The legal basis for Rolleston Christian School
The Legal Basis of Rolleston Christian School
· The Board of Trustees (BOT) was created in 2014 when the Christian Schools’ Trust entered into a contract with the Crown i. It is a contract which binds the Crown. It is referred to as the Integration Agreement because it was made in accordance with the provisions of the Private Schools Conditional Integration Act 1975. (An ‘Act’ is legislation passed by Parliament.) This Act and the Integration Agreement are the foundational documents of the School and the BOT. Thus the BOT is a Crown entity and agency. The BOT can be abolished if either the Crown or the Proprietors cancel the Integration Agreement. In 2017 the PSCIA was updated and subsumed into the Education Act 1989 (EA) . its provisions are now contained in Part 33 of that Act. All references to ‘the Act’ that follow pertain to the EA.
· Under this legislation, Rolleston Christian School was integrated with the State educational system. It is a State school. Section 417 of the Education Act 1989, states the school is subject to the same legislation as other schools in the State system, but this application is subject to the provisions of Section 416 and 475.
· Section 416(3) of the Education Act 1989, says:
"The Proprietor of an integrated school must ...
(a) continue to have the responsibility to supervise the maintenance and preservation of the education with a special character provided by the school;
(b) continue to have the right to determine what is necessary to preserve and safeguard the special character of the education provided by the school and described in the integration agreement."
The Integration Agreement (paragraph 18c) also gives the Proprietor the right to
(c) invoke the powers conferred upon it by the Act should the Proprietor so determine if in the opinion of the Proprietor the Special Character of the school has been or is likely to be jeopardised or the education with such Special Character so provided in no longer preserved and safeguarded.
· Sections 440(3)(4) of the Education Act 1989 require considerable input by the Proprietor on anything relating to ‘Special Character’. They say: (3) The powers of control and management of the board of a State integrated school must be exercised subject to the provisions of sections 416 and 417; and (4) to give effect to subsection (3) the board of a State integrated school must make provision for adequate consultation between the board and the proprietor of that school.
· The ‘Special Character’ is defined in the Integration Agreement and can be viewed in one of the other appendices associated with this document.
1. The Integration Agreement stipulates that The Board of Trustees is the controlling authority[1] of the school and shall be constituted pursuant to the Education Act 1989.
· In law a ‘trustee’ is someone who manages money or property for someone else. The BOT is required by law to manage its affairs and deliver education according to the policies of the Crown. It is also required by law to manage the property and deliver ‘Special Character’ according to the policies of the Proprietor.
· The governance role of the BOT, therefore, must be within the parameters set by both the Crown and the Proprietor. Both the Ministry of Education and the Proprietors are legally obliged to ensure the ‘trust’ given to the BOT is fulfilled competently and effectively. Both have the right to request information, conduct reviews and inspections and make policies.
· The management responsibilities of the BOT are given to the Principal by section 76 of the Education Act 1989:
(1) A school's Principal is the Board's Chief Executive in relation to the school's control and management.
(2) Except to the extent that any enactment, or the general law of New Zealand, provides otherwise, the Principal—
(a) shall comply with the Board's general policy directions; and
(b) subject to paragraph (a), has complete discretion to manage as the Principal thinks fit the school's day-to-day administration.
· As a member of the BOT the Principal will have an essential role in the formation of policies (governance), but he/she is subject at all times to the decisions of the full BOT.
· The Principal also has indirect responsibilities in relation to the Proprietors. Both the Education Act Part 33 and the Integration Agreement impose as a condition of his/her employment a willingness and ability to uphold the Special Character of the school. The Principal through his or her executive/management responsibilities gives effect to the Proprietor’s Special Character expectations as directed by the Board.
· Both the BOT and the Principal are subject to the wishes of the Proprietor relating to ‘Special Character.’ To give effect to the Integration Agreement's definition of ‘Special Character’, the Proprietor is consulted about such things as the school's Charter, vision and mission statements and curriculum.. (The Rolleston Christian School BOT is made up of 5 parent representatives, 4 Proprietor appointees, 1 teacher representative, a student representative and the Principal. Proprietor appointees to the Board are not there merely as a link between the two Boards with no further role. All, regardless of how they were appointed, are equally part of the Board. All are jointly responsible for the decisions of the Board and all are bound by the decisions of the Board. Official contact between the BOT and Proprietor will usually be in writing, not through Proprietor appointees on the BOT.
· The Education Act 1989 s440(4) quoted above requires the BOT to make provision for adequate consultation between the controlling authority and the Proprietors of that school. This is difficult to fulfill without a good working relationship between the Chairs of the two Boards and the Principal; including formal and informal meetings.
2. The order under which the BOT operates is described in the Local Government Official Information and Meetings Act 1987 and so in its conducts the BOT operates as a ‘local body’. This includes having its meetings mostly open to the public. It must give notice of meetings, keep minutes and make them available to the public, etc. It is required to conduct itself according to the provisions of all applicable law, such as finance, employment, health and safety. Failure to meet any legal requirement is a breach of the law.
