Sections of the Bill of Interest to Home Educators

Education and Training Bill

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.

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

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

• Every student from their 6th birthday to 16th birthday must be enrolled in a registered school
• Before a student’s seventh birthday, the student is not required to be enrolled at any school more than 3 kilometres walking distance from the student’s residence. (Also note Section 42 below)
• The above do not apply to international students

Of note: refer to the definition of "walking distance" in the interpretation section at the beginning of the Bill/Act

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

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

Section 35 - Enrolled students required to attend

35 Students of registered schools required to attend whenever schools are open(1) Except as provided in this Act, a student is required to attend a registered school whenever it is open if the student--
(a) is required to be enrolled at a registered school:
(b) is aged 5 years and is enrolled at a registered school.
(2)​ A board must take all reasonable steps to ensure that the school’s students attend the school when it is open.
(3) For the purposes of this section, a student attends a school on any day if, on the day,--
(a)it has been open for instruction for 4 hours or more; and
(b)the student has been present for 4 hours or more when it was open for instruction.
Compare: 1989 No 80 s 25

Note Section 225 for offences/fines related to attendance. Fince can only be imposed upon conviction in a court of law. And Sections 228-229 set out related matters if such proceedings occur - such as the burden of proof being on the parents.

Section 36 - Special Education Enrolment

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

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

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

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

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

Section 37 - Long term exemptions from enrolment

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

37Long-term exemptions from enrolment
(1) The Secretary may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 34 if the Secretary is satisfied that the student--
(a)\ is to be taught at least as regularly and well as in a registered school; or
(b) is to be taught at least as regularly and well as in a specialist school or a special service (if the student would otherwise be likely to need special education).(2) An exemption certificate granted under this section must state why it was granted.
(3) The Secretary may revoke an exemption certificate.
(4) However, the Secretary may revoke an exemption certificate only if the Secretary--
(a) has made reasonable efforts to get all of the relevant information; and
(b)has considered a report on the matter from the Chief Review Officer; and
(c)is not satisfied under subsection (1).
(5) If the Secretary thinks any student to whom an exemption certificate applies to would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 36.
(6) An exemption certificate expires when the person to whom it applies turns 16 or enrols at a registered school, whichever happens first.
(7) A certificate continues in force until it is revoked or expires.
Compare: 1989 No 80 s 21

Section 38 - Exemptions for students who have turned 15

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

Section 39 - Effect of exemption under 37 or 38

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

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

This section allows for:

• A plan of reduced hours for well-being needs identified in writing by a medical practitioner or psychologist 
• A transition plan for introducing a child of 5 more slowly to school
• Neither of the above can be for longer than 6 months, and they cannot be renewed or extended
• Attendance requirements do not apply to students who are enrolled only for a part-time program under the secondary-tertiary program or multiple-timetable arrangement.

Again, this section does not directly apply to home educated students, but may be of interest/relevance to some parents.
​Parents who have concerns about the wording or time limits on these segments might like to consider a submission

Section 42 - Other Exemptions from Attendance

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

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

Sections 46-47 Attendance Officers and Constables

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

Section 46 requires a school board to take all reasonable steps to ensure the attendance of students enrolled in their school/s, and gives them the power to appoint an Attendance Officer for this purpose. 

Section 47 sets out the powers of attendance offices and constables:

• To detain any person who appears to be between 5 and 16 and who appears to be absent from school
• To question that person about their name, address, the school they attend and its address, and why they are absent
• Before they can do either of these things, they MUST produce a badge (if police) or evidence of appointment (ie a certificate sealed by a board who appointed them)
• If not satisfied that the person has a good reason for being absent, they may transport that child to their home or the school they think they are enrolled in
• An attendance office, principal, the Secretary or a person appointed by the board or the Secretary may file charging documents, conduct prosecutions and take any other proceedings under this Part (ie re truancy)

Section 223 sets out an offence/fine for deliberately obstructing or interfering with an attendance officer exercising their powers, payable on conviction in a court of law.

