Education Amendment Ordinance 2004

1
Education (Amendment) Ordinance 2004

• Major Provisions Introduction
• 27 September 2004
• 5,7 16 October 2004

2
Commencement Date

• The Education (Amendment) Ordinance 2004 shall
  come into operation on 1 January 2005.

3
Establishment of IMC(Operating Schools)

• Aided Schools (Section 40BK)
• The school sponsoring body (SSB) shall submit to
  the Permanent Secretary a draft of the
  constitution of the incorporated management
  committee (IMC) (Section 40BL) and a list of the
  proposed managers (Section 40BM) before 1 July
  2009.
• (NoteThe Legislative Council may, by a
  resolution passed after 1 October 2008 but before
  1 July 2009, extend the deadline of submission to
  1 July 2011 at the latest.)
• DSS schools or specified schools (Schedule 3)
  (Sections 40BJ 40BK)
• The SSB shall notify the Permanent Secretary in
  writing of its intention to establish an IMC and
  submit the related documents within 6 months from
  the date of the notice given.

4
Establishment of IMC(Planned Aided and DSS
Schools)

• The scheduled opening date falls on or after 1
  January 2005 (Sections 40BT 40BU).
• Submit the related documents not later than 6
  months before the scheduled opening date (if the
  SSB of a DSS school has notified the Permanent
  Secretary in writing of its intention).

5
Composition requirements of IMC

• IMC members include (Section 40AL)
• SSB managers, can reach up to 60 of the total
  number of managers (one alternate SSB manager may
  be provided)
• the principal an ex-officio member
• teacher manager(s) (if there is only one teacher
  manager, an alternate teacher manager shall be
  provided)
• parent manager(s) (if there is only one parent
  manager, an alternate parent manager shall be
  provided)
• alumni manager(s)and
• independent manager(s).
• (NoteIn calculating the maximum number of SSB
  managers, all alternate managers shall not be
  counted.)

6
Composition requirements of IMC

• Except voting right, an alternate manager shall
  have all functions and rights of a manager
  (Section 40AS).
• No person shall serve in an IMC in more than one
  capacity (Section 40AL).

7
Exemption from composition requirements (Section
40AR)

• The first independent manager register within
  one year from the establishment of the IMC
• The first teacher manager of a planned school
  register within one year from the establishment
  of the IMC
• The first parent manager of a planned school
  register within 3 years from the establishment of
  the IMC
• The first parent manager of an operating school
  register within 3 months from the establishment
  of the IMC

8
Functions and Powers of SSB

• The SSB is responsible for (Sections 40AE,40AF
  40AG)
• setting the vision and mission for the school
• drafting the constitution of the IMC
• giving general directions to the IMC in the
  formulation of education policies of the school
• overseeing the performance of the IMC
• deciding the mode of receiving government aid
• issuing guidelines for raising funds and entering
  into contracts involving funds other than funds
  received from the Government and
• deploying principals and teachers among sponsored
  schools under certain circumstances (Section
  40AG).

9
Functions of IMC

• IMC is responsible for (Sections 40AD 40AE)
• managing the school
• formulating education policies of the school in
  accordance with the vision and mission set by the
  SSB
• accounting to the Permanent Secretary and the SSB
  for the performance of the school
• ensuring that the mission of the school is
  carried out
• planning and managing financial and human
  resources available to the school
• ensuring that the education of the pupils is
  promoted in a proper manner and
• school planning and self-improvement of the
  school.

10
Powers of IMC

• Powers of IMC include (Section 40AF)
• act in accordance with the vision and mission and
  the general educational policies and principles
  set by the SSB
• employ such teaching staff and non-teaching staff
  as it thinks fit and determine their terms and
  conditions of service
• use and dispose of its funds and assets
• open and operate bank accounts and invest its
  funds
• borrow money solicit and receive donations, and
  handle the moneys or property in the capacity of
  a trustee
• enter into any contract, agreement or arrangement
  etc.
• Restrictions on the exercise of powers of the IMC
  (Section 40AF(3)-(5))

11
Constitution of IMC

• The constitution shall be approved by the
  Permanent Secretary (Section 40AY).
• The constitution of IMC shall provide for the
  following (Regulation 75A)
• the number of each category of managers
• the procedures for nominating or electing persons
  for registration as managers
• the tenure of office of the managers
• the procedures for the selection of the principal
  and
• meetings and proceedings of the IMC, etc
• EMB will provide a sample constitution for IMCs.

12
Amendment to the Constitution

• Amendment to the constitution (Section 40AY)
• An IMC may, by passing a resolution, amend its
  constitution in the manner provided for in the
  constitution.
• The proposed amendment to the constitution shall
  be lodged with the Permanent Secretary and shall
  not take effect before the expiry of one month.
• If the Permanent Secretary objects to the
  amendment, he shall specify the reason for the
  objection by notice in writing.
• An IMC shall amend the constitution in such a
  manner specified by the Permanent Secretary.
• SSB/IMC may lodge an appeal against the decision
  of the Permanent Secretary on the vetting of and
  subsequent amendment to the constitution (Section
  61).

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Assets and Funds (1)

• The SSB is responsible for maintaining full
  control of the use of funds and assets owned by
  it (Section 40AE).
• An IMC may use and dispose of the funds and
  assets owned by it, and handle funds and assets
  received from the Government in the capacity of a
  trustee (Section 40AF).
• No property belonging to and provided by the
  Government, the sponsoring body or any other
  person for the operation of a school shall, by
  reason only of the establishment of the IMC of
  the school, become property of the committee
  (Section 40AH).
• In the execution of a judgment by writ of fieri
  facias, the property that is located in the
  school premises and used in connection with
  giving instructions to the pupils of the school
  shall not be seized (Section 40BD).

