New Child Development Legislation, Legislation reform Discussion Paper No. 5 Submission from the AISSA

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1 New Child Development Legislation, Legislation reform Discussion Paper No. 5 Submission from the AISSA November, 2012 BACKGROUND The Association of Independent Schools of South Australia (AISSA) represents the interests of 95 Independent schools with an enrolment in excess of 45,500. The sector also provides a number of early childhood services to meet the needs of communities across South Australia. The response to the discussion paper is based on consultation with school principals and representatives of school boards across the Independent school sector. In addition the AISSA sought advice from professional colleagues in the UK, given the UK legislation is referred to on Page 21 of the discussion paper. In responding to this submission the AISSA considered the following context in addition to the content of the discussion paper: a) The policy platform of State and Federal Governments to cut red tape and reduce the administrative burden on organisations; b) The recently introduced Education and Early Childhood Services (Registration and Standards) Act, 2011 which establishes the regulation of schools and early childhood services providers in South Australia; c) The current and emerging national education and care policy and regulatory agenda which has a strong focus on improving education outcomes and the quality of education and care services. The recently announced proposal by the Prime Minister to introduce a National School Improvement Plan is an illustration of this approach; d) A wide range of funding agreements between the Australian Government and Non-Government school authorities to implement key initiatives and to meet associated accountability and reporting requirements; e) The emerging tight budget situation of the State Government and the uncertainty around future school funding arrangements driven by the drawn out negotiations associated with the Gonski recommendations; and f) The trend embedded in education policy to empower local school leadership and school boards. The above points demonstrate that the current context within which education and care providers operate is complex and fragmented. New Child Development Legislation, Legislation Reform Discussion Paper No. 5 Submission from the AISSA 1 Authorised by Garry Le Duff, Chief Executive, AISSA, 301 Unley Road, Malvern 5061.

2 SUMMARY OF AISSA POSITION The AISSA supports the strategic objective of the State Government for agencies and professionals having a greater understanding of each other s role in supporting children and young people and an enhanced awareness of the benefits of working collaboratively to improve the well being of children and young people. The AISSA supports the strategy to remove bureaucratic barriers which hinder the effective provision of services to children and young people and the improvement in the quality of services (e.g. education, health and social services). However the AISSA does not support the proposal to establish legislation and associated regulations that require government and nongovernment agencies to co-operate and to work collaboratively to achieve the strategic objectives of the State Government as outlined in the discussion paper. This approach will not streamline and harness effort to improve outcomes for children and young children. The AISSA will not support any attempts to place additional centralised regulatory obligations on its members through the proposals outlined in the discussion paper, particularly those that will duplicate existing obligations. If additional resource (staff and financial) demands are to be placed on non government organisations to provide services and to meet reporting and compliance obligations, then the State Government must commit to providing additional resources to ensure organisations can meet their core commitments. The core business of Independent schools and early childhood services is to provide education and care for children and young people. Their primary purpose is to support the education and development of children and young people, in collaboration with parents and the wider community, in order to maximise their outcomes. In this context we welcome the State Government s establishment of child development as one of its seven major strategic priorities and support the overarching vision of recognising and respecting the fundamental importance of children and young people as valued citizens. However, the AISSA consultation has identified significant concerns about the proposal to legislate an obligation that efforts concerning children and young people should be coordinated and child development outcomes must be considered in decision making and policies that affect children and their health, education, protection and well being. We note this high centralised approach covers government and non-government agencies. This aspect of the legislation will have significant implications for all school authorities and individual schools, particularly in meeting reporting requirements. Concerns were also raised about the proposed administrative structure outlined in the discussion paper, including the establishment of a Child Development Council which could hold a public accountability function to ensure state and local government partners and public funded bodies work collaboratively to focus their efforts and resources toward improving outcomes for children and

