Clause by clause analysis
Clause 1 relates to the Bill's title.
Clause 2 provides that—
clauses 5, 7 to 9, and 11 to 13, which make to Part 15 of the principal Act amendments consequential on the new provisions inserted by clause 16, come into force on the day on which clause 16 comes into force (1 May 2010):
clause 16, which inserts into the principal Act new provisions relating to the governance of polytechnics, comes into force on 1 May 2010:
the rest of the Bill comes into force on the day after assent.
Clause 3 provides that the Bill amends the Education Act 1989.
Part 1
Substantive provisions
Amendments to existing provisions of principal Act relating to tertiary education
Clauses 4 to 14—
amend certain provisions in Part 15 of the principal Act (and also section 159 of the principal Act, which contains certain definitions); and
repeal some spent provisions in Part 15.
Part 15 relates to the administration of tertiary institutions (that is to say, polytechnics, specialist colleges, universities, and wananga); and the effect of the amendments is to exclude the application of some its provisions to polytechnics, because new provisions to be inserted into the principal Act by clauses 15 and 16 provide differently for polytechnics. Apart from these express exclusions, Part 15 will continue to apply to polytechnics to the same extent as they apply to the other classes of tertiary institution.
Clause 4 inserts definitions of “combined council”
, “constitutents”
, “polytechnic council”
, and “polytechnic reconstitution day”
(which is 1 May 2010) into section 159(1) of the principal Act.
Clause 5 comes into force on 1 May 2010. It amends section 165 of the principal Act, which provides for every tertiary institution to be governed by a council constituted under Part 15, and also provides that references in any law to the council or other governing body of an institution are to be read as references to its council constituted under Part 15.
The amendment has the effect that after the polytechnic reconstitution day—
the council of a polytechnic will not be constituted under Part 15 (but under the new Part 15A); and
references to the council or other governing body of a polytechnic are to be read as references to its council constituted under new Part 15A.
Clause 6 repeals section 168 of the principal Act, which is a spent provision requiring the governing bodies of tertiary institutions in existence when the Education Amendment Act 1990 came into force to recommend new constitutions for themselves.
Clause 7 comes into force on 1 May 2010. It amends section 169 of the principal Act, which is a mechanism for establishing a constitution for a newly established tertiary institution. The effect of the amendment is that the section does not apply to the constitution for a newly established polytechnic. This is instead provided for by new section 222AA (as proposed to be inserted by clause 16).
Clause 8 comes into force on 1 May 2010. It amends section 170 of the principal Act, which is a mechanism for amending the constitution of a tertiary institution. The effect of the amendment is that the section does not apply to the constitution of a polytechnic. New section 222AA (as proposed to be inserted by clause 16) provides that the constitution of a polytechnic is fixed.
Clause 9 comes into force on 1 May 2010. It amends section 171 of the principal Act, which states requirements for the constitutions of tertiary institutions. The effect of the amendment is that the section does not apply to the constitution of a polytechnic. New sections 222AA and 222AK (as proposed to be inserted by clause 16) state the requirements for the constitutions of polytechnics.
Clause 10 repeals section 172 of the principal Act, which is a spent transitional provision relating to the first councils of tertiary institutions in existence when the Education Amendment Act 1990 came into force.
Clause 11 comes into force on 1 May 2010. It amends section 173 of the principal Act, which prescribes the terms of office of members of the councils of tertiary institutions. The effect of the amendment is that the section does not apply to the terms of office of members of the councils of polytechnics. New section 222AD (as proposed to be inserted by clause 16) prescribes the terms of office of members of the councils of polytechnics.
Clause 12 comes into force on 1 May 2010. It amends section 174 of the principal Act, which provides for members of the councils of tertiary institutions to go out of office in certain circumstances. New section 222AD (as proposed to be inserted by clause 16) requires one member of the council of a polytechnic to be a member of its academic board, appointed by the council on the nomination of that board. And new section 222AK (also proposed to be inserted by clause 16) requires a combined council to be a member of the academic board of one of the polytechnics concerned, appointed by the council on the nomination of one or other of the academic boards of the polytechnics concerned, or of all of them jointly. The effect of the amendment is that such a member of the council of a polytechnic goes out of office when he or she ceases to be a member of the academic board.
