Education (Polytechnics) Amendment Bill

Government Bill

70—2

As reported from the Education and Science Committee

Commentary

Recommendation

The Education and Science Committee has examined the Education (Polytechnics) Amendment Bill and recommends by majority that it be passed with the amendments shown.

Introduction

This bill would amend the Education Act 1989 by introducing new governance arrangements for polytechnic councils, creating an extended interventions framework for the polytechnic sector, and making several other changes affecting polytechnics.

The size of polytechnic councils would be reduced from between 12 and 20 members to eight members, with four of the eight to be appointed by the Minister for Tertiary Education. The Minister would make these appointments principally on the basis of relevant governance experience. In addition, the Minister would be required to take into account 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. The Minister would appoint the council chairperson and deputy chairperson.

The extended interventions framework would allow a graduated series of responses to situations of risk.

The Minister would be able to combine the councils of two or more polytechnics if requested to do so by the councils; two or more polytechnic councils would be able to combine their academic boards; and the Manukau Institute of Technology would be able to establish a tertiary high school.

This commentary covers the major amendments that we recommend.

Governance arrangements

Composition of councils

We recommend amending clause 16 by amending subsection (1) of new section 222AA and inserting new section 222AAB. This would substitute four members appointed by the polytechnic council from its constituents, and from groups, organisations, and the wider community the polytechnic serves, in place of the student member, the academic board member, the community member, and the chief executive officer; and would require that the appointments be made in accordance with statutes issued by the polytechnic council. We are aware of concern that many groups could not be specifically represented on an eight-member council, as proposed in the bill as introduced. We consider that these amendments would give a council more flexibility, and would thus allow it to design the best council composition to meet the needs of the particular institution and stakeholders.

We recommend that any consequential amendments be made.

Terms and conditions of office

We recommend amending clause 16 by inserting new subsection (1A) into new section 222AD. This would specify a maximum term of office for polytechnic council members of not more than four years. Under the bill as introduced, the term of office would be for a maximum of four years only for ministerial appointees, the term of the community member also being for a maximum of four, but also with a minimum of two years, and the term of other members would be for one year only. We consider that this would limit the ability of a polytechnic council to tailor the terms of office to suit its particular needs.

We recommend amending clause 16 by inserting new subsection (1A) into new section 222AG. This would provide that the duty of a member of a polytechnic council to act in the interests of the polytechnic as a whole under subsection (1)(a)(ii) is not displaced or limited by their appointment as a representative of a particular group or institution.

We recommend amending clause 16 by inserting new section 222AGA after new section 222AG. This would clarify that polytechnic council members would be accountable only to the Minister and the institution itself for any breach of the individual duties set out in new section 222AG. The new individual duties of polytechnic council members are modelled on those set out in the Crown Entities Act 2004, but the bill as introduced does not have an equivalent of section 59 of that Act, which sets out liability for breach of individual duties. This amendment would provide such an equivalent.

We recommend amending clause 16 by inserting new subsection (3) into new section 222AL, inserting new subsection (3) into new section 222AN, and amending clause 20 by inserting new subclause (3). This would provide that a polytechnic council member is not entitled to compensation or other payment or benefit on ceasing to hold office. This provision would be equivalent to that in section 43 of the Crown Entities Act 2004.

Chairperson and deputy chairperson

We recommend amending clause 16 by inserting new subsections (2A) and (4B) into new section 222AF. This would require the Minister to consult the person concerned before removing her or him from the position of chairperson or deputy chairperson, and require the chairperson or deputy chairperson to send a copy of her or his written notice of resignation to the polytechnic council concerned. This would be consistent with the provisions in Schedule 5 of the Crown Entities Act 2004, which new section 222AF is modelled on.

Interventions framework

Risk criteria

We recommend amending clause 14, which deals with section 195A of the Act, by repealing subsection (1) and substituting a new subsection (1), and by inserting new subsection (1A). We also recommend amending clause 15, new section 222C by substituting subsection (6). This would allow the Secretary for Education to determine polytechnic-specific criteria for assessing risk to the educational performance of students. The bill as introduced would enable the Secretary of Education to determine polytechnic-specific criteria only for assessing serious risk to the operation and long-term viability of polytechnics. We consider that the omission from clause 14 and new section 222C(6) of clause 15 of any reference to the educational performance of students should be rectified.

Crown managers

We recommend amending clause 15 by deleting subsection (5) of new section 222C. This provision, which stipulates that “the notice may be amended or revoked; and if it is revoked, another may (immediately or later) be given”, is redundant because the power to issue a notice includes the power to amend, revoke, or revoke and replace it.

We recommend amending clause 15 by inserting new subsections (1A), (1B), (2A), and (5) into new section 222C. This would require the Minister to consult with a polytechnic council before appointing a Crown manager, to publish the notice of appointment in the Gazette, and to review the appointment at least once a year. The appointment of a Crown manager to a polytechnic by the Minister for Tertiary Education would be a significant intervention. We consider that it is appropriate to strengthen the process requirements set out in this clause.

We recommend amending clause 15 by inserting new subsections (3A) and (3B) into new section 222C. This would require the Crown manager to exercise the functions, duties, and powers of a polytechnic council in accordance with the Education Act 1989, particularly sections 160 and 161. We consider that, for the avoidance of doubt, an equivalent requirement to that on Crown commissioners under section 195E(1) of the Education Act 1989 is needed for Crown managers.

We recommend amending clause 15 by inserting new section 222CA after new section 222C. This would provide for the indemnification of Crown managers appointed for polytechnics against personal liability for acts or omissions, or any consequential losses. This is an equivalent provision to those in sections 78Q and 195DA of the Education Act 1989.

Miscellaneous amendments

Reasons in support of requests to combine councils

We recommend amending clause 16, new section 222AJ(2). This would require each polytechnic council to set out the reasons for combination in its report to the Minister for Tertiary Education recommending that the councils be combined. This would enable the Minister to make an informed decision on combination.

Membership of combined councils

We recommend amending clause 16, new section 222AK(2). This would require the Minister to ensure that a combined council has an even balance between members appointed by the Minister and members appointed by the council.

