[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Education (Miscellaneous) Amendment
Bill 2012
A BILL FOR
An Act to amend the Education
Act 1972.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Amendment
provisions
Part 2—Amendment of Education
Act 1972
4Amendment of section
5—Interpretation
5Insertion of Part
9
Division
1—Preliminary
100AInterpretation
Division 2—Appointment and conditions of
office
100BAppointment
100CTerm of office and conditions of
appointment
100DRemuneration
100EActing Education
Ombudsman
100FStaff
100GDelegation
100HIndependence
Division
3—Investigations
100IMatters subject to
investigation
100JConduct of
investigation
100KEducation Ombudsman to have powers of a Royal
Commission
Division 4—Reports and
directions
100LReports
100MDirection in relation to school discipline
policy
Division
5—Miscellaneous
100NAnnual report
6Insertion of
section 104A
104ADuty to
notify Minister
7Amendment of section
107—Regulations
Schedule 1—Transitional
Provisions
1Retrospective Application
2Transfer from State Ombudsman
3Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Education (Miscellaneous) Amendment
Act 2012.
This Act will come into operation 2 months after the date of
assent.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Education
Act 1972
4—Amendment
of section 5—Interpretation
Section 5(1)—after the definition of school
insert:
school discipline means the manner in which a school
regulates or enforces standards of student behaviour and includes (without
limitation)—
(a) suspension, exclusion or expulsion of students;
(b) proactive practices for school staff in their interactions with
students;
(c) practices to reduce bullying in schools;
school discipline policy means the policies, guidelines,
legislative requirements and other matters relating to school discipline with
which Government schools are obliged to comply;
After section 100 insert:
Part 9—Education Ombudsman
Division 1—Preliminary
100A—Interpretation
In this Part—
Education Ombudsman means the Education Ombudsman appointed
under this Part (and includes a person acting in that office from time to
time);
education service means a service consisting of the provision
of educational programs for the purposes of—
(a) pre-school education; or
(b) primary or secondary education;
education service provider means a person who provides an
education service.
Division 2—Appointment and conditions of
office
100B—Appointment
(1) There is to be an Education Ombudsman.
(2) The Education Ombudsman is appointed by the Governor.
100C—Term of office and conditions of
appointment
(1) The Education Ombudsman is appointed on conditions determined by the
Governor and for a term, not exceeding 5 years, specified in the instrument
of appointment.
(2) The Governor
may remove the Education Ombudsman from office on the presentation of an address
from both Houses of Parliament seeking the Education Ombudsman's
removal.
(3) The Governor may suspend the Education Ombudsman from office on the
ground of incompetence or misbehaviour and, in that event—
(a) a full statement of the reason for the suspension must be laid before
both Houses of Parliament within 3 sitting days of the suspension;
and
(b) if, at the expiration of 1 month from the date on which the
statement was laid before Parliament, an address from both Houses of Parliament
seeking the Education Ombudsman's removal has not been presented to the
Governor, the Education Ombudsman must be restored to office.
(4) The office of Education Ombudsman becomes vacant if the Education
Ombudsman—
(a) dies; or
(b) resigns by written notice given to the Minister; or
(c) completes a term of office and is not reappointed; or
(d) is removed from office by the Governor under
subsection (2);
or
(e) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(f) is convicted of an indictable offence or sentenced to imprisonment for
an offence; or
(g) becomes a member of the Parliament of this State or any other State of
the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(h) becomes, in the opinion of the Governor, mentally or physically
incapable of carrying out satisfactorily the duties of office.
(5) Except as is provided by this section, the Education Ombudsman may not
be removed or suspended from office, nor will the office of the Education
Ombudsman become vacant.
100D—Remuneration
The Education Ombudsman is entitled to remuneration, allowances and
expenses determined by the Governor.
100E—Acting Education
Ombudsman
(a) the Education Ombudsman is temporarily unable to perform official
duties; or
(b) the office of the Education Ombudsman is temporarily vacant,
the Governor may, by notice published in the Gazette, appoint a person to
act in the office of the Education Ombudsman and a person so appointed has,
while so acting, all the powers, functions and duties of the Education
Ombudsman.