Clause 13 comes into force on 1 May 2010. It amends section 177 of the principal Act, which provides for the election of a chairperson and deputy chairperson of the council of a tertiary institution. The effect of the amendment is that the section does not apply to the chairperson and deputy chairperson of a polytechnic. New section 222AF (as proposed to be inserted by clause 16) provides for the chairperson and deputy chairperson of the council of a polytechnic to be appointed by the Minister.
Clause 14 amends section 195A of the principal Act, which requires the Secretary of Education, after consulting the councils of tertiary institutions, to determine criteria for assessing the level of risk to the operation and long-term viability of tertiary institutions. The effect of the amendment is that the Secretary—
can determine separate criteria for polytechnics; and
in doing so, needs to consult only the councils of polytechnics.
Any separate criteria determined can be in addition to or instead of those for other tertiary institutions.
New provisions relating to polytechnics
Clause 15 inserts into the principal Act a new Part 15A, containing sections 222A to 222E, which provide for certain interventions into the affairs of polytechnics.
New section 222A empowers the chief executive of the Tertiary Education Commission to require a polytechnic council to obtain specialist help.
The chief executive can do so only if he or she believes on reasonable grounds that a polytechnic, or the education performance of the students at a polytechnic, may be at risk.
The chief executive must specify—
The council must then engage that person or organisation (or a person or organisation of that kind), and—
must give the person or organisation all the information, access, and other help, reasonably necessary to enable the help to be provided; and
if the help provided is advice, take the advice into account.
The council must pay the person or organisation's reasonable fees and expenses.
New section 222B empowers the chief executive of the Tertiary Education Commission to require a polytechnic council to prepare and give to him or her a draft performance improvement plan for its polytechnic.
Once again, the chief executive can do so only if he or she believes on reasonable grounds that a polytechnic, or the education performance of the students at a polytechnic, may be at risk.
The chief executive must specify—
the matters to be addressed by the draft plan:
the outcomes that implementation of the draft plan is intended to achieve:
the times by which those outcomes should be achieved:
the performance measures to be used to determine whether those outcomes have been achieved:
the day by which the draft plan must be given to the chief executive.
If by the day specified, the polytechnic council gives the chief executive a draft plan addressing the matters specified, the chief executive can—
A polytechnic council must take all reasonably practicable steps—
New section 222C empowers the Minister to appoint a Crown manager for a polytechnic.
The Minister can do so only if satisfied on reasonable grounds that the operation or long-term viability of a polytechnic is at risk, or that the education performance of the students at a polytechnic is at risk.
The Minister can decide—
the functions of the polytechnic's council to be performed by the Crown manager; and
conditions subject to which the Crown manager may perform the functions; and
any matters the Crown manager may advise the council on.
While there is a Crown manager appointed for a polytechnic, the Crown manager may perform any of the functions determined by the Minister, and the polytechnic's council—
must not perform any of the functions; and
must give the Crown manager all the information, access, and other help, reasonably necessary to enable the Crown manager to perform the functions.
New section 222D makes clear that—
the powers of intervention into the affairs of polytechnics given by new sections 222A to 222C are in addition to the powers available in respect of tertiary institutions generally under sections 195B to 195D of the principal Act; and
powers given by 2 or more of those sections may be exercised at the same time.
New section 222E gives a polytechnic council a right to ask the Minister or chief executive of the Tertiary Education Commission to intervene in its affairs under a particular provision of the principal Act, and requires the Minister or chief executive—
But having done so, the Minister or chief executive can then (if any necessary conditions are met) act under another of those provisions giving him or her power to act.
Clause 16 comes into force on 1 May 2010. It inserts into the principal Act new sections 222AA to 222RR, which provide for the governance of polytechnics.
Polytechnic councils
New section 222AA prescribes a constitution for all polytechnic councils. A polytechnic council must comprise—
4 members appointed by the Minister:
a member of the polytechnic's academic board nominated by that board and appointed by the council:
a student member (appointed by the polytechnic's students association if membership of the association is compulsory, or otherwise elected by students enrolled at the polytechnic):
a member, nominated by people living in the community served by the polytechnic, or by bodies operating in that community, appointed by the council:
the polytechnic's chief executive.