We recommend amending clause 16 by inserting new paragraph (ba) into new subsection 222AL(2), and inserting new paragraph (da) into new subsection 222AN(1). This provides that when councils are combined, every member of the original councils goes out of office; and that when a combined council is dissolved, every member goes out of office.

Power to vary reconstitution day for councils

We recommend amending clause 4 by inserting definitions for “designated polytechnic” and “reconstitution day”. This would allow the Minister to specify the date of polytechnic reconstitution day for a particular polytechnic before 1 May 2010, but no earlier than 1 March 2010. For those polytechnics in financial difficulties, an earlier date would give the new council members more time to address the financial situation of the polytechnics they govern.

We recommend that any consequential amendments be made.

Green Party minority view

The Green Party can see no justification for this legislation. While the purpose is sound the implementation fails that purpose. There is no reason to assume that the Crown’s liability will be reduced in any way simply by the reduction in Polytechnic council members from 20 to 8. Indeed, quite the opposite as 8 is simply insufficient to ensure that the council has all the skills and interests needed to properly manage such an institution, some of which span three or more regions.

We are extremely concerned that the Minister will not only appoint four of the eight members but also the chairs and deputy chairs of the councils. This is an unprecedented exercise of Ministerial power and control and cannot be justified. Additionally, we are dismayed that there is no guaranteed Iwi or Māori representation, despite the submitters asking for such representation. We are equally dismayed at the lack of community representation and the use of legislation to lock out the community despite their commitment and effectiveness on the councils.

We agree with submitters’ concerns that such extensive ministerial intervention (including the ability to readily remove members) infringes on institutional independence and therefore academic freedom. There are insufficient protections from Ministerial interference, including no restraint to prevent a limited number of Ministerial appointees sitting on many councils. The opportunity for conflicts of interest is serious.

We asked council members who appeared at the committee whether any ministerial or ministry officials had spoken to them about the policy objectives and the options for meeting those objectives. Not a single one had been consulted before the bill was tabled in the House. The sector has been shut out from considering the potential solutions and is now being punished for an unknown infringement.

New Zealand Labour Party minority view

The Labour Party members on the select committee have grave concern about the passage of this legislation, with the exception of the provisions relating to enabling secondary school students to attend tertiary high school at the Manukau Institute of Technology.

First, there has been no adequate explanation as to why this legislation is necessary for the polytechnic sector alone out of the whole tertiary education sector. We believe that the Minister is either operating on the basis of outdated information regarding the polytechnic sector, or has intentions for this part of the sector which she does not have for other parts of the sector. The purpose of such limiting provisions, handing considerable power for the running of the institutions over to the Minister and restricting community representation, is ultimately unclear.

Next, we oppose the absolute reduction in Council numbers from 14 to 20 members down to eight. This restricts the number of community representatives able to be appointed to polytechnic councils and that limits the perspectives able to be brought to the education offerings a polytech might offer to its region. That potentially impoverishes the education opportunities available in the regions in our view. There is no clear purpose for this provision, given that the cost of the operation of councils is not large or excessive. The only purpose which can be divined is for the Minister to be able to exercise more control over polytechnics. The ultimate purpose for that, however, is unclear, as stated above.

Particular concerns regarding the restriction of council numbers relate to the following:

1.Where a polytechnic serves more than one community (for example UColl, which serves Palmerston North, Whanganui and the Wairarapa district), there is no guarantee that those diverse communities, with differing educational needs, will have their needs represented at the council level. This was the subject of submissions from mayors in various areas, an unusual occurrence in itself and one which reflected the level of their concern about these provisions.
2.The restriction of numbers gives the Minister considerable control over the councils, and this is not greatly enhanced by amendments made to the legislation which hand the composition of the remaining four council members over to council statutes. There remains no formal guarantee of community representation, or accountability for choices made by the individual councils.
3.The lack of guaranteed Māori representation is of particular concern, especially given the composition of the students who frequently take up the tertiary education opportunities afforded by polytechnics.
4.We also object strongly to the lack of guaranteed union and employer representation on the councils. This is particularly important as polytechnics play a critical role in training the workforce of the future. The function of upskilling existing and future workers with skills relevant to New Zealand’s future economic progress lies importantly with polytechnics, and this legislation does nothing to enhance that ability by not guaranteeing representatives of the workforce and the employers who are going to be creating the new jobs and seeking the relevant skills to perform them.
5.We are also concerned about the lack of guaranteed staff and student representation as well, given these are bodies of people with considerable interest in the governance of polytechs.

Further to these objections, we are concerned that these governance changes will impact on the institutional autonomy and, beyond that, the academic freedom of polytechnics. The particular arguments around this area were well expressed to the committee through the submission of the Human Rights Commission. This has impacts for all tertiary education institutions by implication.

We remain strongly opposed to this legislation.

Appendix

Committee process

The Education (Polytechnics) Amendment Bill was referred to the committee on 26 August 2009. The closing date for submissions was 30 September 2009. We received and considered 56 submissions and 100 form submissions from interested groups and individuals. We heard 37 submissions.

We received advice from the Ministry of Education and the Tertiary Education Commission.

Committee membership

Allan Peachey (Chairperson)

Catherine Delahunty

Hon Sir Roger Douglas

Jo Goodhew

Colin King

Hon Nanaia Mahuta (from 6 May 2009 to 18 November 2009)

Hon Trevor Mallard

Sue Moroney

David Shearer (from 18 November 2009)

Louise Upston

Key to symbols used

text inserted

~~text deleted~~

This is an HTML version of the Bill. To see whether amendments are unanimous or majority, and whether they are select committee or committee of the whole House amendments, refer to the PDF version. Placing the cursor over the amendment will also give you this information.

