The bill will amend the Education Act 1989 to enable the Minister of Education to issue a code of practice applying to the pastoral care of domestic students. The code would be mandatory for all tertiary education providers. The bill also creates an offence for breaches of any code resulting in serious harm or the death of a student.
The Committee considered 22 submissions and heard oral evidence from 11 submitters and the Privacy Commissioner.
This bill would not override the Privacy Act.
New section 238D defines terms uses throughout new Part 18A, including the definition of “serious harm,” to mean “an event or circumstances that seriously and detrimentally affect the safety or well-being of the student, including (but not limited to) a physical injury or illness that requires immediate treatment (other than first aid), hospitalisation, or medical, psychological, or psychiatric intervention”.
The Committee recommends that the references to the types of treatments or interventions should be removed as whether or not an injury or illness has required treatment or medical intervention should not be what decides whether serious harm has occurred.
The words “safety or well-being of the student” should be replaced with “ongoing welfare” to clarify that harms with minor or no ongoing effects are not intended to be covered by the definition of “serious harm”.
New section 238G(1) should be amended by inserting (c) to clarify that the Minister could choose to issue a single code that provides a framework for the pastoral care of both domestic tertiary students and international students.
The Committee recognises that a higher level of pastoral care would be expected for international students and so recommends that new section 238G(2) be amended so that providers are required to take all reasonable steps to “maintain the well-being” of domestic students, rather than to “protect” them.
The Committee believes that the bill should include a specific requirement that the Minister consults with stakeholders before issuing a code (new subsection (4A) into new section 238G).
Subsections (5) to (7) of proposed new section 238H in the bill as introduced specify that a code administrator could enter the room or sleeping area of a student at student accommodation in certain circumstances. The Committee proposes that at least 24 hours’ prior notice should be required before entry by the code administrator is permitted and that the student’s consent must be obtained, unless it is unreasonable to do so in the circumstances This amendment is not intended to cover or restrict entries relating to emergence or welfare checks.
The Committee recommends amending new section 238I(1) to clarify that a quality improvement notice may require a provider to do, or refrain from doing a particular thing in relation to the provider’s obligations under a code.
New section 238M establishes a student contract dispute resolution scheme. Under subsection 5, a student claimant could lodge a contractual or financial dispute if a provider had not tried to resolve the dispute, or had not resolved it to the student’s satisfaction. The Committee recommends that a limitation period should be inserted to require a student to lodge a dispute for resolution no later than 7 years after the date of the act or omission causing the dispute.
The Committee recommends two changes to proposed new section 238T (the pecuniary penalty). First, a court should be able to consider a “reasonable excuse” defence when determining whether a party was liable for a serious breach of the code. The Committee recommends amending new section 238T(1) by inserting the words “without reasonable excuse”. New section 238T(1) should be amended to remove reference to “regulatory requirements” set out in the code. It would clearer to simply refer to a breach of “the applicable code”.