3 young people (P12). The paper refers to oversight, monitoring and reporting on the development and progress of an Outcomes Framework (P12). The paper also states the responsibility to work cooperatively together could be monitored by the Child Development Council... with the Council able to identify and raise issues concerning possible breaches of the duty... (P19).The paper elaborates further on the notion of a legislative duty or obligation to collaborate: Organisations or entities not participating directly in the state wide or regional bodies established by legislation but receiving State Government funding could also be expected to consider children s and young people s development outcomes in decision making. Although outside the ambit of the legislation, this requirement could be set out in funding agreements. Similar concerns were made about the proposed Regional Trusts which would develop local action plans, etc. RATIONALE FOR POSITION Why Legislation? We consider the use of legislation and regulation to place an obligation on service providers to collaborate and cooperate via another centralised agency is inappropriate use of legislation. It reflects the top down approach of governments to the implementation of initiatives; this in turn significantly influences the way governments attempt to direct nongovernment agencies rather than work with these agencies. The Discussion Paper provides no evidence to support the need for further legislation and additional administrative structures in the area of child development given the current extensive legislation and obligations covering the area. We refer you to the recent Education and Early Childhood Services (Registration and Standards) Act 2011 and the proposal by the Australian Government to introduce a National School Improvement Plan as examples of the regulatory context within which schools will operate in the future. In addition there are numerous funding agreements that outline obligations to children and young people and on the horizon legislation to regulate the not-forprofit sector through the establishment of the Australian Charities and Not-for-profits Commission (ACNC). A more appropriate response would be to reduce barriers that prevent effective and efficient cooperation between agencies and to change the way government agencies engage non-government agencies in cooperative programs. Potential Resource Impact There is no evidence of a cost benefit analysis or analysis of the resource impact on service providers for the additional compliance requirements and administrative processes that will arise with the implementation of the legislation. There is also no indication of the extent of the resource demands that will arise from the proposed legislation. There are already substantial differences in the ability of school communities to resource support services for individual students. In a time of tight budgetary constraints in South Australia where will the additional funds be identified to establish and maintain the new administrative structures and compliance reporting and monitoring? At a time of uncertainty associated with future funding for Non-Government schools, (which surrounds the application of the Gonski reforms) how can the State

4 government justify further financial burden on schools? We contend that support services for children and young people attending Independent schools (especially disadvantage students) are inadequate. Placing further demands on schools to provide services that arise from the requirement to cooperate and integrate services is not acceptable. Schools are already reporting the withdrawal of government support services, (e.g. Speech Pathology). While there is general support for the vision of the Foundation for Children and Young People to promote investment by entities and individuals in the future of young people further information is required on: the governance structure underpinning the Foundation whether it would be a statutory body Whether decisions made about distribution of funds would be separate from Government. Further work should also be undertaken on the financial implications for charities which rely on private donations to provide services to children and young people. Potential to Standardize Responses to the needs for Children and Young People A recent survey of school principals within the Independent sector indicated that the increasing focus on compliance and regulation risks taking attention away from a school s core business; i.e. what goes on in the classroom. The proposals outlined in the discussion paper have been described... as more of the same. We consider the education and care system has got to the point where diversity and innovation are being significantly compromised by compliance and uniformity. The proposals in the discussion paper represent yet another layer of legislative compliance and administrative processes. It has the potential to hinder the capacity of Independent schools to educate, develop and care for students, according to the ethos of the school and the wishes of parents, and to distract them (schools) from their core purpose and to drive service delivery from a government perspective. Building a Culture of Collaboration We take issue with the statement in the Discussion Paper which appears to imply it is necessary to require South Australians to work together to achieve the best possible outcomes for them [children] and their families. This overlooks the substantial work undertaken by South Australians in the best interests of children, including through government and non-government agencies and volunteers in the community, and the significant outcomes which have been achieved from this work. South Australia has a long history of cooperation and goodwill between government and non-government agencies and the wider community which provides a framework for future actions to further improve the outcomes of children and young people and promote the best interests of children. For example, the three school sectors have worked with the State Government in a range of areas to benefit and enhance the outcomes for children and young people including, but not limited to, the development of the Information Sharing Guidelines, child

