Bill: Education and Children's Services Bill


(Continued from 27 September 2017.)

Committee Stage

In committee.

Clauses 1 and 2 passed.

Clause 3.

Mr GARDNER: I have a question about clause 3 that we might consider further between the houses. In relation to the definition of non-government schools on page 10, it has been suggested by a stakeholder group that the current definition of a non-government school—that is, a school that is registered under the Education and Early Childhood Services (Registration and Standards) Act that is not a government school—might be slightly broadened to include that a non-government school means a school and an education and care service. I put that on the record, and the minister can answer if she wishes. We could discuss between the houses that a stakeholder group has suggested that amendment, and if the government wishes to comment, then they might.

The Hon. S.E. CLOSE: You are quite right; we will look at that between the houses.

Clause passed.

Clauses 4 to 6 passed.

Clause 7.

Mr GARDNER: My understanding is that in the original act there were no objects and principles listed as such. I indicate my thanks to the minister for her comprehensive response to questions I raised in the second reading contribution. I think we will get through the committee stage a lot more quickly than we otherwise might have and potentially even be finished by lunchtime today. I apologise if I repeat any questions she has already answered; she was moving at some pace.

We understand that there were no objects and principles in the previous act and the minister's intent, as described, was to establish some. Of course, these objects and principles do not just inform what follows in the act, but I imagine they will be referred to in future when ministers or chief executives of the department are identifying the policies and procedures that the education department will follow. My question is: what process did the minister use to arrive at this set of principles as outlined in the original bill?

The Hon. S.E. CLOSE: This has been in process since 2009, I understand. A discussion paper was prepared and all the stakeholders were consulted, and then it was included in the consultation that went via YourSAy.

The CHAIR: Another question, member for Morialta?

Mr GARDNER: No, we can move to amendments.

The CHAIR: I am looking at schedule 2, amendment No. 1 in your name, member for Morialta, which I presume you are moving. Are you going to move your amendment No. 1 on schedule 2?

Mr GARDNER: For the sake of clarity, there have been a couple of extra amendments that have just been tabled, so when we get to them I do not want us to get confused. The first—

The CHAIR: Hang on a second. It would be nice if the table knew about the extra amendments.

Mr GARDNER: I think the one the Chair has asked me to deal with is the first of those.

The CHAIR: We could take your word for it—

Mr GARDNER: I think that would be an excellent idea.

The CHAIR: —and do not think me churlish, but the table would like to see the amendments.

The Hon. S.E. Close interjecting:

Mr GARDNER: One of them deals with this clause a bit later on. It is an additional thing to one of your amendments.

The CHAIR: It has been put to me by the table that we could postpone this clause and work on other clauses while we are working out where the amendments are lying.

Mr GARDNER: At the end of the day, we have a couple of amendments that we can deal with quickly on this clause first, and then if we need to we can postpone, or we can postpone to—

The CHAIR: We are old-fashioned here; we have a certain order we like to deal with things. If you do not have clause 7 under control, we can move on to other clauses.

Mr GARDNER: I apologise to the house. We had a look at the amendments that the minister filed early this morning, proposed one further one, and that was requested a little while ago. We will get to it soon, so I move:

That we postpone clause 7.

The CHAIR: Do you know if your new amendments are going to affect anything else in the bill, or is it just clause 7?

Mr GARDNER: They will not.

The CHAIR: So we can move on to other clauses.

Motion carried; clause postponed.

Clauses 8 and 9 passed.

Clause 10.

The CHAIR: Minister, you are going to move your amendment and we are only going to consider it to the end of (a), because your amendment, member for Morialta, does not include anything after that.

Mr GARDNER: I am happy for us to deal with just the minister's amendment and mine will be unnecessary.

The Hon. S.E. CLOSE: I move:

Amendment No 1 [EduChilDev–2]—

Page 15, after line 40—Insert:

(1a) Without limiting the provisions that may be included in a model constitution for governing councils of schools, each such model constitution must contain provisions requiring—

(a) the governing council to participate in a scheme for the resolution of disputes between the governing council and the principal of the school; and

(b) the members of the governing council to comply with a code of practice approved by the Minister.

Mr GARDNER: The previous act had a dispute resolution mechanism required to be included in governing council constitutions. In my second reading, and in discussions with the minister, I indicated that the lack of a dispute resolution model in the new bill was inadequate, from the opposition's point of view. We therefore indicated that we would move an amendment to restore what was in the current bill, and the amendment tabled in my name does that.