Hon Anne Tolley

Education (Polytechnics) Amendment Bill

Government Bill

70—2

1 Title

2 Commencement

3 Principal Act amended

Part 1
Substantive provisions

Amendments to existing provisions of principal Act relating to tertiary education

4 Interpretation

5 Institutions to be governed by councils

6 Section 168 repealed

7 Constitutions of councils of new institutions

8 Amendment of constitution

9 Requirements as to constitutions of councils

10 Section 172 repealed

11 Term of office

~~12 Vacation of office~~

12 Vacation of office

13 Chairperson and deputy chairperson

14 Criteria for risk assessment of institutions

New provisions relating to polytechnics

15 New Part 15A inserted

Part 15A
Special provisions relating to polytechnics

222A Specialist help

222B Performance improvement plans

222C Crown manager

222CA Protection of Crown managers

222D Powers may be used concurrently

222E Polytechnic council may request intervention

16 New headings and sections 222AA to 222AP inserted

Polytechnic councils

222AA Constitution of polytechnic councils

222AAB Statutes relating to appointment of members by polytechnic councils

222AB Membership of more than one polytechnic council

222AC Matters to be considered when appointments made

222AD Term of office

222AE Reappointment and re-election

222AF Chairperson and deputy chairperson

222AG Duties of members of polytechnic councils

222AGA Accountability for individual duties

222AH Removal of members

222AI Process for removal

Combination of polytechnic councils

222AJ Voluntary combination of councils

222AK Constitution of combined councils

222AL Effect of combination

222AM Dissolution of combined council

222AN Effect of dissolution

222AO Initial membership of polytechnic councils after dissolution of combined council

Combined academic boards

222AP Polytechnic councils may establish combined academic boards

Enabling school students to attend tertiary high school at Manukau Institute of Technology

17 Enabling school students to attend tertiary high school at Manukau Institute of Technology

Part 2
Transitional matters

18 Interpretation

19 Initial membership of reconstituted councils

20 Members of existing polytechnic councils to go out of office

21 Council continues to be same body

22 Temporary power of direction

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Education (Polytechnics) Amendment Act 2009.

2 Commencement

(1) Sections 5, 7 to 9, 11 to 13, and 16 come into force on 1 ~~May~~ March 2010.
(2) The rest of this Act comes into force on the day after the date on which it receives the Royal assent.

3 Principal Act amended

This Act amends the Education Act 1989.

Part 1
Substantive provisions

Amendments to existing provisions of principal Act relating to tertiary education

4 Interpretation

Section 159(1) is amended by inserting the following definitions in their appropriate alphabetical order:
“combined council means a body constituted under section 222AMK
“constitutents, in relation to an institution, means the people who (by virtue of section 163) constitute it
“designated polytechnic—
“(a) after 28 February 2010 and before 1 May 2010 means a polytechnic designated for the purposes of Part 15A by the Governor-General by Order in Council:
“(b) on or after 1 May 2010 means any polytechnic
“polytechnic council—
“(a) means the council of a polytechnic; and
“(b) includes a combined council
~~“polytechnic reconstitution day means 1 May 2010~~
“reconstitution day,—
“(a) in relation to a polytechnic designated for the purposes of Part 15A by the Governor-General by Order in Council, means the day on which the order comes into force:
“(b) in relation to any other polytechnic, means 1 May 2010”.

5 Institutions to be governed by councils

Section 165 is amended by inserting the following subsection after subsection (1):
- “(1A) On and after ~~the polytechnic~~ its reconstitution day,—
  “(a) subsection (1)(a) does not apply to a polytechnic; and
  “(b) except in relation to matters that occurred before the commencement of this section, a reference in any law to the council or other governing body of an institution must, in relation to a the polytechnic, be construed as a reference to ~~the polytechnic's~~ its council as constituted under this Part or Part 15A (as the case requires).”

6 Section 168 repealed

Section 168 is repealed.

7 Constitutions of councils of new institutions

Section 169 is amended by adding the following subsection:
- “(4) Subsections (1) to (3) do not apply to the constitution for the council of a body that is, or is to be, established under section 162(2) as a polytechnic (for which sections 222AA and 222AK provide).”

8 Amendment of constitution

Section 170 is amended by adding the following subsection as subsection (2):
- “(2) Subsection (1) does not apply to ~~a polytechnic council~~ the council of a designated polytechnic.”

9 Requirements as to constitutions of councils

Section 171 is amended by adding the following subsection:
- “(12) Subsections (1) to (11) do not apply to the constitution of ~~a polytechnic council~~ the council of a designated polytechnic (for which sections 222AA and 222AMK provide).”

10 Section 172 repealed

Section 172 is repealed.

11 Term of office

Section 173 is amended by adding the following subsection:
- “(8) Subsections (1) to (7) do not apply to the term of office of a member of ~~a polytechnic council~~ the council of a designated polytechnic (for which section 222AD provides).”

12 Vacation of office

~~Section 174 is amended by inserting the following subsections after subsection (2):~~
- “(2A) A member of a polytechnic council appointed by the council on the nomination of the academic board of the polytechnic concerned (or, in the case of a combined council, on the nomination of the academic board of one of the polytechnics concerned, or of all of the academic boards of the polytechnics concerned, jointly) goes out of office on ceasing to be a member of that board.
- ~~“(2B) Subsection (2A) applies to a polytechnic council in place of subsection (2).”~~

12 Vacation of office

(1) Section 174(1) is amended by omitting “(other than the chief executive)”.
(2) Section 174 is amended by inserting the following subsection after subsection (1):
- “(1A) Subsection (1) does not apply to—
  “(a) the chief executive of an institution that is not a designated polytechnic; or
  “(b) the chief executive of a designated polytechnic who has been appointed by its council pursuant to a statute requiring it to appoint the chief executive a member of its council.”
(3) Section 174 is amended by inserting the following subsection after subsection (2):
- “(2A) Subsection (2) does not apply to the council of a designated polytechnic.”

13 Chairperson and deputy chairperson

Section 177 is amended by adding the following subsection:
- “(9) Subsections (1) to (8) do not apply to the chairperson and deputy chairperson of ~~a polytechnic~~ the council of a designated polytechnic (for which section 222AF provides).”