14
Assets and Funds (2)

• On the cancellation of the registration or
  provisional registration of a school (i.e. the
  IMC is dissolved), the Permanent Secretary shall
  (Section 40BE)
• apply the properties owned by the IMC to settle
  the outstanding liabilities of the committee in
  such manner he considers fair
• if any property which was donated to the
  committee remains, return the property to the
  donor unless the donor indicated at the time of
  the donation that he did not wish to reclaim the
  property in the event of the dissolution of the
  committee
• if any property remains, apply the property
  towards any purpose which is conducive to
  education in Hong Kong.

15
Liability of manager and protection

• The general proceedings against a school shall be
  brought against the IMC instead of an individual
  manager.
• A manager shall not incur any civil liability in
  respect of anything done or omitted to be done by
  him in good faith in the performance or purported
  performance of any function of his office as the
  manager (Section 40BI).
• No proceedings shall be brought against a manager
  of a school for anything done or omitted to be
  done by the IMC unless he has not acted in good
  faith (Section 40BI).
• Unless with the consent or connivance of an
  individual manager towards any unlawful behavior,
  an individual manager is not held liable to the
  contravention of Education Regulations by the IMC
  (Section 87).

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Supervisor (1)

• Must be a manager of the school
• but must not be the principal or a teacher of
  the school.
• Must be appointed by the SSB of the school or
  elected by the managers of the school in
  accordance with the constitution of the IMC
  (Section 40AJ).

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Supervisor (2)

• Functions of supervisor (Section 40AK)
• preside over the meetings of the IMC.
• give notice in writing to the Permanent Secretary
  that any manager, principal or teacher ceases to
  hold office, or any teacher is employed.
• sign the statement of accounts.
• perform such functions as may be provided for in
  the constitution of the IMC

18
Selection of principal (Section 57A)

• Before recommending any person to be the
  subsequent principal, the IMC shall appoint a
  principal selection committee.
• A principal selection committee shall be composed
  of representatives of the SSB, managers of the
  IMC and (where applicable) such other persons as
  may be provided for in the constitution of the
  IMC.
• The SSB or the IMC or both as may be provided for
  in the constitution of the IMC shall nominate in
  an open, fair and transparent manner suitable
  candidates for the principal selection committee
  to select.
• The IMC shall recommend the person selected by
  the principal selection committee to the
  Permanent Secretary as the principal of the
  school.
• Special conditionSection
  40AG(1)(a)(ii)

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Teacher, parent and alumni manager
election(Sections 40AN, 40AO 40AP)

• Teacher, parent and alumni managers shall be
  elected.
• The recognised associations (parent manager(s)
  recognised parent-teacher association alumni
  manager(s) recognised alumni association) shall
  conduct the elections and nominate the elected
  persons for registration as managers.
• All teachers/parents of the current pupils have
  equal voting right and right of candidature the
  voting shall be conducted by secret ballot.
• The election system must be fair, open and
  transparent.

20
Other points to note for the nomination of
managers (Sections 40AM,40AP,40AQ 30)

• Managers not to be elected
• Nomination for registration as

21
Grounds for refusal to register manager and
cancellation of registration of manager (Sections
30 31)

• A bankrupt within the meaning of the Bankruptcy
  Ordinance (Cap. 6)
• Has previously been convicted of a criminal
  offence punishable with imprisonment.
• Under the age of 18 years.
• Has attained the age of 70 years and fails to
  produce a medical certificate.
• Has been registered as a manager of 5 or more
  schools.
• Has been absent without the consent of the IMC
  from all meetings of the committee in a school
  year.

22
Declaration and disclosure of interests by
manager (1)

• Make a written declaration at least once in every
  12 months (Section 40BF)
• states the particulars of any pecuniary or other
  personal interest, direct or indirect, that he
  has in any matter that raises or may raise a
  conflict with his duties as a manager or
• States that he has no such interest
• Within one month after a change occurs in any
  matter stated in a declaration, make another
  written declaration.

23
Declaration and disclosure of interests by
manager (2)

• If a manager has any pecuniary interest or
  conflict in a matter that is considered or is to
  be considered at a meeting of the IMC, a
  disclosure shall be made. Unless the IMC
  otherwise determines, the manager shall not take
  part in any deliberation or decision with respect
  to the matter. (Section 40BG)
• The IMC shall keep a register of interests of the
  declarations and disclosures made respectively.
  The public is permitted to inspect the register
  of disclosures with respect to the matter
  considered at a meeting of the IMC at any
  reasonable time. (Section 40BH)

24
Permanent Secretary to maintain registers

• The Permanent Secretary shall maintain a register
  of IMCs, in which shall be entered the name,
  tenure of office and category of each manager,
  for public inspection (Section 8).

25
Failure to establish IMC

• If a school fails to establish an IMC before the
  deadline, the Permanent Secretary may appoint one
  or more persons to be the managers of the school.
  The manager(s) shall hold office until the term
  of office expires or the IMC is established,
  whichever is the earlier and
• May cancel the registration of any manager of the
  school (Section 40BS).

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Supporting measures (1)

• Provide various kinds of guidelines, such as a
  sample constitution for IMCs, the guides on
  parent, teacher, and alumni manager election, and
  a school-based management handbook.
• Organise training courses for school managers and
  those who are interested to be managers to
  enhance their understanding of school-based
  management and the legal responsibilities of
  school managers.

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Supporting measures (2)

• Provide voluntary legal services, such as forming
  a legal professional supporting network which may
  make use of the internet to provide professional
  advice to schools, etc.
• Provide IMC Liability Insurance cover for IMC
  schools.

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• Thanks!