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Interpretation of the Education Act 1990 pointing out obvious discrepancies with the "Regulations".

Principles upon which this Act is based:

  1. This provision is straightforward but is critical to our philosophical stance. We the parents have the primary responsibility for our children, not the State. That responsibility includes education and is recognised by the State, as stated in principle 4b and the fourth principal object of the Act.
  2. The State has a "duty to ensure that every child receives an education of the highest quality"- This principle is equal to the other three that are listed, yet is used by the State to justify all its actions. They contend that this principle gives the Minister the Statutory right to set regulations that invade our privacy and make onerous demands on our time and energy. In fact, it could be equally contended that this principle demands that the State provide adequate resources for home schooled students to ensure the education of the highest quality. Instead, when participation in the Basic Skills Tests was offered to home educators, it was at a cost of $25 per child!

    3. Part 3- The School Curriculum.

  3. According to provision 73.(2) (b) home schoolers must provide for the child to receive instruction that meets the relevant requirements of …..the minimum curriculum for schools. If you read this provision, you can see where the 6 key learning areas come from.
  4. Look particularly at 8 (f) and 10 (e). These provisions relate to the fact that any course of study we choose for our children need not be taught according to a syllabus "developed or endorsed by the Board and approved by the Minister"

    5. The Regulations contravene the Act by stating all our programs must be endorsed by a Board officer and approved by the Minister!!!

  5. Note; 11(c) states that it is only for accreditation purposes that a registered non-government school needs to teach according to "a syllabus developed or endorsed by the board and approved by the Minister." Home schoolers are not accredited with any thing by the Board.
  6. Note also that provision 14(4) on syllabuses states that teachers do not have to "make a specific period of time mandatory" for the teaching of a particular course of study. Compare this statutory provision with the "regulation" (d) which requires we keep detailed records of "the time spent by the child on the teaching and learning programs"!!

    7. Division 3- Registration of non-government schools.

    Note the similarity to the home schooling regulations- in fact the similarity

    becomes striking if you compare them to the hand book for registration of

    Non- government schools issued by the Board.

    Part 5- Attendance of children at school.

  7. Provision 22 is the compulsory component of the Act. You can be prosecuted for not causing your child to attend school (truancy) or 22(b) not being registered for home schooling. It is not a defence under this Act to be able to prove that you have educated your child to the minimum curriculum (or above that basic level).
  8. According to provision 23. You can be prosecuted for not having a certificate or not educating- they get you both ways. However, the onus of proof is on the State to prove that you have not caused your child "to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools."{73.(2) (b)}

 

 

 

[for minimum curriculum see 8(e) and 10 (d)-these are " the conditions to which the registration is subject" this is why we are required to follow the min.curr. guidelines- considering our present position, and the fact that we wish to negotiate if we have to, we also could argue that these min.curr. guidelines were developed without our consultation and we should have been involved as we are an alternative to schools per se, i.e. the Dept. of Edn. Represented our view on the Board of Studies as we have no representative on the board; it is not legislated for.]

Argument:- The Act states that the State cannot both make it a duty and responsibility of the parent to " cause the child to be registered for home schooling" [22(b)] and also make it a privilege that we have to jump through numerous hoops to gain. It is clear from 22(b) and 23 (1) (b), that the Act regards it as a duty. Its being a duty precludes the idea of a privilege.

 

Part 7. Div. 6 Registration for Home Schooling

  1. Provision 71 describes the process of registration for home schooling: you may apply in writing to the Minister; the authorised person is to advise the Minister on the application (clerk/administrator) and as long as you don’t hear from them, you have not been refused.
  2. Provision 72 gives the Minister his function in the realm of home schooling-

    3. (a) to register a child and (b) to refuse to register a child.

  3. 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

    4. be complied with. In doing this the Minister is to have regard to the

    recommendation of the authorised person and if required the Schools Appeal

    Tribunal (soon to be renamed a committee as it has no judicial function and should never have carried that title with its attendant implications). However, the Minister cannot issue certificates unless he is satisfied and he certainly cannot issue certificates with conditions on them to be met before the certificate is valid. That is putting the cart before the horse.

  4. 73. This provision deals with the conditions and duration of registration (not to exceed 2yrs).
  5. 73(2) describes the "conditions so specified"- "must comply with the

requirements of the regulations" and "must provide for the child to receive

instruction that meets the …min. curr. For schools".