14 Criteria for risk assessment of institutions

~~Section 195A is amended by inserting the following subsection after subsection (1)~~ Section 195A(1) is repealed and the following subsections are substituted:
- “(1) The Secretary must, after consulting institution councils, determine—
  “(a) criteria for assessing the level of risk to the operation and long-term viability of institutions; and
  “(b) criteria for assessing the level of risk to the education performance of the students enrolled at polytechnics.
- “(1A) In the case of criteria for assessing the level of risk to the education performance of the students enrolled at polytechnics, the requirement to consult institution councils applies to polytechnic councils only.
- “(1B) The Secretary may under subsection (1) determine criteria for assessing the level of risk to the operation and long-term viability of polytechnics only; and in that case,—
  “(a) the requirement to consult ~~with~~ institution councils applies to polytechnic councils only; and
  “(b) the criteria determined may be in addition to, or instead of, those determined for other institutions.”

New provisions relating to polytechnics

15 New Part 15A inserted

The following Part is inserted after Part 15:
“Part 15A
“Special provisions relating to polytechnics
“222A Specialist help
“(1) 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 of the Tertiary Education Commission may, by written notice to its polytechnic council, require the council to obtain specialist help.
“(2) The notice must state—
“(a) the help or kind of help to be obtained; and
“(b) the person or organisation, or kind of person or organisation, from whom or which it is to be obtained.
“(3) As soon as is reasonably practicable after receiving the notice, the council must comply with it.
“(4) The council—
“(a) must provide the information and access, and do all other things, reasonably necessary to enable the person or organisation engaged to provide the help; and
“(b) to the extent that the help provided is advice, take the advice into account in performing its functions and duties; and
“(c) pay the person or organisation's reasonable fees and expenses.
“222B Performance improvement plans
“(1) 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 of the Tertiary Education Commission may, by written notice to its polytechnic council, require the council to prepare and give to him or her a draft performance improvement plan for the polytechnic.
“(2) The notice must state—
“(a) the matters to be addressed by the draft plan; and
“(b) the outcomes that implementation of the draft plan is intended to achieve; and
“(c) the times by which those outcomes should be achieved; and
“(d) the performance measures that will be used to determine whether those outcomes have been achieved; and
“(e) the day by which the draft plan must be given to him or her.
“(3) The council must prepare, and give to the chief executive of the Tertiary Education Commission by the stated day, a draft plan complying with subsection (2).
“(4) If the council complies with subsection (3), the chief executive of the Tertiary Education Commission may,—
“(a) approve the draft plan concerned; or
“(b) after considering the draft plan, approve for the polytechnic some other plan complying with subsection (2) (whether a modified version of the draft plan or a different plan).
“(5) If the council does not comply with subsection (3), the chief executive of the Tertiary Education Commission may approve for the polytechnic any plan complying with subsection (2) the chief executive thinks appropriate.
“(6) The chief executive of the Tertiary Education Commission must not approve any plan other than a draft plan given to him or her by the council before discussing it with the council.
“(7) The council must take all reasonably practicable steps to implement a plan approved under this section.
“222C Crown manager
“(1) If he or she believes on reasonable grounds that there is a serious risk to the operation or long-term viability of a polytechnic, or that the education performance of the students at a polytechnic is at risk, the Minister may, by written notice to its polytechnic council, appoint a Crown manager for the polytechnic.
“(1A) The Minister must not appoint the Crown manager without—
“(a) giving the polytechnic's council written notice of—
“(i) his or her intention to do so; and
“(ii) his or her reasons for intending to do so; and
“(b) allowing the council a reasonable time to respond to the notice; and
“(c) considering any written submissions received from the council within that time.
“(1B) Whether a time is reasonable in any particular case may depend (among other things) on the urgency of the matters the Crown manager will have to deal with.
“(2) The notice must state—
“(a) the name of the Crown manager and the day on which his or her appointment takes effect; and
“(b) the functions of the council to be performed by the Crown manager; and
“(c) any conditions subject to which the Crown manager may perform those functions; and
“(d) any matters the Crown manager may advise the council on.
“(2A) As soon as is practicable after appointing the Crown manager, the Minister must publish in the Gazette a notice stating that he or she has done so.
“(3) While there is a Crown manager appointed for the polytechnic,—
“(a) the Crown manager may perform any of the functions stated in the notice appointing him or her; and—
“(i) for that purpose has all the powers of the council; but
“(ii) in performing any such function (and exercising any of those powers in order to do so) the Crown manager must comply with all relevant duties of the council; and
“(b) the council—
“(i) must not perform any of those functions; and
“(ii) must provide the information and access, and do all other things, reasonably necessary to enable the Crown manager to perform those functions and exercise those powers.
“(3A) The Crown manager must perform any function under subsection (3)(a) (and exercise any power in order to do so) in accordance with this Act; and, in particular, have regard to sections 160 and 161.
“(3B) Subsection (3A) does not limit the generality of subsection (3)(a)(ii).
“(4) The council must pay the Crown manager's reasonable fees and expenses.
~~“(5) The notice may be amended or revoked; and if it is revoked, another may (immediately or later) be given.~~
“(6) For the purpose of subsection (1), there is a serious risk to the operation or long-term viability of a polytechnic if, according to the criteria published under section 195A(2), there is or is likely to be a serious level of risk to its operation or long-term viability.
“(5) If the Crown manager's appointment has not earlier been revoked, the Minister must consider whether the reasons for it still apply—
“(a) no later than 12 months after it was made; and
“(b) no later than 12 months after he or she last considered whether they still apply.
“(6) For the purpose of subsection (1),—
“(a) there is a serious risk to the operation or long-term viability of a polytechnic if, according to criteria determined under section 195A(1), there is or is likely to be a serious level of risk to its operation or long-term viability; and
“(b) the education performance of the students at a polytechnic is at risk if, according to criteria determined under section 195A(1), their education performance is at risk.
“(7) Subsection (6) does not limit or affect the generality of subsection (1).
“222CA Protection of Crown managers
A Crown manager is not personally liable for any act done or omitted by him or her, or for any loss arising out of any act done or omitted by him or her, if he or she did or omitted the act in good faith, in the course of performing his or her functions.
“222D Powers may be used concurrently
“(1) Sections 222A to 222C do not limit or affect sections 195B to 195D.
“(2) To the extent that it is possible in practice, powers given by 2 or more of sections 195B, 195C, and 222A to 222C may be exercised concurrently in respect of the same polytechnic or polytechnic council.
“222E Polytechnic council may request intervention
If a polytechnic council requests the Minister or chief executive of the Tertiary Education Commission (as the case requires) to act under any of sections 195C and 195D and 222A to 222C, he or she—
“(a) must consider any argument or evidence supplied by the council; and
“(b) must consider whether or not to act under that section; but
“(c) may then (if any necessary conditions are satisfied) act under another of those sections giving him or her power to act.”

