THE SMARTEST GUYS IN THE ROOM?

BEYOND PMSA’S 120 PAGE ‘SUBMISSIONS IN RESPONSE’ DOCUMENT LODGED WITH ATTORNEY GENERAL

Dear Supporters,

On 28 March, Beyond PMSA received copies of the responses of the PMSA and both Churches to our Letters Patent Application (the latter providing a separate ‘joint’ response).

So what have we done? Well Beyond PMSA has been busy again. We lodged a detailed 120 page ‘Submission in Response’ with the Office of Fair Trading last Friday 26 April 2019.

You can read our full ‘Submission in Response’ here. [Submission in Response LINK]. It incorporates a full re-statement of the PMSA and Church submissions, with our responses directly opposite.

THE PMSA AND CHURCH RESPONSES – IN A NUTSHELL

The responses of the PMSA and the Churches were, as expected, fully supportive of the PMSA’s position that everything is “great” under Letters Patent and that all problems can be solved by making the “surface level” changes that the PMSA have carefully selected following their flawed governance review process.

THE CHURCHES RESPONSE

The joint Submission from the Churches is particularly disappointing. Their position basically regurgitates the arguments and language of the PMSA’s separate Submission – which we will get to in a minute. Prepared a day apart, it almost seems as if they were ‘of one mind’ (and keyboard) when they were drafted??

The Churches Submission effectively concludes that the PMSA (which was responsible for an incredibly serious breach of trust in 2017) should be REWARDED by being the recipient of “increased” confidence and trust from the community. Yes, we should all just get over ourselves, forgive and trust “anew” !

Hey, we’re all for forgiveness, but when the misbehaving child is still standing in the corner, crossing its arms and refusing to make proper eye contact – that’s pretty hard to do. The PMSA have been about as helpful and proactive in progressing “authentic” governance reform as a compliant street protestor being “passively” dragged into the back of a paddy wagon because they refuse to use their own legs.

THE PMSA RESPONSE – (A SUPER SMART “BUSINESS MOVE” THAT THE REST OF US CAN’T SEE YET??)

The tone of the PMSA’s Submission speaks for itself. It is delivered with a cool imperiousness. An imperiousness that reinforces the PMSA’s continuing belief that it does NOT consider that it is accountable to YOU - the very community that it serves. The same community that provides it with the financial capacity to exist.

Yes, the PMSA’s entire Submission is built around that very proposition. It clearly makes the point (again) that the schools community are not in fact stakeholders with rights at all, but “customers”. Is this a super smart business move that we’re all too “dim” to see?

After everything that has occurred, that’s unbelievable we hear you say? Read on…it gets better…

SO WHO ARE YOU?

So WHO ARE YOU if not people with rights that must be genuinely be protected? Well, according to their Submission, the PMSA characterise all of us and you (individually and collectively) as a sort of creature that calls themselves ‘stakeholders’. (Our term, not theirs). We are all people who simply “believe” that we have rights “…though the stakeholder rights are not legal rights”. (See PMSA submission 55).

The PMSA go on to claim that “Beyond’s assertion of ‘stakeholder rights’ are sourced in some non-legal (or non-equitable) origin”.

TRANSLATION: - you are all deluded. You have no rights.

It is true that parents have rights under enrolment agreements. The PMSA even acknowledge this, but what the PMSA don’t do is address the nature of those rights, or how or in what circumstances those rights can be enforced. Instead, the PMSA simply state that your rights as a parent are to have your child “educated by the PMSA” in accordance with your enrolment agreement. They then lament that those “rights” would be “dissolved if PMSA were to have its Letters Patent recalled”. (Queue scary theme music…). We won’t go into all the reasoning here as to why those assertions are utterly incorrect from a legal standpoint. We explained them sufficiently in our Submissions in Response. (We encourage you to read submission 57 if you’re really interested !).

