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Urgent Action Needed: Education and Training Bill

1/28/2020

26 Comments

 
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Currently before parliament is the Education and Training Bill which completely rewrites and replaces (almost) all existing legislation around education from ECE through to tertiary. If you do nothing else, please, please read the information below about Clause 37, which replaces the 1989 Act Section 21 (ie long-term exemptions from enrolment), and consider making a submission - this is far too important to ignore! Deadline is 14th February 2020.

I will outline the general purpose and history of the Bill. In a separate post I will provide information on all the sections of it that are relevant to home educators (some of which you may wish to comment on in your submission). For this post, however, I will focus on the most vital section - Section 37 and why submissions need to be made (and how to do that).
If you're short on time, please read the sections titled "The Issues," "Another Matter.." and "How to Make a Submission," then read whatever else you need in order to take action.

Background to the Bill (a short version)

Since being elected, Education Minister Chris Hipkins has been on a mission to overhaul the entire education system. He has intiated reviews of everything from ECE to primary to secondary, including NCEA, tertiary including polytechs, ITOs, Tomorrow's Schools (which drove the 1989 legislation) and more. Pretty much nothing is untouched by the overhaul and reviews, and over the last couple of years there has been a series of summits, public meetings, consultation processes etc etc. 

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. 

The progress of the Bill can be seen here: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_93294/education-and-training-bill. Currently it is before the Select Committee, and is open for submissions until Feb 14th 2020. Folks, that means we have 28 days to act from the time of writing this!

Clause 37 - replaces Sect 21 of the 1989 Act - Exemptions

Here is the full wording in the Bill of Clause 37, which will replace Section 21 in the existing Act, governing the granting of (home education) exemptions and related matters. I'm going to put Section 21 next to it so you can easily compare wording:
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 Issues

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

The way in which exemption applications are processed by the Ministry has evolved over time. When my kids were small, there were 5 regional offices processing exemptions, usually by one key person in each office. Now there are 11 regional offices handling them, and in some offices that work is spread among up to 20 or so staff members. Naturally, this can lead to quite a bit of variance in how it's done. On the plus side, the writing of a Home Education Policies and Procedure's Manual for Ministry staff in 2018 has brought greater consistency, but there remains a big problem:
All regional offices act completely autonomously, under their Regional Director. The National office can advise but not direct the regional offices in any sense. 

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.
In general, regional offices do a good job with most applications, with some minor or not-so-minor issues, but they can usually be dealt with regionally. However, from time to time there arises a case where the regional office declines an exemption without appropriate cause, or without giving the parents appropriate opportunity to respond to whatever they see as the issue. The ONLY way to get the actions of that office in such a case reviewed and overturned is by the right of appeal to the Secretary. This process is also a very essential method of providing accountability and preventing regional offices from being a "law unto themselves" and just doing as they please.

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. 
The appeal process in such cases not only gives the parents the opportunity to gain the exemption which may have been unfairly denied, but it also creates a situation where particularly troublesome actions or processes of regional offices that might have occurred and be relevant can be brought to the attention of senior staff at the national office, and one can hope that further discussion and training takes place so there is no repetition. Without the right of appeal, neither of these families would likely gain their exemptions, as simply reapplying would not overcome the issues, which weren't with their applications as such.
On the other side of the coin, the appeal process also protects regional Ministry staff. If they feel, for whatever reason, that they are unable to "be satisfied a child will be taught as regularly and well" (especially for reasons that are less straightforward than usual), then they know that in declining an exemption, the potential appeal process would essentially "kick the decision up the ladder" and more senior national office staff would be responsible for making the ultimate decision.

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!

At the end of the day, it's up to all of us as home educators and those passionate about home education not to let this matter slide! My own kids are grown, but this will affect my grandkids, as well as the families I regularly advocate for. Maybe it won't directly affect you - but what about all those who come behind?

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..."
And 
​(?) 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:

Clause 38 deals with Early Leaving Exemptions (aka ELX) for 15 year olds. It has long been an issue for home educated students who wish to move onto alternative training or a job at 15 that they generally cannot access ELXs, preventing them taking part in any funded training or full time employment. 

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):

Proposal: 
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
In preparing a submission, you can type up or write your actual submission in a separate document (recommended), which you will then upload (or post with a cover letter). In your submission, you should include your name and the details of the Bill you are submitting on, but do NOT include personal info such as your address, phone number or email, as the submission will be published publically once it has been read by the Select Committee. Your personal details DO need to be included either in a cover letter, or filled in on the website when you make a submission. 

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

Deadline for Submissions is 14th February 2020. Act now!