16 New headings and sections 222AA to 222AP inserted

The following headings and sections are inserted before section 222A (as inserted by section 15):
“Polytechnic councils
“222AA Constitution of polytechnic councils
“(1) ~~A polytechnic council~~ The council of a designated polytechnic must comprise—
“(a) 4 members appointed by the Minister:
~~“(b) 1 member, being a member of the polytechnic's academic board, nominated by that board and appointed by the council:~~
~~“(c) 1 student member,—~~
~~“(i) if membership of the polytechnic's students association is compulsory, being a person appointed by the association in accordance with its constitution or rules:~~
“(ii) if membership of the polytechnic's students association is not compulsory, being a person elected by the students at the institution at an election conducted in accordance with statutes made by the council:
~~“(d) 1 member, nominated by members of the community served by the polytechnic and appointed by the council:~~
~~“(e) the polytechnic's chief executive.~~
“(b) 4 members appointed by the council in accordance with its statutes.
“(2) A person is not eligible for appointment or election as a member of ~~a polytechnic council~~ the council of a designated polytechnic if—
“(a) he or she is subject to a property order under the Protection of Personal and Property Rights Act 1988; or
“(b) there has been made under that Act in respect of him or her a personal order that reflects adversely on his or her—
“(i) competence to manage his or her own affairs in relation to his or her property; or
“(ii) capacity to make or to communicate decisions relating to any particular aspect or aspects of his or her personal care and welfare; or
“(c) he or she is a bankrupt who has not obtained his or her order of discharge, or whose order of discharge has been suspended for a term not yet expired or is subject to conditions not yet fulfilled; or
“(d) he or she has at any time been removed from office as a member of a polytechnic council under section 222AH.
“(3) No act or proceeding of, or of any committee of, ~~a polytechnic council is invalidated~~ the council of a designated polytechnic is invalid because of—
“(a) a defect in the appointment or election of a member of the council or committee; or
“(b) a disqualification of a member of the council or committee; or
“(c) a defect in the convening of a meeting; or
“(d) a vacancy or vacancies in the membership of the council or committee.
“222AAB Statutes relating to appointment of members by polytechnic councils
“(1) Every polytechnic council must have in place statutes relating to the appointment of members under section 222AA(1)(b).
“(2) The statutes may (in respect of any of the 4 appointments it has power to make)—
“(a) require the appointment of a member—
“(i) of a stated description; or
“(ii) holding a stated office; or
“(iii) nominated by a stated institution or institutions, or an institution or institutions of a stated description; or
“(iv) elected by people of a stated description:
“(b) provide for the process by which—
“(i) nominations may be called for and considered:
“(ii) elections may be held and their results may be determined.
“(3) Subsection (2) does not limit the generality of section 194.
“222AB Membership of more than one polytechnic council
A person who is a member ~~(whether elected or appointed)~~ of a polytechnic council may be ~~elected or~~ appointed a member of another polytechnic council.
“222AC Matters to be considered when appointments made
“(1) It is desirable in principle—
“(a) that ~~a polytechnic council~~ the council of a designated polytechnic should include Māori; and
“(b) that, so far as is possible, ~~a polytechnic council~~ the council of a designated polytechnic should reflect the ethnic and socio-economic diversity of the community it serves.
“(2) The Minister—
“(a) must have regard to the principles in subsection (1) when appointing members of ~~a polytechnic council~~ the council of a designated polytechnic; but
“(b) must appoint people who (in the Minister's opinion) have enough experience of governance to fulfil their individual duties as members of the council and the functions, duties, and responsibilities of the council.
“(3) ~~A polytechnic council~~ The council of a designated polytechnic must appoint as members people who (in the council's opinion)—
“(a) have relevant knowledge, skills, or experience; and
“(b) are likely to be able to fulfil their individual duties as members of the council and the functions, duties, and responsibilities of the council.
“222AD Term of office
“(1) The person appointing a member of ~~a polytechnic council~~ the council of a designated polytechnic must, when making the appointment, state the day on which it takes effect and ~~(if the person has power to determine its term)~~ its term.
“(1A) The term must be no more than 4 years.
“(1B) The term of office of a member of the council of a designated polytechnic begins on the later of the following:
“(a) the day on which his or her appointment takes effect:
“(b) the expiry of the term of office of his or her predecessor.
~~“(2) The term of a member's office is—~~
~~“(a) not more than 4 years for a member appointed by the Minister:~~
~~“(b) 1 year for a member appointed by the council on the nomination of the polytechnic's academic board:~~
~~“(c) 1 year for a member appointed or elected under section 222AA(1)(c):~~
~~“(d) not less than 2 years and not more than 4 years for a member appointed by the council on the nomination of members of the community served by the polytechnic.~~
“(3) Notwithstanding subsection (2), if the term of office of a member of a polytechnic council appointed or elected under section 222AA(1) expires before a successor is appointed or elected, the member continues in office until a successor is appointed or elected.
“(3) Notwithstanding subsection (1B), if the term of office of a member of the council of a designated polytechnic expires before a successor is appointed, the member continues in office until the day on which the appointment of a successor takes effect.
“222AE Reappointment and re-election
Any member of ~~a polytechnic council~~ the council of a designated polytechnic can be reappointed ~~or re-elected~~ for a second or later term.
“222AF Chairperson and deputy chairperson
“(1) The Minister may at any time ~~a polytechnic council~~ the council of a designated polytechnic has no chairperson or no deputy chairperson, by written notice to the member concerned stating the term for which the member is appointed, appoint as chairperson or deputy chairperson (as the case requires) of the council any member who is not one of the following:
“(a) a student ~~member~~ enrolled at the polytechnic:
“(b) the chief executive of the polytechnic (or in the case of a combined council, of one of the polytechnics concerned):
“(c) in the case of a council that is not a combined council, an employee of the polytechnic's chief executive ~~(whether or not the member appointed under section 222AA(1)(b))~~:
“(d) in the case of a combined council, an employee of the chief executive of one of the polytechnics concerned ~~(whether or not a member appointed under section 222AK(2)(c))~~.
“(2) The Minister may at any time, by written notice to the member concerned, dismiss the chairperson or deputy chairperson of ~~a polytechnic council~~ the council of a designated polytechnic from office as chairperson or deputy chairperson.
“(2A) The Minister must not dismiss the chairperson or deputy chairperson without first consulting him or her on the proposed dismissal.
“(3) The Minister must give to the polytechnic council a copy of a notice under subsection (1) or (2).
“(4) The chairperson or deputy chairperson of ~~a polytechnic council~~ the council of a designated polytechnic—