The minister's amendment that we are now discussing is, to that point, identical to the one the opposition suggested. The additional point that the minister brings in, though, is that school constitutions must contain provisions requiring that 'the members of the governing council to comply with a code of practice approved by the minister'. There are some other amendments that we will deal with that are consequential to that, which establish further details about the code of practice.

The opposition is open-minded about whether or not this is beneficial. The opposition became aware of the introduction of the code of practice into the school governing council constitutions into the bill last night. That is fine; these things happen, and if there is an issue we can deal with it between the houses. I understand that the minister may have passed over this in her second reading response but, as I said, she was moving at some haste, so at this stage I invite her to explain the benefit, purpose or need for the codes of practice, which the opposition will then consider between the houses.

The Hon. S.E. CLOSE: The code of practice is currently provided for in section 84 of the Education Act, so we have moved it into this provision to make it straightforward.

Mr GARDNER: That sounds like a reasonable explanation, and we will proceed on that basis.

Amendment carried.

The Hon. S.E. CLOSE: I move:

Amendment No 2 [EduChilDev–2]—

Page 16, line 3 [clause 10(3)]—After 'constitution' insert:

and each code of practice approved by the Minister

This is consequential on the decision we have just made.

Amendment carried; clause as amended passed.

Clauses 11 to 32 passed.

Clause 33.

Mr GARDNER: I think I raised this in my second reading speech; having printed it off, it turns out that speech went to 45 pages, and I have not had time to line up the questions I asked in that and the minister's responses given just 20 minutes ago, but there is the issue of these $20,000 fines. In this case, these are for the offence of a member of a governing council failing to disclose a conflict of interest and so forth.

The issue has been raised that these fines are higher than some others. As I indicated in my second reading contribution, the opposition does not propose to amend these fines but, for the record, can the minister identify the reason for the figure of $20,000 being chosen? My understanding is that it is to enable consistency with other similar offences under similar acts but, given that there are offences that have $5,000 fines or $10,000 fines in other acts, is there a cross-government approach that has been proposed to deal with those further offences as well?

The Hon. S.E. CLOSE: The fines were set on the advice of parliamentary counsel to be generally consistent. I cannot speak to any further changes the government might make on acts for which I am not responsible, but that is why that figure was chosen.

Clause passed.

Clause 34 passed.

Clause 35.

The Hon. S.E. CLOSE: I move:

Amendment No 3 [EduChilDev–2]—

Page 29, line 32 [clause 35(1)]—Delete 'stand-alone' and substitute 'Government'

Mr GARDNER: I invite the minister to explain the need for replacing 'stand-alone' with 'government'. I am not sure if there are any non-government preschools that would otherwise be captured, but if there were some clarity there that would be helpful.

The Hon. S.E. CLOSE: This is essentially a drafting decision to create consistency with the next clause.

Mr GARDNER: I cannot imagine that we would have any great objections, but we will have a look at it in more detail between the houses.

Amendment carried; clause as amended passed.

Clause 36 passed.

Clause 37.

Mr GARDNER: I am interested in this provision under clause 37(2):

Subject to this Act, the same body may be the governing council for 2 or more schools.

I am just curious if the minister can articulate in what circumstances that provision is likely to be used. I can think of one where schools might be merging potentially in that process, but other than that are there any other provisions where this would be used?

The Hon. S.E. CLOSE: My advice is that, although this has not happened, there is an effort for futureproofing in case there is such a need in the future.

Clause passed.

Clause 38.

Mr GARDNER: I move:

Amendment No 3 [Gardner–1]—

Page 31, lines 1 to 10 [clause 38(2)]—Delete subsection (2) and substitute:

(2) Subject to this Act, a majority of the persons appointed under subsection (1)(b) must be persons who are responsible for students enrolled in, or children who are to attend, the school unless the school is wholly or principally for adult students.

I identified the purpose of this in the second reading speech but, to be very clear, this amendment deals with the requirement, which the opposition believes is useful, for there to be a parent majority on school governing councils. The amendment specifically states:

Subject to this Act, a majority of the persons appointed under subsection (1)(b) must be persons who are responsible for students enrolled in, or children who are to attend, the school unless the school is wholly or principally for adult students.

Put simply, we want to maintain what is currently the situation of having a parent majority on governing councils.

