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Education Amendment (School Attendance) Bill 2009 No , 2009 A Bill for An Act to amend the Education Act 1990 with respect to the enrolment and attendance at school of children who are of compulsory school-age; and for other purposes.
Clause 1 Education Amendment (School Attendance) Bill 2009 The Legislature of New South Wales enacts: 1 1 Name of Act 2 This Act is the Education Amendment (School Attendance) Act 2009. 3 2 Commencement 4 This Act commences on a day or days to be appointed by proclamation 5 (being not earlier than 1 January 2010). 6 Page 2
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 Schedule 1 Amendment of Education Act 1990 No 8 1 [1] Section 3 Definitions 2 Insert in alphabetical order in section 3 (1): 3 attend a school--a child attends a school if, and only if, the child 4 attends the school at all times while the school is open for the 5 child's instruction or participation in school activities. 6 authorised person, in relation to a provision of this Act, means a 7 person who is authorised in writing by the Minister (or the 8 Minister's delegate under section 119) for the purposes of that 9 provision. 10 Board inspector--see section 104 and Schedule 1A. 11 compulsory schooling--see section 22 (3). 12 compulsory schooling order--see section 22D. 13 home schooling means schooling in the child's home, other than 14 distance education provided by a government or registered 15 non-government school in which the child is enrolled. 16 relevant institution means a government department or other 17 public authority (whether Commonwealth, State or Territory), 18 and also includes a government school or registered 19 non-government school, any registered vocational training 20 organisation and any non-government organisation that is in 21 receipt of government funding. 22 [2] Section 6 Objects for administration of this Act or of education 23 Insert after section 6 (1) (m): 24 (m1) provision of opportunities for Aboriginal families, kinship 25 groups, representative organisations and communities to 26 participate in significant decisions under this Act relating 27 to the education of their children, 28 [3] Section 20 Assistance to government school children with special needs 29 Omit "correspondence schools" from section 20 (2). 30 Insert instead "distance education". 31 Page 3
Education Amendment (School Attendance) Bill 2009 Schedule 1 Amendment of Education Act 1990 No 8 [4] Section 22 1 Omit the section. Insert instead: 2 22 Compulsory schooling--duty of parents 3 (1) It is the duty of the parent of a child of compulsory school-age to 4 cause the child: 5 (a) to be enrolled at, and to attend, a government school or a 6 registered non-government school, or 7 (b) to be registered for home schooling under Part 7 and to 8 receive instruction in accordance with the conditions to 9 which the registration is subject. 10 (2) That duty is satisfied if the child receives instruction of a kind 11 referred to in section 23 (2). 12 (3) Schooling required by this section is referred to in this Act as 13 compulsory schooling. 14 [5] Sections 22A22D 15 Insert after section 22: 16 22A Obtaining information about children of compulsory school-age 17 (1) Any relevant institution or other person may provide information 18 to the Department of Education and Training solely for the 19 purpose of assisting the Director-General to ascertain: 20 (a) the age, identity or whereabouts of a child who is not 21 receiving compulsory schooling or who is not participating 22 in education, training or paid work as an alternative to 23 receiving compulsory schooling, and 24 (b) the reasons why the child is not receiving that schooling or 25 not so participating. 26 (2) Information may be provided under this section: 27 (a) at the request of the Director-General or without any such 28 request, and 29 (b) anonymously. 30 (3) The Director-General may include in a request for information 31 such information about a child, or a child's family, as may assist 32 the relevant institution or other person concerned to provide the 33 information requested. 34 Page 4
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 (4) A relevant institution has a duty to provide information in its 1 possession or control that the Director-General requests under 2 this section. 3 (5) The authority or duty to provide information under this section: 4 (a) applies despite the Privacy and Personal Information 5 Protection Act 1998 or the Health Records and 6 Information Privacy Act 2002, but 7 (b) is subject to any other Act or law and to client legal 8 privilege. 9 (6) The provision of information under this section in good faith: 10 (a) does not give rise to any liability to civil, criminal or 11 disciplinary action, and 12 (b) is not a breach of professional etiquette or ethics or a 13 departure from accepted standards of professional 14 conduct. 15 (7) The identity of any person who has provided information under 16 this section is not to be disclosed. 17 22B Compulsory schooling undertakings by parents 18 (1) The Director-General may make schooling arrangements with 19 one or more parents of a child that includes a written undertaking 20 by the parent or parents with respect to compulsory schooling for 21 the child (a compulsory schooling undertaking). 22 (2) The arrangements may be made before, during or after a 23 conference under section 22C concerning the child. 24 (3) A compulsory schooling undertaking may, with the agreement of 25 the Director-General, be varied or revoked at any time. 26 (4) A compulsory schooling undertaking is admissible in evidence in 27 any proceedings under this Part. 28 22C Conference of relevant parties to deal with unsatisfactory school 29 attendance 30 (1) If a child is not receiving compulsory schooling, a conference of 31 the relevant parties may be directed: 32 (a) by the Children's Court during proceedings for a 33 compulsory schooling order, or 34 (b) by the Director-General at any time before or after any 35 such proceedings. 36 Page 5
