Once an exemption is granted, how is a home education programme monitored? In order to legally home educate a child, the parents must go through a significant application process, in order to "satisfy" the Ministry of Education that "the child is to be taught at least as regularly and well as in a registered school" in order for the exemption certificate to be granted under Section 38 of the Education and Training Act 2020. 
But once the exemption is granted, then what? 

Note: The wording on the letter that comes with a certificate of exemption talks about ERO contacting parents and conducting reviews. This is there only because they might be called upon to do a review, as outlined below. They do not routinely do them. 

Let's explore the ins and out, parental obligations, Ministry responsibility, and where ERO comes in. The relevant sections of the law are near the end of this post, for reference. 

The Ministry of Education is responsible (under law) to process an exemption application and determine whether the proposed programme of learning outlined therein satisfactorily demonstrates that the child will be "taught as regularly and well as" they would be in school. Once they've determined that and granted the exemption, do they have an on-going responsibility to check that the child continues to be thus taught? And if so, how do they do that?

The law gives ERO the ability to review home educators, and it give the Ministry the ability to ask ERO to carry out a review. It also states that the Ministry cannot revoke an exemption without first considering the outcome of an ERO review. 

What the law does NOT do is require the Ministry to regularly review home educators or in any other way follow up on their exemption & home education programme, nor specifically empower them to ask questions about the education programme of the exempt child after an exemption has been granted, except where they are gathering information when considering whether an exemption should be revoked. 

Anything that a government department does in terms of its processes and procedures that is not explicitly set out in law is rather based on policy. Policies are the ways in which the law is interpreted and applied as decided within a department. Policies can be changed relatively easily. Laws required parliamentary process to be changed. Policies should always, always be within the boundaries and scope set by the law, but sometimes they drift beyond this (if so they can be subject to challenge and amendment). Laws are generally quite broadly worded, leaving room for policy to be developed around how they are applied.

The Ministry, at the directive of the then-government, ceased routine ERO reviews of home educators on the 30th June 2009. (For more detailed history and review statistics see HERE).  Since then, they have provided funding for up to 35 reviews per year. That's review of up to  35 students, not 35 families, as they pay per-student that is reviewed. And how do they decide who will be reviewed in any given year? Their policy is that reviews are initiated only when/if the Ministry has some reason to believe they may need to check up on a family. In rare cases, this could be initiated by information from a government department, but for the most part this only happens as a result of what is known as the "complaints process." More on that shortly. 

So, in the absence of ERO reviews, how is the Ministry to determine whether an exempt child continues to be "taught as regularly and well as"? Do they even need to? As we've seen above, in fact, no, they don't actually need to, under law. However, there is one cardinal unwritten rule of all government departments. I like to call it "C.A.R.E" which stands for "Cover [rear], Retain Employment." In other words, nearly everything they do is predicated upon the ideal of never leaving themselves open to being found responsible for something going horribly wrong because of something they did, or neglected to do. (Look carefully at the actions of any govt dept and you'll see that this is true). 

This kind of mindset has led to a number of ideas over the years. The most persistent one is some variation on this: "If we grant an exemption for little Johnny when he's 6 and he turns out to be an uneducated societal misfit when he's 16 it will be ALL OUR FAULT. Therefore we need assurance that Johnny will be ok." 

And this, in the absence of routine ERO reviews, is what led to the policy of sending out 6 monthly declarations for parents to sign and return, on which parents affirm that their child has been "taught at least as regularly and well as.." for the last 6 months, and will be for the next 6 months (or insert start/stop dates). And because there is no legal basis for these declarations, they can't force parents to sign and return them. Thus the other policy - of linking the supervision allowance to the return of these declarations - it's the "carrot" to get most folk to do so. "You send us this piece of paper, duly signed, and we'll give you the allowance." We've been assured, you've been paid, everyone's happy. Or something like that. 

But what if you don't care about the allowance and don't sign and return the form? Well, that's when they might act upon another policy. That is, since they haven't been assured via the declaration that little Johnny is still being taught as regularly and well, then they must have an "obligation" to investigate further, to ensure he is. This makes them "concerned" about Johnny's learning programme, and this is where the complaints process can also come in. 

As noted above, the only time, under the law, that the Ministry has the right or obligation to "gather information" related to the learning programme of an exempt student once the exemption has been granted, is when they are considering whether there is grounds for the exemption to be revoked. That is, they are considering whether there are grounds for them to NOT be satisfied that the child is being taught as regularly and well. And why would they be considering that?

Under current policy, since routine ERO reviews ended, they do this on a "complaints basis"- that is, if someone  expresses a "concern" or makes a "complaint" to the Ministry suggesting that an exempt child is not being satisfactorily educated, then they investigate to determine whether or not that is the case.

Legally, they can immediately request an ERO review to make this determination, but as this process is sadly open to abuse by people just wanting to make trouble for the homeschooling family, the Ministry agreed to a NCHENZ request that they first talk to the family about the complaint and give them an opportunity to address what might be going on before deciding whether to initiate an ERO review, and this has become part of the process. 

However, the way this is being interpreted and applied is not really what was originally agreed to. The NCHENZ request was both to ask the Ministry to investigate the source of the complaint to determine legitimacy, and so that if a family knew that there was someone with a personal axe to grind who might be making a nefarious complaint to the Ministry, this could be identified and an ERO review not pursued unfairly. This has mostly morphed instead into the Ministry asking families for an update on their learning programme so that they can decide whether there is likely to be an issue that warrants further investigation via ERO. 

So, if the Ministry receives a complaint or an expression of concern about your children's home education programme, they will contact you to let you know, and ask you for an update on their programme. If the complaint expressed specific issues, they may ask you just to speak to those, or they could ask for a more general update. Either way, you have the right to see the original complaint before you respond, though any identifying information about the person complaining will be redacted. You can ask for this under the Privacy Act. 

You then have the opportunity to put together such information as you feel is appropriate and submit it to the Ministry, who will then review it and decide if what you have provided satisfies them that your children are continuing to be taught "as regularly and well" - in which case they advise you of this and close the file - or not - in which case they request an ERO review, and advise you they have done so. 

However, if a previous complaint did not result in an ERO review, and another one has been received, Ministry policy is generally to skip asking for an update and just refer to ERO.

The regional office that deals with exemptions for your area is the same one that would deal with the above process. However, they cannot on their own authority ask ERO to conduct a review - they must put in a request to the national Ministry office, who need to check everything is in order and confirm the request, and then order the review. 

If this happens, then ERO would contact your family in due course, arrange a time to meet with you and conduct the review, advise you of the expected outcome, write a report on their findings, send you a draft copy to review and request amendment to if appropriate, before sending the final report to the Ministry. ERO reviews can take several hours, but result in reports that are typically less than 2 pages long. They always conclude with a statement that the child IS being or is NOT being "taught at least as regularly and well as in a registered school."

If the finding is that the child "is being taught as regularly and well as" then the Ministry will be satisfied and close the file, and the family's home education programme carries on. If the finding is that they are not, then what happens next depends on certain factors, including whether ERO suggested the family could meet the requirements with a few changes or some additional support, and/or whether the Ministry (and the family) are open to discussing how the family might improve their programme to meet the requirements and so give them another chance. Otherwise, they will enact the law to revoke the exemption/s. 

I will write more detailed posts separately about responding to a complaint-based info request, and preparing for an ERO review.

When parents decide to home educate their child, they are taking full personal responsibility for their child's learning programme. This is not something to be entered into lightly, and the application process itself ensures that parents have thought through what and how their child will be taught. (For more on this process see HERE). 

