Education Law and Policies Benchmarking the Application and - - PowerPoint PPT Presentation

Education Law and Policies Benchmarking the Application and Implications to Practice.

FACILITATOR: DR SIBUSISO D BAYENI

Introduction

There is a thin line between policy and law. Policy is a broader term including law. Sometimes, policy is a guide allowing some discretion and interpretation at the implementation level. Law is more strict and prescriptive. It does not allow any discretion and exception

Introd (cont)

Disregarding the law and policy has serious implication and ramification like:

• 1. Imprisonment in Criminal case (incarceration)
• 2. Liabilities and damages in Civil case.

*There is a tendency among some teachers to: *Question the legitimacy of policy *Reject it or change it *Pay a lip service to policy implementation

Introd (cont)

Teachers as implementers are required to observe and carry out the prescripts of the policy and law. If you are in position of leadership representing the government, one of the core function is to empower and reskill staff, enforce the law, persuade those who are reluctant. Keep records of every thing that happens in the school.

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President signs it into law Bill in Parliament gets debated (Draft document) Parliament approves draft doc for public comments

President’s SONA Political slogans

Minister’s initiative

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Policy Review

Policy is not a neutral text to implement only but has feeling, political and emotion aspects Policy making is not linear and straightforward process. Policy is a product of dispute and conflict It is imbedded within the contexts.

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Policy Review (contd)

In policy there are issues of

• Micropolitics,
• Confrontations
• Contestations
• Negotiations
• Compromises
• Interpretation
• Blaming
• Complexity

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Some terms in policy analysis

1.

CONSTITUTION: Is the supreme law of the country and any law or other legislation or conduct of any person

• r body which is inconsistent with it, is invalid. The constitutional law may in terms of

the constitution test the validity of any other South African law. It is the highest law in South Africa to which all other laws and institutions are subject. . 2.GREEN PAPER Government document in which a proposal or idea is put for discussion.

• 4. WHITE PAPER

A fixed policy. Official report produced by a government on a particular subject

• 5. BLACK PAPER

Authoritative document that criticises or censures an existing policy, practice or institution

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Some terms in policy analysis

• 6. BILL:

A suggested or proposed law which has not been passed in parliament. It is a debated law in the parliament.

• 7. ACT

A law or decree passed by a parliament at national level or provincial level, for example, the South African Schools Act.

• 8. LAW

A body of official rules of a country which must be obeyed. Any of these rules. Any collection of these rules dealing with a particular subject. A binding rule that must be

• beyed or taken into account by all people who are subject to it.

9 REGULATIONS A law or rule designed to control behaviour or actions. For example, office regulation, notices are

• published. It is the law made by cabinet minister(s) or MECs in terms of an Act

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Some terms in policy analysis

10.GAZETTE : A government newspaper in which Acts, Regulations, Notices are published.

• 11. LEGISLATION

An Act of Parliament or a provincial legislature. It is a regulation.

• 12. LEGISLATURE

Parliament which makes laws for the whole country and a provincial legislature making laws for that particular province.

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Who makes government policies and laws

Parliaments: National and Provincial Legislatures

• 2. Judiciary (using court pronouncements)

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Portfolio Committees(PCs) National Council of provinces (NCOP) 90: ten from each province. NCOP sits in Pretoria National Assembly (NA) 350-400 members. NA sits in Cape Town

Parliament has 2 houses

Select Committees (SCs) For each department Monitor and make recommendations: budget structure, functioning

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Portfolio Committees (PCs) PC works on bills Votes on bills and sends to NA to be debated

After voting for/ against, bills are send to NCOP

Political parties may support or oppose bills NA has portfolio committees for each depart

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NCOP NCOP takes interest of provinces NCOP has Select committes Each province appoints 6 permanent and 4 members =10 members

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Select committees Approved bills by SC are sent to President to sign them as laws Passed bills are submitted to SC for changes If there are disagreements

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PARLIAMENT PORTFOLIO COMMITTES

• 1. CABINET

SC PC

1.NA

• 2. NCOP

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What is policy Policy statements

Policy is whatever governments choose to do (action), or not to do (inaction). Non-action= failure of the government to take action on a problem or condition or even to consider it (Dye, 2005)

‘Authoritative Allocation of values’ ‘Policy is the legitimation of values’ (Prunty, 1985)

• 1. Whose values are these? Whose values are not?

