Education (Update) Amendment Act 2017

Schedule 2 Schedule 6 of principal Act replaced

s 158

Schedule 6 Boards of trustees

s 117

1 Interpretation

In this schedule, unless the context otherwise requires,—

annual implementation plan has the meaning given in clause 7

school, in relation to a board, means the school or institution for which the board is constituted

school community, in relation to a school, means—

(a)

the parents, families, and whānau of the school’s students; and

(b)

the Māori community associated with the school; and

(c)

any other person, or group of persons, who the board considers is part of the school community for the purposes of the relevant provision

strategic plan has the meaning given in clause 7.

Part 1 Status and name of board

2 Status of board

(1)

A board (and not the school) is a body corporate.

(2)

A board—

(a)

is accordingly a legal entity separate from its members, office holders, employees, and the Crown; and

(b)

continues in existence until it is dissolved in accordance with this Act.

3 Names of boards

The name of a board is “The [name of school or institution] Board of Trustees”.

Part 2 Powers and functions of boards

Functions of board

4 Board is governing body of school

(1)

A board is the governing body of its school.

(2)

A board is responsible for the governance of the school, including setting the policies by which the school is to be controlled and managed.

(3)

Under section 76, the school’s principal is the board’s chief executive in relation to the school’s control and management.

5 Board’s objectives in governing school

(1)

A board’s primary objective in governing the school is to ensure that every student at the school is able to attain his or her highest possible standard in educational achievement.

(2)

To meet the primary objective, the board must—

(a)

ensure that the school—

(i)

is a physically and emotionally safe place for all students and staff; and

(ii)

is inclusive of and caters for students with differing needs; and

(b)

have particular regard to any statement of National Education and Learning Priorities issued under section 1A; and

(c)

comply with its obligations under sections 60A (in relation to curriculum statements and national performance measures), 61 (in relation to teaching and learning programmes), and 62 (in relation to monitoring of student performance); and

(d)

if the school is a member of a community of learning that has a community of learning agreement under section 72, comply with its obligations under that agreement as a member of that community; and

(e)

comply with all of its other obligations under this or any other Act.

6 Staff

Subject to Parts 8A and 31, a board may, in accordance with the State Sector Act 1988, appoint, suspend, or dismiss school staff.

Functions and powers generally

13 Board has complete discretion

A board has complete discretion to perform its functions and exercise its powers as it thinks fit, subject to this and any other enactment and the general law of New Zealand.

14 Things board can do

(1)

A board may do anything that it is authorised to do by this Act.

(2)

A board may do anything that a natural person of full age and capacity may do.

(3)

Subclause (2) applies except as provided in this Act or another enactment or rule of law.

(4)

A board may do an act under this clause only for the purpose of performing its functions.

(5)

References in this clause to this Act include the provisions of the Crown Entities Act 2004 that are applied by Schedule 5A of this Act.

15 Work for other boards or educational or social services

(1)

Two boards may agree in writing—

(a)

for one of them (board A) to do either or both of the following:

(i)

acquire materials for, and supply them to, the other:

(ii)

do work for the other; and

(b)

for the other board to pay board A for doing so.

(2)

An agreement under subclause (1) does not absolve a board from any responsibilities imposed by this Act.

(3)

A board may resolve to do work for other educational services and social services if—

(a)

the board is a member of a community of learning; and

(b)

the other members of the community of learning agree that the work will benefit—

(i)

the members of the community of learning; or

(ii)

the children or young people who are enrolled at a member of the community of learning.

16 Cultural diversity, Treaty of Waitangi, tikanga Māori, and te reo Māori

(1)

A board must take all reasonable steps to ensure that the policies and practices for its school reflect New Zealand’s cultural diversity and the unique position of the Māori culture.

(2)

In performing its functions and exercising its powers, a board must take all reasonable steps to act in a manner that is consistent with the principles of the Treaty of Waitangi.

(3)

Without limiting subclauses (1) and (2), a board must take all reasonable steps to provide instruction in tikanga Māori (Māori culture) and te reo Māori (the Māori language) for full-time students whose parents ask for it.