With one exception, provisions relating to eligibility for appointment or election as a member of a polytechnic council and elections of student members are the same as those for other tertiary institutions. A person is not eligible for appointment or election if he or she has at any time been removed from office as a member of a polytechnic council under new section 222AH.
New section 222AB allows a person to be a member of more than one polytechnic council.
New section 222AC states matters to be considered when appointments of members of polytechnic councils are made.
Subsection (1) provides that it is desirable in principle—
that a polytechnic council should include Māori; and
that, so far as is possible, a polytechnic council should reflect the ethnic and socio-economic diversity of the community it serves.
Subsection (2) provides that the Minister—
must have regard to subsection (1) when appointing members of a polytechnic council; but
must appoint people who have enough experience of governance to fulfil their individual duties as members of the council and the functions, duties, and responsibilities of the council.
Subsection (3) provides that a polytechnic council must appoint as members people who—
have relevant knowledge, skills, or experience; and
are likely to be able to fulfil their individual duties as members of the council and the functions, duties, and responsibilities of the council.
New section 222AD relates to the terms of office of appointed and elected members of polytechnic councils. These are—
not more than 4 years for a member appointed by the Minister:
1 year for a member nominated by a polytechnic's academic board:
1 year for a student member:
not less than 2 years and not more than 4 years for a member nominated by people living in the community served by a polytechnic.
New section 222AE provides that any member of a polytechnic council can be reappointed or re-elected.
New section 222AF relates to the chairperson and deputy chairperson of a polytechnic council, each of whom—
is to be appointed by the Minister from the members of the council other than the student member, the polytechnic's chief executive, and employees of the chief executive; and
may at any time be dismissed by the Minister.
New section 222AG imposes duties on members of polytechnic councils.
A member of a polytechnic council, when acting as a member of the council in any circumstances,—
must—
act with honesty and integrity:
act in the interests of the polytechnic as a whole:
act in a manner promoting the performance of the functions characteristic of a polytechnic, and the duties of the council:
act in good faith, and not pursue his or her own interests at the expense of the council's interests; and
must exercise the care, diligence, and skill that a reasonable person would exercise in the same circumstances, taking into account—
the nature of the council:
the nature of the action:
the position of the member as a member of a polytechnic council, and the nature of the responsibilities undertaken by him or her; and
must not disclose any information acquired as a member of the council, or make use of, or act on, the information, except—
in the performance of the council's functions; or
as required or permitted by law; or
with the authority of the council; or
if disclosing, making use of, or acting on it will not, or will be unlikely to, prejudice the council or the polytechnic; or
in complying with requirements for members to disclose interests.
New section 222AH empowers the Minister to remove an appointed or elected member of a polytechnic council from office, for just cause. Subsection (6) provides that just cause includes misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective duties of the polytechnic council or the individual duties of members (depending on the seriousness of the breach).
New section 222AI allows the Minister to remove a member of a polytechnic council from office as informally and quickly as the principles of natural justice and a proper consideration of the matter permit.
Combination of polytechnic councils
New section 222AJ empowers the Minister to combine the councils of 2 or more polytechnics if—
New section 222AK provides that the Minister combines polytechnic councils by a notice in the Gazette stating a constitution for the resulting combined council, and the day on which the combination takes effect.
In determining the constitution for a combined council, the Minister must have regard to the following requirements:
the council must have an even balance between members appointed by the Minister and other members:
the council must have at least one member elected by students enrolled at the polytechnics concerned:
the council must have at least one member appointed by the council on the nomination of one or other of the academic boards of the polytechnics concerned, or of all of them jointly:
the council must have at least one member appointed by the council on the nomination of members of the community served by the polytechnic:
the chief executives of the polytechnics concerned must all be members of the council.
New section 222AL states the effect of combining polytechnic councils—
each polytechnic retains its individual status, identity, and character:
the resulting combined council is the successor of each of the polytechnic councils combined, and has all the obligations and rights it had before combination:
every statute of any of the polytechnic councils combined becomes a statute of the combined council, but until amended so as to apply to the others, applies only to the polytechnic by whose council it was made:
the existing assets and liabilities of each of the polytechnics combined continue to be assets and liabilities of that polytechnic:
the existing chief executive of each of the polytechnics combined continues to be the chief executive of that polytechnic, but becomes an employee of the combined council.