· As a State school, the Crown (through the Ministry of Education) provides all funding for teachers' salaries, the operation of the school and maintenance of buildings within prescribed bounds.
· The Proprietor leases the land and buildings of Rolleston Christian School (from the KCST who owned the school prior to integration) and is entitled to charge parents attendance dues to cover mortgage repayments and development costs of the integrated part of the school’s property.
· This appendix seeks to clarify foundational legal issues relating to the constituency and operation of the BOT and its relationship with the Proprietor. It is not by any means a full statement of the law relating to the School. There is much more about the operation of the School in the Integration Agreement, in Part 33 of the Education Act 1989, in various other Acts of Parliament, and in directives from the Minister of Education concerning them. See particularly The Education Act1989, the Education Act 1964, the State Sector Act 1988, the School Trustees Act 1989, and the Local Government Official Information and Meetings Act 1987. (These Acts may be read at www.legislation.govt.nz)
· If there is any conflict or variation between these Acts and Part 33 of the Education Act 1989, then Part 33 shall prevail in respect of integrated schools. [EA S475(1)]
[1] Education Act 1989 (2017 update) Schedule 6 Part 2 Section 4 changes terminology to ‘governing body’
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Appendix 1
EDUCATION ACT SCHEDULE 6
BOARDS OF TRUSTEES
Part 2Powers and functions of boards
Functions of board
4 Board is governing body of school
(1)
A board is the governing body of its school.
(2)
A board is responsible for the governance of the school, including setting the policies by which the school is to be controlled and managed.
(3)
Under section 76, the school’s principal is the board’s chief executive in relation to the school’s control and management.
5 Board’s objectives in governing school
(1)
A board’s primary objective in governing the school is to ensure that every student at the school is able to attain his or her highest possible standard in educational achievement.
(2)
To meet the primary objective, the board must—
(a)
ensure that the school—
(i)
is a physically and emotionally safe place for all students and staff; and
(ii)
is inclusive of and caters for students with differing needs; and
(b)
have particular regard to any statement of National Education and Learning Priorities issued under section 1A; and
(c)
comply with its obligations under sections 60A (in relation to curriculum statements and national performance measures), 61 (in relation to teaching and learning programmes), and 62 (in relation to monitoring of student performance); and
(d)
if the school is a member of a community of learning that has a community of learning agreement under section 72, comply with its obligations under that agreement as a member of that community; and
(e)
comply with all of its other obligations under this or any other Act.
6 Staff
Subject to Parts 8A and 31, a board may, in accordance with the State Sector Act 1988, appoint, suspend, or dismiss school staff.
13 Board has complete discretion
A board has complete discretion to perform its functions and exercise its powers as it thinks fit, subject to this and any other enactment and the general law of New Zealand.
14 Things board can do
(1)
A board may do anything that it is authorised to do by this Act.
(2)
A board may do anything that a natural person of full age and capacity may do.
(3)
Subclause (2) applies except as provided in this Act or another enactment or rule of law.
(4)
A board may do an act under this clause only for the purpose of performing its functions.
(5)
References in this clause to this Act include the provisions of the Crown Entities Act 2004 that are applied by Schedule 5A of this Act.
16 Cultural diversity, Treaty of Waitangi, tikanga Māori, and te reo Māori
(1)
A board must take all reasonable steps to ensure that the policies and practices for its school reflect New Zealand’s cultural diversity and the unique position of the Māori culture.
(2)
In performing its functions and exercising its powers, a board must take all reasonable steps to act in a manner that is consistent with the principles of the Treaty of Waitangi.
(3)
Without limiting subclauses (1) and (2), a board must take all reasonable steps to provide instruction in tikanga Māori (Māori culture) and te reo Māori (the Māori language) for full-time students whose parents ask for it.
17 Delegations
(1)
A board may delegate any of the functions or powers of the board or the trustees, either generally or specifically, to any of the following persons by resolution and written notice to the person or persons:
(a)
a trustee or trustees:
(b)
the principal or any other employee or employees, or office holder or holders of the board:
(c)
a committee consisting of at least 2 persons at least 1 of whom is a trustee:
(d)
any other person or persons approved by the Minister:
(e)
any class of persons that comprises any of the persons listed in paragraphs (a) to (d).
(2)
Subclause (1) does not apply to any functions or powers specified in this Act as not being capable of delegation.
(3)
The board must not delegate the general power of delegation.
(4)
A delegate to whom any function or power is delegated may,—
(a)
unless the delegation provides otherwise, perform the function or exercise the power in the same manner, subject to the same restrictions, and with the same effect as if the delegate were the board or the trustees; and
(b)
delegate the function or power only—
(i)
with the prior written consent of the board; and
(ii)
subject to the same restrictions, and with the same effect, as if the subdelegate were the delegate.
(5)
A delegate who purports to perform a function or exercise a power under a delegation—
(a)
is, in the absence of proof to the contrary, presumed to do so in accordance with the terms of that delegation; and
(b)
must produce evidence of his or her authority to do so if reasonably requested to do so.