17 Delegations

(1)

A board may delegate any of the functions or powers of the board or the trustees, either generally or specifically, to any of the following persons by resolution and written notice to the person or persons:

(a)

a trustee or trustees:

(b)

the principal or any other employee or employees, or office holder or holders of the board:

(c)

a committee consisting of at least 2 persons at least 1 of whom is a trustee:

(d)

any other person or persons approved by the Minister:

(e)

any class of persons that comprises any of the persons listed in paragraphs (a) to (d).

(2)

Subclause (1) does not apply to any functions or powers specified in this Act as not being capable of delegation.

(3)

The board must not delegate the general power of delegation.

(4)

A delegate to whom any function or power is delegated may,—

(a)

unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the delegate were the board or the trustees; and

(b)

delegate the function or power only—

(i)

with the prior written consent of the board; and

(ii)

subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.

(5)

A delegate who purports to perform a function or exercise a power under a delegation—

(a)

is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and

(b)

must produce evidence of his or her authority to do so if reasonably requested to do so.

(6)

No delegation in accordance with this Act—

(a)

affects or prevents the performance of any function or the exercise of any power by the board or the trustees; or

(b)

affects the responsibility of the board for the actions of any delegate acting under the delegation; or

(c)

is affected by any change in the membership of the board or of any committee or class of persons.

(7)

A delegation may be revoked at will by—

(a)

resolution of the board and written notice to the delegate; or

(b)

any other method provided for in the delegation.

(8)

A delegation under subclause (4)(b) may be revoked at will by written notice of the delegate to the subdelegate.

(9)

The board may, by resolution, appoint committees—

(a)

to advise it on any matters relating to the board’s functions and powers that are referred to the committee by the board; or

(b)

to perform or exercise any of the board’s functions and powers that are delegated to the committee.

(10)

A person must not be appointed as a member of a committee unless, before appointment, he or she discloses to the board the details of any financial interest that would disqualify the person from being a trustee under section 103A.

(11)

This clause applies to each member of a committee who is not a trustee with any necessary modifications.

18 Bylaws

A board may make bylaws that the board thinks necessary or desirable for the control and management of the school.

Validity of acts and liability

19 Interpretation

In this clause and clauses 20 to 24, unless the context otherwise requires,—

act includes a transfer of property, rights, or interests to or by a board

do includes—

(a)

to do an act; and

(b)

to have a capacity; and

(c)

to have or exercise a power, right, or privilege

person dealing

(a)

means the other party to the transaction, if the act of the board is a transaction; and

(b)

includes a person who has acquired property, rights, or interests from a board.

20 Acts in breach of statute are invalid

(1)

An act of a board is invalid, unless clause 21 applies, if it is—

(a)

an act that is contrary to, or outside the authority of, an Act; or

(b)

an act that is done otherwise than for the purpose of performing its functions.

(2)

Subclause (1) does not limit any discretion of a court to grant relief in respect of a minor or technical breach.

21 Some natural person acts protected

(1)

Clause 20, or any rule of law to similar effect, does not prevent a person dealing with a board from enforcing a transaction that is a natural person act unless the person dealing with the board knew, or ought reasonably to have known,—

(a)

that an express restriction in an Act makes the act contrary to, or outside the authority of, the Act; or

(b)

that the act was done otherwise than for the purpose of performing the board’s functions.

(2)

In this clause, natural person act

(a)

means an act that a natural person of full age and capacity can do (whether or not the act is something that is also authorised by an Act); and

(b)

includes entry into a contract for, or relating to,—

(i)

acquisition of financial products (within the meaning of section 7 of the Financial Markets Conduct Act 2013) or borrowing of money; or

(ii)

the purchase, leasing, or sale of, or other dealings with, property; or

(iii)

the employment, or engagement of the services, of a person.

(3)

A person who relies on subclause (1) has the onus of proving that that person did not have, and ought not reasonably to have had, the knowledge referred to in that subclause.

(4)

A board must report, in its annual report, each transaction that the board has performed in the year to which the report relates that was invalid under clause 20 but enforced in reliance on subclause (1).

(5)

To avoid doubt, this clause does not affect any person’s remedies (for example, remedies in contract) under the general law.

22 Acts that are not in best interests of board

It is irrelevant to the validity of an act that the act is not, or may not be, in the best interests of a board.