Sections 48-49 Release from Tutition

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

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

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

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

Section 52 Restrictions on employing school-age children

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

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

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

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

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

There were no such restrictions under the 1989 Act. 
To summarise the main points:

• A school board may determine that their buildings can be used for the purpose of religious instruction or observances in a manner they approve
• Any classroom or school as a whole may be closed during the school day for a total aggregate maximum of 60 mins per week, but not exceeding a total of more than 20 hours in a school year, for the purposes of religious instruction or observances conducted by voluntary instructors approved by the board 
• Additional time may be approved by the Minister if the majority of the school's parents want it, and the additional religious instruction is not detrimental to the normal curriculum of the school
• Students can only attend religious instruction if their parents have confirmed in writing that they wish them to take part or attend
• Teachers may be released for up to 30 mins a week to take part in the school's religious instruction and observance, but they cannot be in any way influenced to do so

See also Section 93, which states that all teaching in state (and state integrated) primary and intermediate schools must be secular.

The rights of preservation of the special character of some state integrated schools is set out in Schedule 6 (so a Christian school can, for example, still include religious examples etc in their general teaching and instruction, and has the right to preserve the special character of the school, including religious instruction and observances that may be part of their usual program).

Those concerned about these restrictions may wish to make a submission. 

Note that much of the wording of the Bill about this was borrowed from the 1964 Education Act. Also, there is no wording around restrictions on religious instruction or observance in secondary schools. 

Section 66 Restrictions on Enrolment at Distance School

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

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

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

Section 72 - Secretary May Direct Students Attend Particular Schools

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

Sections 74-85 Stand-downs and Suspensions, Explusion

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

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

These sections cover a range of matters. Of particular possible interest:

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

Section 199 - Private Schools

This affects home educators, because there has long been an issue where the Ministry questions groups of home educators who come together for various purposes, as to whether they "may be operating as a private school."

199 Secretary may require application for registration of schoolThe Secretary may require the managers of a private entity that is not registered under section 200 to apply for its registration as a private school under that section if the Secretary considers that the entity is operating as a school, whether or not any exemption certificates issued under section 37 are held in respect of any or all of the students being taught there.
Compare: 1989 No 80 s 35B

Related is Schedule 7, Section 2:
Criteria for registration as private school
The criteria for registration as a private school are that the school--
(a)has premises that are suitable, as described in clause 3; and
(b)usually provides tuition for 9 or more students aged 5 or over but under 16; and
(c)has staffing that is suitable to the age range and level of its students, the curriculum taught at the school, and the size of the school; and
(d)has equipment that is suitable for the curriculum being delivered or to be delivered at the school; and
(e)has a curriculum for teaching, learning, and assessment and makes details of the curriculum and its programme for delivery available for parents; and
(f)has suitable tuition standards, as described in clause 5; and
(g)has managers who are fit and proper persons (as described in clause 6) to be managers of a private school; and
(h)is a physically and emotionally safe place for students.
Compare: 1989 No 80 s 35C
And Section 230 sets out related offences/fines.
Also note Section 593 (in Bill or below) which states powers of entry into a premise where an unregistered private school is suspected of being.

Sections 202-215 - Dispute Resolution

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

Part 4: Tertiary and Vocational Education and Training

There are massive changes happening within the tertiary and vocational sector! These are not brought about by the new legislation, but rather the new legislation is written to support those changes that have been decided upon, but which parents should be aware of. Including:

• Regional polytechnics will not longer be independant entities, but become subsidiaries of the new over-arching New Zealand Institute Skills and Techology (NZIST) (Sections 300-322) 
• Industry Training Organisations will be replaced by Workforce Development Councils (Sections 351-363 cover this and Apprenticeships etc)
• NZQA and TEC will continue

This part of the legislation covers everything from the registration of private training establishments, to the rules around NZIST, WDCs, NZQA, TEC, student loans and allowances, student fees, apprenticeships etc etc. 

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

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

Section 236 - Enrolment of Students

This section sets out the eligibility of students to enrol in a tertiary education program. The full wording is below, but note that any student who is eligible is entitled to be enrolled. 

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

Sections 434-446 Education Review Office (ERO)

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

Sections 439-442 sets out the specific provisions concerning students with enrolment exemptions (note they do not have power or entry into a private home):

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

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

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

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

Section 592-593 Powers of Entry and Inspection

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

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

Summary:

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

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