The State does not have a duty of care for children within the family unit unless there is evidence to the contrary.
The Legal Situation in NSW.
Home Education Regulations 1998
(gazetted Sept.11th- disallowed Oct.20th)
Registration Certificates.
by Geoff & Toni Stevens
In NSW we have the unfortunate situation where the Minister of Education and the Office of the Board of Studies (OBoS), in our opinion, completely disregarded the Home Schooling provisions of the Education Act, 1990, (EA) by attempting to enforce "Guidelines for Registration" that are not in accord with the Act. These Guidelines are sent to applying parents with the inference that they will not receive registration certificates for their children if they do not follow them as if they are the law.
Many Home Educators in NSW mistakenly believe that the Minister can approve the development and application of any guidelines he wishes to "enable the Act" but this is not true. The Minister is not a dictator who is above the law. He can only approve Guidelines that are in accord with the Act. The Act allows the Minister to delegate his function in Home Schooling to whom ever he will. The OBoS say they are it, but when ever they are asked to make a decision about anything important, they say they can't because it is the Minister's decision: apparently he has not delegated this function at all.
The OBoS defend the guidelines by saying that they were developed in consultation with Home Educators (just two it seems). Even if this is the case, the end result has been guidelines that are contestablely invalid because they contravene the 1990 Act (they appear to be based upon the 1987 Act). Parliament and the people don't go to great lengths and expense to draw up Laws that can be over written by "guidelines" decided upon by an administrative body and whoever they decide to consult. They have recently been selling the line that goes something like this - those who oppose the guidelines are not looking at the whole Act. Oh, its fine to grab any part of the Act and apply it to any other part of the Act (at least where Home Schooling is involved). There are three distinct and legal education options to in the Act and are handled separately by the Act: Public Schools, (specified as the primary duty of the Minister), Non- Government Schools, and Home Schooling. The key word the OBoS use is "schools", in other words, they wish to regard us as registered non-government schools. However, registration for Home Schooling is "child specific"- the process is not registering a school or a parent but a child.
Many Home Educators are refusing to comply with the requirements of the OBoS guidelines and are challenging the view of the Minister, Mr Aquilina, about his authority to override our basic human rights as citizens of a free, democratic society. These Home Educators are particularly incensed with the presumption that a person from the OBoS may enter premises under the ruse of inspecting for "adequate light and ventilation for educational purposes" which is a procedure required by law for public and private schools, not family homes. This gives an Authorised Person greater rights over us than the police! It is acknowledged that public and private schools should and must be inspected regularly as they are looking after other peoples children. The teachers are "in loco parentis" (taking the place of the parents in duty of care, control and education of the children) and the schools are accountable to the parents. The OBoS are trying to reverse this fact by saying that the parents are accountable to the STATE.
Those Home Educators who have been refused registration certificates for their children have been forced to take the next step in the process and have appealed to the School's Appeal Tribunal, although knowing that this tribunal is not a judicial body and cannot make decisions pertaining to the legality of the guidelines. Those on the Tribunal have shown they are anti-Home Schooling, (this an objective body?) by saying such things like its an absurdity (a favorite word) for parents to think they can educate their own children! How can you expect a fair hearing here?
To date ( Dec., 1998):
1. After three separate tribunal hearings one HS family which refused to comply has received registration certificates for all children on application. (note: Mr.Jesse and Dr. Julia Boxx argue that signing a letter stating that the parent/s undertake to provide instruction that meets the Minimum Curriculum Guidelines is sufficient legal evidence for the Minister. This is all that they supplied the Minister with and he registered all their six children by issuing certificates with no conditions (including the child he refused to register in the first place back in 1996) and a seventh child has been registered since that time.)
2. One HS'r has been refused registration certificates by default, i.e. the Minister has failed to act by informing her in writing of his decision. She has informed the Minister in writing (approx. 1 year ago) that she intends to continue homeschooling and no prosecution has occurred. It appears that the Minister does not want the issue moved from the administrative to the judicial branch of government.
(n.b. If this registration process is really required for the benefit and protection of the children involved, then this is a serious dereliction of duty on behalf of the Minister!!)
3. There are now approximately sixty families refusing to comply with the OBoS Registration Guidelines. Several parents (approx. 40 families) have already been before the Schools Appeal Tribunal and are awaiting its deliberation. Those that have received a recommendation have either
a) been refused as the original application - or
b) been recommended if they comply to a visit within an unspecified period of time along with an assessment of the children's academic ability. (results compared to what?)
4. Several HS'rs have had their Appeals canceled/postponed due to procedural difficulties within the OBoS. For example, the failure to make sure that the appropriate Authorised Person for that family was available to appear at the Tribunal; also, the appointment of a member of the Tribunal with clear conflict of interest in the cases i.e. previous employee of the OBoS who had worked regularly on the registration process of HS'rs (monthly meetings!).
5. Yours truly has been given a recommendation of 2 years if we agree to provide documentation later on, and on the evening of receipt of the AP's report, a special courier arrived with Registration Certificates for all of OUR children. However, since the Minister had illegally put conditions on the certificates themselves making them invalid, we had to return them to him post haste, after having copies notarised, and demanding valid certificates. There were three reason for this:
a). by accepting those certificates with conditions, we would have entered into what could be judged by a court as a legally binding contractual agreement with the Minister and would have to comply with the conditions (these were the same as the Guidelines that they couldn't force US to comply with).
b). according to the Act i.e. 72. (2) The Minister is to register the child if the Minister,.... is satisfied that the conditions subject to which Registration is required to be given will be complied with. So to issue certificates he must already be satisfied!!
c). the Act also specifies what conditions can be applied to Home Educators in 73.(2). These conditions must comply with the requirements of the regulations and there are no regulations listed or otherwise in the section pertaining to home schooling. Why not? Because any regulations have to be consistent with this Act [130.(1)] and there are none specified in the Act. Also, the Board may only make rules that are part of its functions and homeschooling is not one of its functions [131.(1)].
6) An attempt by the Minister to have these Guidelines (which they tell us are enforceable in law) made into Regulations, which are enforceable in Law, was rejected by the Parliament (20/10/98). Although they have been rejected, we received a letter dated 26th October 1998, where the Minister states that the Conditions (based on the Regulations) put on our Certificates as valid. The date is an interesting one as it is the day of the first meeting of HS'rs with the OBoS after the rejection. It would seem he waited to see if anybody would show or if they did, what the outcome would be. Our conciliatory manner towards the OBoS was taken as a sign of us accepting his authority over us.
7) To my knowledge another home educator has received copies of such Certificates for her opinion!! Since then all certificates issued have had conditions on them. We are writing to Parliament for the Minister to be censured for disregarding the disallowance of the Reg's, by still insisting on the same via conditions.
8) We have informed him that We will continue to home educate any way and that We are entitled to valid Certificates backdated to our application. We have decided that our only recourse to correct this injustice is to appeal to those in Parliament supporting us to put it to the Minister in the Parliament why he feels he can ignore the will of Parliament?
Last Updated: January 26th, 1999