Who’s running our much loved schools?
By Chris Humphrey, President of Beyond PMSA
Before jumping into the detail, let’s review the context in which the PMSA operates, how it appoints and runs its council and committees, and how the rules are developed and appear to work in practice in this context.
Letters Patent
So, let’s start at the very beginning…
The Letters Patent were issued on 28 June 1918 and were issued by the then Governor of Queensland pursuant to The Religious Educational and Charitable Institutions Act 1861 (Qld). This one-page document (the Letters Patent) bestowed on 24 distinguished individuals the benefit of incorporating “The Presbyterian and Methodist Schools Association” such that they and their successors “forever, holding the offices aforesaid, shall be such a Body Corporate”.
That really is the only document of any legal standing in relation to the large and valued businesses that comprise the 4 PMSA schools today, and this document is 99 years young.
The Religious Educational and Charitable Institutions Act 1861 (Qld) was repealed by the Associations Incorporation Act 1981 (Qld).
However, section 144 of the Associations Incorporation Act 1981 (Qld) states that:
“Subject to the provisions of this Act, letters patent issued pursuant to the Religious Educational and Charitable Institutions Act 1861 continue to be of full force and effect and to be subject to that Act as if this Act had not been passed”.
Effectively it makes the Letters Patent still legally enforceable, but without imposing on the corporations incorporated under such Letters Patent any of the conditions, regulations or requirements of the Associations Incorporation Act 1981 (Qld). Any regulatory or additional conditions imposed on organisations incorporated under such Letters Patent disappeared with the Repeal of the Religious Educational and Charitable Institutions Act 1861 (Qld).
Part IIA Division 2 of the Associations Incorporation Act 1981 (Qld) specifically deals with entities incorporated by Letters Patent under the Religious Educational and Charitable Institutions Act 1861 (Qld) and gives those bodies an easy mechanism to transfer their incorporation to one of a company limited by guarantee.
For whatever reason this opportunity has never been implemented up by the PMSA.
The outcome of the continued operation of the Letters Patent is that, unlike an incorporated association in Queensland, there are neither mandatory reporting requirements to the Office of Fair Trading annually, nor the requirement to hold an AGM in accordance with the Associations Incorporation Act 1981 (Qld).
Due to the fact that the conversion to a company limited by guarantee was not adopted, there is no requirement under the Corporations Act 2001 (Cth) to lodge various reporting documents with the Australian Securities and Investments Commission, or hold an AGM in accordance with that Act.
However, due to the registration of the PMSA as a charity, it does have the requirement to meet very basic reporting requirements under the Australian Charities and Not-for-profits Commission Act 2012 (Cth). But the fact that the PMSA presents a consolidated annual report to the ACNC makes evaluation of the individual schools and their individual viability and performance practically impossible.
The other implication of falling outside of the Associations Incorporation Act 1981 (Qld) and the Corporations Act 2001 (Cth) is that there is very little regulatory compliance or monitoring in relation to the PMSA’s governance documents.
Yes, the PMSA does have a Constitution, and a Council Manual noted as By-Laws of the PMSA. Both of these documents, available on the PMSA website, show a current issue date of 1 September 2010.
Whilst it is a positive point that such documents even exist, there is no regulatory framework which mandates the governing documents’ contents, mandates accountability to stakeholders or mandates reporting pursuant to those documents. Effectively the Constitution and By-Laws are a self-generated set of documents which can be amended by the PMSA Council at any time, without notice, and without regard to any modern governance practice. There is not even any mandated special majority requirement to pass amendments.
In my view the PMSA Constitution and By-Laws are outdated and are inadequate in several important aspects.
For instance, the Constitution and By-Laws appear to be silent on issues such as:
Who are the “members” of the PMSA (for the purposes of section 20 of the Constitution “Income and Property”);
The number of terms of re-appointment such that Councillors appear to be able to be reappointed indefinitely every 3 years indefinitely (clause 4 Constitution);
How is a Councillor removed from office apart from the limited provisions of 14 of the Constitution (including missing 3 consecutive meetings, death, resignation, unsound mind, disqualified from managing a corporation, conviction of a criminal offence and unsuitable for child related employment).However, note By-Law 3.10 which states that “the Council may remove Council-appointed Councillors from office”.Hence the documents are silent on how the church appointed Councillors are removed from office; and
How the Constitution and By-Laws are amended and how such amendments are passed.
2. Qualification of councillors
The Australian Institute of Company Directors (“AICD”) has, in their many publications on governance, emphasised the need for boards (and in this case, council) to have a “broad mix of skills, knowledge and experience”.
Different directors have different skills and backgrounds. The recommendation of the AICD and many other professional bodies is to select directors with complementary and diverse skill sets such that a mix can be achieved that can work as a well-rounded team of people each with an appropriate range of experience and diversity of views.
