like to take a call and just explain what the bill is? Because, frankly, I have read this bill thoroughly—every single clause. What’s clause 5?

Simon Court: Madam Chair.

CHAIRPERSON (Hon Jenny Salesa): Order!

Simon Court: Point of order, Madam Chair. I think the member just offered to yield so that I could take a call.

CHAIRPERSON (Hon Jenny Salesa): I did not hear him offering to yield. I heard him offering you a chance to make a speech, so I will go back to Dr Lawrence Xu-Nan.

Dr LAWRENCE XU-NAN: Thank you. You too can take a call, Mr Simon Court. Now, in terms of this bill, the majority of the bill is to do with regulations. You know, we have a new Director of Regulation. We have changes to the regulatory systems in terms of Schedule 2. I think just saying “early childhood education reform” makes it sound much broader than it really covers, because there are certain areas here that are quite narrow. My changes to the title that I’m proposing to the Minister are simply changing from “(Early Childhood Education Reform)” to “(Early Childhood Education Regulatory Reform)”, because that seems to be more in line with what we’re seeing in Part 1, particularly clause 5 to clause 13, in fact, as well as Schedule 2 and Part 2. Those two are my two amendments that I would like the Minister’s engagement on.

Thank you, Madam Chair. I will answer the member Ingrid Leary’s questions first, and I can confirm that the Education and Training (Early Childhood Education Reform) Amendment Bill does indeed conform to legislative guidelines. I can also advise that there is no misalignment with the principal Act; it does support the purpose of the principal Act, and remind the member that the principal Act goes across the whole of the education sector: early childhood education, compulsory, through to tertiary.

I thank the two members of the Green Party for their generous offers of amendments, but we won’t be accepting those. Thank you.

Thank you, Madam Chair. I have some supplementary questions regarding the commencement and then the title. Basically, the question is: what is the basis of the two-month period? What is the evidence base that the Associate Minister of Education used, or was it a time frame as part of a coalition deal that perhaps wasn’t on paper but occurred behind closed doors?

The reason I bring that up is that, once again, we are in urgency in this House. We’ve got a very rapid time frame, and it’s not just us who are saying it and it’s not just the submitters either—it’s the regulatory impact statement (RIS). On page 47 and page 48, the RIS highlights that the implementation time frames are compressed, and it even says that the Minister intends to bring changes in rapidly. My question is: why do we need to have these changes introduced rapidly rather than go through them in a less hurried way and have better lawmaking?

Also, on page 8, it talks about tight constraints on the options considered. It talks about a rushed timeline. We have already raised the confusion risks that arise, but unfortunately the RIS also, on page 30, raises those as arising from structural transitions that are going to be exacerbated with a rushed timeline.

Then we have concerns that have been specifically raised with insufficient planning for Māori medium and also for rural providers. I say this as the member for Taieri, where we have a number of rural providers who have got very small infrastructure and who are feeling really shocked at the prospect of having to suddenly conform to this new amendment within two months. Why the rush for those? They are amongst those who have capacity risk, which the RIS has highlighted on page 47 and page 48—that’s the rural sector, but also actually Māori-medium providers.

The question is: where did the time frame come from? Is it like many of the things we hear in this House, which is that it is part of a coalition agreement? We’ve already had the Auditor-General say that executive decisions should not be based on coalition agreements; they should be based on evidence and the good executive powers of lawmaking, not political agreements. If there is an evidence base for it or another reason apart from the coalition agreement, we would really like to hear it.

My second request is that if the Minister is not going to entertain the really useful suggestions by the Green Party members about a short stay of execution, if you like—a little bit of charity or perhaps compassion, particularly towards some of those Māori-medium providers and rural providers—would the Minister entertain a carve-out so that the commencement date could be for bigger providers who probably have been planning and will have bigger infrastructure to be able to respond to the changes that are required; that maybe they could have the two months, but as a fall-back? Perhaps Māori-medium providers and rural providers, in particular, could have a longer period of around six months just to be able to get their systems in order so that they are not left behind.

The other question I would have about the commencement is: has she received any advice about what the impact of the commencement date two months after Royal assent would have on any of the transitional arrangements to do with, for example, licensing? We’ve seen in Schedule 2 that many of those changes where the powers go from the secretary to the director involve licensing arrangements, and those are not to be taken lightly—they’re things that allow early childhood centres to operate and the framework in which to operate and to ensure that they do so safely.

Also, if some of them are involved in complaints processes or want to take a judicial review, is there a way that there could be a carve-out so that, if they are currently in a transition and they can identify that in a sensible way, perhaps the Act does not apply to them for the six months, in the same case as the rural early childhood centres and playcentres and also the Māori-medium providers?

I move, That debate on this question now close.