The Hon. S.E. CLOSE: Subclause (2)(b), which is removed by this amendment, is intended to deal with circumstances where a school council is not able to be composed of a majority of parents, which does occasionally happen. To revisit my response to this, we are concerned that we need to be able to address the situation where a council is not able to be composed of a majority of parents. Also, subclause (2)(c), which would be deleted under this amendment, is intended for futureproofing in case there are instances in the future where the minister may wish to declare a school or a class of schools exempt from needing a parent majority on the council.

Ayes 19

Noes 21

Majority 2

AYES
Bell, T.S. Brock, G.G. Chapman, V.A.
Duluk, S. Gardner, J.A.W. (teller) Goldsworthy, R.M.
Griffiths, S.P. Knoll, S.K. Marshall, S.S.
McFetridge, D. Pederick, A.S. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.    
NOES
Bettison, Z.L. Bignell, L.W.K. Caica, P.
Close, S.E. Cook, N.F. Digance, A.F.C.
Hildyard, K.A. Hughes, E.J. Kenyon, T.R. (teller)
Key, S.W. Koutsantonis, A. Mullighan, S.C.
Odenwalder, L.K. Piccolo, A. Picton, C.J.
Rankine, J.M. Rau, J.R. Snelling, J.J.
Vlahos, L.A. Weatherill, J.W. Wortley, D.
PAIRS
Pengilly, M.R. Hamilton-Smith, M.L.J. Redmond, I.M.
Atkinson, M.J. Speirs, D. Gee, J.P.

The Hon. S.E. CLOSE: I move:

Amendment No 4 [EduChilDev–2]—

Page 31, after line 10—Insert:

(2a) The governing council of a school must, in accordance with the governing council's constitution, appoint or elect one of its members to be the presiding member of the governing council, being a person who—

(a) except in the case of a school that is wholly or principally for adult students, is responsible for a student enrolled in, or a child who is to attend, the school; and

(b) is not a member of the staff of the school or a person employed in an administrative unit for which the Minister is responsible,

(however, the governing council may, with the approval of the Chief Executive, disregard the requirement under paragraph (b) if there is no other member willing to be the presiding member).

Mr GARDNER: I indicate that the opposition will supporting this amendment but then moving a further amendment. This amendment builds on what the opposition is proposing in amendment No. 4 in what I assume is schedule 2, which I will be withdrawing. Therefore—

The CHAIR: You will not be proceeding with it.

Mr GARDNER: —I will not be proceeding with it. However, the purpose of this amendment is to enable the chair of the governing council to not be somebody who is responsible to the minister. This is an important amendment that will ensure the independence of governing councils from inappropriate interference, or the perception of interference, or the feeling that they are going to be in a circumstance where the chair is the employee of the minister, as in an example described by Justice Debelle, where you might have some serious issues. It is therefore important to maintain a parental chair. I am pleased that the government has come to the table and is supporting this amendment. I will get to the further improvements that are necessary when we deal with the next amendment.

The CHAIR: Are you happy to respond to those comments before the member for Morialta moves his new amendment No. 1 on his new schedule 4? This is an amendment to your amendment.

The Hon. S.E. CLOSE: I think we are still discussing amendment No. 4, but yes, because I am accepting his new amendment, whichever procedure works for the Chair is fine by me.

Mr GARDNER: I move:

Amendment No 1 [Gardner–3]—

Page 31, after line 10 [inserted subsection (2a)]—After 'executive' insert:

and until such time as a person who is not a person referred to in paragraph (b) is willing to be the presiding member

The minister has, in her version of the amendment, said that the governing council may, with the approval of the chief executive, disregard the requirement that it be a parent rep if there is no other member willing to be the presiding member. That sounds, on the face of it, to be reasonable, but the opposition is very concerned about the circumstance. Sometimes, personality conflicts in these situations can present in a way that a parent representative might be willing to stand but might feel intimidated out of the idea of standing.

For example, if a staff member or somebody else on the council has been the chair for the previous years, these things can sometimes have a culture of dominance, and that parent might feel intimidated out of standing for the position so that the otherwise ineligible person is able to continue. In that circumstance, I want to be abundantly clear that if, in a future meeting, the parent wishes to take up that responsibility, then their right to do so is asserted.

I am very pleased that the minister has had a look at this and that, in the very brief time she has had to see it, she has seen the potential merit in it. This amendment would ensure that the circumstance where an ineligible person—a staff member, really—takes the chair, they only continue until such a time as a person who is not ineligible is willing to be the presiding member. I think this probably neatly wraps up a solution.