26 Comments

Education Bill Submissions - How To and Examples

1/27/2020

4 Comments

 
Since I wrote about the need for submissions on the Education and Training Bill, I've been asked by a number of people to supply example submissions to help them with writing their own, and more info on how to easily make a submission. So here we go.....
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The Steps to Making a Submission

1) Think about what you want to include in your submission. What points of the Bill are of concern to you, and what do you want changed? Do you have any suggested wording? I have written HERE and HERE and HERE about the various aspects of the Bill that may be of interest to you in regards to submissions. The first article covers the two most important points (I believe), but do have a read of the others and see if there is anything else that concerns you. (The first article and the parliament link below also have more info on the submissions process etc.) 

2) Write up your thoughts and comments. I recommend you do this in Word or similar, and convert it to a pdf. You do have the option of typing your submission directly into the online form, but then you will not have your own copy of it, which could be useful, and it's harder to think it through and refine it first. So I believe it's better to write it up on your computer, and then upload the file when you put the submission in as below.

There is a standard format to submissions:
  • They should clearly identify the Bill you are submitting on - in this case "Education and Training Bill 193-1"
  • You should open with a statement about whether you support or oppose the Bill as a whole, and why
  • You can then add specific contents. It is sensible to use headings to identify the sections of the Bill you are commenting on - I use the Subsection numbers and headings from the Bill. 
  • If you wish, you can include specific suggestions on wording, but you should definitely make clear your recommendations and reasons for them. 
  • Remember NOT to include your personal contact info in the actual submission, as they will be published publically once they have been read by the Select Committee. The place to put your contact info is in the webform when uploading it. 
3) Once you have you submission ready to go, to go the parliament website here: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_93294/education-and-training-bill and click on Make a Submission. You will then be guided through entering your personal info, and uploading your submission, through to actually submitting it all. Your submission should simply have your name on it, and the organisation you represent if applicable. I have not included a name in the examples below - you can add this in if you wish below the Bill title - eg "Submission by Jane Smith"

One of the first questions you will be asked is whether you wish to make an oral submission before the Select Committee. If you do so, it does add strength to your overall submission, but even if you don't think you wish to make an oral submission, I would encourage you to tick YES, and here's why: 
  • You will be contacted later about making an oral submission. You can always change your mind then. 
  • There is another option which may be possible - to nominate someone to represent you in the oral submissions. This would give people the option of nominating a representative of homeschooling such as myself, Todd Roughton, regional group leaders or other persons who may be able to do a good job of presenting on behalf of the wider home educating community. If they are nominated by many people, then they will ususally be given additional time to speak and present their case. There is no guarantee this will happen, but it's valuable if it does. 
You can, if you prefer, send a submission via mail - info at the link above. In that case, you will need to use a covering letter to provide your personal info, separate to the submission itself. 

Example Submissions

Ideally, your submission should be in your own words and reflect your personal views. However, it is ok to borrow someone else's words if they say what you want to. To make it easier on those who need it, I have put together two example submissions (with somewhat different wording to my own actual submission). The first covers only the issue of the right of appeal, and the second covers that and the ELX issue. If you have any other issues you wish to discuss, then just follow the same format and add the other parts. And of course, feel free to change the wording of either of these to suit you, or just use them as a guide/base on which to write your own. Click on the titles/links below to download these examples. They are in Word for ease of amending/typing into. If you have difficulty with these, please contact me for an alternative version. 

Sample Submission 1 - appeals only

Sample Submission 2 - appeals and ELX

4 Comments

Sections of the Bill of Interest to Home Educators

1/17/2020

3 Comments

 

Education and Training Bill

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This post summarises the specific pieces of legislation being introduced or continued under the Education and Training Bill, which will become the new Act once enacted in parliament, which particularly affect Home Educators or may be of particular interest to them and other parents I talk to (not all home educators - some considering this as an option, or dealing with difficult circumstances). I intend to create another post about other pieces of legislation of importance to home educators. The Bill is huge, so this is not exhaustive, but an attempt to point out the key areas to be aware of, whether for reference, or to consider if you wish to include any of them in any submission on the Bill you may choose to make. The full Bill can be read here: 
​http://www.legislation.govt.nz/bill/government/2019/0193/latest/LMS170676.html - you can use the table of contents to click on any section and go directly to it.
  • By referring to the information below, hopefully you can find out which parts of the Act apply to a particular issue, and then look them up for yourself.
  • Sections in blue below are directly copied/pasted from the Bill. 
  • I will highlight in red the word Submission at any points where I think parents may wish to consider whether they see the wording as problematic.
  • Under each section in the Bill, where relevant, it tells you which parts of previous Acts compare to the new wording. You can look each of those acts up on the legislation website. Eg under Section 35 copied below it says: "Compare: 1989 No 80 s25" this means Education Act 1989, version 80 (latest), Section 25. If you searched on the website for Education Act 1989, it would be the top result.
  • All references to state schools also applies to state integrated schools, unless otherwise specified.