(6)
No delegation in accordance with this Act—
(a)
affects or prevents the performance of any function or the exercise of any power by the board or the trustees; or
(b)
affects the responsibility of the board for the actions of any delegate acting under the delegation; or
(c)
is affected by any change in the membership of the board or of any committee or class of persons.
(7)
A delegation may be revoked at will by—
(a)
resolution of the board and written notice to the delegate; or
(b)
any other method provided for in the delegation.
(8)
A delegation under subclause (4)(b) may be revoked at will by written notice of the delegate to the subdelegate.
(9)
The board may, by resolution, appoint committees—
(a)
to advise it on any matters relating to the board’s functions and powers that are referred to the committee by the board; or
(b)
to perform or exercise any of the board’s functions and powers that are delegated to the committee.
(10)
A person must not be appointed as a member of a committee unless, before appointment, he or she discloses to the board the details of any financial interest that would disqualify the person from being a trustee under section 103A.
(11)
This clause applies to each member of a committee who is not a trustee with any necessary modifications.
18 Bylaws
A board may make bylaws that the board thinks necessary or desirable for the control and management of the school.
24 Trustees not personally liable
(1)
A trustee is not personally liable for—
(a)
any act done or omitted by the board; or
(b)
any loss to the board arising out of any act done or omitted by the trustee.
(2)
However, subclause (1) applies only if the act or omission was (so far as the trustee’s involvement is concerned) in good faith in carrying out or intending to carry out the functions of the board.
40 Meetings
(1)
A board must hold a meeting not later than 3 months after its previous meeting, at a time and place determined at the previous meeting.
(2)
If, at any meeting of the board, the board does not determine a time and place for its next meeting, the time and place of its next meeting must be determined—
(a)
by the presiding trustee for the time being appointed under clause 41; or
(b)
if no trustee is for the time being appointed to preside and a trustee who presided at the board’s previous meeting is still a trustee, by that trustee; and
(c)
in any other case, by the principal.
(3)
When a casual vacancy occurs, the person for the time being appointed under clause 41, or, where there is no such person, the principal, must fix a place for a meeting of the board to deal with the vacancy on a day that is—
(a)
within 28 days of the vacancy occurring, if it occurs during any period of 6 months commencing on 1 October in a year before an election year; or
(b)
within 8 weeks of the vacancy occurring, if it occurs at any other time.
(4)
No business may be transacted at any meeting of the board unless more than half the trustees then holding office are present.
(5)
At a meeting of the board,—
(a)
the person for the time being appointed under clause 41 must preside if present; or
(b)
if that person is not present, a trustee (not being the principal or a staff or student representative) appointed by the board at the meeting must preside.
(6)
Every question before a board must be decided by a majority of the votes cast on it by the trustees who are present.
(7)
At a meeting of the board, the person presiding has a deliberative vote on every question and, on any question where deliberative votes for and against are equal, also has a casting vote.
(8)
Subject to subclause (11), a trustee who has a pecuniary interest in any matter or any interest that may reasonably be regarded as likely to influence a trustee in carrying out his or her duties and responsibilities as a trustee must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides the matter.
(9)
Subject to subclause (11), a trustee who is a member of the board staff must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides any matter relating to the trustee’s employment by the board, or to the course of action to be taken following the hearing of a complaint against the trustee (being a complaint against the trustee in the trustee’s capacity as a member of the board staff).
(10)
Subject to subclause (11), a trustee who is a student enrolled at the school or institution must be excluded from any meeting of the board while it discusses, considers, considers anything relating to, or decides any matter relating to the trustee as an individual student.
(11)
A trustee may attend any meeting of the board to give evidence, make submissions, or answer questions.
(12)
A meeting of the board may be held—
(a)
by more than half the trustees then holding office being assembled together at the time and place appointed for the meeting; or
(b)
by means of audio, audiovisual, or electronic communication, but only if—
(i)
all of the trustees who wish to participate in the meeting have access to the technology needed to participate in the meeting; and
(ii)
a quorum of members can simultaneously communicate with each other throughout the meeting.
(13)
A resolution signed or assented to in writing (whether sent by post, courier, or electronic communication) by all members is as valid and effectual as if it had been passed at a meeting of the board correctly called and constituted.
(14)
The resolution may consist of several documents containing the same resolution, each signed or assented to in writing by 1 or more members.
(15)
Except as provided in this Act, every board must determine its own procedures.
41 One trustee to preside at meetings
(1)
Every board must appoint a trustee (not being the principal or a staff or student representative) to preside at meetings of the board.
(2)
The appointment must be made—
(a)
at the board’s first meeting in any year, unless it is an election year, in which case it must be at the first meeting held after the election; and
(b)
if the board has resolved that it has no confidence in the person for the time being appointed; and
(c)
if the person for the time being appointed ceases to be a trustee, or resigns the task by notice in writing to the board.