NZSTA Submission on Harmful Digital Communications Bill 21 February 2014
Introduction 1. This feedback is presented by the New Zealand School Trustees Association (NZSTA) on behalf of its member boards. 2. We can be contacted at NZSTA, PO Box 5123, Wellington, phone 471 6422, fax 473 4706, email lkerr@nzsta.org.nz. 3. School boards of trustees are the largest single group of crown entities in the country, accountable directly to the government and their local community for the effective delivery of education in their school. 4. NZSTA is a national body representing the interests of approximately 2,200 member school boards of trustees (91 percent of the total number). There are approximately 18,000 people serving on approximately 2,460 school boards. 5. As part of its service delivery function to boards, NZSTA provides a comprehensive personnel/industrial service and 0800 trusteeship phone service to all boards of trustees, and is currently developing a proactive workplace advisory service to assist boards in their management/governance role. NZSTA is also an active party with the Ministry of Education in negotiating Collective Agreements with unions. 6. NZSTA as a membership organisation surveys member boards from time to time on issues of current or potential significance to school boards of trustees. 7. This feedback draws on NZSTA's: ongoing dialogue with individual school boards and principals ongoing dialogue with elected board of trustees representatives local, regional and national levels experience in assisting boards of trustees on governance and accountability issues through our 0800 trusteeship helpdesk experience in the provision of personnel/industrial services to boards of trustees Collective Agreement negotiations design and delivery of formal Professional Development and targeted support for boards of trustees 8. We would be happy to discuss this further with the select committee. Executive Summary 9. NZSTA strongly supports the Bill s stated purpose, and considers that the provisions of the Bill are generally sound. 10. The Communication Principles identified in Clause 6 appear to be sound, and well aligned with other legislative requirements. 11. NZSTA is pleased to note that the a school principal may lodge a complaint on behalf of their student. Procedures adopted by the Agency and the District Court in enacting these provisions should 11.1. be designed to minimise the disruption to a principal s role as the day-today educational leader of their school, and NZSTA Page 2 21/02/2014
11.2. be drafted so as to ensure the Principal s delegate (e.g. Assistant or Deputy Principal) may act on their behalf. 12. NZSTA would also like to see 12.1. an upper limit placed on the time permitted before a complainant may expect a response from the Agency 12.2. the District Court be given more discretion to accept cases that have not been resolved in a timely fashion by the Agency. 13. NZSTA would like more clarity on the interaction of these provisions with restorative justice programmes that operate within schools. 14. NZSTA is concerned at the lack of direction about the scope or expertise of a technical adviser s contribution and consider that this clause should be amended to give a clearer explanation of what the purpose and expectations of a technical adviser might be. 15. NZSTA supports the provisions relating to new criminal offenses. Purpose 16. NZSTA strongly supports the Bill s stated purpose: to mitigate harm (i.e. serious emotional harm) caused to individuals by digital communications (a digital communication includes any text message, writing, photograph, picture, or recording) and to provide victims of harmful digital communications with a quick and efficient means of redress - (Clause 3) Communication principles 17. The Bill proposes 10 principles for digital communications. These form the baseline criteria for deciding whether or not a communication can be considered harmful under the Bill. The principles state that Digital communications should not: 1 disclose sensitive personal facts about an individual 2 be threatening, intimidating, or menacing 3 be grossly offensive to a reasonable person in the complainant's position 4 be indecent or obscene 5 be part of a pattern of conduct that constitutes harassment 6 make a false allegation 7 contain a matter that is published in breach of confidence 8 incite or encourage anyone to send a message to a person with the intention of causing harm to that person 9 incite or encourage another person to commit suicide 10 denigrate a person by reason of his or her colour, race, ethnic or national origins, religion, gender, sexual orientation, or disability NZSTA Page 3 21/02/2014
NZSTA Comment / Implications for school boards of trustees 18. These principles appear to be well aligned with other legislative requirements (e.g. the Privacy Act; Search, Seizure and Retention Bill) and the practical issues faced by school boards and their employees. 19. In particular, the provisions of this Bill provide a useful extension of the powers granted under the Education (Surrender, Retention, and Search) Rules 2013. Where those rules only allow for the removal of a physical device used to create or store harmful material, this Bill provides for the removal of the material itself, regardless of whether it is stored or hosted on the device itself, or in the cloud. Enforcement provisions 8 Functions and powers of Approved Agency The new civil enforcement regime provides for initial complaints about harmful digital communications to be made to an Approved Agency. The Approved Agency may investigate a complaint and attempt to resolve it by negotiation, mediation, and persuasion. 