“(a) may by written notice to the Minister resign as chairperson or deputy chairperson; and
“(b) ceases to hold office as chairperson or deputy chairperson if he or she—
“(i) ceases to be a member of the council; or
“(ii) becomes the chief executive or a member of the staff of the polytechnic, or a student enrolled at the polytechnic.
“(4B) The chairperson or deputy chairperson of the council of a designated polytechnic who resigns must give a copy of the notice of resignation to the council.
“(5) The chairperson or deputy chairperson of ~~a polytechnic council~~ the council of a designated polytechnic holds office as chairperson or deputy chairperson for the term for which he or she was appointed (but may be reappointed), unless earlier he or she dies, is dismissed, resigns, or ceases to hold office by virtue of subsection (4)(b).
“(6) Notwithstanding subsection (5), if the term of office of the chairperson or deputy chairperson of ~~a polytechnic council~~ the council of a designated polytechnic expires before a successor is appointed, he or she continues in office until a successor is appointed, unless earlier he or she dies, is dismissed, resigns, or ceases to hold office by virtue of subsection (4)(b).
“(7) The chairperson or deputy chairperson of ~~a polytechnic council~~ the council of a designated polytechnic may be referred to by any title (other than Chancellor or Pro-Chancellor) the council determines.
“222AG Duties of members of polytechnic councils
“(1) A member of ~~a polytechnic council~~ the council of a designated polytechnic, when acting as a member of the council in any circumstances,—
“(a) must—
“(i) act with honesty and integrity; and
“(ii) act in the interests of the polytechnic as a whole; and
“(iii) act in a manner that promotes the performance of the functions characteristic of a polytechnic, and the duties of the council; and
“(iv) act in good faith, and not pursue his or her own interests at the expense of the council's interests; and
“(b) must exercise the care, diligence, and skill that a reasonable person would exercise in the same circumstances, taking into account—
“(i) the nature of the council; and
“(ii) the nature of the action; and
“(iii) the position of the member as a member of a polytechnic council, and the nature of the responsibilities undertaken by him or her; and
“(c) must not disclose any information to which subsection (3) applies to any person, or make use of, or act on, that information, except—
“(i) in the performance of the council's functions; or
“(ii) as required or permitted by law; or
“(iii) in accordance with subsection (2); or
“(iv) in complying with requirements for members to disclose interests.
“(1A) The fact that a member of the council of a designated polytechnic was appointed by the council in accordance with a statute providing for the appointment of a member (or 2 or more members) to represent the interests of a stated institution or of people or institutions of a stated description does not displace or limit the member's duty under subsection (1)(a)(ii) to act in the interests of the polytechnic as a whole.
“(2) A member of ~~a polytechnic council~~ the council of a designated polytechnic may disclose, make use of, or act on information to which subsection (3) applies if—
“(a) he or she has earlier been authorised to do so by the council; or
“(b) disclosing, making use of, or acting on it will not, or will be unlikely to, prejudice the council or the polytechnic.
“(3) This subsection applies to information that—
“(a) a member of ~~a polytechnic council~~ the council of a designated polytechnic has in his or her capacity as a member of the council; and
“(b) would not otherwise be available to him or her.
“(4) Subparagraphs (i) to (iii) of paragraph (b) of subsection (1) do not limit the generality of that paragraph.
“222AGA Accountability for individual duties
“(1) The duties of a member of the council of a designated polytechnic (council member) under section 222AG (individual duties) are duties owed to the Minister and the council.
“(2) A council member who does not comply with his or her individual duties may be removed from office under section 222AH.
“(3) The council of a designated polytechnic may bring an action against a council member for breach of any individual duty.
“(4) Except as provided in subsections (2) and (3), a council member is not liable for a breach of an individual duty.
“(5) This section does not affect any other ground for removing a council member from office.
“(6) Subsection (4) does not affect anything for which a council member may be liable under any other Act or rule of law arising from the act or omission that constitutes the breach concerned.
“(7) Subsection (4) does not affect anything for which a council member who is the chief executive of the polytechnic council concerned may, as chief executive, be liable under this Act or any other Act or rule of law, arising from the act or omission that constitutes the breach concerned.
“222AH Removal of members
“(1) The Minister may at any time, for just cause, remove ~~an appointed or elected~~ a member of ~~a polytechnic council~~ the council of a designated polytechnic from office.
“(2) The removal must be made by written notice to the member (with a copy to the council).
“(3) The notice must state—
“(a) the day on which the removal takes effect, which must not be earlier than the day on which the notice is received; and
“(b) the reasons for the removal.
“(4) The Minister must notify the removal in the Gazette as soon as is practicable after giving the notice.
“(5) This section does not limit or affect section 174.
“(6) For the purposes of subsection (1), 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).
“222AI Process for removal
The Minister may remove a member of ~~a polytechnic council~~ the council of a designated polytechnic under section 222AH with as little formality and technicality, and as much expedition, as is permitted by—
“(a) the principles of natural justice; and
“(b) a proper consideration of the matter; and
“(c) the requirements of that section.
“Combination of polytechnic councils
“222AJ Voluntary combination of councils
“(1) The Minister may combine the polytechnic councils of 2 or more designated polytechnics if—
“(a) each of them has (in a written report complying with subsection (2)) recommended that they should be combined; and
“(b) he or she is satisfied that each of them has consulted the constituents of its polytechnic on the desirability of the combination of the councils.
~~“(2) Each report must—~~
~~“(a) contain a statement of the results of the polytechnic's consultations; and~~
~~“(b) recommend a constitution for any combined council that might be constituted.~~
“(2) Each report must recommend a constitution for any combined council that might be constituted, and state—
“(a) the council's reasons for wishing to combine; and
“(b) the results of the council's consultations.
“222AK Constitution of combined councils
“(1) The Minister combines polytechnic councils by notice in the Gazette, stating—
“(a) a constitution for the resulting combined council; and
“(b) the day on which the combination takes effect.
~~“(2) In determining the constitution to state for a combined council, the Minister must have regard to the following requirements:~~
~~“(a) a combined council must have an even balance between members appointed by the Minister and other members:~~
~~“(b) a combined council must have at least one member elected by students enrolled at the polytechnics concerned:~~
~~“(c) a combined 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:~~
~~“(d) a combined council must have at least one member appointed by the council on the nomination of members of the community served by the polytechnic:~~
