5 March, 2002

SUBMISSION

TERTIARY EDUCATION REFORM BILL

Submission Notes from :- The New Zealand Federation of Graduate Women (National Executive)

To the :- Education and Science Committee

on the :- Tertiary Education Reform Bill

Provider Profile

This submission is from the National Executive of the New Zealand Federation of Graduate Women (Inc.) and compiled by Judith Duncan, 54 Manapouri Street, Ravensbourne, Dunedin 9002.

We would be pleased to appear before the Committee to speak to our submission. Our contact representative is: - Mrs Barbara Mabbett, ph 476-7843, a member of our Wellington Branch.

The New Zealand Federation of Graduate (formerly University) Women (NZFGW) has approximately 1300 members in its sixteen nationwide branches. Formed in 1921, it is affiliated to the Geneva-based International Federation of University Women. Since its founding in 1921 (as NZFUW), NZFGW has established a strong record of active involvement in social, economic and educational issues at the national level and internationally through the IFUW (International Federation of University Women with the International Federation's holding Official Observer status at UNESCO.) This submission has resulted from consultation with the sixteen branches in New Zealand and in accordance with our stated goals and philosophies as an organisation.

Introduction

In our members submission on the Tertiary Education Advisory Commission s second report, Shaping the System, we focussed particularly on items relating to the Tertiary Education Commission (TEC). Two of our members appeared before the Select Committee. Our interest in the provisions of the Bill to establish the TEC has, therefore, considerable history.

While the Federation supports the concepts behind this Bill namely those of establishing a Tertiary Education Commission to coordinate all tertiary education, the development of Charters and Profiles to clarify the roles of each provider, and clear accountability measures, we nevertheless have strong objections to the detailed provisions.

In particular, NZFGW regards the clauses regarding the powers of the Minister and confused lines of responsibility of the Commission to be so constraining as to inhibit people of integrity, knowledge, experience, commitment and wisdom from being prepared to serve on the Commission.

As clearly stated in our earlier submission, we regard the membership of the Commission as absolutely central to the operation of the proposed system. Our submission concentrates, therefore, on those areas of weakness in the Bill.

Comments relate chiefly to New Part 13A.

159C Establishment

We are pleased to see that the Commission is to be a Crown Entity.

As we understand that term, this implies that the Entity enjoys a measure of independence not available to a Ministry or Department of State. Subsequent sections of the Bill, however, seem to challenge this understanding of the term.

159D Appointments

We challenge most seriously the provision for the Minister to make appointments to the Commission, with the only requirement for consultation being with the Minister of Maori Affairs.

Given the government s apparent goal of a comprehensively integrated tertiary system, stakeholders in the Commission are substantial and myriad (that is, extending well beyond the incumbent Minister and Maori).

In our view, the calibre of members is so crucial to the Commission s purposes that the process, set out in statute, should include:

• a wide call for nominations of suitably highly-qualified people;
• consultation with the Ministries of Women s Affairs, Youth Affairs, Employment, and Justice, and possibly State Services;
• a requirement for the Minister to have regard to the need for breadth of experience and expertise, as well as depth of knowledge of one or more sectors of the tertiary education system;
• a requirement for the Commission to be able to represent the interests of the range of tertiary education organisations and stakeholders.

In relation to our first suggestion: We note that a call for nominations has been issued (for example, in metropolitan newspapers on 12 and 16 January, 2002). In our view, however, the provisions of the Education Reform Bill are likely to deter the most worthy and suitable candidates.

159F Functions

The functions as defined will make it essential that members of the Commission have very high levels of acceptability within the system and are able, individually and collectively, to gain the respect and trust of providers. We urge that this criterion be highly weighted in the selection process.

159F (1) (e)

We are at a loss to understand why it should be necessary for the Commission to seek approval from the Minister to undertake functions necessary or desirable to fulfil its statutory functions. Such activities should be an integral part of the work and not require constant renegotiation.

159F(2) (a)

Again, we do not believe that it is necessary to constrain the Commission by requiring it to seek Ministerial agreement before it provides services, within its mandated range of skills, to other Crown agencies.

159F (3)

It is especially important for the Commission to have close working relationships with both the Ministries of Education and NZQA. Experiments in separating policy and implementation, and in contestability , have sometimes foundered because of poor or conflicting agendas and/or protection of patches.

The scope of advice from MoE and NZQA which may take primacy over that of the Commission should be clearly defined. We would see it as limited to the big picture material relating to the government s broad strategy. However defined, this clause should make it clear that the Commission should be fully informed before advice is submitted to the Minister, and also ensure that all matters relating to individual tertiary organisations are the responsibility of the Commission.

The power to second to sub-committees is an excellent provision.

159G and 159J Power to direct

The Minister s power to formally direct the Commission should be limited to matters arising from emergencies or crises. These should be extremely rare. Other clauses provide more than adequate accountability - particularly those relating to the Statement of Intent and the Annual Report (ref. Clauses 159K, 159L, and 159M).

Overall, we observe confusion in relation to the Minister s role, an insufficient separation of powers (legislative and executive) and, in relation to the Commission s autonomy, fragility verging on absence.

