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The Education Legislation
Amendment Bill, 2006 (NSW) <http://www.austlii.edu.au/au/legis/nsw/bill/elab2006306/>
was introduced into the Legislative Assembly on 27
October 2006, at which time the Bill’s First
and Second Reading occurred and debate was
adjourned. PWD, along with other organisations, was
given only short notice of the Bill’s
existence and imminent introduction into the
Legislative Assembly. Many became concerned about
these provisions of Schedule 1, Clause [5]
to the Bill.
These provisions permitted
the Department of Education and Training (DET)
<http://www.det.nsw.edu.au/>
and both public and non-government schools to
engage in a broad (and potentially secretive)
information gathering exercise about a student
whenever there was a perceived risk to health and
safety related to the enrolment of that student, no
matter how minor, how remote, or what the nature of
the perceived risk was.
Importantly, the Bill
contained none of the principal safeguards
found within NSW and Commonwealth privacy
legislation, and could therefore have resulted in
abuse of the personal and health information
privacy rights of students and their families with
potentially discriminatory and harmful effects.
The Bill also empowered the
Director-General to direct that a particular
student should attend a particular kind of school.
Most commentators believed that this direction
would most likely have been used to direct
attendance at behavioural schools, special schools,
and SSPs, and that this new power would have had
the greatest impacts on society’s already most
marginalised students and families. The mechanism
prescribed by he Bill also provided none of the
safeguards that one would normally expect around
such a serious decision: the right to notice of the
decision being made, the right to notice of the
allegations/issues being considered, the right to
be heard prior to the decision being made, the
right to independent review and appeal, etc. The
DET’s view was that concerns could be
addressed in the formulation of Guidelines that the
DET would draw up to guide its practices in these
areas.
People
with Disability, a
national peak disability rights and advocacy
organisation view was and remains that departmental
guidelines are no substitute for legislative
clarity and certainty and the scrutiny of
Parliament, and that to delegate legislative
responsibility in this way is to set a dangerous
precedent.
PWD and Family
Advocacy led a
campaign against these provisions. Other
organisations that lent support to the campaign
included:
Thanks to their support and
the support of parliamentarians of all political
persuasions significant improvements to the Bill
have been achieved. While not successful in having
the provisions deleted entirely, this campaign was
very successful in building into the Bill a range
of safeguards designed to limit the Bill’s
potential to abuse students’ and
families’ privacy, administrative law, and
educational rights. As a result of this advocacy
and the support generated within both Houses of
Parliament, and in particular in response to
negotiations between the Hon. Minister for
Education, Ms Carmel Tebbutt’s office and the
office of the Hon. Shadow Minister for Education,
Mr. Brad Hazzard, on Wednesday 15th November the
Minister’s office contacted PWD to advise that
amendments had been drafted. This was just hours
prior to the reintroduction of the Bill into the
Legislative Assembly.
In summary the amendments:
- limited the assessment of
health and safety issues to those related to the
behaviour of the student;
- required consultation
with students and parents during risk assessment
and the development of strategies;
- required that before a
direction is given, the Director-General must
ensure that the student and their parents are
given access to information that gave rise to
the proposed direction, written notice of the
grounds for the proposed direction, and are
given opportunity to make representations in
relation to the information and the proposed
direction.
In the second reading speech
the Minister affirmed that the provisions related
to only a very small number of violent students and
that the guidelines would provide safeguards for
privacy. The major outstanding concerns put forward
by this campaign related to:
- the absence of a process
of independent review of a direction made by the
Director-General
- the non-statutory and
essentially discretionary nature of the
guidelines as a vehicle for safeguarding the
privacy rights of students and
families.
On Thursday 16th November in
the Legislative Council, the Greens’ Hon. Lee
Rhiannon moved three amendments that were designed
to provide the safeguards sought. The proposed
amendments were that:
- the directions be
reviewed at least every 2 years
- the guidelines be set out
in regulations
- an independent right of
appeal to the Administrative Decisions Tribunal
against the direction of the Director-General is
created.
Only the final amendment,
establishing the right to an appeal to the
Administrative Decisions Tribunal against a
direction was passed. This however represents a
significant gain over the pre-existing situation,
and taken as a whole the amendments that were made
to the Bill prior to its passage have resulted in a
much fairer, better targeted, and more accountable
law. PWD will be monitoring the implementation of
this law closely.
Please contact Senior Legal
Officer, Matthew Keeley at PWD <matthewk@pwd.org.au>
should you have any queries about the Bill or the
campaign.
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