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Under the current N.S.W. E.P.I.A. Act, Part Two, Section 4 ( 3), dealing with defenses to prosecutions under Section 4, parents have no freedom of choice in the education of their children by attendance at school or otherwise. They certainly have, under Section 4 (3), no right to educate their children at home. All parents have under Section 4, ss.(3) (c) is a defence to prosecution for choosing to educate their children by some means other than regular attendance at school, if they have been granted a certificate under Section 6 of the Act. However, whether such a defence will be available to parents or not, does not depend on parental autonomy, but on ministerial hegemony.
The E.P.I.A. Act, Section 6(1) LEAVES THE GRANTING OF A CERTIFICATE OF EXEMPTION AND THUS THE AVAILABILITY OF A DEFENCE TO THOSE PARENTS WHO HAVE BEEN PROSECUTED FOR EXERCISING CHOICE IN THE EDUCATION OF THEIR CHILDREN TO THE ABSOLUTE DISCRETION OF THE MINISTER.
This discretion is enshrined in the words of Section 6(1): "The Minster may grant a certificate ... if the Minister is satisfied" as to the appropriateness, regularity and efficiency of instruction at home. The exercise of such a broad discretion could make refusal to grant an exemption well-nigh unreviewable, because the refusal to grant a certificate does not depend on the Minister's being reasonably dissatisfied, but on his being dissatisfied on any grounds whatever. Such an expression as "if the Minister is satisfied" differs only in degree from a power for any Minister to act as he or she thinks fit.
AGAIN THE ACT DENIES PARENTAL AUTONOMY AND ENDORSES EXECUTIVE HEGEMONY.
Guidelines have been issued pursuant to Section 6 of Part Two. The Act does not require the promulgation of such guidelines. Guideline 1 appears to be ultra vires the Act, in that it lays down that "exemptions from school attendance should be granted only in exceptional circumstances ...". however the inclusion of such a proviso in the Guidelines could be interpreted as one effect of the wide-ranging discretion of the minister, noted above, to prevent parents from exercising their freedom of choice as he or she thinks fit, namely, be determining that a certificate of exemption should not be issued except in exceptional circumstances. In any event, the inclusion of such a phrase in the guidelines must make the granting of a certificate of exemption and thus the availability to parents of a defence to prosecution for attempting to educate their children other than by regular attendance at school very problematic.
The formula in the Act "that the child receives appropriate regular and efficient instruction at home" is so uncertain as to invite a range of possible interpretations depending on who is doing the interpreting. What constitutes an efficient education is not defined in the Act, nor is the word "regular".
English case law interpreting the equivalent phrase "efficient full-time education" holds the view that the efficiency of the education a child is receiving is not to be judged a priori by an educational authority's notion of what is efficient education, but rather on the basis of such evidence as would persuade a reasonable person that a child is being educated adequately (Bevan v Shears [1911] 2 KB 936).
Yet, it is quite clear from the conditions which are laid down in the certificate of exemption and in the guidelines, that it is the educational authority's judgment of what constitutes evidence of efficient education which is to prevail: "... written, comprehensive, balanced and sequential teaching/learning programs ... planned and implemented etc.".
Furthermore, English case law has upheld the principle that inspection in the home is not the only method that an educational authority should insist upon in attempting to satisfy itself that a child is receiving a proper education (R. v Surrey Quarter Session Appeal Committee, ex parte Tweedie [1963] LSR 464).
It is also to the point to note that although the guidelines envisage as "regular" the sort of application to schooling that is made compulsory under the compulsory attendance provisions of the Act, there is no foundation in law for this view. Indeed, it may be of interest to the Committee to note that what constitutes regular attendance at school in the State of Queensland is fewer days per school year than it is in this State, and one year's less schooling overall!
From an educational point of view, there can be be no doubt that the compulsory school attendance laws, like the child labour laws which preceded them, were designed to prevent the exploitation of children, but such laws provide no guarantee that children will be educated, nor indeed, that they will be adequately instructed at school. I invite the Committee to read the enclosed mimeographed report of a study, which was not conducted in the interests of the home schooling movement, but which may give members of the Committee some insight into why it is that some members of the community want the choice of being able to educate their children at home. This report is not for distribution or citation and I request that it be returned to me by March 31, 1989.
In conclusion, I would like to draw the attention of the Committee, not to the obvious economic advantages of having parents educate their children at home, but to the likely social advantages of guaranteeing and extending meaningful freedom of choice to home-school their children to those outstanding parents who are dedicated enough to undertake the full responsibility for the education of their children. In the words of Uri Bronfenbrenner, the American educational psychologist (cited by G.R. Richardson, Education for Freedom, (1985) Gavemer Publishing, Sydney, pp. 63, 65):
"... we are coming to live in a society that is segregated not only be race and class but also by age ... the phenomenon of segregation by age and its consequences for human behaviour and development, pose problems of the greatest magnitude for the Western world ... if the institutions of our society continue to remove parents, other adults, and older youth from active participation in the lives of children ... we can anticipate increased alienation, indifference, antagonism and violence on the part of the younger generation in all segments of our society - middle-class children as well as the disadvantaged ... If adults do not once again become involved in the lives of their children, there is trouble ahead ... for society."
It could be said that that trouble is already with us, as we witness the havoc wrought by graffiti-writing gangs of peers, not only on public property, but more recently and horrendously on innocent human life itself.
On the other hand, the desegregation of children from their parents for the purposes of education is probably less necessary than it ever was, as the school no longer holds any monopoly at all on access to knowledge.
One small step can be taken along the path to freedom for parents to exercise the meaningful choice in respect of their children's education by the critical review and revision of the Education and Public Instruction Act, 1987 and the guidelines issued pursuant to that Act to guarantee and extend parental choice to home-school their children. That is one means. There are undoubtedly many others. But it is a significant means, because as has been suggested in the submission, it may represent a small step to freedom away from the escalating violence in our society which we all abhor.
Signed
Dr Helen M. Sungiala,
Senior Lecturer in Educational Planning and in Education Law,
Department of Administrative and Higher Education Studies,
Faculty of Education,
University of New England,
Armidale, N.S.W., 2350.
Barrister-at-Law, Supreme Court of New South Wales.