Thank you, Madam Chair. Just a final question, really, on the title, and I have heard some really good titles coming from the Greens. As you’ve heard, I have some reservations about whether this actually even aligns with the original Education and Training Act, and although the Minister for Vocational Education, the Hon Penny Simmonds, referred to the umbrella, I guess, almost omnibus kind of character of the original legislation, she did not explain how this legislation conforms with the Legislation Guidelines. I haven’t heard an assurance that there has been a quality assurance on that or what kind of checks have been made, particularly because we are in urgency. I’d like to know, for example, whether Parliamentary Counsel Office did do an LDAC check or whether we just take the Minister’s word for that. That would be really useful.

In terms of the bill names that could perhaps be used to replace “Education and Training (Early Childhood Education Reform) Amendment Bill”, it could be something shorter and pithier like “(Profits Before Kids)” bill. It could be the “(ECE Minus Te Tiriti)” bill. That one in particular I think would be quite useful, because it really spells out that Te Tiriti is not there, and we did not get a clear answer from Minister Seymour about whether Te Tiriti obligations were implicit, even though they were not explicit. To really get around that confusion, we could just say that and say “(ECE Minus Te Tiriti)” bill. We could have “(Risking Kids’ Wellbeing)” bill. I’m not sure that one would land, so probably won’t do that one.

Perhaps a more sensible one, and this would apply depending on the answer to the previous question around the timing and whether that’s part of a coalition deal, would be the “(Coalition Education Agreement)” bill. That would be really useful, because it would also highlight that many of the things that have been agreed to in the bill are not on an evidence basis, because the consultation hasn’t been done. If they are to be done through coalition agreements, let’s be transparent about it. I think capturing the name of that in the title of the bill would do that. It may possibly, then, also call into question whether there needs to be an Auditor-General process to actually see if the executive should be doing that, because certainly, in the case of some of the other things that have happened, they’ve been told they shouldn’t rely on that, and that has come from the Auditor-General. I’m thinking about the Gumboot Friday agreement.

My final suggestion would be “(Centralising Education Powers)” bill. I thought about this one really carefully, because it does centralise the power of—it vests a lot of power in the Minister. Even though on the tin it looks like it’s separating the powers, and the Minister himself tried to say this is around good regulation that requires separation of powers between the secretary and the director, what we know from the Organisation for Economic Co-operation and Development report is that, in fact, in education it’s better to have one regulatory system. When we get forensically into what those powers look like and what the reporting lines are, we discover that, in fact, there is a lot of say with the Minister over the director and there is virtually no say from the Ministry of Education, so in some ways it could be called “(Centralising Education)” and in another way it could be called “(Obfuscating)”—but that’s a very hard word to say. That’s why I didn’t put it in the title that I was going to suggest.

I think “(Centralising Education Powers)” bill would be quite good, because I think also then it just kind of points to the trend under this Government, who have a centralising direction of travel in Ministers. We’ve seen it with fast-track legislation. We’ve seen it with taking decision making away from localities. We’ve seen it with the undermining of local government. There is all of this kind of vested power in Ministers. Then what we’re seeing is the creation of this director role, which is purported to be one thing but is actually really just about vesting more power in the Minister. I probably could have called it the “(Vesting Power in the Minister)” bill, but I don’t think that would get through.

I really would like the Minister to consider the “(Continuing Education Power)” bill or the “(Coalition Education Agreement)” bill, and if the Minister was inclined to do the latter, then giving us some certainty about what agreements took place around the timing, what the rush is about—the two months. Why are we trying to do it this side of Christmas? Has it got anything to do with election year? And why can we not support our rural communities and Māori-medium providers in particular, who are really going to have to grapple with the stress that this is going to cause them within a very short time frame?

I move, That debate on this question now close.

The question is that Arena Williams’ tabled amendment to clause 1 replacing “reform” with “centralisation” be agreed to.

Arena Williams’ remaining two tabled amendments to clause 1 are out of order as not being objective descriptions of the bill.

The question is that Dr Lawrence Xu-Nan’s tabled amendment to clause 1 replacing “early childhood education reform” with “early childhood education regulatory reform” be agreed to.

The question is that the Minister’s amendment to clause 2 set out on Amendment Paper 440 be agreed to.

The Hon Jan Tinetti’s tabled amendment to clause 2 is out of order as being inconsistent with a previous decision of the committee.

Arena Williams’ three tabled amendments to clause 2 are out of order as being inconsistent with a previous decision of the committee.

Dr Lawrence Xu-Nan’s tabled amendment to clause 2 is out of order as being inconsistent with a previous decision of the committee.

Arena Williams’ two tabled amendments to clause 3 are out of order as not being in the correct form of legislation.

Madam Speaker, the committee has considered the Education and Training (Early Childhood Education Reform) Amendment Bill and reports it with amendment. I move, That the report be adopted.

This bill is set down for third reading immediately. However, it is time for us to stop for the dinner break. The House is suspended until 7 o’clock.

Sitting suspended from 5.56 p.m. to 7 p.m.

Third Reading