Education Amendment (School Attendance) Bill 2009 Schedule 1 Amendment of Education Act 1990 No 8 (2) The principal purpose of a conference is to ensure that the child 1 is provided with compulsory schooling. 2 (3) A conference is to be conducted by an authorised person 3 appointed by the Children's Court or the Director-General (as the 4 case requires). 5 (4) The following persons are entitled to participate in a conference: 6 (a) in the case of a conference directed by the Children's 7 Court--the parties to the proceedings and any legal 8 practitioner representing them, 9 (b) such persons (including the parents of the child and 10 representatives of relevant institutions wishing to 11 participate) as the person conducting the conference 12 considers appropriate, 13 (c) any other legal practitioner advising a participant in the 14 conference (subject to such conditions or limitations as 15 may be imposed by the person conducting the conference). 16 (5) A conference may: 17 (a) seek to identify and resolve issues in dispute in relation to 18 compulsory schooling for the child, and 19 (b) seek to identify any services whose provision to the child, 20 or to his or her family, would facilitate compulsory 21 schooling for the child, and 22 (c) formulate undertakings, and orders for consideration by 23 the Children's Court, with respect to compulsory 24 schooling for the child. 25 The Children's Court may include in a compulsory schooling 26 order any undertaking or obligation formulated by a conference 27 under paragraph (c). 28 (6) Participants in a conference may disclose to each other such 29 information concerning the child, and his or her family, as may 30 reasonably assist in achieving the purpose of the conference. 31 (7) The authority to disclose information under this section: 32 (a) applies despite the Privacy and Personal Information 33 Protection Act 1998 or the Health Records and 34 Information Privacy Act 2002, but 35 (b) is subject to any other Act or law and to client legal 36 privilege. 37 (8) None of the following are admissible in evidence in any 38 proceedings before any court or other body (other than care 39 Page 6
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 proceedings under Chapter 5 of the Children and Young Persons 1 (Care and Protection) Act 1998): 2 (a) any evidence of anything said or of any admission made in 3 a conference, 4 (b) any document (or copy of a document) prepared in relation 5 to the proceedings of the conference, other than a 6 document containing the terms of an undertaking arising 7 out of the conference. 8 This subsection does not apply to any such evidence or document 9 if the persons in attendance at, or identified during, the 10 conference and, in the case of a document, all persons specified 11 in the document, consent to its admission in evidence. 12 22D Compulsory schooling orders 13 (1) The Children's Court may, on the application of the 14 Director-General, make an order under this section in relation to 15 a child of compulsory school-age who is not receiving 16 compulsory schooling (a compulsory schooling order). 17 (2) A compulsory schooling order may require a parent of the child 18 to cause the child to receive compulsory schooling in accordance 19 with the order. 20 (3) A compulsory schooling order may require the child to engage in 21 compulsory schooling in accordance with the order if: 22 (a) the child is of or above the age of 12 years, and 23 (b) the Children's Court is satisfied that the child is living 24 independently of his or her parents or that (because of the 25 child's disobedience) the parents are not able to cause the 26 child to receive compulsory schooling. 27 (4) If the child completes Year 10 of secondary education as referred 28 to in section 21B, a compulsory schooling order may determine 29 the participation of the child required by section 21B (3) in 30 education or training or in paid work in order that the child may 31 cease compulsory schooling. That determination does not limit 32 other participation that satisfies the requirements of 33 section 21B (3). 34 (5) The following applies to proceedings of the Children's Court 35 under this section: 36 (a) subject to this section and the regulations, Chapter 6 of the 37 Children and Young Persons (Care and Protection) Act 38 1998 applies to and in respect of proceedings relating to an 39 application under this section, 40 Page 7