Once the exemption is granted, the parent continues to assume full legal and moral responsibility to ensure their child is educated at least as well (and regularly) as they would be in a school. Many parent's personal bar is a lot higher than "as in a school." Yes, this is a responsibility, but it's also a privilege and a right - the right to decide how and where your child will be educated, the privilege of being right there with them to see the learning happening and to be a part of it all alongside your child. 

Part of being responsible for your child's education is, in some appropriate way, self-reviewing how things are going from time to time - considering what the next steps in your child's learning are, how you will facilitate those things, whether additional resources are needed, whether your child is progressing appropriately etc. Alongside of this is a need to record progress somehow. Now, there are no rules or laws about how you do any of this - it's up to you. Whatever you decide about the details, the purpose of this is primarily to serve you and your child by supporting their learning journey and helping you to manage things more easily. There are many great ideas to be gleaned from other experienced home educators about how they do this; what you choose to put in place should not be so burdensome that it unnecessarily detracts from the time you need to actually engage with and teach your children. 

One of the big pluses of maintaining some kind of on-going record is that in the event you are asked for information by the Ministry or have an ERO review, it will be so much easier for you to pull things together in response or preparation. Another plus is that when they're grown and gone you'll enjoy looking back at those reminders and memories, plus when some other parent (or maybe your own children when they want to homeschool their children) asks you how you did things, or what you used etc, the answers will be at your fingertips! (Believe me, those things you think you will remember in vivid detail often are not so easy to recall!)

NCHENZ has some helpful info on planning and record keeping, as well as examples from two families. 

So, the most significant responsibility of a home educating parent is the daily and on-going teaching, guiding and supporting of your learner, with all that that implies including resourcing, reviewing progress, maintaining appropriate records that serve you etc. Your other responsibilities include:

• Signing and returning the 6 monthly declarations
• Being able to give the Ministry an update if requested
• Being able to provide ERO with evidence of your child's learning programme and progress if requested. ERO ask questions, but also look for evidence to support your answers. Which is where records of some kind and/or samples of work come in. 

The Education and Training Act 2020 sets out the laws around gaining (and keeping) an exemption, and the powers of ERO as it applies to homeschooling. 
I've written a more detailed post regarding all sections of the Act that may be relevant to home educators HERE; for the purposes of this post, I'll quote two ,main parts:

Once an exemption has been granted, the on-going monitoring of a home education programme primarily rests with the parents, who have chosen to accept responsibility for their own children's education. The vast majority do an excellent job (which is why the government felt justified in de-funding routine ERO reviews). On the other hand, the Ministry does check up on families via 6 monthly declarations, and when a complaint/concern is brought to their attention, via a request for an update and/or an ERO review. 

The key piece of legislation is from the Education and Training Act 2020, Section 213, which says:
"The Secretary may require the managers of a private entity that is not registered under section 214 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 38 are held in respect of any or all of the students being taught there." 

This means that if the Ministry believes that a private group is operating in a way that fits the legal description of a private school, even though the students involved hold homeschooling exemptions, they can require that group or organisation to apply for registration as a private school. 

The description of what constitutes a private school is taken to be the criteria for registration of a private school as set out in Schedule 7 of the Act:
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 years or over but under 16 years; 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.

The Ministry has an internal document called the Home Education Policies and Procedures Manual, published in 2018. This document guides regional staff on processes related to home education. I obtained a copy under the Official Information Act shortly after it was published. While it has not yet been updated (to my knowledge) to reflect the new 2020 Act, the principles remain the same. In respect to home educators operating as private schools it notes the following key points:

• "It is illegal for home educators to form a school. However, many home educators meet together on a regular or semi-regular basis. A parent has not necessarily relinquished responsibility for their child's learning if they are being home educated in these groups.
• These home educators could be an extended whanau or large family who are not trying to form a school. However, large families or extended whanau should be advised that if they were to teach children from other families they could be in breach of (Section 213).
• The larger and more organised a group is (especially if they teach nine or more children) and the less responsibility parents have for their children's education, then the more likely it is that a group would need to register as a school. 
• Whether there are nine or more "students"  is not the only factor to consider when determining if a group is  operating informally or as a registered school. For example, if a group of six children from five different families are being taught together several days a week at a specified location by a single adult using planned lesson material this can be regarded as a school. 
• In contrast, an indeterminate group of home educating parents meeting for three mornings a week delivering educational programmes to their children does not necessarily constitute a school. 
• Similarly, a Sunday school run by home educating parents is probably not a school either under Section 213 even if it had more than 100 children or young people attending. This is because it is restricted in scope and, though regular, is in session for only a small period once per week. 
• Other factors that may contribute to an assessment that a home educator group is in fact a "school" included whether they are or there is:

1. Advertising
2. Taking on a formal structure or name
3. Hiring a site or establishing a substantial "school" building rather than simply meeting in a convenient location
4. A lack of involvement or control on the part of parents
5. A timetable that resembles a typical school day - ie Monday to Friday for periods of six hours or more"

They go on to quote the criteria for a private school from the Act, then note that if a regional office becomes aware of home educator groups that may be operating in breach of Section 213, they should refer the matter to the national office who will seek legal advice on further action, and that:
"in the past the Ministry have asked large home educator groupings to cease operations immediately or seek provisional registration as a school. In the case of small groups, the Ministry should advise that the emphasis in these groupings should be on individual, rather than group, instruction." 

Quite a number of years ago, there was a small group of parents in one area who all decided to homeschool their children, using the same curriculum. They decided to have the children together 3 days a week, with a teacher (parent) overseeing them, and the children work at home with their own parents the other 2 days. When the number of children reached 9, the Ministry said they needed to register as a private school. To actually make this registration work (since they had to then meet ALL the criteria of a private school registration) was not entirely easy, but with the support of an MP it happened, and the small private school came into being. Over the years that followed, they first continued with the 3:2 model, then 4:1, until the school was eventually disbanded some years later. 

Of note: there was a planned curriculum, the parents were handing over supervision of their children for several days a week, and the numbers exceeded 9 before the Ministry saw it as a problem. Because they were using the same curriculum at "school" and at home, there was also consistency in what they were doing. You'll see why that is important below.

I have had contact more recently with two separate people who WANTED to register and set up a small private school, but the Ministry told them they could not, because they didn't/wouldn't meet the criteria. 

In one case, an experienced teacher of a certain style curriculum wanted to make this available to a small group of children. When she attempted to register as a private school, the main two reasons the Ministry refused were:

• She did not have 9 or more students aged 6 and over (yet - a couple were only 5)
• The premises she wanted to use had a bathroom in a separate building that would also be accessible to other users of the greater site (ie not exclusive to the use of the "school")

The alternative for her was for the children to get exemptions, and still be taught by her as intended. 

In the other case, a parent wanted to set up a programme where the children would come together 3 days a week to be taught by teachers, and the other 2 days a week would have the freedom to be at home with their parents, working on alternative projects or learning according to what the parents wanted to do. This came out the family's personal experience and wanting to offer families the best of both worlds. The Ministry said they would not be able to meet the criteria  of a private school (as currently proposed) because:

• "A school that is only instructing 3 days out of 5 is likely to be assessed negatively as to whether it meets the registration criteria as the regularity of instruction would only be 60% of that of a comparable state school meaning it may not have suitable tuition standards. So the key question around this proposal is what is proposed to take place on the 2 days the students wouldn’t physically attend. If the school was still instructing (e.g. by remote means) then this might meet registration criteria for e.g. It would depend on what is proposed."

This second example contrasts with the group that WERE registered as a school in the section above, who were using the same programme in school and at home.

So, it seems that sometimes even if you want to be private school or the Ministry thinks you should be a private school, you may not meet the criteria and so not be able to register as a private school. While what I set out above is the initial criteria of what constitutes a private school, to actually register as a private school, one has to meet more detailed criteria set out in Schedule 7 of the Act. 