But the degeneration of your status doesn’t stop there. Although Beyond PMSA’s legal status is clear and it is an organisation comprised of parents, past alumni and donors representing all of YOU, our Application has been characterised by the PMSA as the exercise of a mere “political” right. Yes, you heard right – we are all perpetrating a political “assault” on the PMSA. Too much ‘Game of Thrones’ bingeing we think? This is an unbelievably cheap argument to make. Beyond PMSA has absolutely NOTHING to gain from this Application being granted. It seeks no role in the future governance of PMSA Schools. Beyond PMSA and its thousands of supporters simply seek genuinely effective and transparent structural reform that can ensure a sustainable future for PMSA Schools.

BUT DON’T WORRY – DESPITE THIS VIEW, THE PMSA IS ‘IN TUNE’ WITH ITS ENVIRONMENT !

All of this is a very interesting approach to the Letters Patent Application and community engagement given the massive community backlash that occurred when confronted with that same characterisation of community rights last year. Despairingly, in adopting this tone and approach (again) the PMSA still believe that they have their finger on the ‘pulse’ of community sentiment.

Surely they must have learnt to navigate their way around the electrified food bowl by now you ask? Clearly not. And to prove how much they enjoy the jolt of electricity contracting through their muscles and hair folicles, check out “submission 90” from the PMSA which PROUDLY proclaims “The actions of PMSA represent appropriate decision making and communications by an organisation IN TUNE WITH ITS ENVIRONMENT and the views of parents, staff and others.” [Emphasis added].

Yes, that is an ACTUAL quote from the PMSA Submission !

Perhaps if the PMSA wasn’t still censoring its own Facebook Page, and perhaps if it was getting out and “speaking” to the vast numbers in the community who we regularly interact with, it might be receiving more diverse views and not sheltering itself from debate? Then again, it must be pretty easy to get a complete alignment of views from the 195 people that “like” your page? (Why fix what ain’t broke?)

Both Submissions demonstrate a clear absence of “self awareness”. They continue to confuse bare minimum “legal” compliance and “self-styled” reform as a strategy for successful community engagement and enrolment growth. This is a perilous strategy which has a remarkable arrogance in challenging the way in which the modern market for educational services is evolving in Australia.

TRUST WILL SHIELD THE PMSA FROM CRITICISM. LETTERS PATENT WON’T.

What the PMSA and the Churches still refuse to grasp is that community expectations are vastly different now to what they were decades ago. An embedded “Group Think” mentality is clearly preventing this idea from sinking in.

School communities don’t always “defer” to the judgements and decisions of school governing bodies, especially when they believe that something is fundamentally wrong. When they feel it is appropriate to do so, (like when confronted with the events and negligent decisions of 2017) school communities DO question actions and decisions. This is happening everywhere, not just in “PMSA Land”. Given the SERIOUS money that is invested by parents via tuition fees in PMSA Schools and the significant contributions of donors and benefactors, they are absolutely entitled to call for change. They are absolutely entitled to question the QUALITY of organisational responses which affect the lives and futures of their children.

If that scrutiny amounts to a “political” assault (in the PMSA’s view) then the community must be guilty as charged. The simple fact remains that politics is EVERYWHERE in modern society. The PMSA had better get used to adapting to that societal ‘norm’ and adopting structures and response mechanisms to deal with it authentically, constructively and COLLABORATIVELY. If it doesn’t, then it will continue to find itself in the same challenging position it has been in for almost 2 years. It can continue playing the “victim” or it can learn, adapt and build authentic trust.

‘TRUST”, dear friends, will shield the PMSA from the “politics” of criticism. Letters Patent won’t.

WHO YOU ARE, MATTERS LESS THAN WHAT YOU REPRESENT, TO THE PMSA

So what does all of this mean for you, the concerned community?

Well, if we interpret the PMSA’s own analysis of who YOU are TO THEM, then you are DOLLARS and DOTS on enrolment targets, nothing more.

Does that mean that the PMSA’s “accountability” can only be tested by “customer” decisions to leave PMSA Schools or to change ‘future’ enrolment decisions. If so, then according to the PMSA, your “contractual right” is merely your “CHOICE”, as “customers”, to stay or to leave.

So if you don’t like the manky governance sandwich you’re being served up then, even though you might have (for example) up to 8 or 10 years of expensive investment in your child’s schooling already (and your child has investments in strong friendships, traditions, learning experiences and culture), you can always decide to terminate your enrolment contract?? (For the well-being of the schools this is, clearly, NOT the type of decision that Beyond PMSA encourage parents to make).