Education Amendment (School Attendance) Bill 2009 Schedule 1 Amendment of Education Act 1990 No 8 (b) the proceedings may relate to any number of children of 1 the same parent, 2 (c) the Children's Court may make an interim compulsory 3 schooling order pending the final determination of the 4 proceedings. 5 (6) The Children's Court may vary or revoke a compulsory 6 schooling order on the application of the Director-General or of 7 a person subject to the order. 8 (7) The Children's Court, when making a compulsory schooling 9 order or when dismissing an application for or revoking such an 10 order: 11 (a) may accept written undertakings from a parent, and from 12 any other participant in a conference under section 22C, 13 with respect to compulsory schooling for the child, and 14 (b) may recommend that a relevant institution provide 15 services to the child, or to the child's family, in order to 16 assist the child to receive compulsory schooling. 17 (8) A compulsory schooling order (unless sooner revoked by the 18 Children's Court) ceases to have effect: 19 (a) at the end of the period specified in the order during which 20 it is to have effect, or 21 (b) when the child ceases to be of compulsory school-age, 22 whichever first occurs. 23 (9) The following applies if a parent or child fails to comply with an 24 obligation under a compulsory schooling order: 25 (a) in the case of a parent--the maximum penalty for a 26 relevant offence under section 23 (Offence if parent fails to 27 send child to school) is increased to 100 penalty units, 28 (b) in the case of a child of or above the age of 15 years--the 29 child is guilty of an offence and liable to a penalty not 30 exceeding 1 penalty unit (but without the court proceeding 31 to a conviction), unless the child had a reasonable excuse 32 for not complying with the order, 33 (c) the Director-General may enrol the child in a government 34 school (in accordance with section 34) if the compulsory 35 schooling order authorises the Director-General to do so. 36 (10) The Director-General may cause copies of a compulsory 37 schooling order, and any undertaking or recommendation 38 referred to in subsection (7), to be given to such persons as the 39 Page 8
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 Director-General considers to have an interest in the welfare of 1 the child. 2 (11) Section 91 of the Children and Young Persons (Care and 3 Protection) Act 1998 applies to and in respect of an order under 4 this section in the same way as it applies to and in respect of an 5 order under Part 2 of Chapter 5 of that Act. 6 Note. Section 91 of the Children and Young Persons (Care and 7 Protection) Act 1998 provides a right of appeal from an order of the 8 Children's Court. 9 (12) Rules of court may be made under the Children's Court Act 1987 10 with respect to the jurisdiction of the Children's Court under this 11 section. 12 (13) A compulsory schooling order does not have effect to the extent 13 that it is inconsistent with a direction or an order made in relation 14 to the child: 15 (a) by the Director-General under section 26H, or 16 (b) by the Supreme Court in the exercise of its jurisdiction 17 with respect to the custody and guardianship of children. 18 [6] Section 23 19 Omit the section. Insert instead: 20 23 Offence if parent fails to send child to school 21 (1) A parent of a child of compulsory school-age is guilty of an 22 offence if the parent fails to cause the child: 23 (a) to be enrolled at, and to attend, a government school or a 24 registered non-government school, or 25 (b) to be registered for home schooling under Part 7. 26 Maximum penalty: 27 (a) in the case of a first offence--25 penalty units, or 28 (b) in the case of a second or subsequent offence--50 penalty 29 units, or 30 (c) in the case of a parent subject to a compulsory schooling 31 order--100 penalty units. 32 (2) It is a defence to a prosecution under this section if at the relevant 33 time: 34 (a) the child was enrolled at, and attended, a school in another 35 State, Territory or country in accordance with the law of 36 that State, Territory or country, or 37 Page 9
Education Amendment (School Attendance) Bill 2009 Schedule 1 Amendment of Education Act 1990 No 8 (b) the child was enrolled at a government or registered 1 non-government school and participating in distance 2 education provided by the school (unless the 3 Director-General or school had previously directed that the 4 child cease distance education because of the failure of the 5 child to perform the required school work), or 6 (c) the child was participating in an alternative education 7 program approved by the Minister for children unable, for 8 social, cultural or other reasons, to participate effectively 9 in formal school education (unless the Director-General 10 had previously directed that the child resume formal 11 school education because the child was not achieving the 12 education outcomes required of participants in the 13 program), or 14 (d) the child was participating in a program established by the 15 Minister under section 35 (Discipline in government 16 schools), or 17 (e) a certificate of exemption was in force under section 25 in 18 respect of the child and any conditions to which the 19 certificate is subject were being complied with, or 20 (f) the child was attending a school that the parent reasonably 21 believed to be a government school or registered 22 non-government school. 23 (3) It is also a defence to a prosecution under this section if at the 24 relevant time: 25 (a) the child was prevented from attending school: 26 (i) because of some medical condition, or 27 (ii) because of some accident or unforeseen event, 28 and within 7 days after that condition became apparent, or 29 that accident or event occurred, notice of that fact (together 30 with any medical certificate required by subsection (7)) 31 was given to the school, or 32 (b) the child had not been absent from school (excluding any 33 absence referred to in paragraph (a)) for more than 3 days 34 during the 3 months during which the school had been 35 open immediately preceding the absence complained of, or 36 (c) the child was prevented from attending school because of 37 a direction under section 42D of the Public Health Act 38 1991, or 39 (d) a certificate was in force under section 26 exempting the 40 child from attending classes at a government school and 41 Page 10