Private schools are not fully funded by the Ministry - they are funded (usually) by the fees charged to parents. There is partial funding - the exact amount varies a bit by year and by age of students, but it's in the vicinity of $1100-$2300 per student per year. See HERE. If home educated students are part of a group which becomes registered as a private school, their exemptions would cease, just as they do with any school enrolment. 

​A registered private school has to meet a number of requirements, including reporting, ERO reviews, and now, vaccine mandates. 

Any parents considering forming a group and hiring someone to teach their children or leaving their children to the care and teaching of another person should carefully consider the criteria of a private school laid out in the above information and in the Act. 

Note that in the following circumstances, you should not be considered to be operating as a private school:

• Getting together as a group to do activities with the children, including, for example a specific class such as art class or a history class once a week. These are limited in scope and duration. 
• Getting together with one or two other families to teach and learn together part of the time - because all the parents remain involved and responsible for their children's teaching/learning. For example, one year our family and another (9 kids between us) met up one day a week to do science and some other activities together. The other mother and I took turns planning and delivering the lessons for the week, but we were both there and involved. Even if you did this for more days per week, you should not be considered a private school if the parents of each family unit remain directly involved in what is happening. 
• Getting the kids together to play or do some fun or sports activities, even if some of the parents do not remain present for the time. This is again, limited in scope and duration and is not handing over key teaching to someone else. 
• Hiring a tutor to deliver certain subjects to a small group one day a week or for several short sessions over the course of the week. Eg to hold a math class 3x week. Again, limited scope and duration. 
• Using an online platform for the children to be taught remotely for some classes - they remain in their own home under the supervision of their parents. 
• And, according to one of the examples above, possibly even having the kids taught as a group by one or two people 2-3 days a week, while doing other learning at home the rest of the days. 

Generally though, the key (but not only) things that the Ministry initially considers to determine whether home educators may be operating as a private school are:

• How many students there are (9 or more, though this number is not an exact requirement)
• Whether the parent is handing over teaching responsbility to someone else (and how much they're handing over)

Before setting up a group learning kind of situation for home educated children, consider the above information and whether your group might be considered to meet the criteria of a private school, and what that would mean for you and your group. 

Yesterday the government announced sweeping COVID-19 vaccine mandates for the health and education sectors. Included in the statement were "home-based educators" which has caused much confusion. This also happened a few years ago when the government introduced requirements for home-based educators to have a certain level of qualification. 

The confusion arises because since 2015, the Ministry of Education has referred to homeschoolers as "home educators" as requested by the home education community themselves during the 2013-2015 review of homeschooling. This term more accurately reflects the wider homeschooling community than "homeschoolers." It is, however, very close to the term "home-based educators" which refers to an entirely different sector of education.

Section 10 of the Education and Training Act 2020 defines a home-based educator:
Home-based education and care service--
(a) means the provision of education or care, for gain or reward, to children who are under the age of 5 years, or who are aged 5 years but not enrolled at school, in--

• (i) the children’s own home; or
• (ii) the home of the person providing the education or care; or
• (iii) any other home nominated by a parent of the children; and

(b)includes the provision of education or care to any child of the person providing the service who is--

• (i)under the age of 5 years; or
• (ii)aged 5 years but not enrolled at school

Clearly, this applies to people caring for other people's children ages 5 and under in a private home, for "gain or reward" (ie being paid). 

Home educators (aka homeschoolers) on the other hand are parents caring for and teaching their own children who are, if exempt, ages 6 and up (though their younger children, if any, are of course also there); they are not being paid for this. So by no means does the above definition apply to home educating parents, and we are therefore not included in the new mandate. 

Furthermore, I received an email today (12th October) from Janine Moss, Manager, Provider Services at the national office of the Ministry in which she said:
​
"I can confirm that the new requirements for testing and vaccination do not apply to parents who home educate their own children. If home educating families come together as a group (eg for trips or sports) then they are subject to the general health order (eg physical distancing, masks) for the alert level in their location."

To answer this fully, let me use the Covid-19 Vaccination Health Orders. They outline who is mandated to be vaccinated. For our purposes here we are focused only on the parts related to education. The order says that people in the following groups must be vaccinated:

Part 9: Groups in relation to affected education services
9.1 Workers over the age of 12 years who carry out work at or for an affected education service (including as a volunteer or an unpaid worker) and who--
(a) may have contact with children or students in the course of carrying out that work; or
(b) will be present at the affected education service at a time when children or students are also present
9.2 Providers of a home-based education and care service

NOTE: the words "affected education services" are important. They are defined in the Health Order:
affected education service means--
(a) a licensed early childhood service:
(b) a registered school:
(c) a hostel

The definitions of each of these three kinds of services are affirmed to be the same as in the Education and Training Act 2020. 

This means that the order (mandating the vaccine for educators) applies ONLY to those who are in contact with children at/in a (student) hostel, registered school or licensed ECE service (including home-based ones). 

Someone who happens to be a teacher or tutor who is in contact with children in a setting unrelated to the above three is NOT mandated to be vaccinated in order to carry out that teaching or tutoring. 

All of the mandates regarding education currently are directed at sections of the sector which, in a nutshell, are government funded. That is, registered schools and early childhood centres, and all the staff who work in them, as well as volunteers that spend time there, plus hostels which are used entirely or mostly for the accommodation of students at registered schools. 

They are not directed at private families or private teaching/tutoring settings not linked to an affected education service. 

Update 16th January 2022:
The above remains correct and current. There are NO mandates for homeschoolers to be vaccinated. The roll  out of vaccines for 5-11yos has no effect on this. There have been no new health orders passed that affect homeschoolers (home educators) in this regard. There is nothing on the Ministry's website to suggest otherwise. If you hear differently, it is just another one of the rumours flying around. Please disregard and don't spread it. If, however, at any time you come across something on a government website you think puts a different light on things, please contact me with the link. I will check into it and update this page if necessary (as well as let you know what I find). 

What does affect homeschoolers in the same way as any other member of the public is restrictions under red/orange settings regarding entry to locations that may require vaccine passes, whether because they are mandated to, or because local councils or venue/business owners have decided to require them. In such cases, homeschooled students aged 12 yrs and 3 mo or over cannot access these venues, even for educational purposes, without a vaccine pass. This is an issue that schools are also wrestling with where they can't take students who don't have the pass to EOTC facilities or camps etc. As the new school year unfolds, I will be watching to see what, if any, changes may occur in that space, that may or may be useful to home educators. 

At this time it is unclear whether children aged 5-11 will be issued with vaccine passports and/or require them to enter these venues in the future, as this has not been indicated in legislation or govt websites so far. Currently the government Covid website says only those age 12+ can get a vaccine pass, and that those aged under 12 do not need one. Whether this will change once 5-11yos have had two doses (about March), remains to be seen.

Updates 23/1/22
Some folk are expressing concern about the Vaccination Amendment Order 2022, specifically this section: 
5 Clause 8 amended (Duties of relevant PCBUs in relation to vaccinations)Replace clause 8(3) with:
(3) A relevant PCBU must not allow an affected person who provides a home-based education and care service to carry out certain work unless satisfied that every person who is--
(a)at least 12 years of age but under 18 years of age in the home where the home-based education and care service is provided is vaccinated; and
(b)18 years of age or older in the home where the home-based education and care service is provided is vaccinated and has received a booster dose.

This does NOT say home educators must be vaccinated! It once again applies only to "home-based education and care services" (ie paid ECE services) as defined in the Education and Training Act 2020 (see the start of this article above). The above clause is amending THIS clause of the Vaccination Health Order, and the only difference it makes is differentiating between 12-17yos in the home where the service is based needing 2 doses and 18yos plus needing a booster. Again, this has nothing to do with families who are (or will be) homeschooling with exemptions (unless one of the parents also happens to be running an Early Childhood service out of their home). 