Section 34 - Students 6-16 must be enrolled in school

This is pretty much a continuation of Section 20 of the previous Act, with a little rewording. It says essentially:
  • Every student from their 6th birthday to 16th birthday must be enrolled in a registered school
  • Before a student’s seventh birthday, the student is not required to be enrolled at any school more than 3 kilometres walking distance from the student’s residence. (Also note Section 42 below)
  • The above do not apply to international students
Of note: refer to the definition of "walking distance" in the interpretation section at the beginning of the Bill/Act

Also note Section 224 for offences/fines related to this. Fines can only be imposed upon conviction in a court of law. 
And Sections 228-229 set out related matters if such proceedings occur - such as the burden of proof being on the parents.​

Related: Section 60-64 deals with restrictions on enrolment in a primary school, including that students cannot be enrolled before their 5th birthday, maximum age, and also policies around cohort entry.

Section 35 - Enrolled students required to attend

35 Students of registered schools required to attend whenever schools are open(1) Except as provided in this Act, a student is required to attend a registered school whenever it is open if the student--
(a) is required to be enrolled at a registered school:
(b) is aged 5 years and is enrolled at a registered school.
(2)​ A board must take all reasonable steps to ensure that the school’s students attend the school when it is open.
(3) For the purposes of this section, a student attends a school on any day if, on the day,--
(a)it has been open for instruction for 4 hours or more; and
(b)the student has been present for 4 hours or more when it was open for instruction.
Compare: 1989 No 80 s 25
Note Section 225 for offences/fines related to attendance. Fince can only be imposed upon conviction in a court of law. And Sections 228-229 set out related matters if such proceedings occur - such as the burden of proof being on the parents.

Section 36 - Special Education Enrolment

This section sets out the ability of the Secretary and parent to agree, or the Secretary to direct, regarding the special education of a child that they be enrolled in a particular State or specialist school, or get help from a special service. 

Submission? Of concern is subsection 1(b) which puts the onus on the parent to "ensure the student has education or help from a special service". How often are children not getting the help they should be; this wording of the law makes it the parent's problem, not the school's or the MoE's. 

​Note: this is not about home educated students as such, but I'm including it here because so many of the parents I talk to have children with special education needs that are not being met at school (thus considering home education), and they want to know their rights. 

Also note Sections 32 and 33 which set out the right of all domestic students to free enrolment and free education at any State School from the age of 5 to 19, and to attend during all the hours it is open for instruction. It also spells out the right of children with special education needs to have the same rights - preventing schools from limiting the hours that they attend.

Also note the related Section 45, which allows a reconsideration (ie appeal) of directions given under this section.

Section 37 - Long term exemptions from enrolment

This is the key piece of legislation governing the ability to home educate. I've written HERE about issues with the wording of the Bill. PLEASE make a Submission if you agree with me!

37Long-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

Section 38 - Exemptions for students who have turned 15

This section deals with "Early Leaving Exemptions". I've written about this specifically HERE and HERE - and proposed a possible Submission.

Section 39 - Effect of exemption under 37 or 38

This section states that a student with an exemption does not have to be enrolled in any school.

Section 41 - Exceptions to attendance because of well-being or transition plans

This section allows for:
  • A plan of reduced hours for well-being needs identified in writing by a medical practitioner or psychologist 
  • A transition plan for introducing a child of 5 more slowly to school
  • Neither of the above can be for longer than 6 months, and they cannot be renewed or extended
  • Attendance requirements do not apply to students who are enrolled only for a part-time program under the secondary-tertiary program or multiple-timetable arrangement.
Again, this section does not directly apply to home educated students, but may be of interest/relevance to some parents.
​Parents who have concerns about the wording or time limits on these segments might like to consider a submission

Section 42 - Other Exemptions from Attendance

If a student is under 10, and the walking distance between their residence and school is more than 3km, or they are over 10 and the walking distance is more than 5km, they can be exempted from attendance at a school. Note, however Section 44, which allows the Secretary to direct these children to be enrolled in a distance school (ie Te Kura). Section 220 sets out offences/fines for failing to comply with a direction to enrol such a student in a distance school. 

​The Secretary can also grant an exemption "if it is sensible to do so for some other reason" but for a period of no more than 7 school days. This is pretty pointless, as a principal has the power under Section 43 to exempt a student for up to 5 days if the absence is "justified."