159H Power to review performance

This clause smacks of power to meddle. For the tertiary system to perform well, the Commission must not be subject to frequent or random review. The relationships of trust which are vital in the operation of the proposed structure will be undermined if there is a constant threat of review . Rather, the members of the Commission should be of such calibre that they enjoy the confidence of Ministers and organisations, are able to get on with their very demanding functions, and are accountable through the accepted business machinery of annual reporting.

159I Delegation

159I (7)

We are pleased to note that the option for delegation is provided. However, we draw to the Committee s attention that delegation means to depute or commit authority, powers etc to an agent.

While the Minister is ultimately responsible for all matters pertaining to education, he or she cannot both delegate and continue to exercise that delegated power or function. There is the danger of serious miscommunication or misunderstanding here.

159O Statement of tertiary education priorities

159O (1)

We welcome the Bill s recognition that the tertiary sector has lacked strategic direction for some considerable time.

We would hope, however, that the Minister s statement of priorities at least once every three years (to a Commission whose members have a three-year period of office) would not, through changes of government, create environmental instability and confusion. We note that clause 159X allows the Charters of TEIs to have a 10-year life and those of PTEs a 5-year life.

159O (2)

We note that the Minister is required to consult with the Commission before issuing or amending a statement of tertiary education priorities. It is, therefore, only appropriate that the same courtesy should be incumbent upon other departments or ministries.

Miscellaneous

Clause 36

We do not understand why the Commission s Chief Executive, appointed under clause 36 of Schedule 13A of the Principal Act, would need to be called a General Manager.

Schedule 1 (New Schedule 13A)

[As this schedule pertains directly to the Tertiary Education Commission, it seems appropriate to examine it in tandem with the matters noted above. The Schedule makes it clear that the Commission is, in effect, a Board of Directors . We have read this Schedule in that light.]

13A (5)

If members hold concurrent office, care should be taken with regard to the need for members to be able to allocate adequate time to the demanding work of the Commission, especially in its first three years. This would be very sensible.

13A (6)

To maintain continuity, we recommend staggering the terms of appointments in the first instance, to ensure that all members terms are not due for renewal at the same time.

13A (9) [refer also to 13A(6) (3) (c) Removal from office]

The power to remove a member from office in this draconian manner is at variance with convention and implies lack of confidence in the Minister s own judgment at the time of appointment. Normally, dismissal from a statutory body arises because of specific derelictions: for instance, bankruptcy, neglect of duty, misconduct, proved to the Minister s satisfaction.

Along with the refusal to consider compensation (Clause 10 of the Schedule), this is a dictatorial power which, we submit, would be unacceptable to the most worthy potential members.

13A (13) (2)

This prohibition, taken to the extreme letter, could prevent members offering the benefits of the top-level experience for which they would doubtless have been appointed.

13A (15)

We are concerned that this clause implies that members are individually and collectively responsible to the Minister. Surely the Entity as a whole has adequate accountability measures as to render the clause redundant. Surely, the Commission also has a duty to institutions, organisations, and other stakeholders, and should be able to engage in robust dialogue with the Minister from these perspectives.

13A 26 (1) and (3)

Note previous comments regarding the three-year terms and removal from office.

13A 43 (2)

We are pleased to see the power to co-opt to sub-committees of the Commission. Used carefully, this provision should enable to the Commission to be well informed of all salient issues in its deliberations.

Other matters

159U (2) Charters

This clause gives the Minister the option of proposing an amendment to a Charter on his or her own initiative, and at any time.

Surely, if the Minister has had the opportunity to reject a Charter, with reasons, this is sufficient intervention? If new material is to be added, the negotiations should be with the Commission. We believe that, apart from formal Charter approval, the Minister should not intervene in the work of a specific organisation except as a very last resort and on the advice of the Commission.

159W (3)

For reasons similar to the above, the Minister should not be able to require a review at any time . Institutions need continuity and the freedom to get on with their work. If new tasks arise during the life of a Charter, the initiative for change should come from the institution, which should negotiate with the Commission and, through that machinery, communicate the development to the Minister.

As in several other of the Bill s provisions, this clause indicates lack of clarity on the important distinction between governance and management.

159X (1)

We would hope that the Charter period would normally be 10 years. Institutions need to be able to plan ahead. We are also concerned that paperwork should be kept to a minimum, and frequent revisions should not be allowed to impede the delivery of services.

159ZA (2)

As with our comments on clause 159X above, we would hope that three years will be the usual time for a Profile to be in place, and that earlier changes are normally at the initiative of the organisation.

159ZF (3)

We are concerned that the Commission may require a review at any time. We would like to see some caveats around this provision, to ensure that organisations are not subject to unnecessary intervention.

Conclusion

This submission focuses on the areas of weakness in the Bill. Our primary concern is that the providers of tertiary education are not only well coordinated and accountable, but are also free to be innovative and use their own skills and initiative to provide the best possible outcomes for students who enrol with them. We are greatly concerned that this Bill may result in a top-down system, overloaded with paperwork, and subject to unwarranted constraints.

We also register our serious concern regarding matters of membership of the Commission, as we see high quality commissioners as crucial to the new structure.

We trust that our comments will be carefully considered, and that a better balance of responsibilities will be developed in the revision of the Bill so that the new structures result in a flexible, responsive, and accountable tertiary system.