20. The Bill provides that the principal of a victim s school may, with the consent of the student, apply to a District Court for an order under the Bill. Clause 8 does not specify who may lodge a complaint with the Agency, but simply requires the Agency to investigate all complaints. NZSTA Comment / Implications for school boards of trustees 21. NZSTA welcomes the acknowledgement of the boards role in protecting the emotional and physical safety of their students through the actions of their school principal. In our view this provision is consistent with the respective roles and responsibilities of boards and principals, as detailed in sections 75 and 76 of the Education Act 1989, most notably the duty of the principal to ensure that the Board s responsibility to protect the safety and wellbeing of students is carried out in day-today practice. 22. At the same time, it should be noted that school boards and principals first obligation under the Education Act is student achievement. Procedures adopted by the Agency and the District Court in enacting these provisions should therefore be designed to minimise the disruption to a principal s role as the day-to-day educational leader of the school, in so far as that is consistent with ensuring the safety and wellbeing of the student(s) concerned. 23. In larger schools, particularly larger secondary schools, day-to-day behaviour management is often associated with the role of Deputy or Assistant Principal (DP or AP) rather than the Principal themselves. In these cases, it is the DP or AP who will be most familiar with the actual circumstances of the alleged offence. 24. NZSTA therefore seeks confirmation that where the appropriate delegations are in place within a school, another member of the school s senior management team such as the DP or AP will be able to follow through these matters with the Agency and the Court to provide continuity of care for the student(s) involved. Threshold for proceedings 11 Threshold for proceedings NZSTA Page 4 21/02/2014
(1) A person to whom section 10(1)(a), (b), or (c) applies may not apply for an order under section 16 or 17 in respect of a digital communication unless the Approved Agency has first considered a complaint about the communication and had a reasonable opportunity to consider and decide what action (if any) to take. 25. The Bill provides that any complaint must first be referred to the Agency, which must have a reasonable opportunity to consider and decide what action (if any) to take. 12 District Court may refer matter back to Approved Agency The court (a) must consider whether an attempt has been made to resolve the complaint (whether through mediation or otherwise); and (b) may adjourn the proceeding and refer the matter back to the Approved Agency unless satisfied that further attempts at resolution, of the matter by the parties and the Agency (i) will not contribute constructively to resolving the matter; or (ii) will not, in the circumstances, be in the public interest; or (iii) will undermine the proceedings before the court. NZSTA Comment / Implications for school boards of trustees 26. Given the speed with which these matters can escalate, particularly within a school setting where the victim and perpetrator may be required to spend a considerable part of their waking hours in fairly close proximity, NZSTA would like to see an upper limit placed on the time permitted before a complainant may expect a response from the Agency, and ideally, a resolution of their complaint. In NZSTA s view, time is of the essence if harm, or potential harm, is to be prevented. 27. We also note the possibility that a complaint may be rejected by the District Court and referred back to the Agency, thus prolonging the period before a student can expect a resolution. 28. NZSTA would like the District Court to be given more discretion to accept cases that have not been resolved in a timely manner by the Agency, for whatever reason, or that pose an immediate or escalating threat to the safety and wellbeing of the parties concerned. School Restorative Justice programmes 29. Many schools operate restorative justice programmes within the school that incorporate similar processes to those the Agency is required to employ. NZSTA would like more clarity on the following questions: 29.1. Will school restorative justice processes be acknowledged or factored in to the Agency s proceedings? 29.2. If so, how and if not, why not? 29.3. What records / standards will schools need to maintain in order for their internal restorative justice processes to be considered by the Agency or the Court? Mode of hearing and evidence 30. Clause 14 permits the Court to consider NZSTA Page 5 21/02/2014
any evidence or information that may in its opinion assist it to deal effectively with any proceedings under this Act, whether or not the evidence or information would be otherwise admissible in a court of law NZSTA Comment 31. NZSTA supports these provisions. Technical Advisers 15 Technical advisers (1) A District Court or the High Court, as the case may be, may appoint a technical adviser to assist it in considering and determining an application for an order under section 17 or any appeal under section 72 of the District Courts Act 1947. (2) The duties of a technical adviser are (a) to sit with the court; and (b) subject to subsection (3), to act in all respects as an extra member of the court. NZSTA Comment / Implications for school boards of trustees 32. NZSTA is concerned at the lack of direction about the scope or expertise of a technical adviser s contribution. The current wording appears to constitute a carte blanche for any person setting themselves up as a technical adviser regardless of credentials, credibility or relevance. We consider that this clause should be amended to give a clearer explanation of what the purpose and expectations of a technical adviser might be. Criminal offences In addition to a new offence of failing to comply with an order of the court, this Bill creates 2 further offences to deal with the most serious forms of harmful digital communications: NZSTA Comment an offence of posting a harmful digital communication with the intention to cause harm: an offence in the Crimes Act 1961 of inciting a person to commit suicide where suicide has not been attempted (this will complement the existing offence in the Crimes Act 1961 which criminalises incitement to commit suicide where it has been attempted). 33. NZSTA supports these provisions. NZSTA Page 6 21/02/2014