Pointers: You can use the table of contents in the Act linked above 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. All headings below are linked directly to the relevant section of the Act.
• Sections in blue below are directly copied/pasted from the Act. 
• Under each section in the Act, 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 36 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 (or just click the linked text below).
• All references to state schools also applies to state integrated schools, unless otherwise specified.

This is pretty much a continuation of Section 20 of the previous Act, with a little rewording. It says essentially:

• Every domestic* 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 43 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 Act

Also note Section 243 for offences/fines related to this. Fines can only be imposed upon conviction in a court of law. And Sections 245-248 set out related matters if such proceedings occur - such as the burden of proof being on the parents.​

Related: Section 62-66 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.

* Domestic students include all NZ or Australian citizens, NZ residents, children on student visas whose parents have a work visa, and a range of others. For more on this, see HERE

36 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(1)-(3)

Note Section 244 for offences/fines related to attendance. Fince can only be imposed upon conviction in a court of law. And Sections 245-248 set out related matters if such proceedings occur - such as the burden of proof being on the parents.

Also note that subsection 1(b) above is the source of much confusion, even though it first came into being in 2017. Just because an enrolled 5yo is required to attend does NOT mean that parents can't remove them from the roll if they no longer want them to attend school, either to begin homeschooling or for some other reason. See HERE for more on this. 

T​his 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. 

Subsection 1(b) 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 33 and 34 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 47, which allows a reconsideration (ie appeal) of directions given under this section.

This is the key piece of legislation governing the ability to home educate and the issuing of certificates of exemption.
38 Long-term exemptions from enrolment
(1)​ An employee of the Ministry designated by the Secretary for the purpose (a designated officer) may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 35 if the designated officer 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) If a designated officer refuses to grant a certificate under subsection (1), the applicant may appeal to the Secretary, who, after considering a report on the matter from the Chief Review Officer, must confirm the refusal or grant a certificate.
(3) The Secretary’s decision is final.
(4) An exemption certificate granted under this section must state why it was granted.
(5) The Secretary may revoke an exemption certificate, but 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).
(6) If the Secretary thinks any student to whom an exemption certificate applies would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 37.
(7) An exemption certificate expires when the person to whom it applies turns 16 years or enrols at a registered school, whichever occurs first.
(8) A certificate continues in force until it is revoked or expires.
Compare: 1989 No 80 s 21

While this part of the legislation is not specific to home education, it is often of interest to families whose 15yo students are ready to move on to further training or work. The Ministry is generally reluctant to issue an ELX, as it is known, to a home educated student, but in some circumstances they will. 

​39 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 years, grant the parent a certificate that exempts the student from the requirements of section 35 if the Secretary is satisfied that it is sensible to do so, on the basis of--
(a) the student’s educational problems; 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 90; or
(b) has not enrolled for a year level above year 8.(3) The Secretary must tell the chief executive of Oranga Tamariki 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).
Compare: 1989 No 80 s 22

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

​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, but can be renewed or extended once for a further six months under certain circumstances
• 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.

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 46, which allows the Secretary to direct these children to be enrolled in a distance school (ie Te Kura). Section 239 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 44 to exempt a student for up to 5 days if the absence is "justified."

All parents should teach their children this information and their rights, and how to respond if questioned!

​Section 48 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 49 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 241 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.

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). ​

​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 38 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 38(1)) from enrolment at any school.
Compare: 1989 No 80 s 30(1), (2)
Also note Section 240 for offences/fines related to this.

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 46.

Section 69 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 38 exemption (ie homeschoolers). This does not preclude the Minister from setting the fees at $0 as is currently the case for 16-19yos.

These sections deal with stand-down, suspension, exclusion or expulsion of a domestic student from a state school or state-integrated school. Section 76 also deals with the Secretary's power to direct that a student be enrolled in a specific school.

These parts may be of interest to parents trying to understand their rights and the law if their child is in this situation, often part of the reason some parents consider home education as an alternative.

Section 90 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.

These are specifically about what is required in SCHOOLS and do not apply to home educators. However, in meeting the "as regularly and well" requirements of an exemption application, we do need to give some consideration to ensuring our proposed program is at least as broad in scope as what is expected in schools, and will ensure the student is taught at least as regularly and well as they would be in school. 

Should the Minister publish any such requirements, they would be found in the Gazette; it may behoove us as home educators to be familiar with these. 

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 school
The Secretary may require the managers of a private entity that is not registered under section 214 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 38 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 249 sets out related offences/fines.
Also note Section 629 (in Act or below) which states powers of entry into a premise where an unregistered private school is suspected of being.

Of relevance to parents with children in school, and who are experiencing significant issues with the school:

​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. 

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. 
​
​255 Enrolment of students
(1) A person is eligible to be enrolled as a student in a programme or training scheme provided by an institution if--
(a)the person is a domestic student or the institution’s council complies with section 525 and 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) does not apply to a person if--
(a)the person has turned 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

This section sets out the powers of the Education Review Office. 462 (2) states specifically the application to exempt home educated students:
(2) Sections 466 to 469 apply in relation to education services provided to persons who are exempted from the requirements of section 35; and, for the purposes of this subsection and sections 466 to 469, education service is to be construed in that context, and the meaning it has in the definition of applicable service in section 10(1) does not apply.

Sections 466-469 sets out the specific provisions concerning students with enrolment exemptions (note they do not have power or entry into a private home):

Provisions concerning students with enrolment exemption

466 Functions of Chief Review OfficerThe 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 35, 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 that the Minister requires on the education services provided to persons exempted from the requirements of section 35.Compare: 1989 No 80 s 328A

467 Review officersReview officers designated under section 465 are also review officers for the purposes of section 466, and sections 468 and 469 apply to them accordingly.
Compare: 1989 No 80 s 328B

468 Powers of review officers for purposes of section 466(1) For the purposes of enabling any functions of the Chief Review Officer to be performed for the purposes of section 466, 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

469 Review officers to prove identity before acting under section 468A review officer who exercises any power under section 468 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

Home educators are paid a small supervision allowance; the Ministry cannot pay out any public funds unless on the basis that the legislation grants them the power to do so. While the supervision allowance itself is not written into law in so many words, the section of the legislation that applies is this:

Section 556 Grants to educational bodies
(1) An educational body may, on conditions that the Minister thinks fit, be paid grants out of money appropriated by Parliament for the purpose.
(2) However, a grant may not be paid to a tertiary education provider or a workforce development council unless the Minister is satisfied that the payment is in the national interest.
(3) The Minister may determine the amount of, and the conditions that apply to, each grant.
(4) Before a grant is paid, the Minister may give the educational body written notice that the grant, or a part or parts of the grant (specified as a particular sum or as a proportion of the total grant), is not to be used except for purposes specified in the notice.
(5) If notice is given, the educational body must ensure that no part of the grant to which the notice relates is used for purposes other than those specified for it in the notice.
(6) Apart from this restriction, an educational body to which a grant is paid may apply the grant as it sees fit.
(7) In the financial year during which a grant was paid to an educational body, and during the next financial year,--
  (a) the Secretary may, by written notice, require the educational body to provide the Secretary with any financial report, or statistical or other information, relating to the educational body, within a time specified in the notice and in writing; and
  (b) the educational body must take all reasonable steps to comply with the notice.
(8) The Minister may, for the purposes of this section and section 557, recognise a body that provides any educational or developmental service or facility, including a tertiary education organisation, as an educational body.
Compare: 1989 No 80 s 321

For more on the Supervision Allowance, see my article HERE

 ​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):

629 Entry where private school suspected of being unregistered
(1) A person who holds an authorisation under section 628(3), and who has reasonable cause to believe that any premises are being used as a private school in contravention of section 249, 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 249.
(4) A warrant issued under subsection (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 subsection (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 249.
(6) A person acting under a warrant issued under subsection (3) must retain the warrant and must produce 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

The Education and Training Act 2020 is a very large piece of legislation. The parts pointed out above are key sections of relevance to home educators and those who may be considering tranisitioning to home education. This is not the only piece of relevant legislation - for example the Care of Children Act which sets out the right of parents to determine such matters as how and where a child will be educated, legislation related to Family Court matters where parents are in dispute about this, and the regulatory framework around Playcentres may also be of relevance. 