Nevertheless, many parents did make that decision in 2017 and 2018. Material declines in continuing enrolment confirmations in 2017 and 2018 across many PMSA Schools demonstrated community attitudes to PMSA behaviours and organisational responses. A “sea of green” was leaking everywhere. It demonstrated the power of “choice”. It should have resulted in greater self reflection on the core problems. It should have resulted in the PMSA truly listening to its community for a change. It should have delivered more authentic and collaborative actions as a result. It did not.

So much for the exercise of “contractual rights” as a means to dampen pride and lead consciences to action.

Characterising the community in this way is simply NOT a basis upon which a successful and sustainable educational endeavour can be founded in 21st century Australia. We are hardly a lone voice on this issue.

WHO WILL BE YOUR SAVIOUR AND PROTECTOR ?

The PMSA do concede that the Attorney-General is the “protector of charities” in Queensland. That’s great! …Oh, except according to the PMSA, none of us have a right to be protected against their poor governance decisions or to ask the Attorney-General to intervene to help our schools.

The PMSA argue that the Attorney-General does not have the discretionary power under the Associations Incorporation Act to grant the relief sought by Beyond PMSA. Their views are wrong. But at the same time, in the final analysis, the PMSA’s views are also incredibly interesting. If one were to accept that their legal analysis is correct (and we say that it is not), then precisely “who” is the Attorney General able to “protect” according to them? Clearly NOT you ! Clearly not ANY group of persons affected by the decisions of organisations operating under Letters Patent.

For numerous reasons which we will not go into here, we think that their view is based on a completely flawed analysis of the Act and its statutory construction. If you would like to review our detailed reasoning it is contained in our Submissions in Response.

OH THE HUMANITY !!! (THE BOOGEY-MAN ARGUMENT)

There’s no other way to describe this one. Grab your blankey, switch your night light on and listen to this.

As if their missives about YOUR status (or lack thereof) and the absence of power in the Attorney-General to intervene weren’t enough, the PMSA’s Submissions would have us all believe that there are a multitude of hurdles and complexities that make changing the basis of their incorporation “impossible”. From arguments about “compulsion”, to ridiculous assertions about disastrous consequences for enrolment agreements, to imagined issues associated with the PMSA’s tax-exempt status, - not to mention the incredibly difficult issues associated with the “preservation” of the charitable trust (that we are all far too dim to understand) – their Submission had it all.

Reading it, one could have been mistaken for thinking that, by seeking for the PMSA to be re-incorporated we are asking them to submit themselves to involuntary TORTURE ! And yet, for all of their incredulous protestations about the complexities and apocalyptic disasters that would ensue if Beyond PMSA’s Application was granted (or worse yet, if they made a “voluntary” decision to re-incorporate as a corporation limited by guarantee under the Corporations Act) – they listed only 4 “material” hurdles for the Attorney General to consider.

Their 4 “hurdles” were hardly monumental, and we believe that we have easily dispatched each of them as disingenuous imaginings. In our view, they are either based on an incorrect legal analysis and / or they are very easily solvable. The simple fact is that none of these arguments stand up to valid scrutiny as a basis for arguing that the PMSA is so special that it can’t undertake a simple change to the basis of its incorporation. If these were the top 4 “boogey-men” that the PMSA could create with to “scare” the Attorney-General (and us all), then we were really disappointed with this horror movie.

So in the final analysis, we believe that the PMSA’s Submission serves as a document which is designed to keep on track their “double-down” tactics for their current reform agenda by:

1. Creating “imagined” roadblocks to incorporation;

1. Invoking “fears” in the Attorney General not to exercise a valid ministerial discretion vested in her under the AI Act;

1. Challenging the entitlement of (YOU) the community to demand greater accountability and transparency; and

1. Questioning, Beyond PMSA’s standing to seek it on your behalf.

There is so much else we covered in our Submissions in Response that we don’t have time to set out here. It certainly makes for interesting reading if you have the time. For no other reason, we think that it is important reading in order to understand the tone of the response from the PMSA and the Churches and what they really think of YOU.