The Hon. S.E. CLOSE: I am willing to accept this amendment. I am not sure that it is abundantly necessary but, in order to reassure anyone who is anxious, I am happy to accept it. What we have done in the amendment that is now being amended is make sure that we are entrenching the requirement for a chair of the governing council to be a parent—someone who is not employed—only allowing the fail-safe that should there be no-one willing to do that, we are still able to have a functional governing council. Of course, as soon as someone is prepared, who is a parent and not an employee, we would revert to that. I am happy to accept this amendment to my amendment.

Amendment to amendment carried; amendment as amended carried.

Mr GARDNER: I move:

Amendment No 5 [Gardner–1]—

Page 31, lines 11 to 18 [clause 38(3)]—Delete subclause (3) and substitute:

(3) If an election of members of the governing council of a school fails because no person nominates for the election, or no votes are cast in the election, then—

(a) the Minister must conduct at least 1 supplementary election in accordance with the governing council's constitution; and

(b) if that election or those elections also fail, the Minister may appoint such persons to the governing council as the Minister thinks fit (and subsection (2) will be taken not to apply in relation to the governing council in such a case).

This amendment deals with the circumstance envisaged in the bill whereby there are insufficient candidates or votes cast for the election of governing council members. The bill provides an opportunity for this circumstance to be dealt with, at the minister's discretion, by either (a) having a supplementary election, or (b) appointing such persons to the governing council as the minister thinks fit.

The opposition understands that there can be circumstances whereby such a mechanism is necessary. I have been to governing council meetings that have failed to make quorum. I have been to governing council AGMs where there has been a frisson of desperation as people try to encourage others around the room to just put their name down so that the meeting can be constitutional. We understand that these circumstances can happen. However, it is important that in the interests of empowered parental engagement in their schools, the priority be given to parental engagement and not ministerial appointment.

I am not suggesting for a moment that this minister would do this, and I am not saying that necessarily about other potential ministers from her party or other past ministers from her party, but at the other end of the spectrum the fact is that sometimes ministers get into disputes and arguments with governing councils and it can all be deeply unpleasant.

In those circumstances, I would hate to think that this would be a get out of gaol clause for a minister who wished to appoint some person from the department to the school council to pursue a certain policy agenda rather than a parent having the opportunity to come on at a subsequent stage. So our amendment requires that, while both of the opportunities to fill those positions are still available to the governing council, the supplementary election must take place first before ministerial appointments.

I realise that there are opportunities where a governing council might identify some people and say to the minister, 'We would like to appoint this person from the school community whom we have identified,' and that is probably the purpose for which the minister might argue that the second section is of benefit. I would say that the same end result can be achieved by just having the supplementary election and nominating that person.

The Hon. S.E. CLOSE: I am happy to support this amendment.

Amendment carried; clause as amended passed.

Clauses 39 to 41 passed.

Clause 42.

The Hon. S.E. CLOSE: I move:

Amendment No 5 [EduChilDev–2]—

Page 33, after line 4 [clause 42(3)]—Insert:

(ab) a provision requiring the governing council to participate in a scheme for the resolution of disputes between the governing council and the principal of the school; and

(ac) a provision requiring the members of the governing council to comply with a code of practice approved by the Minister under section 10(1a)(b); and

We have tried to do very similar things with the two amendments. Mine are slightly broader, taking into account the question of the code of practice, as discussed earlier.

Amendment carried.

The CHAIR: You are not proceeding with your amendment?

Mr GARDNER: We will have a look at the codes of practices between the houses, as indicated. On that basis, the amendment is similar to that of the minister's, so we will not proceed.

Clause as amended passed.

Clauses 43 to 47 passed.

Clause 48.

Mr GARDNER: The minister spent a little bit of time in her response defending the inclusion of clauses 48, 50 and 51. The opposition does not at this stage propose to support those clauses. Without rehashing the whole of the second reading debate, clause 48 as proposed suggests that the minister may direct a governing council or affiliated committee if they are satisfied that the governing council of a school or an affiliated committee has refused or failed to perform a function under this act, or has performed a function or exercised a power in a particular manner that has caused a detriment to the students or a substantial section of the students or persons who are responsible for the students.

