Education (Polytechnics) Amendment Act 2009

1: Title
This Act is the Education (Polytechnics) Amendment Act 2009.
2: Commencement
1: Sections 5 7 to 9 11 to 13 16
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 2009-12-18 Education Act 1989 ss 4, 6, 10, 14, 15 2010-03-01 Education Act 1989 ss 5, 7–9, 11–13, 16
1: Substantive provisions
Amendments to existing provisions of principal Act relating to tertiary education
4: Interpretation
Section 159(1) combined council section 222AM constitutents designated polytechnic
a: after 28 February 2010 and before 1 May 2010, means a polytechnic designated for the purposes of Part 15A
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 reconstitution day
a: in relation to a polytechnic designated for the purposes of Part 15A
b: in relation to any other polytechnic, means 1 May 2010
5: Institutions to be governed by councils
Section 165
1A: On and after 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 the polytechnic, be construed as a reference to its council as constituted under this Part or Part 15A
6: Section 168 repealed
Section 168
7: Constitutions of councils of new institutions
Section 169
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 222AM
8: Amendment of constitution
Section 170
2: Subsection (1) does not apply to the council of a designated polytechnic.
9: Requirements as to constitutions of councils
Section 171
12: Subsections (1) to (11) do not apply to the constitution of the council of a designated polytechnic (for which sections 222AA and 222AM
10: Section 172 repealed
Section 172
11: Term of office
Section 173
8: Subsections (1) to (7) do not apply to the term of office of a member of the council of a designated polytechnic (for which section 222AE
12: Vacation of office
1: Section 174(1) (other than the chief executive)
2: Section 174
1A: Subsection (1)
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
2A: Subsection (2) does not apply to the council of a designated polytechnic.
13: Chairperson and deputy chairperson
Section 177
9: Subsections (1) to (8) do not apply to the chairperson and deputy chairperson of the council of a designated polytechnic (for which section 222AG
14: Criteria for risk assessment of institutions
Section 195A(1)
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)
a: the requirement to consult 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
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 must—
a: 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)
a: approve the draft plan concerned; or
b: after considering the draft plan, approve for the polytechnic some other plan complying with subsection (2)
5: If the council does not comply with subsection (3) subsection (2)
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.
2: 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.
3: 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.
4: 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.
5: As soon as is practicable after appointing the Crown manager, the Minister must publish in the Gazette
6: 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.
7: The Crown manager must perform any function under subsection (6)﻿(a)
8: Subsection (7) subsection (6)﻿(a)﻿(ii)
9: The council must pay the Crown manager's reasonable fees and expenses.
10: 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.
11: 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)
b: the education performance of the students at a polytechnic is at risk if, according to criteria determined under section 195A(1)
12: Subsection (11) subsection (1)
222D: 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.
222E: Powers may be used concurrently
1: Sections 222A to 222C
2: To the extent that it is possible in practice, powers given by 2 or more of sections 195B, 195C, and 222A to 222C
222F: 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
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 222AR inserted
The following headings and sections are inserted before section 222A section 15 Polytechnic councils
222AA: Constitution of polytechnic councils
1: The council of a designated polytechnic must comprise—
a: 4 members appointed by the Minister:
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 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 222AJ
3: No act or proceeding of, or of any committee of, 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.
222AB: 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)
222AC: Membership of more than one polytechnic council
A person who is a member of a polytechnic council may be appointed a member of another polytechnic council.
222AD: Matters to be considered when appointments made
1: It is desirable in principle—
a: that the council of a designated polytechnic should include Māori; and
b: that, so far as is possible, 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)
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: 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.
222AE: Term of office
1: The person appointing a member of the council of a designated polytechnic must, when making the appointment, state the day on which it takes effect and its term.
2: The term must be no more than 4 years.
3: 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.
4: Notwithstanding subsection (3)
5: Subsection (4) section 222AA(1)﻿(b)
222AF: Reappointment and re-election
Any member of the council of a designated polytechnic can be reappointed for a second or later term.
222AG: Chairperson and deputy chairperson
1: The Minister may at any time 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 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:
d: in the case of a combined council, an employee of the chief executive of one of the polytechnics concerned.
2: The Minister may at any time, by written notice to the member concerned, dismiss the chairperson or deputy chairperson of the council of a designated polytechnic from office as chairperson or deputy chairperson.
