Wednesday, 30 August 2023

Bills

Education and Training Reform Amendment (Land Powers) Bill 2023

Statement of compatibility

Natalie HUTCHINS (Sydenham – Minister for Education, Minister for Women) (10:36): In accordance with the Charter of Human Rights and Responsibilities I table a statement of compatibility in relation to the Education and Training Reform Amendment (Land Powers) Bill 2023.

Opening paragraphs

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Education and Training Reform Amendment (Land Powers) Bill 2023 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview

The purpose of the Bill is to amend the Education and Training Reform Act 2006 (the ETRA) to make further provision for the acquisition, use and development of land for the purpose of early childhood education and care and for the purpose of services associated with early childhood education and care.

The Bill also makes minor and related amendments to the ETRA.

Human Rights Issues

Human rights protected by the Charter that are relevant to the Bill

The human rights protected by the Charter that are relevant to the Bill are:

• property rights (section 20 of the Charter);

• right not to have home unlawfully or arbitrarily interfered with (section 13(a)); and

• protection of children (section 17(2)).

Rights to property and privacy of home

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. The right is understood to protect real and personal property, including land, as well as other economic interests, and protects against expropriations of that property, as well as deprivations of the use or benefit of such property. For deprivation of a person’s property to be ‘in accordance with law’, as required by section 20, the legal authorisation for the deprivation must be clear and certain, publicly accessible and it must not operate arbitrarily. Section 20 does not provide a right to compensation.

Related to the right to property is section 13(a) of the Charter, which prohibits unlawful or arbitrary interferences with a person’s home. ‘Home’ in the context of section 13(a) has been interpreted broadly and beyond notions of legal and equitable rights. Arbitrary interferences are those that are capricious, unpredictable or unjust, as well as unreasonable because they are not proportionate to a legitimate aim sought. An interference with privacy can still be arbitrary even though it is lawful.

The Bill engages the rights In sections 13(a) and 20 of the Charter. Section 5.2.3(1) of the ETRA provides that the Minister’s powers to acquire land include purchasing by agreement or compulsorily acquiring any land required for the purposes of the Act. Clause 4 of the Bill expands the purposes of the ETRA so that the Minister can acquire, use and develop land required for the purposes of the Act, as amended – that is, for the purposes of the provision of early childhood education and care, and services associated with early childhood education and care.

By operation of clauses 4 and 19, the Minister’s powers in the ETRA are expanded to include acquiring land, either by agreement or compulsorily, for the purposes of the provision of early childhood education and care, including if the purposes include the provision of a service associated with early childhood education and care. Clause 19 confines the power by not allowing the Minister to compulsorily acquire land if it is only for the purposes of the provision of associated services.

Clause 20 empowers the Minister to take on lease (or under any other arrangement), or to grant or enter into any lease of (or enter into any other arrangement for), any land or premises required for a relevant purpose. Relevant purpose is defined to include providing early childhood education and care, or a direct or indirect benefit to it, or providing services associated with early childhood education and care.

The operation of the three clauses outlined above may result in deprivation of, or an interference with, a person’s land or home, either by way of acquisition (in the case especially of clauses 4 and 19) or by way of restricting a person’s use or enjoyment of their property (in the case especially of clause 20 with respect to leases). In my view, the ETRA, as amended by the above clauses, will provide a lawful basis that is clear and accessible to the public. Further, I do not consider that the Act, as amended, will operate arbitrarily or enable arbitrary interferences with a person’s home. That is because the Bill is, in my view, reasonable and proportionate to a legitimate aim. That aim is to increase the scale of the government’s infrastructure investment program to support the ‘Best Start, Best Life’ reforms, including provision of free kindergarten, a new universal year of Pre-Prep and 50 government-owned early learning centres. These powers are necessary to implement this program, as well as the provision of early childhood education and care beyond the life of the program. Although every effort will be made to situate facilities on government schools, other government land and partner land, new infrastructure capacity is still likely to require land acquisition. Wherever possible, land will be purchased through negotiation with the landowner. However, compulsory acquisition may be necessary (for example, if the landowner is unwilling to sell).

Section 5.2.3(2) provides that the Land Acquisition and Compensation Act 1986 applies to the ETRA. The Land Acquisition and Compensation Act 1986 provides a procedure for the acquisition of land for public purposes and provides a right to compensation in respect of land compulsorily acquired. Accordingly, compensation may be available under the Land Acquisition and Compensation Act 1986 (although, as noted above, this is not a requirement of section 20 of the Charter). Further, the lawfulness of a Minister’s decision to compulsorily acquire land is subject to judicial review. This assists in ensuring that the powers are subject to appropriate procedural protections.

Finally, I note that the Minister, in exercising powers to acquire land, will be a public authority under the Charter and will be required to give proper consideration to human rights in the Charter when making decisions, and to act compatibly with human rights in the Charter. This will include giving proper consideration to property and privacy of home rights, including the proportionality of any proposed acquisition.

For the above reasons, any deprivation of property or interference with a person’s home provided for by the Bill would occur in accordance with law and in circumstances that were not arbitrary. Accordingly, I do not consider that the Bill limits the rights in sections 13(a) and 20.