Sections 46-47 Attendance Officers and Constables

All parents should teach their children this information and their rights, and how to respond if questioned!
Section 46 requires a school board to take all reasonable steps to ensure the attendance of students enrolled in their school/s, and gives them the power to appoint an Attendance Officer for this purpose. 

Section 47 sets out the powers of attendance offices and constables:
  • To detain any person who appears to be between 5 and 16 and who appears to be absent from school
  • To question that person about their name, address, the school they attend and its address, and why they are absent
  • Before they can do either of these things, they MUST produce a badge (if police) or evidence of appointment (ie a certificate sealed by a board who appointed them)
  • If not satisfied that the person has a good reason for being absent, they may transport that child to their home or the school they think they are enrolled in
  • An attendance office, principal, the Secretary or a person appointed by the board or the Secretary may file charging documents, conduct prosecutions and take any other proceedings under this Part (ie re truancy)
Section 223 sets out an offence/fine for deliberately obstructing or interfering with an attendance officer exercising their powers, payable on conviction in a court of law.

Sections 48-49 Release from Tutition

These sections deal with parent's right to have their children excluded from religious or health curriculum teaching on various grounds. 

Section 50 Release from Tuition for Outside Tuition or to Leave Early

This section is of particular interest because it sets out the grounds on which a principal may allow a student not to attend for an agreed period, in order to recieve "acceptable" tuition outside of the school. This is a replacement of Section 25B of the current Act, which I have written about in this article:   http://www.cynthiahancox.com/information/truancy-and-the-home-educator under the heading Principal's Discretion. This has sometimes been applied by principals to allow parents to home educate their children part-time, or to do so while waiting on an exemption. Nothing in the new wording prevents it being applied in the same way, though of course that is not the intention of this segment of legislation. 

The section also covers the ability of a school to allow a student to leave early on a particular day if there are good reasons, and they have attended for 4 or more hours (which gets marked on the roll as full time attendance). 

Section 52 Restrictions on employing school-age children

Note especially 1 (d) for exempt students, or (c) for Te Kura students. 
(1) An employer may not employ any person under the age of 16 years--
(a) within school hours; or
(b) if the person is a student participating in a secondary–tertiary programme and the employment would interfere with the person’s ability to undertake the secondary–tertiary programme; or
(c) if the person is enrolled at a distance school and the employment would interfere with the person’s ability to do the work of the course in which the student is enrolled; or
(d) if the person’s parent is granted an exemption certificate under section 37 and the employment would interfere with the person’s ability to be taught as well and regularly as in a registered school; or
(e) if the employment would--
   (i) prevent or interfere with the person’s attendance at school; or
  (ii) in the case of a person who is a participating student, interfere with the person’s ability to undertake their secondary–tertiary programme; or
  (iii) if the person is enrolled at a distance school, interfere with the person’s ability to do the work of the course in which the person is enrolled.
​
(2)Subsection (1) does not apply if the person provides the employer with a certificate of exemption or other satisfactory evidence that verifies that the person is exempted (otherwise than under section 37(1)) from enrolment at any school.
Compare: 1989 No 80 s 30(1), (2)
Also note Section 221 for offences/fines related to this.

Sections 53-58 Religious Instruction and Observances at primary and intermediate schools

These sections set out restrictions on religious instruction in all State schools (which includes all state-integrated schools). How the reader views these restrictions will depend on your own particular philosophy around this, but I include it here for those who will find it of interest. 

There were no such restrictions under the 1989 Act. 
To summarise the main points:
  • A school board may determine that their buildings can be used for the purpose of religious instruction or observances in a manner they approve
  • Any classroom or school as a whole may be closed during the school day for a total aggregate maximum of 60 mins per week, but not exceeding a total of more than 20 hours in a school year, for the purposes of religious instruction or observances conducted by voluntary instructors approved by the board 
  • Additional time may be approved by the Minister if the majority of the school's parents want it, and the additional religious instruction is not detrimental to the normal curriculum of the school
  • Students can only attend religious instruction if their parents have confirmed in writing that they wish them to take part or attend
  • Teachers may be released for up to 30 mins a week to take part in the school's religious instruction and observance, but they cannot be in any way influenced to do so
See also Section 93, which states that all teaching in state (and state integrated) primary and intermediate schools must be secular.

The rights of preservation of the special character of some state integrated schools is set out in Schedule 6 (so a Christian school can, for example, still include religious examples etc in their general teaching and instruction, and has the right to preserve the special character of the school, including religious instruction and observances that may be part of their usual program).
Those concerned about these restrictions may wish to make a submission. 
Note that much of the wording of the Bill about this was borrowed from the 1964 Education Act. Also, there is no wording around restrictions on religious instruction or observance in secondary schools. 