WHAT DOES BEYOND PMSA MAKE OF IT ALL ?

Don’t be fooled by the “spin” contained in their Submissions. It is a FACT that a change to the PMSA’s basis of incorporation presents as a very low level of difficulty on the reform spectrum. Professional members of our community do this stuff every day of the week in much larger and far more complex organisations than the PMSA – and yes, for the record, that INCLUDES organisations in the mystical NFP and charities sector.

Our Letters Patent Application reluctantly appeals for a “legal” remedy. It is built on genuine legal arguments. But it is so much more than that. It is also borne of emotion and a genuine concern and love for PMSA Schools – their history, cultures, traditions and the values that they instil. Yes, our Application is the culmination of a debate of ideas, but it is a debate defined by our passion for and dedication to these Schools.

We are leading a constructive debate. You may recall that when we lodged our Supplementary Application, we also took considerable time to prepare a very detailed Proposal for an alternative governance model built around a PMSA that is “voluntarily” re-incorporated as a corporation limited by guarantee under the Corporations Act. The PMSA and the Churches have dismissed it without even considering it?

How do we know that? Well it’s simple really, their Submission demonstrates that they had absolutely no clue about the context in which it was prepared and the basis upon which it was provided for discussion. Literally no clue! They mistook it for some flawed adjunct to our Application that we wanted to “compel” them to operate under. Very curiously, the Churches made precisely the same mistake in their own analysis. This was despite its purpose being made abundantly clear in its drafting. It was even requested by the Office of Fair Trading to be prepared on that basis. The PMSA and the Churches totally missed the point of it. Which just proves that they have absolutely no genuine interest in listening to the community and exploring alternative models that are successfully used elsewhere – even in schools of the same religious denomination! (Arms folded, lips pursed – pack up and go home everyone ?)

We are proposing constructive and considered solutions which are supported by the wishes of the overwhelming majority of the PMSA Schools community. Those wishes are being ignored by the PMSA and the Churches, and that the true reasons for this are not founded on legal or operational complexities associated with change that their Submissions would have you believe.

AND FINALLY, WHAT ABOUT TRUST ?

Not once in the PMSA’s submissions has it even mentioned the absolutely critical issue of TRUST which is the foundation of the community’s concerns. It refuses to acknowledge firstly that there has been any breach of trust. Secondly it asserts that those who are calling upon it to initiate deeper reform have no standing to do so, and by implication it therefore has no need to address this fundamental failing at all. It MUST, because the significant “privilege” that accompanies the right to exist under Letters Patent is founded ENTIRELY upon trust, - trust in a the legal sense, and most definitely in a moral sense.

Because our Application has at its core issues of trust, Beyond PMSA still strongly believes that the Attorney General can only make a considered decision on our Application with the benefit of objective information about the true financial position of the PMSA and PMSA Schools. The PMSA’s Submissions (including those of the Churches) on the issue of dysfunction and financial stability are selective and wholly inadequate to support objective analysis. And the limited and selective financial information relied upon by the PMSA in its Submission does not even relate to the critical periods in question. It is therefore essential for the Attorney-General or the Office of Fair Trading to make a request of the PMSA to consent to a by-arrangement audit by the Auditor General within the reasonable and confidential parameters outlined in Beyond PMSA’s Supplementary Application.

Unless this “artificial” information barrier can be transcended we don’t think that the Minister can decide in favour of the PMSA. In fact, we think it entirely probable that the Minister must decide that our Application can proceed no further unless the Minister elects to petition the Supreme Court to intervene. The consequences of an outcome where no decision can be made would be less than optimal for the PMSA because of the cloud of uncertainty that would continue to deeply undermine trust in it. It would recklessly complete the PMSA’s “self inflicted” brand destruction and it would (quite negligently) have a detrimental flow-on impact for all PMSA Schools. We must not allow that to occur.

Better outcomes for our Schools will start with tolerating broader perspectives. We can’t afford to waste any more time on a solution that just isn’t working.

Thank you for your continued support.

We are not going away.

Beyond PMSA