My first issue is in relation to this question of 'to the detriment'—the minister has to be satisfied that it is to the detriment of the students. Without rehashing my lengthy comments on the Debelle report in the second reading, my concern is that all that is required is that the minister be satisfied that something is to the detriment of the students. A previous minister seemed to suggest in this house that sexual assaults at school being identified to other parents at the school was to the detriment of those students.

For me, it is not satisfactory that a minister can just be satisfied that some of these activities of a governing council cause detriment. I invite the minister to provide examples of where clause 48 might be so directed. I think the example that she used in her response earlier was to describe the provisions in the current act as a very blunt instrument, giving only an all or nothing type of approach. I have had a quick look at the current act and I am not convinced of that analysis, certainly by comparison with this bill, which gives the minister such expanded powers.

I appreciate the government will be supporting this clause; the opposition will be opposing, but if the minister wishes to put anything on the record identifying an example of how this clause might be useful then I invite her to do so.

The Hon. S.E. CLOSE: It seems pretty clear in the current act that there are only very blunt instruments for engaging with a council where the minister is satisfied that detriment is being caused to students. I would draw the member's attention to the need for the governing council to refuse to perform any function under the act or perform a function or a power in a particular manner that causes detriment. Short of simply removing the council, there is currently not a lot that a minister is able to do.

An example that has not occurred but could occur, and is conceivable, would be some form of policy that is discriminatory against a particular group of students that the governing council determines is something that they want for their school. Importantly, this decision is appellable under division 2—Appeals to Administrative and Disciplinary Division of the District Court. This action is subject to that; therefore, any minister who acted in a capricious manner and did not have a strong amount of evidence of real detriment to students would be unlikely to make any such decision, which appears to be the opposition's concern.

This is not about exercising harsher control on governing councils; it is in fact about allowing for a more subtle relationship should there be matters that arise. The vast majority of the time in the vast majority of schools this will never, ever be an issue. What we want is to not be in a position of having to say, 'We are going to dissolve the entire council because you have made this decision.' What we want is to be able to work through that decision, and this enables that degree of subtlety for a future minister.

Mr GARDNER: I indicate that we will be proceeding with the amendment, but we will take on board the minister's example and give it further thought between the houses. However, at this stage I remain unconvinced, and I suspect that my colleagues in the opposition will also be unconvinced.

The Hon. S.E. CLOSE: May I ask, given that I sense a division coming, whether we are going to put the amendments together, because my objections are—

Mr GARDNER: We have to deal with them clause by clause, but we do not need to debate everything.

The Hon. S.E. CLOSE: Okay, I understand. Thank you.

The CHAIR: You could have asked us that bit, too. We are interested observers—we just want to be in the loop if we could be.

Ayes 22

Noes 19

Majority 3

AYES
Bettison, Z.L. Bignell, L.W.K. Brock, G.G.
Caica, P. Close, S.E. Cook, N.F.
Digance, A.F.C. Hildyard, K.A. Hughes, E.J.
Kenyon, T.R. (teller) Key, S.W. Koutsantonis, A.
Mullighan, S.C. Odenwalder, L.K. Piccolo, A.
Picton, C.J. Rankine, J.M. Rau, J.R.
Snelling, J.J. Vlahos, L.A. Weatherill, J.W.
Wortley, D.    
NOES
Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. (teller) Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. Marshall, S.S. McFetridge, D.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.    
PAIRS
Gee, J.P. Redmond, I.M. Hamilton-Smith, M.L.J.
Speirs, D.    

Clause 49 passed.

Clause 50.

Mr GARDNER: The opposition will be opposing clause 50, for the same reasons as described in clause 48; we would prefer if the minister’s powers were not expanded.

The committee divided on the clause:

Ayes 23

Noes 19

Majority 4

AYES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N.F. Digance, A.F.C. Hildyard, K.A.
Hughes, E.J. Kenyon, T.R. (teller) Key, S.W.
Koutsantonis, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Rankine, J.M.
Rau, J.R. Snelling, J.J. Vlahos, L.A.
Weatherill, J.W. Wortley, D.  
NOES
Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. (teller) Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. Marshall, S.S. McFetridge, D.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.    
PAIRS
Gee, J.P. Redmond, I.M. Hamilton-Smith, M.L.J.
Speirs, D.    

Clause thus passed.

The CHAIR: I ask members to stay in their chair as there will be a division on the next clause.

Clause 51.

Mr GARDNER: What protections are there—the minister outlined a process for how these—actually, do you know what? I am going to deal with that at the next clause. Let's just vote against this one.