New section 222AM empowers the Minister to dissolve a combined council on the recommendation of that council.
Before recommending that the Minister dissolve it, a combined council must consult the constituents of the polytechnics concerned.
A combined council may, before dissolution, make in respect of any of the polytechnics concerned any statutes it thinks necessary or desirable to enable the swift and efficient establishment of a council for it.
New section 222AN states the effect of the dissolution of a combined council—
each of the councils has any of the obligations and rights the former polytechnic council of its polytechnic had before the establishment of the combined council, and any of the obligations and rights the combined council had before the dissolution that have arisen in relation to the polytechnic:
relevant statutes of the combined council becomes statutes of each new polytechnic council:
the existing chief executives of the polytechnics concerned continue to be the chief executives of those polytechnics, but each becomes an employee of the relevant new polytechnic council.
New section 222AO provides for the initial membership of polytechnic councils after the dissolution of a combined council.
Before the dissolution, the Minister must make the appropriate ministerial appointments to each new polytechnic council. Other members of a new polytechnic council—
If on dissolution there is a vacancy in a new polytechnic council, the Minister may authorise any member of the dissolved combined council to act as a member of the new council until the vacancy is filled.
Combined academic boards
New section 222AP empowers 2 or more polytechnic councils to establish a combined academic board for their polytechnics, and also empowers a combined polytechnic council to establish a combined academic board for its polytechnics.
A combined academic board must include—
the chief executive of each polytechnic:
at least one member of the staff of each polytechnic:
at least one student of each polytechnic.
Enabling young students to attend tertiary high school at Manukau Institute of Technology
Clause 17 removes obstacles to the enrolment of secondary school students—particularly secondary school students under 16— in certain courses (referred to as “tertiary high school courses”
) to be offered at Manukau Institute of Technology (“MIT”
).
The clause provides that—
a person enrolled at a registered school does not cease to be enrolled at the school by becoming enrolled at MIT in a tertiary high school course (and thus, if under 16, continues to comply with the statutory requirement to be enrolled at a registered school):
a person who enrols at MIT in a tertiary high school course does not lose eligibility to enrol at a registered school (and thus, if under 16, can comply with the statutory requirement to be enrolled at a registered school by enrolling at a new registered school if for any reason he or she ceases to be enrolled at the school at which he or she was enrolled when enrolling at MIT):
a person both enrolled at a registered school and enrolled at MIT in a tertiary high school course must be treated as complying with the statutory requirement for people under 16 to attend school if he or she attends the classes comprising the course whenever they are available:
a school board and MIT's council may submit to the Secretary of Education for approval an agreement stating their respective obligations (both to the students concerned and to each other) and rights in relation to the safety, welfare, and educational programmes of students enrolled at both the school and MIT.
Part 2
Transitional matters
Part 2 deals with the transition from the polytechnic councils at present constituted to the reconstituted polytechnic councils that will come into existence on the commencement of clause 16.
Clause 18 defines certain terms used in Part 2.
Clause 19 provides for the initial membership of reconstituted polytechnic councils.
Before the polytechnic reconstitution day, the Minister must make the appropriate ministerial appointments to each reconstituted polytechnic council. Other members of a reconstituted polytechnic council—
If on the polytechnic reconstitution day there is a vacancy in a reconstituted polytechnic council, the Minister may authorise any member of the former council to act as a member of the reconstituted council until the vacancy is filled.
Clause 20 provides that on the polytechnic reconstitution day all existing members of a polytechnic council go out of office, and all new members of a reconstituted council appointed or elected before that day take up office.
Clause 21 makes clear that a reconstituted council is the same body as its predecessor.
Clause 22 gives the Minister a temporary power of direction before the polytechnic reconstitution day, to ensure that reconstituted councils can deal effectively with the business before them on and after the polytechnic reconstitution day.
Regulatory impact statement
This statement pertains to 2 separate policy matters that are addressed in the Education (Polytechnics) Amendment Bill:
For the sake of clarity, these are treated separately below in the order named.