Section 66 Restrictions on Enrolment at Distance School

This section sets out that the Minister, by notice in the Gazette, can set out criteria for enrolment in a distance school (currently Te Kura is the only such distance school). It also discusses the right of the Secretary to direct some children to be enrolled etc. 

Students cannot be enrolled in the distance school unless they fit the criteria set out by the Minister (which is, essentially, what is laid out in the Enrolment Policy for Te Kura), or unless directed under Section 32.

Section 67 also sets out that some domestic students will have to pay fees for distance education, including students over 16 who are not enrolled in a school, and students with a Section 37 exemption (ie homeschoolers). This does not preclude the Minister from setting the fees at $0 as is currently the case for 16-19yos.

Section 72 - Secretary May Direct Students Attend Particular Schools

This section gives the Secretary power to direct that a student be enrolled in a specific school (including distance school), after consulation with parents, the school board, and the chief executive of relevant organisations. This can be used in a number of different ways, including overriding enrolment schemes under Section 71, or getting an excluded student enrolled into another school etc.

Sections 74-85 Stand-downs and Suspensions, Explusion

These sections deal with stand-down, suspension, exclusion or expulsion of a domestic student from a state school or state-integrated school. 

Sections 86-100 - Teaching, Learning and Well-being

These sections cover a range of matters. Of particular possible interest:
  • Section 86 sets out that the Minister can publish a description of foundational curriculum policy statements, national curriculum statements and national performance measures, covering things like what areas of knowledge and understanding are to be covered, and what skills taught, during the school years, and what level of achievement is desireable, and how this will be measured etc.
  • The board of a state school must consult at least every two years with the school community about the content of the health curriculum (Section 87)
  • Section 93 states that all teaching in state primary and intermediate schools must be secular.

Section 199 - Private Schools

This affects home educators, because there has long been an issue where the Ministry questions groups of home educators who come together for various purposes, as to whether they "may be operating as a private school."
199 Secretary may require application for registration of schoolThe Secretary may require the managers of a private entity that is not registered under section 200 to apply for its registration as a private school under that section if the Secretary considers that the entity is operating as a school, whether or not any exemption certificates issued under section 37 are held in respect of any or all of the students being taught there.
Compare: 1989 No 80 s 35B
Related is Schedule 7, Section 2:
Criteria for registration as private school
The criteria for registration as a private school are that the school--
(a)has premises that are suitable, as described in clause 3; and
(b)usually provides tuition for 9 or more students aged 5 or over but under 16; and
(c)has staffing that is suitable to the age range and level of its students, the curriculum taught at the school, and the size of the school; and
(d)has equipment that is suitable for the curriculum being delivered or to be delivered at the school; and
(e)has a curriculum for teaching, learning, and assessment and makes details of the curriculum and its programme for delivery available for parents; and
(f)has suitable tuition standards, as described in clause 5; and
(g)has managers who are fit and proper persons (as described in clause 6) to be managers of a private school; and
(h)is a physically and emotionally safe place for students.
Compare: 1989 No 80 s 35C

And Section 230 sets out related offences/fines.
Also note Section 593 (in Bill or below) which states powers of entry into a premise where an unregistered private school is suspected of being.

Sections 202-215 - Dispute Resolution

Until now, any parent having a serious complaint or dispute with the school has had to take to the school's Board of Trustees, often with unsatisfactory results. Under the new legislation, there will be a Dispute Resolution Panel consisting of local community members and expert members for the purpose of resolving serious disputes - though parents must still first give the school an opportunity to resolve the dispute. These sections also set out the dispute resolution processes,  the types of outcomes, and when they are binding or non-binding. 

Part 4: Tertiary and Vocational Education and Training

There are massive changes happening within the tertiary and vocational sector! These are not brought about by the new legislation, but rather the new legislation is written to support those changes that have been decided upon, but which parents should be aware of. Including:
  • Regional polytechnics will not longer be independant entities, but become subsidiaries of the new over-arching New Zealand Institute Skills and Techology (NZIST) (Sections 300-322) 
  • Industry Training Organisations will be replaced by Workforce Development Councils (Sections 351-363 cover this and Apprenticeships etc)
  • NZQA and TEC will continue
This part of the legislation covers everything from the registration of private training establishments, to the rules around NZIST, WDCs, NZQA, TEC, student loans and allowances, student fees, apprenticeships etc etc. 