It is important to select people who have sufficiently broad experience in the issues and opportunities the organisation is facing now or is likely to face in the future. While specific skills required by each board or council differ, there are some core skills that should be represented on a board as a whole, but not necessarily in one person. Additionally, if an organisation has special needs or exposure to a particular stakeholder group, it makes sense to include a director who has experience in that area.
Contrast this to the PMSA. By-Law 3.3 provides the criteria for selection of Councillors, which are:
A member of one of the 2 churches (Presbyterian Church or Uniting Church); and
Display community leadership;
Be able to apply sufficient time and effort to achieve the objectives of the PMSA; and
Be prepared to publicly identify with or champion independent Christian based schools and the PMSA’s schools.
There may be more detail in the Charter of the Appointment and Remuneration Committee but that is not available to stakeholders.
3. The school councils and other committees
The PMSA outlines on their web page Committees of the PMSA Council the establishment of 3 PMSA committees (Appointment and Remuneration; Audit and Finance; Education and Pastoral Care) and 4 committees serving as school councils.
By contrast, By-Law 5.1 states “The Council will exercise effective control of its schools, its business and other ventures through Standing Committees of its Council, namely:
Council Nomination; and
Appointment and Remuneration; and
Audit and Finance; and
Education and Pastoral Care; and
Abuse Reference; and
School Council Nomination; and
Council for each school in which it has an interest; and
Such other committees as the Council may appoint from time to time for such terms and purposes as the Council may determine.”
We don’t have any information as stakeholders whatsoever on the Council Nomination, Abuse Reference, School Council Nomination or “Such other committees”.
By-Law 5.2 refers to the fact that the PMSA Council may delegate powers to each committee through a committee charter describing its objectives, composition, term of office, powers and authority, duties and responsibilities or the instrument of delegation.
Despite numerous and longstanding requests, the various committee charters have not been made available to stakeholders, even though the PMSA Council needs to approve and review those documents annually.
In relation to the 3 PMSA committees (not being school council committees), the PMSA does provide member listings for, if nothing else:
The Appointment and Remuneration Committee:
Chair not specified; members listed as Greg Adsett (Deputy Chairman), Dr Anne Bennett, Mr Kevin Standish, Mr Greg Skelton and Mrs Jacqueline McPherson.
The Audit and Finance Committee:
Chaired by Mr Greg Skelton; other members listed are Mr Greg Adsett and Mrs Sarah Blakelock (not listed as a PMSA Councillor).
The Education and Pastoral Care Committee:
Chair vacant; members listed as Mr Greg Adsett and Mr Mark Gary (not a Councillor).
Further, although there is no stakeholder access to the various school council/committee charters, stakeholders have been informed each school council committee is to consist of “up to” 8 members, being the Principal, plus up to 3 PMSA Councillors, one of whom will be chairman, and up to 4 other persons appointed from the relevant school community - by the PMSA, presumably through the mysterious School Council Nomination Committee.
As we shall see, there is a large gap between the PMSA’s own rules for the composition of school councils and the reality in several cases.
By-Law 6.3.2 is interesting - committee chairmen have discretion to determine whether a quorum exists for any committee meeting. It explains how the Somerville House council functioned with two members until recently.
The PMSA website states that the PMSA delegates to the school councils “the responsibility for administration of the schools and are responsible to PMSA council for their performance. The School Principals report to these School Councils and have operational responsibility for the schools”.
Despite the lines drawn on the chart above, the PMSA website states that the Council’s principal responsibilities are to “appoint competent School Councils, School Principals and School Chaplains….”. This is further reinforced by By-Law 8 which states that it is the PMSA Council which appoints each School Principal and School Chaplain.
In my opinion, the By-Laws are a bit confusing.
As we have seen the School Councils are merely committees of the PMSA Council, and the PMSA is the only legal entity in existence (apart from Grammar Early Learning Limited which runs the 2 child care centres on the Sunshine Coast).
However, in the By-Laws you have clauses which state “The School Council may engage the employees that it considers necessary to perform its functions, except that the School Council appoints the Business Manager in consultation with the PMSA Council”. In my view this statement gives the impression the school councils are entities separate to that of the PMSA Council, though they are merely committees of it.
You may colloquially refer to them separately, but in a legal governance document it raises the question whether those who drafted it or who are involved in the annual review of the document understand the true nature of the relationships of these subcommittees with the PMSA Council.
It also raises the question, how can a school council, being a mere committee of the PMSA Council, engage all the teaching, administration, marketing, facilities and support staff at the various schools, being a significant number of individuals, in the name of a committee and not the legal entity?