23 Dealings between boards and other persons

(1)

A board may not assert against a person dealing with the board that—

(a)

a person held out by the board to be a member, office holder, chief executive, employee, or agent of the board (as the case may be)—

(i)

has not been duly appointed in that capacity or has ceased to be appointed in that capacity; or

(ii)

does not have the authority to exercise a power that, given the nature of the board, a person appointed to that capacity customarily has authority to exercise; or

(iii)

does not have the authority to exercise a power that the board holds him or her out as having; or

(b)

a document issued on behalf of the board by a member, office holder, chief executive, employee, or agent of the board who has actual or usual authority to issue the document is not valid or genuine.

(2)

However, a board may assert any of those matters if the person dealing with the board has, or ought reasonably to have had, knowledge of the matter.

(3)

Nothing in this clause affects a person’s right to apply, in accordance with the law, for judicial review.

24 Trustees not personally liable

(1)

A trustee is not personally liable for—

(a)

any act done or omitted by the board; or

(b)

any loss to the board arising out of any act done or omitted by the trustee.

(2)

However, subclause (1) applies only if the act or omission was (so far as the trustee’s involvement is concerned) in good faith in carrying out or intending to carry out the functions of the board.

Part 3 Financial and property matters and application of Crown Entities Act 2004

25 Board to be financially responsible

A board must perform its functions and exercise its powers in a way that is financially responsible.

26 Application of Crown Entities Act 2004

(1)

Every board is a Crown entity for the purposes of section 7 of the Crown Entities Act 2004.

(2)

However, that Act applies to boards only to the extent that subclause (3) provides.

(3)

The provisions of the Crown Entities Act 2004 set out in Schedule 3 of that Act and Schedule 5A of this Act apply to boards and their Crown entity subsidiaries (within the meaning of the Crown Entities Act 2004).

27 Directions under section 107 of Crown Entities Act 2004

(1)

A board must comply with any direction given under section 107 of the Crown Entities Act 2004.

(2)

If the board does not comply with a direction, it may be dissolved under section 78I(1)(e).

28 Restrictions on acquisition of securities

(1)

Sections 160 and 161 of the Crown Entities Act 2004 apply.

(2)

Under section 161 of that Act, a board must not acquire securities—

(a)

other than—

(i)

a debt security denominated in New Zealand dollars that is issued by a registered bank, or by any other entity, that satisfies a credit-rating test that is specified in either regulations made under Part 4 of that Act or a notice in the Gazette published by the Minister of Finance; or

(ii)

a public security; or

(b)

otherwise than as provided in—

(i)

any regulations made under Part 4 of that Act; or

(ii)

any approval given jointly by the Minister of Education and the Minister of Finance; or

(iii)

this Act.

29 Restrictions on borrowing

(1)

Sections 160 and 162 of the Crown Entities Act 2004 apply.

(2)

Under sections 160 and 162 of that Act, a board must not borrow from any person, or amend the terms of any borrowing, otherwise than as provided in—

(a)

any regulations made under Part 4 of that Act; or

(b)

any approval given jointly by the Minister of Education and the Minister of Finance; or

(c)

this Act.

30 No delegation of power to borrow

A board must not delegate any power to borrow money that it may have under section 160 or 162 of the Crown Entities Act 2004.

31 Restrictions on giving of guarantees and indemnities

(1)

Sections 160 and 163 of the Crown Entities Act 2004 apply.

(2)

Under sections 160 and 163 of that Act, a board must not, with or without security, give a guarantee to, or indemnify, another person otherwise than as provided in—

(a)

any regulations made under Part 4 of that Act; or

(b)

any approval given jointly by the Minister of Education and the Minister of Finance; or

(c)

this Act.

32 Restrictions on use of derivatives

(1)

Sections 160 and 164 of the Crown Entities Act 2004 apply.

(2)

Under sections 160 and 164 of that Act, a board must not enter into an agreement constituting a derivative, or amend the terms of that agreement, otherwise than as provided in—

(a)

any regulations made under Part 4 of that Act; or

(b)

any approval given jointly by the Minister of Education and the Minister of Finance; or

(c)

this Act.