However, for the purposes of this article, I would encourage all home educating parents to be aware of the above sections, at least sufficiently that they can return to examine them more closely if a need arises. I also strongly encourage all home educating parents to ensure their children understand what can and can't happen if they are questioned in public by anyone about why they aren't in school, and how to respond. 

I posted a copy of the letter I sent the Ministry on behalf of parents who are affected by the Ministry recently "clarifying" their position that exempt children cannot be present at Playcentre (or other ECE) with their parents. This is the reply I recieved from a Ministry Senior Advisor. My subsequent email to him is below. 

Kia ora Cynthia,
 
Thank you for your email about children enrolled in school attending early learning services.
 
We share your views about the importance of parent and whānau involvement in parent-led early learning services. Parent-led services provide parents and whānau with the opportunity to learn more about parenting, develop social and community networks and build greater confidence, as well as lead the education and care of their children.
 
We have not changed our stance on children enrolled in school, or those participating in home education, not being able to attend early learning services. The recent change to our website was not a change in policy but rather, clarification to make it clear that children participating in home education are also not able to attend early learning services.
 
Children enrolled in school/home education
 
Early learning services are set up to provide education and care to pre-school children and operate with a set of rules to ensure the specific needs of younger children are met. As you will know, playcentre needs to meet the same requirements as other early childhood education centres.
 
One of the requirements is that the premises and resources are kept for the exclusive use of children participating in the early learning programme. This is about making sure the environment is kept safe for young children, that they have space to explore and that their learning opportunities are not impacted by older children, who generally operate at a different pace and on a different scale to infants and younger children. This means that children enrolled in school, or those participating in home education, cannot regularly join in the activities offered at an early learning service during licensed hours.
 
I understand that this won’t be the answer you are looking for. However, the legislation which dictates how early learning services operate, does not allow for children enrolled in school, or those participating in home education, to attend early learning services, aside from certain exemptions.
 
Ngā mihi,

My reply sent today:

Thank you for your email, and for clarifying that this is not a recent change but rather clarification on the website.
 
I have read all of the relevant legislation and policy documents that I am aware of in regards to ECE in a setting such as Playcentre in their entirety – please let me know if there are any I have missed. My understanding is that the regulatory framework consists of 3 guiding documents, namely:

• The Education and Training Act 2020
• Education (Early Childhood Services) Regulations 2008
• The Ministry’s document titled “Licensing Criteria for Early Childhood Education & Care Services 2008 and Early Childhood Education Curriculum Framework”(as amended May 2016)

I think the key issue here is the use of the word “attend” – there needs to be clarity around context and whether it means “be enrolled in” or “be present at;” obviously there is overlap in the sense that one anticipates that children who are enrolled in the ECE will also be present there, however one does not need to be enrolled in something to be present, necessarily. For example, a parent might attend a high school special assembly to witness their enrolled student’s participation in it, accompanied by their pre-schooler. Both the high school student and the preschooler (as well as their parent) “attended” the assembly at school, but only one was enrolled; the others were simply present.
 
In reviewing the regulatory framework, I note that there is clear guidelines on who can be enrolled in an ECE – ie, 0-6 year olds, excluding 5 year olds who are enrolled in school and not under a transition plan. However, there is nothing which states who can be present (or not) at an ECE in regards to families of the enrolled children, with the exception of excluding parents who are a danger to the children.
 
On the contrary, parents have right of entry to an ECE where their child is enrolled/present (other than the exception noted), and there are a number of places in the regulations where specific allowance is made for the possibility that non-enrolled students may be present in the care of their parents. I pointed out a couple of them in my last email. Here’s another:
 
Schedule 2 of the Education (Early Childhood Services) Regulations 2008 sets out the adult-to-child ratios for early childhood education and care centres. Schedule 3 sets out the service sizes for the same. Notable point in the definitions at the end of each Schedule:
 
“In the case of a centre...., every child present (including the child of the service provider or person responsible or supervisor or staff member) of any age also counts as a child.” (Emphasis mine)

The regulations specifically allow for the fact that other children, particularly the children of responsible adults helping run the service, may also be present (not enrolled), and that they may be of “any age.”

One of the understandings behind this is simply this: parents are responsible for the supervision of their children who are not old enough to be left on their own. If those children are not enrolled in school (and thus attending and supervised there), then they are likely to be with the parents who may be present at the centre – this applies to both children who are pre-school age and not enrolled in the centre, and those who are 6 or over and not required to attend school during that time.  The writing of the Acts concerned allows for that. There is no legislation or regulation that says that they cannot be with the parents who are responsible for them. To exclude those children from being present at appropriate times is to also exclude their parents. and by extension in the case of Playcentre to exclude their enrolled siblings, as Playcentre does not provide a drop-and-go care service.

No one is arguing about the fact that the ECE centre is intended to be for the use of the enrolled preschoolers, and that they should be the focus of the program, resources etc, and their learning and engagement should not be interfered with by older children who may be present. However, this does not mean that legally other children may not be present, when they are being supervised by their own parents or caregivers, whose responsibility it would be to also ensure those older children do not adversely effect the experience or learning of the enrolled children. Bear in mind that most older children will not be able to be present because they are required to be attending school at that time; we’re talking about a very small number of children scattered across the country – Playcentres would not be overrun with older children! For those families, though, this is hugely important.

You stated in your email that “the legislation which dictates how early learning services operate, does not allow for children enrolled in school, or those participating in home education, to attend early learning services, aside from certain exemptions”  - please point out which part of the legislation prevents children in the care of their parents from being present at an ECE in which their sibling is enrolled, unless due to the fact that they are required to attend school at that time? I cannot find any such regulations.

Rather, this would appear to be a case of the Ministry making decisions which are in line with their own thinking, but are extra-legal; not governed or sanctioned by law. This is overreach and would, I believe, not stand up to judicial review (unless, of course, I have missed a pertinent regulation somewhere).

I’d like to request, please, that the Ministry have their legal team review this situation more thoroughly, taking into account the matters I have raised in my emails.

Please let me know the outcome.

​Kind regards
Cynthia Hancox
Government Liaison: National Council of Home Educators of NZ (NCHENZ)

In 2017, a law change was passed requiring enrolled 5yos to attend school. This caused a lot of confusion about parent's ability to withdraw 5 yo children from school. I outlined the facts HERE. 

Now that the Education and Training Act 2020 has come into force this July, I'm writing this updated version of the situation with links to the new legislation.

The purpose of this post is to clarify what the attendance requirement for 5 year olds do and don’t mean. 