Further, a sample of enrolment agreements show the use of each separate school’s ABNs on such documents. The school councils being merely committees of the PMSA, the school names merely one or other of the PMSA’s trading names. The separate ABN’s are therefore simply “non-profit sub-entity ABNs” pursuant to the A New Tax System (Goods and Services Tax) Act 1999 (Cth). The separate ABNs do not denote separate legal entities.
Therefore, do the enrolment agreements display the ABN of the legal entity, the PMSA, or merely one its trading names with a sub-entity ABN? Again, it raises the question of how binding the enrolment agreements are if the only “entity” noted is a mere a trading name or subcommittee name?
4. So, who are the PMSA Councillors?
The names and a brief bio with qualifications and church affiliation are provided to stakeholders via the PMSA website and the PMSA 2016 Annual Report (which is now quite outdated even though it was only published in October 2017).
In summary, you can see that the current composition of the PMSA Council has a significant majority of persons from the Presbyterian Church of Queensland (6) compared to the Uniting Church (3), and currently appears to have no PMSA Council appointees.
As you may recall, the Constitution of the PMSA provides for up to 15 Councillors, 6 from each Church, with the remaining 3 being appointed by the Councillors themselves.
As of 7 February 2018, according to the PMSA and school websites, and after tracking numerous changes since 20 December last year, the PMSA Councillors and related positions are:
Note that Dr Anne Bennett practices under the name of Dr Anne Day and is known on the Prescare Board and for the Clayfield College Foundation as Elizabeth Bennett.
5. Who are on the school councils/committees?
Brisbane Boys College School Council
Currently there is only one Uniting Church PMSA Councillor listed the BBC School Council. The (new) Principal is not listed but presumably will be.
Clayfield College School Council
There are currently no Uniting Church PMSA Councillors on the Clayfield College School Council.
Somerville House School Council
** Not listed on the website, but presumably on the Council ex officio, even if there is doubt about her contractual status as “Interim Principal”.
There are currently no Presbyterian Church PMSA Councillors on the Somerville House School Council. Note the significant number of vacancies on the Somerville House School Council, following the recent resignations of the community members Dr Sarah Kelly and Mr Ian MacDonald.
Sunshine Coast Grammar School Council
The chair appears to be vacant since the deletion and presumably resignation of Mr Greg Adsett since 20 December. There appear to be 5 community members and no PMSA/church members.
6. Conclusion
Given that the school council/committees perform, as stated by the PMSA itself “very important functions, including, in the case of the School Councils, the “administration of the schools” and are “responsible to the PMSA council for their (ie the School’s) performance”, there is again a lack of clear and unambiguous information to stakeholders about:
The current composition of the committees;
Roles, delegations and decision-making abilities of committees;
The reporting and accountability framework of committees;
The criteria for appointment and removal of committee members/school councillors and their tenure;
The experience and skill matrix of current committee members/school councillors; and
What processes are in place to identify skill gaps and recruit suitably qualified individuals.
It is even more interesting to note that there seems to be the practice of shuffling PMSA Councillors onto the various subcommittees in a what appears to be a rather random and unidentified pattern. I suspect this is to fill gaps based on availability, rather than on the basis of a determination of skills that those individuals possess, or a matching of those skills to address identified skill gaps on each committee/school council.
It is also interesting to note that not only is the PMSA Council itself somewhat over represented by 1 of the 2 Churches, but that all school councils/committees are even more unbalanced in terms of church affiliation. With the exception of Sunshine Coast Grammar, where there are no PMSA/church members listed at all, most of the school councils have either Uniting Church affiliated members OR Presbyterians, but not both.
I would have thought that since the PMSA is a joint mission of both the Uniting Church and the Presbyterian Church in Queensland, that more effort would have been made to ensure each subcommittee had representation by both churches.
This review also highlights what I suspect is starkly evident at PMSA Council and committee meetings - that there are many longstanding, important vacancies not being filled. Is this possibly because the PMSA is held in low regard in education, business and professional circles and is not an organisation and culture that capable, qualified people want to be closely associated with?
I also wonder how the relatively few active PMSA Councillors, who are all unpaid, part time volunteers remember, can really make the time to undertake appropriate due diligence and research to acquit their responsibilities for decision-making within these large and prominent schools and businesses, especially given the apparently complete absence of experience as educators and extremely limited experience in running large businesses, outside of the PMSA itself.
It begs the question - are our senior school executive staff, our Principals, our teachers, our teacher aides and all the other wonderful and dedicated people who work in our schools, getting the support, they need from having the right decision makers in place? And if not, then we won’t be surprised to see an impact on teacher welfare and student outcomes, something every stakeholder, including the churches, would want to avoid in the future.
I think the answers are obvious now.