33 Gifts

(1)

Any money or property that is gifted to a school may be accepted or disclaimed by the board in accordance with section 167 of the Crown Entities Act 2004.

(2)

A limitation that is provided in this Act or that applies under the Crown Entities Act 2004 (such as a limitation on the form in which property may be held) does not apply during a period that is reasonable in the circumstances.

(3)

Subclauses (1) and (2) apply to any gift that is received by the board for funding scholarships or bursaries, or for other educational purposes in connection with a school.

(4)

A board must hold every such gift for the specific purpose declared by the giver.

(5)

Unless the giver has created a special trust, scholarships and bursaries from a gift must be open to every student at the school.

(6)

If the school for which a gift was given closes, the Minister must direct that the gift should apply to another school.

34 Real property

Except as provided in clause 33, a board must not acquire an interest in land, or any licence to occupy any land or premises, without the consent of the Minister.

35 Occupancy of property and buildings

(1)

The Secretary may from time to time, by notice in the Gazette, specify terms and conditions applying generally to land and buildings occupied by boards, and may from time to time, by written notice to a particular board, specify terms and conditions applying to land and buildings occupied by that board.

(2)

A notice under subclause (1)—

(a)

may apply to any land and buildings occupied by a board (regardless of who owns the property); but

(b)

to the extent that it applies to the board of a State integrated school, is subject to Part 33 and to the integration agreement for the time being in force between the Minister and the proprietor of the school.

(3)

Terms and conditions under subclause (1) may include such matters as standards of maintenance, standards of capital works, and minimum safety and health requirements.

(4)

Subclause (3) does not limit the generality of subclause (1).

(5)

Terms and conditions may be specified under subclause (1) in respect of—

(a)

a particular school or institution or particular schools or institutions; or

(b)

schools or institutions of particular classes or descriptions; or

(c)

all schools and institutions.

(6)

A notice published in the Gazette under subclause (1) may contain the terms and conditions in their entirety or provide a general description of those terms and conditions and indicate where the full text can be obtained.

(7)

Terms and conditions specified under subclause (1) apply to boards or a board (as the case may be) as if—

(a)

the land and buildings were owned by the Crown and the Crown has leased them to the board; and

(b)

the terms and conditions were part of the lease; and

(c)

the Crown had empowered the Secretary to exercise the Crown’s powers concerning the lease.

36 Leases and licences granted by boards

(1)

A board may, with the written consent of the Secretary, grant a lease or a licence to occupy to any person in respect of any land, buildings, or facilities occupied by the board.

(2)

The Secretary may agree to the grant of a lease or a licence by the board only if satisfied that—

(a)

the land, building, or facilities are not needed or used for the purposes of the school during the time covered by the lease or licence; and

(b)

the lease or licence is in the public interest; and

(c)

the lease or licence—

(i)

is for a purpose associated with educational outcomes and will bring educational benefit to the school or its community, or to any other school; or

(ii)

is for a community purpose, and will bring no educational disadvantage to the school.

(3)

The Secretary must determine the terms and conditions of any lease or licence granted by a board by doing either or both of the following:

(a)

publishing a notice in the Gazette that specifies the general terms and conditions that apply to all, or specified classes of, leases or licences:

(b)

giving written notice to the board.

(4)

Clause 35(6) applies to a Gazette notice under subclause (3)(a).

(5)

In relation to a State integrated school, this clause applies subject to Part 33 and to any integration agreement in force between the Minister and the proprietor of the school.

37 Other agreements to occupy school land or buildings

(1)

In this clause, agreement means an agreement, other than a lease or a licence to occupy under clause 36, between a board and any other person for the use of land, buildings, or facilities occupied by the board.

(2)

A board may not enter into an agreement unless—

(a)

the agreement is of a type permitted by Gazette notice under subclause (5); and

(b)

the agreement is consistent with this clause and any conditions specified by Gazette notice under subclause (5).

(3)

It is a condition of every agreement that the board has the right to enter, at any time, the land, buildings, or facilities that are the subject of the agreement.

(4)

No person has the right under an agreement to use or occupy any land, buildings, or facilities in such a way as to unduly interfere with the use, by the board for school purposes, of that land or those buildings or facilities, or any other land, buildings, or facilities of the school.