(2) A person who is a Public Service employee may be appointed under this
section to act in the office of the Education Ombudsman while remaining a Public
Service employee for a term not exceeding 3 months and may, on the
expiration of that term, be reappointed (provided that the terms of appointment
do not exceed 6 months in aggregate in any period of
12 months).
(3) Subject to this Act, the terms and conditions of appointment and
employment (including the salary and allowances) of the person appointed under
subsection (1)
will be as determined, from time to time, by the Governor.
100F—Staff
(1) The Education Ombudsman's staff consists of—
(a) Public Service employees assigned to work in the office of the
Education Ombudsman; and
(b) any person appointed under
subsection (3).
(2) The Minister may, by notice in the Gazette—
(a) exclude Public
Service employees who are members of the Education Ombudsman's staff from
specified provisions of the Public
Sector Act 2009; and
(b) if the Minister thinks that certain provisions should apply to such
employees instead of those excluded under
paragraph (a)—determine
that those provisions will apply,
and such a notice will have effect according to its terms.
(3) The Education
Ombudsman may, with the consent of the Minister, appoint staff for the purposes
of this Part.
(4) The terms and conditions of employment of a person appointed under
subsection (3)
will be determined by the Governor and such a person will not be a Public
Service employee.
(5) The Education Ombudsman may, by agreement with the Minister
responsible for an administrative unit of the Public Service, make use of the
services of the staff, equipment or facilities of that administrative
unit.
100G—Delegation
(1) The Education
Ombudsman may, by instrument in writing, delegate powers or functions under this
or any other Act (except this power of delegation) to any person.
(2) The Education Ombudsman may by instrument in writing revoke or vary
any delegation given under
subsection (1).
(3) The exercise or performance of any power or function by a delegate
pursuant to
subsection (1)
does not affect the exercise or performance of that power or function by the
Education Ombudsman.
100H—Independence
(1) In performing and exercising his or her functions and powers under
this Part, the Education Ombudsman must act independently, impartially and in
the public interest.
(2) The Minister cannot control how the Education Ombudsman is to exercise
the Education Ombudsman's statutory functions and
powers1.
Note—
1 This
provision does not derogate from any express power of the Minister under this
Act.
Division 3—Investigations
100I—Matters subject to
investigation
(1) Subject to this Act, the Education Ombudsman may
investigate—
(a) any matter relating to the provision of education services by an
education service provider; and
(b) any matter relating to school discipline.
(a) may make such an
investigation—
(i) on receipt of a complaint; or
(ii) on the Education Ombudsman's own initiative; and
(b) must make such
an investigation—
(i) on the referral of a matter by the Minister; or
(ii) on the referral of a matter by either House of Parliament, or any
committee of either of those Houses, or a joint committee of both Houses of
Parliament.
(3) The Education Ombudsman must not investigate a matter on a complaint
under this Part unless satisfied that the procedures for resolving complaints or
disputes, if any, of the relevant education service provider have been used
appropriately but without resolution of the complaint.
(4) If an education service provider is a member of a representative
organisation the Education Ombudsman must, before commencing an investigation
under
subsection (2)(a),
attempt to resolve the matter in consultation with that representative
organisation.
(5) The Education Ombudsman—
(a) may not decline to investigate a matter solely on the ground that the
complainant is an employee or agent of the relevant education service provider
or that the matter relates to the internal management of the relevant education
services provider; but
(b) must decline to investigate a complaint if it relates only to a
person's terms and conditions of employment.
100J—Conduct of investigation
(1) An investigation is to be conducted in such manner as the Education
Ombudsman considers appropriate.
(2) The Education
Ombudsman may, at any time, require a complainant—
(a) to provide further information or documents;
(b) to verify all or any part of the complaint by statutory
declaration.
(3) The Education
Ombudsman may, at any time, decide to attempt to deal with a complaint by
conciliation.
(4) The Education Ombudsman may, in attempting conciliation under
subsection (3),
act personally or through a member of his or her staff.
(5) The Education Ombudsman may, if satisfied that the subject of a
complaint has been properly resolved by conciliation under
subsection (3),
determine that the complaint should not be further investigated under this
Part.
(6) The regulations may make further provision in relation to the conduct
of investigations by the Education Ombudsman, including (without
limitation)—
(a) prescribing circumstances in which the Education Ombudsman may
determine not to conduct an investigation following receipt of a complaint;
and
(b) making provision with respect to the procedures to be followed on
investigations.