~~“(e) the chief executives of the polytechnics concerned must all be members of the combined council.~~
“(2) The Minister must ensure that a combined council has an even balance between members appointed by the Minister and members appointed by the council.
“222AL Effect of combination
“(1) The combination of any polytechnic councils does not affect the individual status, identity, or character of the polytechnics concerned.
“(2) On the combination of any polytechnic councils,—
“(a) the resulting combined council—
“(i) is the successor of each of them; and
“(ii) has all the obligations and rights each of them had immediately before their combination:
“(b) every statute of any of them (other than a statute relating to the appointment of members under section 222AA(1)(b))—
“(i) becomes a statute of the combined council (and may be amended or repealed accordingly); but
“(ii) until amended so as to apply to the others, applies only to the polytechnic by whose council it was made:
“(ba) every member of any of the polytechnic councils combined goes out of office:
“(c) the assets and liabilities of each of the polytechnics concerned immediately before their combination continue to be assets and liabilities of that polytechnic:
“(d) a person who immediately before their combination was the chief executive of any of the polytechnics concerned is still the chief executive of that polytechnic, but (without having been made or otherwise become redundant) becomes an employee of the combined council.
“(3) Neither the Crown nor a combined council is liable to make a payment to, or otherwise compensate, a person in respect of the person's going out of office as a member of a polytechnic council under subsection (2)(ba).
“222AM Dissolution of combined council
“(1) The Minister may, on the recommendation of a combined council, dissolve it.
“(2) A combined council must not recommend that the Minister dissolve it without first consulting the constituents of the polytechnics concerned.
“(3) The Minister dissolves a combined council by notice in the Gazette stating the day on which the dissolution takes effect.
“(4) After the publication of the notice, and before the day stated in it, the combined council may 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 polytechnic council for it.
“222AN Effect of dissolution
“(1) On the dissolution of a combined council,—
“(a) each of the polytechnics concerned must have a polytechnic council, as required by this Act:
“(b) each polytechnic council has—
“(i) any of the obligations and rights the former polytechnic council of the polytechnic had immediately before the establishment of the combined council; and
“(ii) any of the obligations and rights the combined council had immediately before the dissolution that have arisen in relation to the polytechnic:
“(c) every statute of the combined council that relates to all the polytechnics concerned (other than a statute relating to the appointment of members under section 222AA(1)(b)) becomes a statute of each of them:
“(d) every statute of the combined council that does not relate to all the polytechnics concerned (other than a statute relating to the appointment of members under section 222AA(1)(b)) becomes a statute of the polytechnic to which it does relate (or, as the case requires, of each of the polytechnics concerned to which it does relate):
“(da) every member of the combined council goes out of office:
“(e) a person who immediately before the dissolution was the chief executive of any of the polytechnics concerned is still the chief executive of that polytechnic, but (without having been made or otherwise become redundant) becomes an employee of the polytechnic council established or to be established for it.
“(2) For the purposes of subsection (1)(a)(ii),—
“(a) a combined council may, after the publication of the notice dissolving it, and before the day stated in the notice, determine that any of its obligations or rights have arisen in relation to a particular polytechnic; and
“(b) the combined council's determination is binding on all the polytechnic councils established or to be established for the polytechnics concerned.
“(3) Neither the Crown nor a polytechnic council is liable to make a payment to, or otherwise compensate, a person in respect of the person's going out of office as a member of a combined council under subsection (1)(da).
“222AO Initial membership of polytechnic councils after dissolution of combined council
“(1) Before the dissolution of a combined council, the Minister must appoint the members of each of the new polytechnic councils required by its constitution to be appointed by the Minister.
“(2) Other members of a new polytechnic council—
“(a) may be appointed ~~or elected~~ before the dissolution; and
“(b) must be appointed ~~or elected~~ within 3 months after the dissolution.
“(3) The appointment ~~or election~~ of a member of a new polytechnic council takes effect on the later of the day on which it is made and the dissolution.
“(4) If on the dissolution there is a vacancy in a polytechnic's new council, the Minister may, by written notice to any person who was a member of the combined council immediately before that day, authorise him or her to act as a member of the council until the vacancy is filled.
“(5) The Minister must give a copy of every notice under subsection (4) to the council concerned.
“(6) A person authorised under subsection (4) must for all purposes be treated as a member of the council concerned until the vacancy concerned is filled.
“Combined academic boards
“222AP Polytechnic councils may establish combined academic boards
“(1) ~~Two or more polytechnic councils~~ The councils of 2 or more designated polytechnics may, by written agreement,—
“(a) establish a single, combined academic board for all the polytechnics concerned; or
“(b) disestablish a combined academic board that (whether or not it was originally established for other polytechnics too) is now established for all the polytechnics concerned.
“(2) A combined council may, by resolution,—
“(a) establish a single, combined academic board for all the polytechnics concerned; or
“(b) disestablish a combined academic board that it has established for them.
“(3) A combined board must include—
“(a) the chief executive of each of the polytechnics concerned; and
“(b) at least one member of the staff of each of the polytechnics concerned; and
“(c) at least one student of each of the polytechnics concerned.
“(4) The polytechnic council of a polytechnic for which a combined academic board has been established under subsection (1) may, by written notice to the other polytechnic council or councils concerned, opt out of the board (and if the board would then serve only one polytechnic, opting out disestablishes it).
“(5) As soon as is practicable after a combined academic board established under subsection (1) has been disestablished, each of the polytechnic councils concerned must establish an academic board for itself.
“(6) Section 182(1) applies to a combined academic board as if it were a board established within each of the polytechnics concerned.
“(7) For the purposes of section 222,—
“(a) a combined academic board established under subsection (1) must, in relation to each of the polytechnic councils concerned, be treated as if it were a committee appointed by the council under section 193(2)(i):
“(b) a combined academic board established under subsection (2) must be treated as if it were a committee appointed by the combined council concerned under section 193(2)(i).
“(8) In relation to every polytechnic council for which a combined academic board is established (and to its polytechnic), a reference to the academic board of an institution in a provision of this Act other than this section is a reference to the combined academic board.”.
“Interventions”.