​

1. The age at which a child MUST be enrolled in a registered school under law remains unchanged at 6 years old. Section 35 of the Education and Training Act 2020 says that a domestic student must be enrolled in and attending a registered school from their 6th to their 16th birthdays.
2. As previously, students MAY be enrolled in a school from their 5th birthday. It is against the law to enrol a child younger than 5 in a registered school. (s62). This is still the parent’s choice. They do not HAVE to enrol their child at any time prior to the 6th birthday.
3. The 2017 change, continuing in the new Act, is that once a child is enrolled in a school they are required to attend, even if they are under the age of 6. These attendance requirements are covered by Section 36 of the 2020 Act. This means that parents whose 5yo children are enrolled in a school are subject to the same requirements to send them each day as the parents of an older student. The only exception is if a transition plan is in place to ease them into full time attendance.
4. HOWEVER, there is nothing in any part of the Act that prevents a parent from UN-enrolling their child (permanently removing) them from a school (for any reason). If the child is less than 6, a parent can still unenroll their child and begin home educating them immediately, so long as by the time they turn 6 they have obtained an exemption (or enrolled them in a school).
5. A parent or guardian can apply for an exemption to home educate their child, on the basis that the child is to be “taught at least as regularly and well as in a registered school.” This long-term exemption from the requirements of Section 35 is covered by Section 38 of the Education and Training Act. Because it specifically refers to “exempt…from the requirements of Section 35” which only covers 6-16 year olds, home education exemptions continue to be applicable only to students from the age of 6. (No change under the new Act). As per agreed Ministry policy, parents can apply for an exemption any time after the 5th birthday, and have the application processed and the exemption granted, but the exemption comes into force from the 6th birthday, as prior to that there is nothing to be exempt from.

March 2022 update: there continue to be problems persisting with schools and/or Ministry staff telling parents they cannot unenrol their 5 year olds. I recently emailed the Ministry's national office about clear information being easily accessible to staff, schools and parents to clarify this and hopefully mitigate problems. Janine Moss, Manager Provider Services, sent this:

"Children who are five years old can be withdrawn from school. If they are currently enrolled at a school they must be attending, but they can be removed from the roll and leave the school at the parent or carer’s request. Parents can refer the schools to the following links if there is any misunderstanding. Links on unenrolling five year olds can be found on Parents.education enrolling-and-starting-your-child-at-school and the Ministry website Starting school"

Parents should be able to provide their schools with the above links (or the one below) to clear up any confusion; scroll or click on the "Unenrolling 5 year olds" sections to go directly to the specific info. 

Clarification was also added to the Ministry's Bulletin to School Leaders of 15th February 2022 which says this:
"Update: Five-year-old children enrolled in school: Our bulletin on 1 February 2022 noted that “While families wait for their application to be assessed, legally all children aged over six years must be enrolled at and attending school (children can enrol at age five and once enrolled must attend)”.
Children who are enrolled in school from the age of five may be removed from the roll before their sixth birthday at their parents’ request. In this instance, children will not be required to attend school until they turn six.
Schools should update ENROL using the leave reason “Caregiver decision” for these situations."

A related matter - returning to ECE:
A related matter I get asked about from time to time is "If my child has been enrolled in school at 5, and then I withdrew them, can they be re-enrolled in an ECE, and receive the funding?" The answer is yes, they can. Any child under 6 who is not enrolled in a school can be enrolled in an ECE, and if they meet the other eligibility criteria, receive the 20 hours-per-week funding. 

A family who experienced difficulty around this asked for my support. The result was an email from the ECE team at the Ministry that confirmed:
"If a child under the age of 6 has recently enrolled in school, then subsequently un-enrols from school in order to re-enrol in an early learning service for an ongoing period (for example because the parents have decided that the child is not ready to transition to school), then they are eligible for any early childhood funding available.  Children are not able to access early childhood funding if they are enrolled in school on an ongoing basis, eg they cannot enrol in an early childhood service in the school holidays."

​Legislation and Links:
The current Education and Training Act 2020 can be viewed online here: http://www.legislation.govt.nz/act/public/2020/0038/latest/LMS170676.html

My step-by-step guide to getting a home education exemption can be found HERE.

The Ministry of Education's information about home education exemptions can be found HERE.

Section 58 of the Ministry's 2018 internal Home Education Policy and Procedures Manual confirms that 5yos may withdrawn from school at any time and not re-enrolled in a school until they turn 6

The Ministry publishes a document for schools and BOTs called Attendance Matters. The current version is out of date on a number of points, but I include it here to point out that it states under the National Administration Guidelines (NAGs) on Page 15 that "a parent is free to withdraw their 5 year old at any time and not re-enrol them in another school until they are 6"

Quite recently, the Ministry made an arbitrary decision that exempt students could not be present at Playcentre sessions with their parent/s and siblings. Playcentre NZ passed this information on to families, causing considerable upset. I was asked to write a letter to the Ministry on behalf of families. Here is the content of that letter, which outlines the issues (see their reply and my follow up email HERE):

Dear Ministry of Education,
I’m writing concerning a recent Ministry determination that children over the age of 6 with homeschooling exemptions cannot be present at Playcentre sessions. This position causes a number of problems which the Ministry may not have taken into consideration, resulting in families being discriminated against and their ECE-aged children excluded.

Playcentres are in their very nature and philosophy family-centric, and this is a big part of the reason that families choose a Playcentre as the ECE for their child. Quoting from the Playcentre website description of what Playcentre is:
  “Playcentre is your village.  See children delight in their surroundings - play with them, alongside them, encourage them to interact with others while you meet other parents and educators.
  Parents are the first educators of children, and Playcentres around New Zealand foster the involvement of whānau through early childhood education.
  As a family, and as a community, you’ll build your own village with Playcentre: making life-long friends along the way.”

Playcentres are run by parents, and rely on parents who gain the required qualifications in order to run sessions. It is often those parents who have a longer involvement with Playcentre through having several successive children attend who are particularly invested in gaining those qualifications and helping to run the Playcentre.

It has been common over the years for parents with both ECE-aged children and older, home educated children to bring the older children with them to sessions if they do not have alternative care available at those times. Individual Playcentres took the responsibility to have in place policies and processes that ensured that the needs of the enrolled Playcentre children remained paramount, and that any older children present did not detract from that. Usually, though, the opposite is true – older children bring benefits to the centre and enrolled children, such as by modelling skills and good behaviours, by helping out in practical ways, or by reading or playing with the younger children. Of course, some of the older children would simply be present but working on their own schoolwork etc in an out-of-the-way spot.

Several parents have sent me letters to include, and they are attached. I have also heard from a number of other families through online group discussions etc. Here I will summarise some of the main points made by these and other parents whose families have been affected by this situation:

​Playcentre the only suitable ECE option: For some families, their younger children’s early childhood needs cannot be met elsewhere, either because of their geographical distance from other ECE options, or because their child’s specific needs and/or family philosophy make any other options unsuitable.

Parents must attend with their children, and older children cannot be left unsupervised: For many families, the main reason their older children attend the sessions with them is that there are no other suitable options for their care and supervision during those times – and of course these kids cannot be left on their own at home. If they cannot be brought to the Playcentre with their sibling/s, then this means that the younger sibling must be withdrawn from the Playcentre also, missing out on ECE all together, which surely flies in the face of Ministry and government policy which encourages engagement in ECE for all NZ children of that age.

​Parent’s being forced to choose between their children: Parents put in this position feel like they are being forced to choose one child’s needs over the other’s, which is unfair. These are caring, committed parents who want to see ALL their children thrive and be provided with good opportunities; with one stroke the Ministry has put them in a very difficult position.

Putting the viability of Playcentres themselves at risk: If such families are forced to withdraw from Playcentre, there is significant risk that many Playcentres will be unable to run their sessions, and some may have to close, because they will no longer have parents with the required qualifications present to run them. Therefore, not only their own children, but also other local children will miss out.

Harming the wellbeing of families and communities: As is clear from the ethos of Playcentre as quoted above, the sessions are not just about the children either – they are of benefit to the whole family through encouraging relationships between the children AND between the parents and by extension their families. For a lot of young parents, their local playcentres provide the best opportunities for them to find support and make connections within their communities, and to make friends with other parents with whom they have things in common. The Ministry’s decision puts all of this at risk, thus potentially affecting not only the early childhood education of the enrolled children, but the overall well-being of their families and communities. This is particularly magnified in small or rural communities.