100K—Education Ombudsman to have powers of a Royal
Commission
For the purposes of an investigation, the Education Ombudsman has the
powers of a commission as defined in the Royal
Commissions Act 1917 and that Act applies as if—
(a) the Education Ombudsman were a commission as so defined; and
(b) the subject matter of the investigation were set out in a commission
of inquiry issued by the Governor under that Act.
Division 4—Reports and
directions
100L—Reports
(1) The Education Ombudsman—
(a) may prepare a report of his or her findings and conclusions at any
time during an investigation; and
(b) must prepare such a report at the conclusion of an
investigation.
(2) The Education Ombudsman may provide copies of a report to such persons
as the Education Ombudsman thinks fit, and must, in the case of a matter
referred to the Education Ombudsman under
section 100I(2)(b),
provide a report to the person, House or Committee that referred the
matter.
(3) A report may contain information, comments, opinions and
recommendations for action.
(4) No action lies against the Education Ombudsman in respect of the
contents of a report under this section.
(5) The regulations may make further provisions in relation to reports
under this section.
100M—Direction in relation to school discipline
policy
(1) The Education Ombudsman may, by notice in writing, issue a direction
to the Minister in relation to school discipline policy.
(2) If, following receipt of a notice under this section, the Minister is
of the opinion that, in the circumstances, failure to comply with the terms of
the notice would be reasonable and justifiable, the Minister may determine not
to comply with the notice (in which case he or she must advise the Education
Ombudsman of that determination, in writing, as soon as practicable).
(3) If the Minister fails to comply with the terms of a notice received
under this section the following provisions apply:
(a) the Minister must, at the request of the Education Ombudsman, report
to the Education Ombudsman within the time allowed in the request on the reasons
for the failure to comply with the notice;
(b) if, following receipt of the Minister's report, the Education
Ombudsman is of the opinion that the failure to comply with the notice was
unjustified or unreasonable, the Education Ombudsman may make a report on the
matter to the Premier;
(c) the Education Ombudsman may forward copies of any report to the
Premier to the Speaker of the House of Assembly and the President of the
Legislative Council with a request that they be laid before their respective
Houses.
(4) A power or function of the Education Ombudsman under this section must
not be delegated.
Division 5—Miscellaneous
100N—Annual report
(1) The Education Ombudsman must in each year prepare a report on the work
of the Education Ombudsman's office during the preceding year and send copies of
the report to the President of the Legislative Council and the Speaker of the
House of Assembly to be laid before their respective Houses at the earliest
opportunity.
(2) The Education Ombudsman must send a copy of each annual report to the
Minister.
After section 104 insert:
104A—Duty to notify Minister
(1) The Director-General must ensure that procedures are put in place that
ensure that the Minister is notified, as soon as practicable, of the occurrence
or alleged occurrence of any prescribed incident.
(2) In this section—
prescribed incident means an incident in which a child is the
victim of a sexual offence committed by an adult at a Government school or in
connection with any activity of a Government school;
sexual offence means a sexual offence within the meaning of
section 4 of the
Evidence
Act 1929.
7—Amendment
of section 107—Regulations
Section 107(2)—after subparagraph (sb) insert:
(sc) any matter pertaining to the performance of functions and powers by
the Education Ombudsman; and
Schedule 1—Transitional
Provisions
A complaint may be made and dealt with under Part 9 of the Act (as in
force after the commencement of
section 5 of
this Act) even though the circumstances that give rise to the complaint occurred
before the commencement of
section 5 if the
complainant became aware of those circumstances not earlier than 2 years
before the commencement of
section 5.
2—Transfer
from State Ombudsman
(1) The State
Ombudsman may, if the State Ombudsman thinks fit and with the agreement of the
Education Ombudsman, transfer to the Education Ombudsman the conduct of an
investigation of a complaint made to the State Ombudsman before the commencement
of
section 5.
(2) The Education
Ombudsman may adopt any findings or determinations of the State Ombudsman that
may be relevant to an investigation transferred under
subsection (1).
(3) The consent of the complainant is not required before an investigation
may be transferred to the Education Ombudsman under
subsection (2).
(4) In this clause—
State Ombudsman means the Ombudsman under the Ombudsman
Act 1972.
The regulations may make other provisions of a saving or transitional
nature.