5 protection and mandatory reporting, suicide postvention guidelines, teacher registration, and implementation of changes resulting from the Intervention Order (Prevention of Abuse) Act South Australians also have a long history of community volunteerism in areas that support children and young people, for example Little Athletics. It is disappointing that this special characteristic of South Australia and South Australians is essentially ignored rather than celebrated by the Discussion Paper. We consider the Government needs to focus on removing bureaucratic barriers to inter-agency cooperation and to significantly change the way government agencies engage non-government agencies as partners in service provision. Excessive government administration and regulation stifles innovation, ownership and accountability. It is of great concern that the substantial good will and intent currently shown by non-government organisations and the wider community in promoting the best interests of children through a range of activities could be inhibited by more regulation, structure and accountability. We call for more meaningful debate about the purpose of the proposed legislation and regulation and the role of the State Government relative to the work of non-government agencies and the wider community. The AISSA considers that a more appropriate response would be to genuinely engage the community in debate around the best ways outside of legislation to encourage and facilitate South Australians associated with organisations that act in the interests of children, recognising that many often are volunteers. Centralization of Co-operation and Collaboration A one size fits all authority for the range of services likely to be covered under the proposed legislation would be administratively complex and heavily influenced by the needs of government policy and procedures. By its very nature the model would be remote from providers and standardise what is required of service providers across government and nongovernment agencies. Consequently, there is a very high risk that there will be no acknowledgement of the diversity of settings and the significant variations in the legal and legislative compliance requirements of each sector and the consequent lines of accountability. The AISSA is particularly concerned that it is intended the Child Development Council has a public accountability function that links resources to outcomes for children, young people and the SA community. A critical characteristic of Independent schools is their autonomy from large centralised bureaucracies and the direct accountability for decisions at the school level. The AISSA is opposed to any attempt to embed Independent schools in another accountability framework and another layer of compliance and reporting. Independent schools are accountable to State and Commonwealth governments under requirements for school registration and on a number of other legislative levels, for example, the Associations and Incorporations Act 1985, Children s Services Act 1985, Children s Protection Act 1993, Education and Early Childhood Services (Registration and Standards) Act 2011, the Disability Discrimination Act 1992 (Cth) and the Schools Assistance Act 2008 (Cth). New Commonwealth legislation relating to regulation of the not-

6 for-profit sector will also place further reporting requirements on member schools. One of the key strengths of the Independent school sector is that it is directly accountable to parents and the wider school community, in part because of the unique relationship between parents and schools and the wider community. However, we do not consider that prescriptive duties should be contained in legislation. This represents an unnecessary level of bureaucracy. Independent schools currently have a wide range of obligations under Commonwealth and State Government funding agreements. The AISSA is opposed to any further attempts to place additional obligations in school funding agreements, particularly those that duplicate existing and new compliance requirements. If additional reporting and compliance obligations are to be placed on non government organisations, then the Government must commit to providing additional resources to ensure organisations can meet their commitments. Other Comments The State Government s approach seems heavily influenced by the UK initiative Every Child Matters, which culminated in the Children s Act 2004 (UK). We also note the circumstances that led in part to the development of this initiative, (i.e. the neglect and murder of Victoria Climble) and the finding that her death could have been prevented with better cooperation between statutory agencies. We understand that the Children s Act 2004 imposed a duty on statutory agencies to cooperate with each other. It enshrined a policy document entitled Every Child Matters in legislation. The duty to cooperate we understand was confined to statutory authorities and that some aspects of the legislation including the requirement for authorities to produce a strategic plan for children s services provision are no longer required. It seems that some of the obligations outlined in the Every Child Matters project have not continued under the current UK government. It is not clear whether any analysis has been undertaken on how far the legislation was successful in enhancing cooperation in service provision or in improving outcomes for children and young people or whether the improvements were proportionate to the financial investment. The Discussion Paper claims that...the proposed legislation will ensure that South Australia has a mechanism to align its efforts with the UNICEF Child Friendly Cities Framework, which underpins the Government s commitment to the Child Friendly South Australia initiative. We note that other Australian cities, such as Bendigo, have incorporated the UNICEF Child Friendly Cities Framework into their planning without the need for additional legislation and questions why if this is a priority for the State South Australia is unable to do the same. CONCLUDING COMMENTS In summary we consider the proposals outlined in the discussion paper, in particular the legislative proposals and the administrative structures require more rigorous debate and analysis. The AISSA will not support the proposal to introduce a legislative duty to cooperate or to any additional outcomes reporting and compliance.

7 A cost/benefit analysis should also be undertaken prior to the formal development of any legislation and released publicly to ensure transparency in the consultation process. The cost/benefit analysis should assess the costs and benefits for government and nongovernment agencies. We consider the State government should focus on removing bureaucratic barriers to interagency cooperation and change the top down culture and strategies that currently influence how government agencies consult and attempt to work with non-government agencies Any new arrangements should not hinder the capacity of Independent schools to educate, develop and care for students according to the ethos of the school and the wishes of parents. We look forward to further consultation with you on this important matter. It needs to be recognised that South Australian families come from a wide range of socio-economic, cultural and religious backgrounds. Hence, they may have different values and views on the development of children which should be respected and supported.