1 Polytechnics
Executive summary
The polytechnic sector faces financial and educational performance problems that are likely to be exacerbated by an increasingly constrained funding environment. These problems often arise from or are worsened by ineffective governance, and the statutory intervention framework for polytechnics does not allow the Crown to readily address issues as they arise. The result is that polytechnics pose a relatively high risk to the Crown.
To reduce this risk, the Government intends to amend the governance arrangements and the intervention framework for polytechnics in the Education Act 1989. These amendments will improve polytechnic governance and will give the Crown more flexibility in responding to problems as they arise.
Adequacy statement
The Ministry of Education confirms that the regulatory impact statement is adequate.
Status quo and problem
Governance arrangements
There are 20 polytechnics in New Zealand. In 2007, they enrolled 207 000 learners, equating to 72 000 Equivalent Full-Time Students. They were allocated a funding baseline of $596 million (GST exclusive) to invest in 2009. The sector is diverse. It ranges from large urban institutions that offer education over a broad range of subject areas, to smaller more rural and/or specialised institutions which support regions with varied needs.
Section 171 of the Education Act 1989 sets out the governance arrangements for polytechnics and other tertiary education institutions. It states that institutions are to be governed by councils with a minimum of 12 and a maximum of 20 members, including:
4 ministerial appointees:
the chief executive of the polytechnic:
at least 1 and up to 3 elected representatives of the polytechnic’s academic staff:
at least 1 and up to 3 elected representatives of the polytechnic’s general staff:
at least 1 and up to 3 elected representatives of the polytechnic’s student body:
an employer representative:
an employee representative:
if relevant, one or more representatives from a relevant professional body.
The large size of these councils, and the emphasis of their composition on representativeness over and above governance skill and experience, has resulted in ineffective governance at some institutions. It has also sometimes been difficult to find appropriately skilled candidates who are willing to sit on councils that they regard as unwieldy or under-skilled. These problems have been concentrated in the polytechnic sector.
These governance issues have contributed to the financial and educational performance problems faced by polytechnics: in recent years, a number of polytechnics have required Crown interventions, and in some cases Crown loans have been used to maintain their viability. These problems are likely to be compounded by an increasingly constrained funding environment.
Intervention framework
The current framework for statutory interventions in tertiary education institutions is set out in sections 195A–195F of the Education Act 1989. It allows for 3 types of intervention:
the chief executive of the Tertiary Education Commission (TEC) can require a polytechnic council to provide information:
the Minister for Tertiary Education can appoint a Crown observer to the council:
the Minister for Tertiary Education can dissolve the council and appoint a commissioner.
The first 2 interventions involve suggestion or persuasion, and the third step involves drastic direct action. There is no middle ground whereby the Crown can require a council to change its behaviour in specific respects without going to the extreme of dissolving it entirely. The Government has needed to use all 3 of these interventions in polytechnics in recent years (in some cases repeatedly), including the appointment of a Crown commissioner. It has not used the interventions in universities.
Policy work on broader issues facing the polytechnic sector is ongoing. In the meantime, to quickly address the legislative elements of the two problems identified above, the Government intends to amend the legislation regarding governance arrangements and the intervention framework for polytechnics.
Objectives
The objective of the changes to governance arrangements is to improve the governance capability and effectiveness of polytechnic councils.
The objective of the changes to the intervention framework is to allow the Crown to more effectively respond to the risk posed by polytechnics facing performance problems.
Alternative options
Governance arrangements
In developing this legislation the Government did not consider making fundamental changes to polytechnic governance models. This is because there is some urgency in making these changes, and far-reaching change would require analysis and consultation that could not be undertaken sufficiently quickly. It also did not seriously consider enlarging councils, as evidence from the private sector, along with anecdotal feedback from board and council members in New Zealand, suggests that smaller governing bodies are generally more effective than large ones.
Instead, the Government considered 4 main alternatives to the existing council model, as well as their natural variations:
Option 1: Restricting the number of academic staff, general staff, and student representatives on polytechnic councils to one each (currently 1 to 3):
Option 2: Removing these representatives entirely, along with employer/employee and professional body representatives, leaving only the ministerial appointments and chief executive:
Option 3: Requiring the Minister for Tertiary Education to appoint all council members (with smaller councils).