Enabling school students to attend tertiary high school at Manukau Institute of Technology

17 Enabling school students to attend tertiary high school at Manukau Institute of Technology

(1) For the purposes of section 20(1) of the principal Act, 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.
(2) A person is not ineligible to be enrolled at a registered school by virtue only of being enrolled at MIT in a tertiary high school course.
(3) A person who is both enrolled at a registered school and enrolled at MIT in a tertiary high school course must be treated as complying with section 25(1) of the principal Act if he or she attends the classes comprising the course whenever they are available.
(4) MIT's council and the board of a registered school (being a school at which there are enrolled people who are also, or are also to be, enrolled at MIT in a tertiary high school course) must submit to the Secretary a written agreement—
- (a) stating their respective obligations (both to the people concerned and to each other) and rights in relation to the safety, welfare, and educational programmes of people enrolled at both the school and MIT; or
- (b) amending an agreement approved under subsection (5).
(5) The Secretary may (by written notice to the board and MIT's council) approve an agreement submitted under subsection (4); and in that case it has effect according to its tenor.
(6) In this section,—
board and registered school have the meanings given by section 2(1) of the principal Act
MIT means the Manukau Institute of Technology
MIT's council means the council (within the meaning of section 159(1) of the principal Act) of MIT
Secretary means the chief executive of the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of Part 15 of the principal Act
tertiary high school course means a full-time course of study designated by MIT's council as being intended to be for, and to be limited to, students who are enrolled at a registered school.

Part 2
Transitional matters

18 Interpretation

In this Part,—
- (a) principal Act means Education Act 1989; and
- (b) reconstituted polytechnic council means a polytechnic council as constituted ~~on the polytechnic~~ for a polytechnic on its reconstitution day; and
- (c) terms defined in section 159 of the principal Act have the meanings given by that section.

19 Initial membership of reconstituted councils

(1) Before ~~the polytechnic~~ its reconstitution day, the Minister must appoint the number of members of each reconstituted polytechnic council required by its constitution to be appointed by the Minister.
(2) Other members of a reconstituted polytechnic council—
- (a) may be appointed ~~or elected~~ before ~~the polytechnic~~ its reconstitution day; and
- (b) must be appointed ~~or elected~~ within 3 months after that day.
(3) The appointment ~~or election~~ of a member of a reconstituted polytechnic council takes effect on the later of the day on which it occurs and ~~the polytechnic~~ its reconstitution day.
(4) If on ~~the polytechnic~~ its reconstitution day there is a vacancy in a polytechnic's council, the Minister may, by written notice to any person who was a member of the council immediately before that day, authorise him or her to act as a member of the council until the vacancy is filled.
(5) The Minister must give a copy of every notice under subsection (4) to the council concerned.
(6) A person authorised under subsection (4) must for all purposes be treated as a member of the council concerned until the vacancy concerned is filled.
(7) A council may, before ~~the polytechnic~~ its reconstitution day, make ~~statutes relating to the election or appointment (in accordance with its proposed new constitution) of members of the reconstituted polytechnic council that will replace it~~ the statutes required by section 222AAB of the principal Act.
~~(8) Subsection (7) does not limit the generality of section 194 of the principal Act.~~

20 Members of existing polytechnic councils to go out of office

(1) On ~~the polytechnic~~ its reconstitution day,—
- (a) all members of a polytechnic council immediately before that day go out of office; and
- (b) all people appointed or elected a member of the council before that day under section 19 take up office.
~~(2) Subsection (1) is subject to section 19(4).~~
(2) Subsection (1)—
- (a) is subject to section 19(4); and
- (b) overrides section 222AD(3) of the principal Act.
(3) Neither the Crown nor a polytechnic council is liable to make a payment to, or otherwise compensate, a person in respect of the person's going out of office as a member of the council under subsection (1)(a).

21 Council continues to be same body

(1) On and after ~~the polytechnic~~ its reconstitution day, a polytechnic council—
- (a) is the same body as the council of the polytechnic concerned that existed immediately before that day; and
- (b) continues to have the obligations and rights it then had.
(2) Subsection (1) is subject to section 22.

22 Temporary power of direction

Before ~~the polytechnic~~ its reconstitution day, the Minister may, by written notice to the chief executive of a polytechnic, give any directions he or she thinks reasonably necessary to ensure that its council as reconstituted can deal effectively with the business before it on and after that day; and—
- (a) the chief executive must give the notice to the council as soon as is practicable after that day; and
- (b) the council must comply with the directions.

Legislative history
20 August 2009	Introduction (Bill 70–1)
26 August 2009	First reading and referral to Education and Science Committee

New Zealand Legislation: Bills

Home | Search: Acts Bills Regulations All | Browse: Acts Bills Regulations All | Web feeds | Glossary | About | Guide | Site map | Buy Online