It also sets out the objectives of the tertiary education system, some of the wording of which is significant and may be useful:

233 Objectives of Part 4(1) The objectives of this Part are to foster and develop a tertiary education system that--
(a) fosters, in ways that are consistent with the efficient use of national resources, high-quality learning and research outcomes, equity of access, and innovation; and
(b) contributes to the development of cultural and intellectual life in New Zealand; and
(c) responds to the needs of learners, interested persons or bodies, and the nation, in order to foster a skilled and knowledgeable population over time; and
(d) contributes to the sustainable economic and social development of the nation; and
(e) strengthens New Zealand’s knowledge base and enhances the contribution of New Zealand’s research capabilities to national economic development, innovation, international competitiveness, and the attainment of social and environmental goals; and
(f) provides for a diversity of teaching and research that fosters, throughout the system, the achievement of international standards of learning and, as relevant, scholarship.
(2) The Minister, TEC, and NZQA must take these objectives into account when making decisions under this Part.
Compare: 1989 No 80 s 159AAA
Of particular interest to home educators is the rules around enrolment.....

Section 236 - Enrolment of Students

This section sets out the eligibility of students to enrol in a tertiary education program. The full wording is below, but note that any student who is eligible is entitled to be enrolled. 
236 Enrolment of students
(1) A person is eligible to be enrolled as a student at an institution or in a programme or training scheme provided by the institution if, and only if,--
(a) the person is a domestic student or the institution’s council consents; and
(b) the person holds the minimum entry requirements for the programme or training scheme as determined by the institution’s council; and 
(c)the person has attained,--
  (i)if the institution has fixed a minimum age for enrolment at the institution, the fixed age; and
  (ii)if the institution has fixed a minimum age for enrolment in the programme or training scheme, the fixed age.
(2) Subsection (1)(b) and (c) do not apply to a person if--
(a)the person has attained the age of 20 years; or
(b)the council of the institution is satisfied that the person is capable of undertaking the programme or scheme concerned.
(3) An eligible student who applies for enrolment in a programme or training scheme at an institution is entitled to be enrolled in that programme or training scheme.
(4) However, the council of the institution--
(a)may determine the maximum number of students that may be enrolled in a particular programme or training scheme at the institution in a particular year if the council is satisfied that it is necessary to do so because of insufficiency of staff, accommodation, or equipment:
(b)may, in the selection of the students to be enrolled, give preference to eligible persons who are included in a class of persons that is under-represented among the students undertaking the programme or training scheme if--
  (i)the maximum number of students who may be enrolled at an institution in a particular programme or training scheme in a particular year is determined by the council under paragraph (a); and
  (ii)the number of eligible students who apply for enrolment in that programme or training scheme in that year exceeds the maximum number so determined.
(5) Nothing in this section prevents an institution’s council from refusing to permit, or from cancelling, the enrolment of a person as a student at the institution, or in a particular programme or scheme at the institution, on the ground that--
(a)the person is not of good character; or
(b)the person has been guilty of misconduct or a breach of discipline; or
(c)the person is enrolled for full-time instruction at another institution or at a school; or
(d)the person has made insufficient progress in the person’s study or training after a reasonable trial at the institution or at another institution.
(6) The chief executive of an institution that provides approved programmes of pre-service teacher training must ensure that the appropriate authorities of the institution liaise with the appropriate authorities of other institutions that provide the programmes to establish common requirements to govern the selection and enrolment of people in those programmes.
(7) In this section,— eligible student, in relation to a programme or training scheme at an institution, means a person who is eligible to be enrolled as a student in that programme or scheme
year means a period of 12 months commencing on 1 January.
Compare: 1989 No 80 s 224

Sections 434-446 Education Review Office (ERO)

This section sets out the powers of the Education Review Office. 434 (3) states specifically the application to exempt home educated students:
434 (3) Sections 439 to 442 apply in relation to education services provided to persons who are exempted from the requirements of section 34; and, for the purposes of this subsection and sections 439 to 442, education service is to be construed in that context and the meaning it has in the definition of the term applicable service in section 10 does not apply.
Compare: 1989 No 80 s 324
Sections 439-442 sets out the specific provisions concerning students with enrolment exemptions (note they do not have power or entry into a private home):

439 Functions of Chief Review Officer
The Chief Review Officer--
(a) may carry out reviews (which may be general or in relation to particular matters) of the education services provided to persons exempted from the requirements of section 34 and must carry out the reviews when directed by the Minister to do so; and
(b) must administer the preparation of reports to the Minister on the undertaking and results of the reviews; and
(c) must give the Minister any other assistance and advice on the education services provided to persons exempted from the requirements of section 34 that the Minister requires.Compare: 1989 No 80 s 328A

440 
Review officers
Review officers designated under section 436 are also review officers for the purposes of section 439, and sections 441 and 442 apply to them accordingly.
Compare: 1989 No 80 s 328B