The latter 2 options were rejected as being inconsistent with the conception of tertiary education institutions as partnerships between the Crown and communities. This partnership ethos is fundamental to all tertiary education institutions and is reflected in the way that key stakeholders are represented on these institutions’ governing bodies.
The first option was considered to be unbalanced in the opposite direction, with too much emphasis on representation and too little on governance capability. It would see councils comprise ten or eleven members: four ministerial appointments, the chief executive, an academic staff representative, a general staff representative, a student representative, an employer body representative, an employee body representative, and (if applicable) a professional body representative. Of these, only the four ministerial appointments would have to be appointed on the basis of their governance skill; suitably experienced candidates might be reluctant to accept appointments in these circumstances.
With respect to multi-institutional councils (see “Preferred option”
below), the Government also considered providing for multi-institutional councils that would consider the interests of the polytechnics over which they governed collectively. This would mean that the interests of one institution could be traded off against the interests of another. This option raised substantive policy issues that were unable to be addressed in the Bill’s timeframe, and so has been included in the ongoing polytechnic policy work programme.
Intervention framework
For the sake of brevity and clarity, the multiple alternative options below are presented as broad policy choices.
Choice 1: More/fewer interventions
The core problem with the current intervention framework is its lack of graduated steps, and so in considering alternatives the Government concentrated on adding interventions rather than removing them.
As a starting point it considered the more graduated set of interventions that already exists in the compulsory schooling sector, as set out in Part 7A of the Education Act 1989. For each of these interventions not already mirrored in the tertiary framework, the Government assessed whether there was value in including a similar provision for polytechnics. In each case, it was decided that this was indeed valuable, because the more interventions the Crown has to choose from, the better it can tailor its response to an institution at risk.
This created a six-step framework, which was felt to be adequately sensitive to different levels of risk. The Government considered that incorporating interventions beyond these six would have added administrative complexity without adding value.
Choice 2: Administration of interventions
The Government had to choose whether to vest the new powers of intervention with the Minister for Tertiary Education or with the chief executive of the TEC.
The Government ultimately considered that interventions up to and including the requirement to carry out a remedial plan (see below) should rest with the chief executive of the TEC. This is because these interventions fit naturally alongside the TEC’s existing monitoring role and happen “at arm’s length”
from the institution.
The Government decided that interventions above this where the Crown interacts directly with councils in an ongoing way—ie, through the appointment of a Crown observer, a Crown manager, or a commissioner—should rest with the Minister for Tertiary Education.
Choice 3: Trigger for interventions
The Government had to decide on what grounds each of the new powers should be able to be exercised, ie, whether a polytechnic needed to be “at potential risk”
, “at risk”
, or “at serious risk”
, and whether the chief executive of the TEC or the Minister for Tertiary Education had to be “satisfied”
that this was the case or believe it “on reasonable grounds”
.
The decisions about the appropriate degree/certainty of risk were determined with reference to the relevant policy objective and to standards set by the existing legislation.
In each case, the decision was made to include a “reasonable grounds”
requirement for action, in order to safeguard institutional autonomy.
Preferred options
Governance arrangements
The preferred option is smaller polytechnic councils with an even balance between “representative”
and purely skill-based appointments. The proposed amendment will provide for councils comprising 8 members:
4 members appointed by the Minister for Tertiary Education:
the chief executive of the institution:
1 member appointed by the Academic Board from among its members:
1 student representative:
1 member appointed by the council, through a public nominations process, from the community served by the polytechnic (for example, representatives of local iwi or key local industries).
The Minister for Tertiary Education will appoint the chair and deputy chair.
The Minister for Tertiary Education will treat governance skill and experience as necessary conditions for appointment to councils. In addition the Minister will take into consideration the desirability in principle of Māori representation on each council, and the desirability in principle of having a council that reflects the ethnic and socio-economic diversity of the community served by the polytechnic.
Individual duties
Polytechnic council members will have individual duties set out in the Act (in addition to existing collective duties), with the primary duty being to act in the best interests of the polytechnic and with due care and diligence. The Minister for Tertiary Education will have the power to remove individual council members at any time in cases where he or she has “just cause”
to do so. “Just cause”
will be defined to include misconduct, inability to perform the functions of office, neglect of duty, and breach of any of the collective or individual duties of members.