Values do not float free of their social context. Allocation introduces the centrality of power, control in the formulation of policy

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Policies confer advantages and disadvantages, cause pleasure, irritation and pain. Policy describes the rules, statements of intent and specified strategies that are formally adopted by legitimated individuals or agencies to guide collective action (Hamley, 1991) Policy is ‘paths’ by which particular principles and objectives are to be realised. Policy specifies the means to effect the transition from what exists to what is

• desired. (Badat, 1989).

Policies are operational statements of values, statements of prescriptive intent. They are contested in between and between areas of interests. Policy involves, on the one hand, analysis of problems and identification of remedies and goals and, on the other hand, specification of methods for achieving goals. Policies are designed to accomplish specific goals or produced definite results though these are not always achieved.

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TYPES OF POLICIES (Anderson, )

• 1. Substantive policy

What government should do

• 2. Procedural Policy

Who is going to take action and what mechanism in place.

• 3. Material policy

Provides real resources to interest group

• 4. Symbolic policy

Is rhetorical about a need change.

• 5. Regulation policy

Limits the behaviour and actions of groups and individuals

• 6. Distributive Policy

Shifts the allocation of resources and rights among social groups

Exploring law concepts relevant to Education

• Policy has some features of prescription but

characterised by some flexibility

• Law is more prescriptive
• Statute: a written law passed by a legislature
• Civil Law: It is a law that helps deal with disputes;

Propodence

• Criminal Law: is punitive in nature; Proof beyond

reasonable doubt

Concepts contd

• Precedents: are prior decisions that function as models for

later decisions; stere decision by court (a rule of decision)

• Due process: fair treatment through the normal judicial

system.The legal requirement that the state must respect all legal rights that are owed to a person

• Procedural due process: "[procedural due process has to do

with the manner of the trial [and] dictates that in the conduct of judicial inquiry certain fundamental rules of fairness be observed’

. Substantive due process: There are substantive

(fundamental) rights found in Bill of Rights. Govt may not interfere with these rights. If gvt interfere there ought be compelling reasons

Concepts contd

• Source of law: origin of law. If a law making body

enacted a law, that law is a source of law

• Tort: a wrongful act that results into injury to other

person’s dignity, property which may result to liability

• Litigation: a process of taking legal action

Concepts contd

• Liability

(i)Vicarious liability: Tort law that imposes liability on

employers for the wrongful doing of their employee. The employer is held liable for wrongdoing while the employee is conducting their duries

(ii)Direct Liability: the employee is held liable for wrongful

act

• Filing a lawsuit/pursue a lawsuit
• Plaintiff v defendant

Concepts contd

• Unfair labour practice
• “In breach of law”
• “act in disregard of the law of prescripts”
• “In the course of employment”
• “reasonably practicable”
• Compelling evidence”
• Professional Ethics

Steps to follow in case of wrongful act

• 1. Gather evidence.
• 2. Coordinate end evaluate
• 3. Summoning to appear in hearing
• 3. Attend hearing
• 4. Negotiate settlements
• 5. initiate court proceedings

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Tort Statutory Common Law

Cival Case

Contracts

Tort

• 1. Who are the parties (plaintiff and defendant) --not a

prosecutor

• 2. What are possible outcomes (liable) --not guilty
• 3. Applicable standard of proof (preponderance of

evidence) –not proof beyond reasonable doubt

• 4. Consequence for the defendant (civil damages) –not

criminal penalties

• 5. Procedural rules that apply (civil procedures)—not

criminal procedures