441 
Powers of review officers for purposes of section 439(1) 
For the purposes of enabling any functions of the Chief Review Officer to be performed for the purposes of section 439, any review officer may, at any reasonable time and having given reasonable notice,--
(a) conduct inspections or inquiries:
(b)require a parent or other person to produce, and permit the review officer to make copies or extracts of, documents or information relating to--
  (i)the education service the parent or other person provides; or
  (ii)people to whom the education service is (or has been) provided.
(c) require a parent or other person to make or provide statements, in the form and manner that is reasonable in the circumstances, about any matters relating to provision of the education service provided by that parent or person:
(d)inspect the work of any person to whom the education service concerned is (or has been) provided:
(e)meet and talk with any person to whom the education service concerned is being provided.
(2) Nothing in this section confers on a review officer the power to enter any dwelling house without the consent of the owner or occupier.
Compare: 1989 No 80 s 328C

442 Review officers to prove identity before acting under section 441
Every review officer who exercises any power under section 441 must, before exercising that power and, if requested, at any later time, produce to the parent or other person providing the education service concerned the review officer’s certificate of designation.
Compare: 1989 No 80 s 328D

Section 592-593 Powers of Entry and Inspection

These sections set out the powers of entry and inspection for an authorised person into schools, hostels, ECEs and private training establishments. There is no power of entry into a private home, with one possible exception (though it requires a warrant):

593 Entry where private school suspected of being unregistered
(1) A person who holds an authorisation under section 592(3), and who has reasonable cause to believe that any premises are being used as a private school in contravention of section 230, may apply for a warrant to enter the premises.
(2) An application for a warrant must be in writing, on oath, and be made to a District Court Judge, Justice of the Peace, or Registrar or Deputy Registrar of any court.
(3) A warrant may be issued if the person issuing it is satisfied that there is reasonable cause to believe that the premises are being used as a private school in contravention of section 230.
(4) A warrant issued under subclause (3) must contain--
(a) a reference to this section; and
(b) the full name of the person authorised; and
(c)a description of the premises concerned; and
(d)the date on which it was issued and the date on which it expires.
(5) A warrant issued under subclause (3) authorises the person named in it, at any reasonable time within 4 weeks of the date on which it is issued, to enter and inspect the premises described in the warrant to ascertain whether those premises are being used as a private school in contravention of section 230.
(6) A person acting under a warrant issued under subclause (3) must retain the warrant and must show it, along with evidence of identity, to the occupier of the premises concerned--
(a)on first entering the premises; and
(b)whenever subsequently reasonably required to do so by that occupier.
Compare: 1989 No 80 s 35S

Summary:

There are other areas where one could make a submission, but this has been an attempt to draw the reader's attention to key areas of the Bill, as well as provide a future useful reference to the legislation. I recommend to families that they become familiar with the above sections, because you never know when you might need it! Also consider any areas where they see issues worth of submission. 

Comments and questions welcome. 
Disclaimer: I am not a lawyer; nothing in this or any other entry on my website should be considered to constitute legal advice. I am a citizen with a special interest in home education and this is my attempt to help other families become better informed.
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Early Leaving Exemptions (ELX) - Issues and Solution (?)

1/16/2020

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Under Section 22 of the current Education Act 1989, and under Section 38 of the proposed Education and Training Bill currently before parliment, which will replace the 1989 Act, parents may apply for a student aged 15 to be exempt from the requirements to attend school. The wording of the Bill is:

38 Exemption from enrolment of student who has turned 15
(1) The Secretary may, on application by a parent of a student who has turned 15, grant the parent a certificate that exempts the student from the requirements of section 34 if the Secretary is satisfied that it is sensible to do so, having regard to--
(a) any educational problem the student may have; and
(b) the student’s conduct; and
(c)the benefit (if any) the student is likely to get from attending another available school.
(2) However, the Secretary may not exempt any student who--
(a) has made insufficient progress in terms of any curriculum statement for year 8 published under section 86; or
(b) has not enrolled for a year level above year 8.
(3)The Secretary must tell the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 the name and address and any other available contact details of every student exempted under subsection (1).
(4) If satisfied that it is in the best interests of any student to do so, the Secretary may revoke the student’s certificate granted under subsection (1).