3: The Minister must not dismiss the chairperson or deputy chairperson without first consulting him or her on the proposed dismissal.
4: The Minister must give to the polytechnic council a copy of a notice under subsection (1) or (2)
5: The chairperson or deputy chairperson of 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.
6: 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.
7: The chairperson or deputy chairperson of 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 (5)﻿(b)
8: Notwithstanding subsection (7) subsection (5)﻿(b)
9: The chairperson or deputy chairperson of the council of a designated polytechnic may be referred to by any title (other than Chancellor or Pro-Chancellor) the council determines.
222AH: Duties of members of polytechnic councils
1: A member of 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 (4)
i: in the performance of the council's functions; or
ii: as required or permitted by law; or
iii: in accordance with subsection (3)
iv: in complying with requirements for members to disclose interests.
2: 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)
3: A member of the council of a designated polytechnic may disclose, make use of, or act on information to which subsection (4)
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.
4: This subsection applies to information that—
a: a member of 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.
5: Subparagraphs (i) to (iii) of paragraph (b) of subsection (1)
222AI: Accountability for individual duties
1: The duties of a member of the council of a designated polytechnic ( council member section 222AH individual duties
2: A council member who does not comply with his or her individual duties may be removed from office under section 222AJ
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)
5: This section does not affect any other ground for removing a council member from office.
6: Subsection (4)
7: Subsection (4)
222AJ: Removal of members
1: The Minister may at any time, for just cause, remove a member of 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
5: This section does not limit or affect section 174.
6: For the purposes of subsection (1) just cause
222AK: Process for removal
The Minister may remove a member of the council of a designated polytechnic under section 222AJ
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
222AL: 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)
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 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.
222AM: Constitution of combined councils
1: The Minister combines polytechnic councils by notice in the Gazette
a: a constitution for the resulting combined council; and
b: the day on which the combination takes effect.
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.
222AN: 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:
c: every member of any of the polytechnic councils combined goes out of office:
d: the assets and liabilities of each of the polytechnics concerned immediately before their combination continue to be assets and liabilities of that polytechnic:
e: 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)﻿(c)
222AO: 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
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.
222AP: 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)
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)
e: every member of the combined council goes out of office:
f: 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)﻿(b)﻿(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)﻿(e)
222AQ: 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 before the dissolution; and
b: must be appointed within 3 months after the dissolution.
3: The appointment 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)
6: A person authorised under subsection (4) Combined academic boards
222AR: Polytechnic councils may establish combined academic boards
1: 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)
5: As soon as is practicable after a combined academic board established under subsection (1)
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)
b: a combined academic board established under subsection (2)
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 Heading repealed 21 December 2010 section 36(2) Education Amendment Act (No 3) 2010
17: Enabling school students to attend tertiary high school at Manukau Institute of Technology
Section 17 repealed 21 December 2010 section 36(2) Education Amendment Act (No 3) 2010
2: Transitional matters
18: Interpretation
In this Part,—
a: principal Act Education Act 1989
b: reconstituted polytechnic council
c: terms defined in section 159
19: Initial membership of reconstituted councils
1: Before 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 before its reconstitution day; and
b: must be appointed within 3 months after that day.
3: Every member of a reconstituted polytechnic council who is before 1 May 2011 appointed under section 222AA(1)﻿(b)
4: A reconstituted polytechnic council must ensure that every vacancy of either of the following kinds is filled no later than 11 June 2011:
a: a vacancy that arises at the close of 30 April 2011 because a member appointed under section 222AA(1)﻿(b)
b: a vacancy that—
i: arises at a time before the close of 30 April 2011 because a member appointed under section 222AA(1)﻿(b)
ii: has not been filled before the close of 30 April 2011.
5: Subsection (3) overrides section 222AE(2)
6: The appointment of a member of a reconstituted polytechnic council takes effect on the later of the day on which it occurs and its reconstitution day.
7: If on 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.
8: The Minister must give a copy of every notice under subsection (7) to the council concerned.
9: A person authorised under subsection (7) must for all purposes be treated as a member of the council concerned until the vacancy concerned is filled.
10: A council may, before its reconstitution day, make the statutes required by section 222AB
20: Members of existing polytechnic councils to go out of office
1: On 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
2: Subsection (1)—
a: is subject to section 19(7)
b: overrides section 222AE(4)
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 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 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.