Protection of children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and as is needed by the child. Section 17 imposes a positive requirement on the State to provide protection. The interpretation of section 17(2) has been informed by international materials. They recognise that the need to promote a child’s development and education is in a child’s best interests.

I consider that the Bill promotes the right in section 17(2). This is recognised by these three principles inserted in the ETRA by clauses 6 and 7 of the Bill:

• access to education during early childhood is important for the wellbeing of children and their families;

• all Victorians, irrespective of where they live or their social and economic status, should have access to education during early childhood; and

• the State will support the provision of early childhood education in areas where there is or will be insufficient provision of early childhood education.

The Hon. Natalie Hutchins MP

Minister for Education

Second reading

Natalie HUTCHINS (Sydenham – Minister for Education, Minister for Women) (10:37): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Introduction

Today, I introduce a Bill to amend the Education and Training Reform Act 2006 (Act) to expand the state’s powers to acquire and develop land, or to take on or grant other interests in land, for the purposes of providing early childhood education and care and other associated services as part of the government’s Best Start, Best Life reforms.

The Victorian Government has committed $14 billion over a decade to deliver the Best Start, Best Life reforms, including continuing the roll-out of funded three-year-old kindergarten.

This investment means that, from this year, free kinder has rolled-out for all three- and four-year-old children at participating services. This is a meaningful change that signals the importance of access to early childhood education programs for all children.

Over the next decade, four-year-old kindergarten, being kindergarten in the year before school, will transition to ‘Pre-Prep.’ Pre-Prep will become a universal 30-hour-a-week program of play-based learning available to four-year-old children across the state.

This will amount to a doubling of the educational opportunities available for children in their year before school. It will mean children have twice the amount of teacher-led play-based learning time to develop critical social, emotional, and cognitive skills that will set them up for life, and for the following years of their education. This will be delivered through kindergartens and long day care services.

The Victorian Government has also committed to opening 50 new government-owned early learning centres in the communities that need them most. The first of these will be co-located on school sites at Sunshine Primary School, Murtoa College, Moomba Park Primary School, and Eaglehawk North Primary School and will be open for 2025, with remaining centres delivered by 2028.

The Education and Training Reform Amendment (Land Powers) Bill 2023 will play a critical role in facilitating the delivery of these commitments, by providing already existing land powers that are currently in place for the Education portfolio to the Early Childhood and Pre-Prep portfolio, and creating a clear legislative power for other land arrangements such as leasing.

Specifically, this Bill will amend the Act to:

a) expand the minister’s powers to acquire land, either by agreement or compulsorily, or to take on or grant other interests in land, for the purposes of providing childhood education and care and certain other services associated with ECEC, such as maternal and child health services and community spaces, and

b) expand the purposes of the ETR Act as they relate to:

a. the acquisition, use and development of land by the Minister, and

b. the provision of ECEC and associated services,

c) expand the principles of the ETR Act to recognise the importance of access to education during early childhood and state support of early childhood education where there is insufficient provision.

Summary of Bill

The Bill expands the current Education-focused powers in the Act to acquire and develop land to include purposes related to the provision of ECEC.

The purposes of the Act are currently limited to the provision of education and training to adults and children of school age. That is, references to education and training in the Act are limited to school-based education, vocational education and training (VET) and higher education. The Act does not currently make specific provision for ECEC. This Bill will amend the purposes of the Act to include ECEC, which will have the effect of expanding the purposes for which the minister’s existing powers to acquire and develop land to include ECEC.

Similarly, the principles underlying the Act apply to education and training with no reference to ECEC. The Bill amends those principles to make clear the importance of ECEC and that the government will support it where there is otherwise insufficient provision.

Specifically, the Bill expands the power to compulsorily acquire land for ECEC by removing the existing limitation that land for a preschool program can only be acquired by agreement. Land will now be able to be compulsorily acquired so long as it is required for any of the purposes of the Act, which on the commencement of the Bill will include the provision of ECEC.

Finally, the Bill also provides a clear legislative power for the minister under the Act to grant or take on a lease or any other arrangement over land for the purposes of providing ECEC or an associated service.

The $14 billion Best Start, Best Life program is a true generational reform and will fundamentally shape the future of early childhood education for decades to come. Evidence shows that investment in early childhood education has significant social and economic benefits, and that for every $1 invested in early childhood education, Australia receives $2 back over a child’s life - through higher productivity and earning capacity, and reduced government spending on health, welfare and crime.

Research shows that a child who has attended two years of a quality kindergarten program will, on average:

• have better cognitive, social and emotional skills when they start school (including better development in language, pre-reading, early number concepts, non-verbal reasoning, independence, concentration and social skills)

• have higher exam scores at 16, including better grades in English and maths

• have more developed social and emotional outcomes at age 16

• be more likely to take more final year exams and to go on to higher academic study.

These children are the future of Victoria, and this Bill enables this change to happen.

I commend the Bill to the house.

Cindy McLEISH (Eildon) (10:37): I move:

That this debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 13 September.