(5)

The Secretary may, by notice in the Gazette,—

(a)

identify the kinds of agreements (for example, agreements for the use of playing fields) that boards may enter into; and

(b)

specify conditions to which agreements, or specified types of agreements, are subject.

(6)

Clause 35(6) applies to a Gazette notice under subclause (5)(b).

(7)

In relation to a State integrated school, this clause applies subject to Part 33 and to any integration agreement in force between the Minister and the proprietor of the school.

38 Boards exempt from taxation

(1)

Every board is taken to be the agent of the Crown in respect of its property and the exercise of its functions, and is accordingly entitled to all the privileges the Crown enjoys in respect of exemption from taxation and the payment of fees or charges, and from other obligations.

(2)

Nothing in subclause (1) exempts a board from—

(a)

the payment of goods and services tax under the Goods and Services Tax Act 1985; or

(b)

any obligation imposed by that Act.

Part 4 Meetings and procedure

39 Affixing of board’s seal

(1)

A board’s common seal must not be affixed to a document except pursuant to a resolution of the board.

(2)

The affixing of a board’s common seal to a document must be countersigned by at least 2 trustees.

40 Meetings

(1)

A board must hold a meeting not later than 3 months after its previous meeting, at a time and place determined at the previous meeting.

(2)

If, at any meeting of the board, the board does not determine a time and place for its next meeting, the time and place of its next meeting must be determined—

(a)

by the presiding trustee for the time being appointed under clause 41; or

(b)

if no trustee is for the time being appointed to preside and a trustee who presided at the board’s previous meeting is still a trustee, by that trustee; and

(c)

in any other case, by the principal.

(3)

When a casual vacancy occurs, the person for the time being appointed under clause 41, or, where there is no such person, the principal, must fix a place for a meeting of the board to deal with the vacancy on a day that is—

(a)

within 28 days of the vacancy occurring, if it occurs during any period of 6 months commencing on 1 October in a year before an election year; or

(b)

within 8 weeks of the vacancy occurring, if it occurs at any other time.

(4)

No business may be transacted at any meeting of the board unless more than half the trustees then holding office are present.

(5)

At a meeting of the board,—

(a)

the person for the time being appointed under clause 41 must preside if present; or

(b)

if that person is not present, a trustee (not being the principal or a staff or student representative) appointed by the board at the meeting must preside.

(6)

Every question before a board must be decided by a majority of the votes cast on it by the trustees who are present.

(7)

At a meeting of the board, the person presiding has a deliberative vote on every question and, on any question where deliberative votes for and against are equal, also has a casting vote.

(8)

Subject to subclause (11), a trustee who has a pecuniary interest in any matter or any interest that may reasonably be regarded as likely to influence a trustee in carrying out his or her duties and responsibilities as a trustee must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides the matter.

(9)

Subject to subclause (11), a trustee who is a member of the board staff must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides any matter relating to the trustee’s employment by the board, or to the course of action to be taken following the hearing of a complaint against the trustee (being a complaint against the trustee in the trustee’s capacity as a member of the board staff).

(10)

Subject to subclause (11), a trustee who is a student enrolled at the school or institution must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides any matter relating to the trustee as an individual student.

(11)

A trustee may attend any meeting of the board to give evidence, make submissions, or answer questions.

(12)

A meeting of the board may be held—

(a)

by more than half the trustees then holding office being assembled together at the time and place appointed for the meeting; or

(b)

by means of audio, audiovisual, or electronic communication, but only if—

(i)

all of the trustees who wish to participate in the meeting have access to the technology needed to participate in the meeting; and

(ii)

a quorum of members can simultaneously communicate with each other throughout the meeting.

(13)

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.

(14)

The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members.

(15)

Except as provided in this Act, every board must determine its own procedures.

41 One trustee to preside at meetings

(1)

Every board must appoint a trustee (not being the principal or a staff or student representative) to preside at meetings of the board.

(2)

The appointment must be made—

(a)

at the board’s first meeting in any year, unless it is an election year, in which case it must be at the first meeting held after the election; and

(b)

if the board has resolved that it has no confidence in the person for the time being appointed; and

(c)

if the person for the time being appointed ceases to be a trustee, or resigns the task by notice in writing to the board.