This provision specifies that the conditions must comply with the regulations. The problem up till now, for the Office of the Board, was that there were no regulations. They have gazetted regulations but they must be in accord with the Act as provided for by Provision:

130.(1) The Governor may make regulations, not inconsistent with this Act, for or with

respect to any matter that by this Act is required or permitted to be prescribed or

what is necessary or convenient to be prescribed for carrying out or giving effect to

this Act.

Argument: Provision 73 is poorly expressed but basically it allows for regulations to be written that are not inconsistent with the Act. The only regulations the Act actually allows for are that home schoolers must "provide for the child to receive instruction that meets the relevant requirements of Part 3 relating to the minimum curriculum for schools." A simple questionnaire asking us if we understand the requirements and obtaining a signature on a statutory declaration stating we will comply with those requirements according to the individual learning needs of our child.

Update.

The Regulation Review Committee recommended that the regulations be disallowed on the basis of "lack of consultation" with those it directly affected.

However, Parliament (the Upper House) voted for its disallowance, therefore, the Registration Guidelines have no basis in law and cannot be enforced- they are only guidelines. (n.b.Any twaddle the OBoS goes on with verbally is just rhetoric. See if they will put it in writing.)

Note we are legally bound to follow the Minimum curriculum Guidelines.

-which are different to the registration guidelines.

 

 

74. .This provision deals with cancellation of registration, not with application for registration to home school. The Education Act does not provide the power and authority for the State to enter the home. The family home has always been considered a safe environment for a child, unless there is evidence to the contrary. If such evidence is proffered then the Act gives powers to enter and inspect [74.(1)(b)]. If the parent refuses this, then the child’s registration can be cancelled. This is all the power the State needs to ensure the safety and education of a child.

Note: at the Reg. Rev. Committee-We asked where in the Act was the Authorised Person given the power to enter the home? Section 74 was quoted. The above interpretation was not disputed by the legal advisor present. That is only when there is substantial evidence that the children are NOT being educated can the AP insist on an inspection.

75. Conscientious Objection: Even if you conscientiously object to registration and give the Minister notice in writing, you will still be treated as if you had applied to register as a home schooler. What kind of conscientious objection is that?

 

PART 8: CERTIFICATES OF STUDY

92. Quality of the Educational program to be assessed. The requirements for this section are very similar to the regulations to be imposed on home schoolers, yet we receive no accreditation for any thing!

 

PART 10 SCHOOLS APPEAL TRIBUNAL

Note this body is not a judicial body and will soon have a new title- Administrative Appeals Committee.

 

PART 12 MISCELLANEOUS

Delegation by the Minister, the Board or the Director-General

119. The Minister, the Board and the Director-General of School Education may delegate to any person or body (including, in the case of a delegation by the Board, any committee of the Board) the exercise of any of their respective functions under this Act (other than the power of delegation conferred by this section).

The Minister has two functions in Home Schooling: to register a child or not to register a child. If the Minister had indeed delegated his function in Home Schooling to the OBoS, then why do they have to refer to the Ministers decision on every matter that is raised with them.

Note Rules of the Board. 131.(1) Home schooling is not listed as a function of the Board.

Argument: They seem to be trying to say that when we re-apply and refuse to be visited that they are cancelling our registration but in fact the registration expires every two years and we must make a new application for the next two years (as the max. period of registration).

General Note.

The regulations should actually be prescribing the delegation of authority from the Minister in the administration of home schooling. At the moment, only the authorised person, the Minister and the applicant should be involved or sighting any correspondence pertaining to the application. To date, Mr John Ward, Rosemary Hafner, Mr Rob Randall, Mr Paul Hewitt, the Minister and numerous secretaries and clerks are privy to private information included in the applications which is a breach of confidentiality in the process of application to home school. All of these people claim the right and authority to be involved in the application process but this is not legislated for and appears to be over administration.

This document was written in our fight to disallow regulations the Minister was trying to legislate without consultation with those they affect.

Those Regulations were disallowed by vote of Parliament- the Upper House voted 17 to 16 in our favour- on 20th Oct 1998. Go to NSW Govt site and look up Hansards reports for those days. If you can’t locate them let me know.

In other words the guidelines for registration cannot not be enforced.