The Education and Training Act 2020 defines an Early Childhood Education and Care Centre as:
“means premises that are used regularly for the education or care of 3 or more children (not being children of the persons providing the education or care or children enrolled at a school who are being provided with education or care before or after school) under the age of 6 years by day (or part of a day) but not for any continuous period of more than 7 days”

This definition excludes the children of the persons providing care and education to the enrolled children from being counted in the number of children being provided for, but it does NOT exclude them from being present. In fact, it actually allows for the very possibility that they MIGHT be present, by excluding them in the definition as counting towards the number being cared for.

Likewise, if one looks at Section 19 of the Act which outlines the requirements for a licensed home-based education and care service, it discusses how many children may be enrolled in the service as well as how many other children may also be present who are under 13 and not enrolled in school. (Notably, in those circumstances it allows for ONE person to be providing for the education and care of up to 4 enrolled preschool children while also having the care of 2 or so additional children up to age 13 who are not enrolled in school, yet the Ministry would apparently argue that parents at a Playcentre where there are a number of adults present could not do the same.)

These sections show that there is a clear understanding within the Act that in some circumstances, persons involved in providing the care and education of enrolled ECE children may also have other children of their own present during sessions.

Exempt children who are present at Playcentre with their parent/s and siblings also benefit from the opportunities presented, which help them to develop in the key competencies, particularly those of relating to others, and participating and contributing.

Their own education is not being neglected, as playcentre sessions are for limited hours each week, during which students are either engaged as discussed above, or quietly working on their own work. Meanwhile, there are plenty of hours in the week for their parents to use to ensure that the exempt student’s own work is completed and all needed teaching is provided.

In conclusion: The Ministry’s decision that over 6 yo exempt students cannot be present at Playcentre with their families means that some children and their parents will be unable to have the opportunity to participate in ECE and/or the Playcentre community, to the detriment not just of themselves but of the whole family and wider community. It also means some Playcentres will be unable to run sessions or may be forced to close due to lack of suitable qualified people to run them. And it puts parents in the terrible position of being forced to choose between their children.

On the other hand, there is nothing in the law that actual prevents such children from being allowed to be present, and there is absolutely no harm being done to the education of the enrolled children under these circumstances – rather their experience and learning is often enhanced; any rare individual issues can be handled suitably on a case-by-case basis by the affected Playcentre through their own policies and processes.

We therefore ask the Ministry to urgently reconsider their position on this matter.

Yours faithfully
Cynthia Hancox
Government Liaison: National Council of Home Educators of NZ (NCHENZ)

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.

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.

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.

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.

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

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

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

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

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."

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.

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

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). 

Note especially 1 (d) for exempt students, or (c) for Te Kura students. 

Also note Section 221 for offences/fines related to this.

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. 

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.

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.

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

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.

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."

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.

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. 

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.....

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. 

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

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

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.

There are approximately 3,500 trials by jury in NZ every year. For each trail, more than 100 potential jurors are usually summonsed (depending on type of trial), from which will be chosen the actual jury. This means that around 350,000 jury summons are issued per year. 

Jury duty summonses are based upon the electoral role. With approximately 3,000,000 people on the roll, that means that everyone has greater than a 1 in 10 chance of being summonsed in any given year. However, only a small portion will actually be selected for jury service.

When the registrars are issuing summons for a trial, they first generate a list of people within 45km of the court. From that list, they eliminate anyone who obviously does not fit eligibility criteria according to their records. They then select the number of people they need for this particular trail, and send out a summons.

When you receive a summons, you are asked to respond to either confirm you will be there, or to ask for a deferral or to be excused. 

If you do not gain a deferral or excusal, and simply don't turn up on the day, you may be fined up to $1000.

Applications for deferral/excusal are not processed at each individual district court, but rather by two small teams of people in two locations. 

The ability to have a trail-by-jury is a right that is very important to a fair justice system. Of course, without a jury, there can be no trial-by-jury. Serving on a jury is one important way NZ citizens can serve their country and local community. 

Laws were changed a few years ago to tighten up on the requirement to attend jury duty when summonsed, as many people shirked this duty without real reason, and there were difficulties getting sufficient suitable jurors for trials. 

The summons will give a date and time you need to appear. This is usually a Monday or Tuesday morning. They tell you to be prepared to have to be available for the full week, though that will only happen if you are actually selected to serve on the jury. There will also be a number you can call the day before or that morning to check whether you still have to show up - sometimes the accused changes their plea or other events occur to cause a trail to be delayed or cancelled or to no longer require a jury.

On the day, you will be in a room with all the other people summonsed. Everyone's name will be in a ballot box, and names will be randomly chosen - those people will be called before the judge and lawyers one at a time. The lawyers may decline (challenge) people on certain grounds. The potential juror may also give the judge a reason why they cannot or should not serve on this jury. Each person who is not challenged or otherwise excused takes their place on the jury benches. This process continues until a full jury is selected, and everyone else is sent home. 

The jury is then empanelled, and the trial set to begin. Trials may last anywhere from one day to a full week, to multiple weeks for certain high-profile cases. 

While serving on a jury, you can apply for childcare payments, and are eligible for attendance fees from the courts, and may be able to claim transport costs. However, the way the childcare criteria are set up are based on an assumption that the children attend school during the day (if school age) etc. They generally don't fit well for the needs of a home educated family. It is possible to apply for additional child care costs over and above the standard ones, but I do not know whether they would be sufficient to meet the needs of a family with a number of children needing full time care while the parent serves on the jury (and the other one, if there is a second parent, is at work). It is also possible to apply for payments above the attendance fees where a family is unable to meet their reasonable commitments due to jury duty.

Anyone who fits any of the following criteria is automatically eligible to be excused:

• Lives more than 45km from the courthouse
• Is over 65 (can choose to serve if they wish, but are not required)
• Works in the justice sector - eg a lawyer, Corrections employee
• Has done jury duty in the last 2 years (this includes just showing up in response to a summons and not being selected)
• Has been sentenced to imprisonment for 3 years or more, or to preventative detention, or sentenced to 3 months or more within the last 5 years.
• Has already been excused from service by a judge for a period of time that has not yet expired.

The Ministry of Justice recognises that not everyone summonsed will be able to attend on the stated date. A deferral of service can be applied for by writing to them with information and proof of why you cannot attend then. Reasons for deferral must fit into one of the categories described in law, which are: 

• A special or pressing engagement for your business or job
• Your health or disability
• Family committments
• Other personal circumstances

When applying for a deferral, you must nominate dates during which you will be available, within the next 12 months and covering at least a four week period (other than mid Dec to mid Jan). If you don't nominate alternative dates, the court will assign them. Once a deferral has been granted and alternative dates nominated, they can't be changed. 

So long as you can give a reasonable reason, it is not difficult to gain a deferral the first time. However, there is a requirement that you will then be available during the deferred dates (unless something major and unforeseen comes up). If, however, you were previously deferred on the basis of home education, you should be able apply to be excused when the next summons comes up if you are unable to serve.

For a home educator whose circumstances are unlikely to change, it is probably better to apply to be excused rather than deferred. However, be aware that the law requires the registrars in the first instance to seek deferral rather than excusing applicants. Therefore you may have to be quite insistent if it's excusal you seek. 

You are legally required to do jury service. However, you can apply to be excused from jury service if you are unable to defer your service, or unable to perform your duties. 

When applying, you must give a reason for being excused, and provide evidence or proof to support that (except if over 65, have done jury duty in the last 2 years, or on the basis of imprisonment). 