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 the absence complained of was authorised by the 1 certificate, or 2 (e) the child was suspended from a government school, or 3 (f) the child could not gain admission to any available 4 government or registered non-government school in the 5 State because of the child's expulsion from a school or 6 otherwise, or 7 (g) the child's absence from school was: 8 (i) because of the child's disobedience, or 9 (ii) a consequence of the failure of a person (other than 10 a parent of the child) to honour an undertaking 11 accepted under this Part, 12 and was not the parent's fault, or 13 (h) the child was living independently of his or her parents. 14 (4) Proceedings for an offence against this section may be 15 commenced only by, or with the written consent of, the 16 Director-General. 17 (5) Instead of imposing a fine on a person, the court may make a 18 community service order under section 8 (1) of the Crimes 19 (Sentencing Procedure) Act 1999, and may do so as if a reference 20 in that subsection to a sentence of imprisonment were a reference 21 to a fine. 22 (6) If, in any proceedings for an offence against this section, it is 23 alleged that the child's absence from school is due to a medical 24 condition, the court may (on the application of the 25 Director-General) order that the child submit to a medical 26 examination by a medical practitioner nominated by the 27 Director-General. In that case: 28 (a) the costs of the medical examination are to be borne by the 29 Director-General, and 30 (b) the medical practitioner is not subject to any liability 31 arising only because the medical examination was carried 32 out without the consent of the parent or child. 33 (7) Notice of a medical condition that prevents a child from attending 34 school is required to be accompanied by a certificate from a 35 medical practitioner that states that the child should not attend 36 school because of the condition briefly described in the certificate 37 if the principal of the school has notified a parent of the child that 38 because of the number or duration of past absences a notice must 39 in future be accompanied by such a certificate. 40 Page 11
Education Amendment (School Attendance) Bill 2009 Schedule 1 Amendment of Education Act 1990 No 8 [7] Section 24 Register of enrolments and attendances 1 Insert after section 24 (1): 2 (1A) The register is to contain any notification given (or particulars of 3 any notification given) about the absence of a child from school 4 under section 23 (3) (a). 5 [8] Section 24 (2) 6 Omit "by a Board inspector or other person authorised by the Minister". 7 Insert instead "by a Board inspector or by any authorised person". 8 [9] Section 24 (3) 9 Omit "concerning the enrolment and attendance of children at the school 10 during a specified period.". 11 Insert instead: 12 concerning the following: 13 (a) the enrolment and attendance of children at the school 14 during a specified period, 15 (b) any unsatisfactory school attendance by children of 16 compulsory school-age enrolled at the school. 17 [10] Section 29 Kinds of government schools 18 Insert after section 29 (2): 19 (3) The Director-General may (subject to section 34) determine the 20 eligibility criteria for the different kinds of schools established by 21 the Minister. 22 [11] Section 70 23 Omit the section. Insert instead: 24 70 Definition of "authorised person" 25 In this Division, authorised person includes any Board inspector. 26 [12] Section 76 Consideration by Board of notice of conscientious objection 27 Omit "authorised person (within the meaning of Division 6)" from 28 section 76 (1) (b). 29 Insert instead "authorised person under Division 6". 30 Page 12
Education Amendment (School Attendance) Bill 2009 Amendment of Education Act 1990 No 8 Schedule 1 [13] Section 122 Attendance officers 1 Omit "An officer authorised by the Minister for the purposes of this section, 2 or a police officer,". 3 Insert instead "An authorised person or police officer (an officer)". 4 [14] Section 123 Evidence 5 Omit "section 23 (1) (a)" from section 123 (4). Insert instead "section 23". 6 [15] Section 135 7 Insert after section 134: 8 135 Review of Act 9 (1) The Minister is to review this Act to determine whether the policy 10 objectives of Part 5 remain valid and whether the terms of that 11 Part remain appropriate for securing those objectives. 12 (2) The review is to be undertaken as soon as possible after the period 13 of 2 years from the commencement of the Education Amendment 14 (School Attendance) Act 2009. 15 (3) A report on the outcome of the review is to be tabled in each 16 House of Parliament within 12 months after the end of the period 17 of 2 years. 18 [16] Schedule 3 Savings, transitional and other provisions 19 Insert at the end of clause 2 (1): 20 Education Amendment (School Attendance) Act 2009 21 Page 13
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