A Section 38 (or currently Section 22) exemption allows 15 year old students to do any of the following:
  • Quit school
  • Enter employment during school hours
  • Enter an apprenticeship or other training or tertiary study for which they are eligible
  • Take part in Youth Guarantees courses, which are funded for 16-19 yos, or 15yos with an ELX
However, a 15yo student with a home education exemption cannot do any of these things in the fullest sense. If a student wishes to do so, they are usually told they need an Early Leaving Exemption, but if a family approach the Ministry to apply for one, they are most often told they cannot get an ELX for a home educated student. This is because the criteria as laid out by the law will usually not be met by a home educated student - ie having educational problems, conduct issues, and being unlikely to gain benefit from available schools. Not that these are "AND" scenarios, not "OR" - ie all three must be in place.
Now, this has been an issue of discussion on and off over the years with the Ministry. There is quite some history to the issue, which I won't expound on here for the sake of brevity. The main thing to know is that currently the Ministry are sticking to this position:
"It is highly unlikely that an ELX can be granted to home educated students because they would not meet the statutory criteria set out in the relevant legislation. Although it is unlikely for a home educated student to be granted an ELX, there have been cases in the past where they have been granted, however these decisions are made at the Ministry’s Regional offices and at their own discretion."

Why should home educated students be able to get ELX or equivalent?

I frequently am contacted by families with 15 yo students, some who are home educated, and some who are not yet exempt, but who have one thing in common: they are simply ready to move on from "school work" and pursue the next steps in their chosen pathway - usually training courses or an apprenticeship or full time work. Some of these students are highly motivated and frustrated at being held back doing "busy work" and others have faced significant struggles, and in those cases often NEED to be given the opportunity to move on to the thing that interests them, before they lose all motivation and simply fall by the wayside.

Bear in mind that until 1993, the school leaving age was 15. Some young people of that age who were not university-bound often did leave school and enter into various jobs and professions, generally with ultimate success. The change to a school leaving age of 16 was driven by a governmental and Ministry belief that kids who remain in school longer achieve better outcomes (a belief that persists today, despite a lack of evidence to support it). This thinking came about somewhere between 1989's Tomorrow's Schools under Labour which recommended the school leaving age remain at 15, and the 1991 Education Amendment Bill under National which changed it to 16 from 1993.
Now, imagine you are the parent of a 15 yo male student who, for example, wants to become a builder. He has completed all the academic work he could possibly need to prepare him for that trade. He has a high standard of literacy and numeracy. Any further schoolwork he does will simply be filling in time. An opportunity arises for him to do some work experience with a local builder. He does so successfully. The builder would now like to employ him full time, and enrol him in an apprenticeship scheme as soon as possible. But the inability to get an ELX is a barrier to this, as he doesn't fit the criteria. If the parents choose to allow him to engage in this work anyway, then both they and the boss will be in breach of the law, and potentially subject to prosecution and penalties. How ridiculous!
Or, a 15 yo girl who has been through a lot recently, and has been struggling with depression. She's now heard from a friend about a training program that strongly interests her and is restoring her enthusiasm and motivation for the first time in a while. She is permitted to visit that program as a "guest student" for a time, and both she and the tutors are enthusastic about how well it fits her, and about her continuing on. But she can't get an ELX, so she isn't allowed to do the program, both for lack of funding, and because it would constitute no longer being home educated, which is not allowed to cease until 16 unless enrolled in a "registered school"- and only primary and secondary schools are "registered schools." 
Or, a 15 yo student who wants to do a distance learning program through a tertiary provider in order to gain the high school qualifications he or she needs to open the future doors they need. But the rules of the tertiary provider are that students must be over 16, or 15 with an ELX. 
I could go on. But hopefully you see the point. If we want our capable, motivated young people to capitilize on their drive and opportunities that are potentially available to them, we should be removing barriers, not erecting them!

How do we fix this?

There is an Education and Training Bill before parliment currently, which will re-write the entire education law of our country. The section about ELXs is essentially unchanged, with one noteable exception which also deserves submission comment (see below*). However, for the purposes of students who already have a Section 21/Section 37 home education exemption, it remains as inaccessible as ever. At the end of the day, though, the wording of this section which applies to all 15 yos is never going to be a good fit for home educators, for a number of reasons. 

That is why, rather than change this section, I propose an addition the Section 37, which applies only to home educators, as follows: 
(?) 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 Section 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
The effect of this, if incorporated into the Act, would be to appropriately permit parents and young people to make decisions about the best options for them as 15 yos, and engage in suitable training or work, without needing to jump through the ELX hoops. This would also reduce workload on Ministry staff.
Making this change would remove barriers and allow such students to move forward.
I urge you to consider including this recommendation in your own submission - (click on the link to find out why your submission as a home educator is so important, and how to make a submission)

Submissions close on 14th February 2020.
* The other issue I mentioned about the wording of the new Section 38 - the wording that says "(c)the benefit (if any) the student is likely to get from attending another available school." 
Under the current Act, this simply reads "available schools". The change implies that the student is already enrolled in a school, and other available schools must be considered. This is a different focus from the simple idea that school in general is unlikely to benefit the student further. This would make it even more difficult for home educated students to fit the criteria, even those who would under the current wording. 
One might consider including this in any submission.

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