Background to the Bill (a short version)
In the midst of all this, there was never any interest expressed in changing anything around home education - home educators are essentially such small fish in the pond of NZ education, and Minister Hipkins' sights were set on bigger things. That does not mean, though, that the process of rewriting legislation leaves us untouched!
You see, in order to carry out all the changes decided upon, a rewrite of the legislation was inevitable. At the same time, the government proposed to tidy up the legislation by putting all the important matters around education in one place, and to "modernise language, correct errors, address inconsistencies..and remove spent and redundant provisions." The Education and Training Bill, which once passed will become an Act, replaces the Education Acts 1964 and 1989, parts of the State Sector Act 1988, parts of the Education (Update) Amendment Act 2017, creates amendments to a huge number of other Acts (there's an entire attached Schedule devoted to those amendments), and replicates provisions from recent reform Bills (Education - Vocational Education and Training Reform - Bill, and Education - Pastoral Care - Amendment Bill), and is expected to also replace the Industry Training and Apprenticeships Act 1992.
Clause 37 - replaces Sect 21 of the 1989 Act - Exemptions
Clause 37 (proposed):
Long-term exemptions from enrolment
(1) The Secretary may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 34 if the Secretary is satisfied that the student--
(a) is to be taught at least as regularly and well as in a registered school; or
(b) is to be taught at least as regularly and well as in a specialist school or a special service (if the student would otherwise be likely to need special education).
(2) An exemption certificate granted under this section must state why it was granted.
(3) The Secretary may revoke an exemption certificate.
(4) However, the Secretary may revoke an exemption certificate only if the Secretary--
(a) has made reasonable efforts to get all of the relevant information; and
(b) has considered a report on the matter from the Chief Review Officer; and
(c) is not satisfied under subsection (1).
5) If the Secretary thinks any student to whom an exemption certificate applies to would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 36.
(6) An exemption certificate expires when the person to whom it applies turns 16 or enrols at a registered school, whichever happens first.
(7) A certificate continues in force until it is revoked or expires.
Compare: 1989 No 80 s 21
The new version is obviously a lot shorter, but that is not a problem in itself. An update of wording, and removing Subsection 9 which is no longer relevant is entirely appropriate.
But there is one KEY issue here - in fact two issues, but they are related:
1) The wording of Subsection 1 says simply "the Secretary" rather than "designated officer" as per Section 21. Why does this matter? We all know the Secretary doesn't personally carry out everything assigned to him by the Act - his/her staff in the Ministry do. But it is important here because of the way in which exemptions are processed by regional offices (more on this below), but also because of the most important matter, which is:
2) They have completely omited all right of appeal if an exemption is declined!!
In regards to my first point above, if the Secretary grants an exemption, then it makes no sense to appeal to the Secretary, does it? But given that the Secretary does NOT grant exemptions personally, then it is logical to appeal to him/her in the event that staff act inappropriately in processing an application. Without this right, there is NO effective recourse against regional offices who act improperly. Let me explain further....
Section 21 (existing):
Long term exemptions from enrolment
(1) An employee of the Ministry designated by the Secretary for the purpose (in this section and section 26 referred to as a designated officer) may, by certificate given to a person’s parent, exempt the person from the requirements of section 20,--
(a) on the parent’s application; and
(b) if satisfied that the person--
(i) will be taught at least as regularly and well as in a registered school; or
(ii) in the case of a person who would otherwise be likely to need special education, will be taught at least as regularly and well as in a special class or clinic or by a special service.
(2) A certificate under subsection (1) continues in force until it is revoked or expires under this section.
(3) If a designated officer refuses to grant a certificate under subsection (1), the applicant parent may appeal to the Secretary who, after considering a report on the matter from the Chief Review Officer, shall confirm the refusal or grant a certificate.
(4) The Secretary’s decision is final.
(5) Every certificate under subsection (1) or subsection (3) shall state why it was given.
(6) Subject to subsection (7), the Secretary may at any time revoke a certificate under subsection (1) or subsection (3).
(7) The Secretary shall not revoke a certificate under subsection (1) or subsection (3), unless, after having--
(a) made reasonable efforts to get all the relevant information; and
(b)considered a report on the matter from the Chief Review Officer,--
the Secretary is not satisfied of whichever of the grounds specified in subsection (1)(b) the certificate was originally granted on.
(8) If the Secretary thinks any person exempted under subsection (1) would be better off getting special education, the Secretary may revoke the certificate and issue a direction under section 9.
(8A) A certificate for the time being in force under subsection (1) or subsection (3) expires when the person to whom it applies turns 16 or enrols at a registered school, whichever happens first.
(9) Every certificate of exemption under section 111 of the Education Act 1964 that was in force on 30 September 1989 shall be deemed to have been granted--
(a)on the ground specified in subsection (1)(b)(i) if it was in fact granted--
(i)before 20 July 1987, under section 111(4)(a) of the Education Act 1964; or
(ii)after 19 July 1987, under section 111(3)(a) of that Act; and
(b)on the ground specified in subsection (1)(b)(ii) if it was in fact granted--
(i)before 20 July 1987, under section 111(4)(b) of the Education Act 1964; or
(ii)after 19 July 1987, under section 111(3)(b) of that Act;--
and may be revoked under this section accordingly.