Multi-institutional councils
A provision will be made for multi-institutional councils, allowing one council to govern two or more institutions (treating the interests of each institution separately). The composition of multi-institutional councils will be determined by the Minister for Tertiary Education on a case-by-case basis.
Advantages and disadvantages
The preferred policy has the following advantages:
councils will have a small and predictable membership that reflects the principle that while representation is important and desirable, a core of governance skill and experience is necessary to the effective operation of a council:
the legislation will be clearer about the responsibilities of individual council members:
multi-institutional councils will help to address the shortage of appropriately-skilled candidates for polytechnic councils.
It has the following disadvantages:
some people may believe that the Minister for Tertiary Education will have more control over polytechnic councils, because of the greater proportion of ministerial appointments on the council (50%, compared to the current 20%–33%). However, ministerial appointments are not “ministerial representatives”
—a council member is under a legal obligation to act in the interests of the organisation, irrespective of how he or she has been appointed. This common law obligation will be made explicit in the Education Act 1989:
some people may feel that the Minister for Tertiary Education’s powers of removal of council members gives the Minister more control over councils. However, this power will be tightly circumscribed and constrained by a requirement to have “just cause”
, which will be defined in the Act:
polytechnic stakeholders (eg, students, staff, and/or local communities) are accustomed to a highly representative governance model at polytechnics. They may resent a shift to a model that places more emphasis than before on governance skill and experience, and has fewer “as of right”
representative positions available.
The basic statutory duties of councils are unchanged and will therefore drive the governance decisions made by the council.
Intervention framework
The preferred option for the intervention framework for polytechnics will add 3 new provisions to the existing provisions. This will create a more graduated framework for Crown intervention in polytechnics at risk:
The chief executive of the TEC will be able to require councils to engage specialised help or to prepare and carry out a performance improvement plan whenever he or she “believes on reasonable grounds”
that a polytechnic may be at risk. The Minister for Tertiary Education will be able to appoint a Crown manager whenever he or she “believes on reasonable grounds that there is a serious risk to the operation or long-term viability of a polytechnic”
. Under the current legislation, the Secretary for Education issues “risk assessment criteria”
used to determine when intervention is appropriate; for avoidance of doubt, this provision will be amended to state explicitly that the Secretary can issue criteria that are specific to polytechnics.
Advantages and disadvantages
The preferred policy design has the following advantages:
a wider range of graduated interventions allows for a more appropriate and tailored response by the Crown to a situation where a polytechnic is at risk. Earlier intervention is more cost-effective:
adding more effective interventions “upstream”
from dissolution of a council offers more protection to institutions’ autonomy, giving them more chance to solve their own problems while managing the risk to the Crown:
giving the Minister for Tertiary Education the power to appoint a Crown manager formalises an existing practice.
It has the disadvantage that it is statutorily unusual to give the chief executive of one Crown entity (the TEC) the legislative authority to direct the actions of the governing body of another Crown entity (a polytechnic).
Implementation and review
The legislation is expected to come into force the day after assent, with the governance provisions coming into force later on 1 May 2010 (with transitional arrangements for councils stipulated in the Act). During the intervening period, preparations will be made for the effective and efficient implementation of the legislative changes.
The new governance arrangements will require advice and support to the Minister for Tertiary Education to enable the appointment of up to 80 new council members on 20 polytechnic councils. These appointments are likely to include many of the ministerial appointees already on councils. Advice will also be provided on the appointment of chairs and deputy chairs to these councils.
The implementation of the three new interventions will be supported by the development of new operational procedures and resources to underpin their implementation.
The changes will be reviewed as part of the ongoing policy work programme regarding polytechnics.
Consultation
The Department of Prime Minister and Cabinet, the Treasury, the Ministry of Social Development, the Department of Labour, the Ministry of Women’s Affairs, the Ministry of Youth Development, Te Puni Kokiri, the Ministry of Pacific Island Affairs, the Tertiary Education Commission, the State Services Commission and the New Zealand Qualifications Authority were consulted in the course of developing the policy proposal.
The Treasury, the Tertiary Education Commission and the State Services Commission have been consulted on this Statement.