Your reasons to be excused must fit into either one of the automatic categories listed above, or the category of being part of a religious order which does not believe in taking part in jury service, or one of the same categories listed for deferral. However, for the latter, you will need to also explain why this prevents you from simply deferring the jury service. 

A person who has been summonsed can apply to the registrar to be excused prior to the date of jury duty, or they can ask to put their application before the judge on the day. If an application to be excused is declined by the registrar, the applicant has the right to appeal directly to the judge.

More on how to apply for excusal below, but first what happened when we met with Ministry of Justice staff to discuss these issues:

In Feb 2017, myself and other representatives of NCHENZ met with Ministry of Justice staff in Wellington to discuss the issue of home educators and jury service. Some of the main points I raised with them may also be useful in preparing your own application for excusal, and were:

• Most home educators believe strongly in civic and community responsibility and duty. Many home educators serve their communities in various ways, as they are able, and if summonsed for jury duty would be happy to serve if at all possible. However, their duties as home educators and their individual situations sometimes make this difficult or impossible without undue hardship. 
• The legislation regarding reasons for deferral or excusal from jury duty are quite broad and non-specific, and it is up to the Registrar to interpret and apply this legislation to individual applicant’s circumstances. The acceptable reasons given for excusal are:
  1. the nature of that person's occupation or business, or of any special and pressing commitment arising in the course of that person's occupation or business:
  2.  that person's disability:
  3. that person's state of health, or family commitments, or other personal circumstances.

                   (See Juries Act 1981, Sections 14B and 15)

• “Home educator” IS the occupation of parents who are homeschooling their children. This unpaid but important role is regulated by legislation requiring parents to provide plans and evidence that satisfy the Ministry of Education that their children “will be taught as regularly and well as in a registered school.” Under MoE policy, there is an onus on the parent (usually the mother) to personally provide supervision and teaching to their children.
• Home education is also not a 9am-3pm, 5 days a week role. It is a 24/7 lifestyle. There are few, if any “days off,” and many home educating families have little support from relatives and friends.
• Home educators most often have a number of children of various ages in their care. These children may be in the midst of important study such as for their NCEA qualifications, or they may have special needs or high anxiety issues that make leaving them in the care of someone else difficult or inappropriate. In all cases, the delivery of the child’s education is dependent on the availability and commitment of the parents.
• Because of the above, I would contend that both the “nature of the person’s occupation,” the commitment that arises in the course of that occupation, as well as their “family commitments” are indeed reasonable grounds for excusal from jury duty. 

One Deputy Registrar had told a parent that “Homeschooling is not a reason for excusal under the legislation. You need to either provide deferral dates in the school holidays and arrange alternative childcare for your children, or arrange a substitute teacher for the time you are on jury service." So I pointed out:

• Home education is not structured according to school terms; learning goes on all year round. That aside, many families have no reasonable child care possibilities. Most childcare facilities are set up for pre-schooler or afterschool care only. Many families do not have extended family support. And, those things aside, no child-care provider could be reasonable expected to take on the actual education of the children during that time, meaning that the children are therefore forced to “miss school” by virtue of the absence of their only teacher.  
• There are no “substitute teachers” for home education, and if there were most parents could not afford to pay one. Even if it were possible, this would be disruptive to the children’s education as home education is highly individualised and not easily taken over by someone else. It would also be unreasonable to ask another home educator, already busy with the needs of their own children, to serve as “substitute” and thus disrupt the education of both families.

Further points:

• The legislation allows for an applicant’s jury service to be deferred or excused. Deferral is to a date within 12 months. This is not generally a reasonable course for home educators – their circumstances are very unlikely to change within a 12-month period, as the commitment to home educate is long term in most cases. 
• In summary, home educators have a specific and legislated commitment to personally ensure and supervise the learning of their children. They often do so with limited, if any, support or financial resources. To expect a home educator to put their children in the care of strangers and in so doing to disrupt their educational process while the parent performs jury duty is both impractical and unreasonable, as well as going against the strong personal convictions of many home educators.
    Being forced to attend jury service would cause home educating families financial hardship, as well as significant disruption and potentially long-lasting difficulties in trying to then overcome the flow-on affects from the disruption in education that may result.
    In the words of one home educator: “I find it frustrating that one government department says I must teach my children as regularly and well as if they were at school while another tells me I must put them in childcare while I do something else.”
• Because the law does not specifically refer to home education, interpretation has been left to individual registrars and their deputies. We propose that there should be some discussion around these issues, and then the creation of a national workable policy for those home educators who are unable, due to their circumstances, to serve.
• We would remind the Ministry of Justice that the total number of home educating families in NZ is 3062*. We are only talking about a small number of people needing to be excused from jury service. Of all home educated students, 77% of them are ages 6-13*, and cannot be legally left on their own.
  *Source: www.educationcounts.govt.nz

Ministry of Justice response:
The MoJ staff were receptive to what we were saying. We had some useful discussion around process, eligibility, and how to apply to be excused, most of which information is included in this article. 

There are application forms available on the MoJ website. Alongside of completing these, you need to provide details of why you believe you should be excused, and evidence or proof to support your reasons. 

The Ministry of Justice recommends you include as much pertinent information as possible. Details that may be relevant or have bearing on your application might include:

• Having a breastfed child in your care
• Having a child with high needs, disabilities, or severe anxiety problems that would make it unreasonable to leave them in someone else's care
• The ages of your children, inability to leave them on their own, and unavailablity of reasonable alternative care.
• Home education - your commitment to their educational needs, and the requirements of Section 21 of the Education Act.
• Other points mentioned above in our meeting. 
• Why deferral is not practical - ie how/why your circumstances are unlikely to be any different within 12 months.

Suitable proof or evidence to accompany your application might include:

• Birth certificates
• Exemption certificates
• Letter from a doctor or other relevant professional
• Letter of support from NCHENZ, your regional home educator's group or similar (to confirm your membership/involvement and home ed status and commitment)

The more revelvant information and proof you provide, the greater the liklihood that you will be excused. 
Ministry staff told us that they often recieve applications which basically say "I can't do it" with no information provided. Don't be that person. :-) 

While the courts have got tougher about jury duty, no one wants a jury member who is not able to fully concentrate and work for the system. A parent who is deeply worried about their children while they are at court is not a useful jury member. If you are truly not in a position to serve on a jury, and that is unlikely to change, then gather your information and apply to be excused.

​Remember: the registrar's first response will likely be to try and make it a deferral, and if they refuse to excuse you, you do have the right of appeal to the judge.

However, if you are in a position to make it work so you can do jury duty, then I would encourage you to do so. You could also make this a great topic study for your home educated students. :-) 

2020 NB: Please see my updated post on this matter HERE, as new legislation has come into effect. This original post remains here FYI.

With the recent passing of the Education (Update) Bill, the resulting changes of which will come into effect on 3rd July, there has been considerable discussion among home education groups about what effect this will have on parent’s ability to home educate their young children or the processes involved. 

The purpose of this post is to clarify what the changes do and don’t mean. 

Legislation and Links:
The current Education Act 1989 can be viewed online here: http://legislation.govt.nz/act/public/1989/0080/latest/DLM175959.html?search=qs_act%40bill%40regulation%40deemedreg_education+act+1989_resel_25_h&p=1&sr=1

The Education (Update) Bill can be viewed online here:
http://www.legislation.govt.nz/bill/government/2016/0160/latest/DLM6928611.html
In time, the amendments will be incorporated into the Act, but for now it is necessary to read them side by side to see the entirely of what a section will say once the updates come into effect. 

Ministry of Education's information regarding the Education (Update) Bill:
https://education.govt.nz/ministry-of-education/regulatory-impact-statements/updating-the-education-act/ 

My step-by-step guide to getting a home education exemption can be found HERE.

The Ministry of Education's information about home education exemptions can be found HERE.