The committee divided on the clause:

While the division bells were ringing:

The CHAIR: I will just point out to the VIEW ladies that you are getting three divisions in one, which is very unusual. I hope you are enjoying it!

Ayes 23

Noes 19

Majority 4

AYES
Atkinson, M.J. Bettison, Z.L. Bignell, L.W.K.
Brock, G.G. Caica, P. Close, S.E.
Cook, N.F. Digance, A.F.C. Hildyard, K.A.
Hughes, E.J. Kenyon, T.R. (teller) Key, S.W.
Koutsantonis, A. Mullighan, S.C. Odenwalder, L.K.
Piccolo, A. Picton, C.J. Rankine, J.M.
Rau, J.R. Snelling, J.J. Vlahos, L.A.
Weatherill, J.W. Wortley, D.  
NOES
Bell, T.S. Chapman, V.A. Duluk, S.
Gardner, J.A.W. (teller) Goldsworthy, R.M. Griffiths, S.P.
Knoll, S.K. Marshall, S.S. McFetridge, D.
Pederick, A.S. Pengilly, M.R. Pisoni, D.G.
Sanderson, R. Tarzia, V.A. Treloar, P.A.
van Holst Pellekaan, D.C. Whetstone, T.J. Williams, M.R.
Wingard, C.    
PAIRS
Gee, J.P. Speirs, D. Hamilton-Smith, M.L.J.
Redmond, I.M.    

Clause thus passed.

New clauses 51A, 51B, 51C, 51D and 51E.

Mr GARDNER: I move:

Amendment No 10 [Gardner–1]—

Page 38, after line 39—Insert:

Subdivision 6—Governing Councils Legal Fund

51A—Interpretation

In this Subdivision—

Crown Solicitor has the same meaning as in the Crown Proceedings Act 1992;

Fund means the Governing Councils Legal Fund established under section 51B.

51B—Governing Councils Legal Fund

(1) There will be a fund kept in a separate account at the Treasury to be called the Governing Councils Legal Fund.

(2) The Fund consists of—

(a) the money provided by Parliament for the purposes of the Fund; and

(b) any money paid into the Fund under any other Act.

(3) Any money standing to the credit of the Fund that is not for the time being required for the purposes of this Act may be invested by the Treasurer.

(4) Income from investment of the Fund will, at the direction of the Treasurer, be paid into the Fund or into the Consolidated Account.

(5) A deficiency in the Fund will be met from the Consolidated Account.

51C—Payments from Fund

(1) The Fund is to be applied as follows:

(a) as payment for the costs of independent legal advice incurred, or to be incurred, by the governing council of a school in relation to a dispute between the governing council and the Department;

(b) as may otherwise be authorised by or under this or any other Act.

(2) A payment may only be made from the Fund under subsection (1)(a) with the approval of the Crown Solicitor.

(3) The governing council of a school may, in a manner and form determined by the Crown Solicitor, apply to the Crown Solicitor for approval of a payment from the Fund under subsection (1)(a).

(4) An application must be accompanied by such information or documents as may reasonably be required by the Crown Solicitor

(5) The Crown Solicitor must approve the payment from the Fund under subsection (1)(a) if the Crown Solicitor is satisfied that—

(a) there is a genuine dispute between the governing council and the Department that is not trivial, frivolous or vexatious; and

(b) it is necessary or appropriate that the governing council seek independent legal advice in relation to the dispute.

(6) In performing a function under this section, the Crown Solicitor is, despite the Public Sector Act 2009 or any other Act or law, independent of direction or control by the Crown or any Minister or officer of the Crown.

(7) Nothing in this section prevents a governing council from seeking any legal advice it thinks fit.

51D—Accounts

The Minister must cause proper accounts to be kept of money paid to and from the Fund.

51E—Audit

The Auditor-General may at any time, and must at least once in each year, audit the accounts of the Fund.

We would like to introduce new clauses 51A, 51B, 51C, 51D and 51E. I described this at length in the second reading, but we will proceed again to describe it briefly here. Justice Debelle recommended that this fund be established—a governing councils legal fund—so that when governing councils need to seek legal advice there is a fund established for them to do so because, of course, the Debelle case identified an example of where a governing council sought to undertake certain actions and was advised by the department that they could not do so, and that was wrong advice. The department provided them with advice of a legal nature that was incorrect.

If that governing council had had access to this fund, as has been pointed out, they might have been able to access advice, provided their advice to the government and the government might not have got itself into such a j