2 Manukau Institute of Technology tertiary high school
Executive summary
The Government intends to make an interim amendment to the Education Act 1989 to allow the proposed tertiary high school at Manukau Institute of Technology (MIT) to begin operating from the beginning of 2010.
The tertiary high school is to be established to trial a new concept. It will offer a 4-year course of study beginning in Year 11 for students who have been identified by their schools as unlikely to succeed in a conventional school setting, who are motivated to succeed in a tertiary setting, and whose parents support them in this.
Students would remain enrolled at their contributing secondary school for age-appropriate cultural and sporting activities. The tertiary high school will be part of Manukau Institute of Technology and not a registered school.
Adequacy statement
The Ministry of Education confirms that the regulatory impact statement is adequate.
Status quo and problem
Current legislation contains barriers to these arrangements. It requires students under the age of 16 to be enrolled at and attending a school. The MIT proposal is that students are enrolled at and attending the tertiary high school full-time from the beginning of Year 11. Many students at this time will not yet be 16.
Under the Education Act 1989, a board of trustees retains ultimate responsibility for its students even when they are undertaking off-site courses. The students at the MIT tertiary high school will spend their working day in the tertiary environment. In these circumstances the board of trustees of the school where they are also enrolled will have very little ability to exercise their statutory responsibility for the students.
Objective
New Zealand has too many young people who leave school without worthwhile qualifications. The Government would like to trial a tertiary high school as one way to reverse this trend and support students to staircase into obtaining tertiary qualifications. The objective of this amendment is to allow the trial to begin at the beginning of 2010.
Alternative options
Two options were considered that are consistent with existing legislation.
Option 1: Enrol only 16-year-olds
One option considered was to enrol only those Year 11 students who had turned 16 by the beginning of 2010. Most students are still 15 at this time and this would have resulted in an unviable intake because there would not be enough students enrolled.
Option 2: Delay opening
The other option considered was to delay the opening of the tertiary high school until broader legislative change could be enacted. There is an Education and Training Bill that has Category 4 on the 2009 legislation programme–to proceed to Select Committee in 2009. This will be used to make necessary changes to accommodate a range of initiatives at the secondary/tertiary interface. However, MIT has been working towards establishing the tertiary high school for some years and the Government is keen to see it begin at the start of 2010 so that this model of education can be evaluated.
Preferred Option
The preferred option is to include a short amendment to allow:
MIT tertiary high school students who are under 16 to be deemed to meet the compulsory attendance requirements of the Act:
arrangements for the safety, welfare and educational programmes of all students to be determined between the school at which the student is enrolled and MIT Tertiary High School and approved by the Secretary of Education:
any consequential amendments necessary to give effect to this.
This institution-specific amendment would be repealed when the broader regime of the Education and Training Bill is passed.
This option has the advantage that it would allow the proposed tertiary high school at MIT to begin operating from the beginning of 2010. The first intake will consist of up to 80 students from potentially 10 schools in South Auckland. It will benefit students who have been identified by their schools as unlikely to succeed in a conventional school setting. It will clarify the responsibility requirements of the institutions involved in a practical way.
This option will exempt students under 16 from the requirement to attend school. They will, however, have similar or greater attendance requirements at the tertiary high school and be undertaking National Certificate of Educational Achievement (NCEA) subjects as well as tertiary courses.
Although it requires MIT and the schools to enter into a formal arrangement regarding responsibilities for students, this is already an agreed procedure. No school is required to put students forward for the tertiary high school.
Implementation and review
The Ministry of Education, MIT and South Auckland schools are working towards implementation of the tertiary high school by the beginning of 2010, with an intake of up to 80 Year 11 students in Term 1. There will be a written agreement between the schools, the tertiary high school and the Secretary of Education that covers arrangements for the safety, welfare and educational programmes of the students. This will be reflected in an agreement between the tertiary high school, students and their parents.
The outcomes from the tertiary high school will be monitored and evaluated. The form of evaluation has not yet been determined.
Consultation
This regulatory impact analysis was prepared by the Ministry of Education. The Ministry has consulted with the Tertiary Education Commission and the New Zealand Qualifications Authority on the establishment of the tertiary high school. MIT has consulted widely in the South Auckland community about the tertiary high school proposal.