This post summarises the sections of the new Education and Training Act 2020 (which governs all things education from ECE to Tertiary) which are of most relevance to home educators or those considering home education. The Act is huge, so I'm focussing on the most sigificant parts that are relevant. The entire Act can be read here: www.legislation.govt.nz/act/public/2020/0038/latest/whole.html#LMS170676
This is an update to my original post about this legislation when it was still a Bill.
- 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.
Section 35 - Students 6-16 must be enrolled in school
- 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
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
Section 36 - Enrolled students required to attend
(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.
Section 37 - Special Education Enrolment
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.
Section 38 - Long term exemptions from enrolment
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
Section 39 - Early Leaving Exemptions for students who have turned 15
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
Section 40 - Effect of exemption under 38 or 39
Section 42 - Exceptions to attendance because of well-being or transition plans
- 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.
Section 44 - Other Exemptions from Attendance
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."
Sections 48-49 Attendance Officers and Constables
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 52 Release from Tuition for Outside Tuition or to Leave Early
The section also covers the ability of a school to allow a student to leave early on a particular day if there are good reasons, and they have attended for 4 or more hours (which gets marked on the roll as full time attendance).
Section 54 Restrictions on employing school-age children
(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.
Section 68 Restrictions on Enrolment at Distance School
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.
Sections 78-89 Stand-downs and Suspensions, Explusion
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 Curriculum Statements and National Performance Measures
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.
Section 213 - Private Schools
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.
Sections 216-220 - Dispute Resolution
Until now, any parent having a serious complaint or dispute with the school has had to take to the school's Board of Trustees, often with unsatisfactory results. Under the new legislation, there will be a Dispute Resolution Panel consisting of local community members and expert members for the purpose of resolving serious disputes - though parents must still first give the school an opportunity to resolve the dispute. These sections also set out the dispute resolution processes, the types of outcomes, and when they are binding or non-binding.
Part 4: Tertiary and Vocational Education and Training
Section 255 - Enrolment of Students
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
Sections 462-473 Education Review Office (ERO)
(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
Sections 548-559 Funding
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
Section 622-635 Powers of Entry and Inspection
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
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.