Why this is SO important
This means that if one has a problem with anything happening in a regional office, one is required to complain to that office's Director. There is no higher power to complain to or seek action from in most matters, unless legislated otherwise. If you attempt to complain to the national office about even very significant matters, you are directed back to the Regional Director. Trust me - been there, done that, plenty of times.
Let me provide a couple of examples of the kinds of scenarios that have or might occur where an appeal would be appropriate:
1) A family, new to the country, submitted 3 applications without fully understanding the requirements. The Ministry met with this family several times and wanted to see evidence of previous work completed (outside the scope of an application, as an application is future-based, not past-based). The family subsquently acted on advice and withdrew the applications, then worked on new ones that did meet the requirements, which they submitted. Despite the fact that natural law requires new applications to be treated on their own merits, the office concerned immediately responded by asking for a meeting and samples of work. When the family declined to do this for very good reasons, but invited the Ministry to ask for any further information they needed by email, the response of the Ministry was to just decline the applications, even though regional staff admitted that the applications themselves met the requirements. This decision was appealed, and subsequently overturned, with the exemptions being granted.
2) Another family whose case is currently being appealed applied for an exemption and was declined despite the application meeting the requirements, due to the opinions of certain professionals who wrote to the Ministry with the agenda of preventing the exemption, but whose "concerns" and letters were never disclosed to the parents nor were they given the opportunity to respond.
It's important also to note that when an appeal is filed, the wording of the current law requires that a report on the matter from ERO be considered - this means that ERO reviews all the paperwork, including the application, but does not visit the family, and writes a report with their own conclusion about whether the exemption should be granted or not. ERO is independent of the MoE, so this process allows for independent review, which is also very important!
This Right of Appeal MUST be protected!
So, how do we change this? By making submissions! Please write one yourself, and get as many people as you can think of to do the same. Encourage those in your local home education circles to read this and make their own submissions too.
Note: I've been asked what the "agenda" is in them removing the right of appeal. I don't know that there is one - it could be simply an oversight - I've noted a number of errors in the Bill as I've read it's entire 660 pages - or someone thinking it wasn't "logical" to have an appeal of the Secretary's decision to the Secretary after they updated the first part of the wording. The people drafting this Bill are extremely unlikely to have any intimate knowledge of home education matters. However, we can't know for sure, so lots of submissions are important.
The wording that should be in the Bill is much as is currently in the Education Act 1989 (see above):
Subsection 1 should state "An employee of the Ministry designated by the Secretary for the purpose may..."
(?) If a designated officer refuses to grant a certificate under subsection (1), the applicant parent may appeal to the Secretary who, after considering a report on the matter from the Chief Review Officer, shall confirm the refusal or grant a certificate.
Another matter to consider:
I propose a way around this that makes a lot of sense (I think - I'd love to hear your thoughts in the comments below or Contact Me):
Add a subsection to Clause 37 that reads along these lines:
(?) An exempt student who has attained the age of 15, may engage in full or part time employment or be enrolled in any alternative or tertiary education programme for which they are eligible on the same basis as a student who has been exempt under Clause 38, if--
(a) the parent is satisfied that the student has completed their home education to an appropriate level; and
(b) the student has a satisfactory offer of employment or access to training or alternative education
This would put the control back in the hands of the family, formalising their right to make appropriate decisions for their older students (which the MoE often informally tells parents they can do), and removing barriers. The wording above also prevents students of that age simply "doing nothing" as it is conditional upon the parents satisfaction and a suitable job or further training option being in place. And it would allow us to stop having to battle the ELX issue for so many students. I'll post about this in more detail separately HERE, but wanted to raise this point in this post for those who will move right on to making submissions without reading any other posts.
I need to know the thoughts of the wider community on this before I can make a submission along these lines myself, as a representative of the wider community, so please get in touch! And of course, if you are in agreement, consider including this in your own submission.
Making a Submission
- A submission can be made online or by mail. Online is likely the better option. You can make a submission here: https://www.parliament.nz/en/pb/sc/make-a-submission/document/52SCEW_SCF_BILL_93294/education-and-training-bill
- Information on how to make a submission can be found here: https://www.parliament.nz/en/pb/sc/how-to-make-a-submission/
- This document gives specific guidance and includes a "template": https://www.parliament.nz/media/2019/makingasubmission2012-2.pdf
If you wish to review other sections of the Bill that may be of concern before making a submission, read my summary of sections of interest here: http://www.cynthiahancox.com/information/sections-of-law-of-interest-to-home-educators-1
Your submission should:
- Be focussed on the Bill - a copy of which can be found HERE
- First, state your general position on the Bill, whether you support or oppose the measure being proposed, and give your reasons.
- Give detailed comments on clauses that are of concern to you. If you feel certain clauses need to be changed, say so, and give your reasons. You can suggest wording for clauses you think ought to be changed. Using clauses as numbered in the Bill is a good way to organise your submission
In your covering letter or on the webform, you will include your personal information, and also state whether you wish to make an oral submission before the committee.
I have written a new post which gives simple instructions on submissions and includes examples HERE