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EDUCATION (PARTICIPATION) AMENDMENT BILL 2009
2009
THE LEGISLATIVE ASSEMBLY FOR
THE
AUSTRALIAN CAPITAL
TERRITORY
EDUCATION (PARTICIPATION)
AMENDMENT BILL 2009
EXPLANATORY
STATEMENT
Presented by
Mr Andrew Barr MLA
Minister for Education and Training
Explanatory
Statement
This explanatory statement
relates to the Bill as introduced into the ACT Legislative
Assembly.
Overview of
Bill
In April 2008 the ACT Skills
Commission released a report which included a recommendation that the ACT
Government review the age up to which participation in some form of education
and/or training is compulsory.
In response, the
ACT Government released ACT Skills Future in which the Government
reiterated its commitment to increasing, to 95%, the proportion of 19-year-olds
with a Year 12 Certificate or equivalent by 2013.
In August 2008, also in response, I released a
consultation paper, Pathways to the Future, inviting community feedback
on a proposal to raise the school-leaving age. The feedback received indicated
strong support for the introduction of a compulsory participation age of 17,
where young people would be supported to remain in education, training or work.
In April 2009, I detailed the Stanhope
Government’s ‘earn or learn’ policy by announcing the ACT
Government’s commitment to act on the findings of the
consultation.
On 2 July 2009, all states and
territories agreed to a similar policy position at the Council of Australian
Governments as part of a new National Partnership on Youth Attainment and
Transitions. Under this agreement all states and territories agreed to
implement a National Youth Participation Requirement by 2010.
The National Youth Participation Requirement
includes a mandatory requirement for all children and young people to
participate in education until they complete year 10 and, once they complete
year 10, to continue full-time in education, training or employment until they
turn 17.
Continuing on to year 12 or tertiary
education is not the most appropriate choice for all students.The requirement to
continue in education, training or employment until age 17 permits young
Canberrans who have completed year 10 to participate in an alternative
option for their ongoing learning and development. This ensures those choosing
not to continue in education will be pursuing learning that meets their needs,
abilities, interests and plans for the
future.
Outline of
Provisions
Clause 1 Name of
Act
States the title of the Act, which is
the Education (Participation) Amendment Act
2009.
Clause 2
Commencement
States that the Act commences
on 1 January 2010.
Clause 3 Legislation
amended
States that the Act amends the
Education Act 2004, the Children and
Young People Act 2008 and the Evidence (Miscellaneous
Provisions) Act 1991.
Clause 4 Main
objects of Act
Includes, in section (8)(b)
regarding compulsory education, reference to the requirement to complete year 10
and to participate in education, training or employment until age 17.
Section (8)(ba) retains the rest of existing
subsection (b), which refers to school
attendance.
Clause 5 Chapter 2 Compulsory
education
Part 2.1 Preliminary – ch
2
Defines the key terms used in chapter 2 of the Act.
Section 9 Meaning of compulsory education
age – ch 2
The compulsory
education age encompasses all children who are at least 6 years old and
under 17 years old. A child who is under 17 years old but has completed year 12
(as defined in section 9C) is no longer of compulsory education
age.
The term compulsory education
age is key to the obligation placed on children, through their parents, to
be enrolled with an education provider or registered for home education under
section 10. When a child is 17 years old or completes year 12 (whichever occurs
first) the obligation ceases.
Section
9A Meaning of education course and education provider –
Act
An education provider is an
organisation which provides an education course. To best accommodate the
educational needs of children in the ACT, section 9A incorporates government,
non-government and home education into the definition of education
course. It also includes vocational education and training courses and
higher education courses under state or territory
law.
The table in section 9A lists, in column
3, the education providers with which a child may choose to enrol. Column 2 of
the table lists the education course that the child may participate in with the
provider.
Each education course and
corresponding provider is an option for the purpose of meeting the obligation to
be enrolled or registered as required by section 10. A child may elect to engage
in a number of options.
Section 9B Meaning of
completes year 10 – Act
For a
child under the age of 17 to participate in training or employment as an
alternative to an education course, the child must have completed year 10.
Section 9B outlines the circumstances in which a child will be taken to have
completed year 10.
A high school record, for
the purpose of subsection (1)(b) refers to a record issued by an education
provider listed in section 9A to a child who is deemed ineligible to receive a
year 10 certificate. A high school record (however described) lists the courses
undertaken and grades earned by a student in years 9 to 10. A child who receives
a high school record for the purpose of transferring to another school within
the ACT or leaving the ACT school system has not completed year 10 for the
purpose of subsection (1)(b).
Children who
are registered for home education and wish to engage in a training or employment
alternative, thereby needing to have completed year 10, will be considered under
subsection (3)(b). Registration for home education may be grounds for satisfying
the chief executive that a child has achieved the equivalent of completing year
10. A child registered for home education may be issued a record by the chief
executive under subsection (4) for the purposes of subsection
(3)(b).
Section 9C Meaning of completes year
12 – Act
A child who has completed
year 12 or an equivalent prior to turning 17 ceases to be of compulsory
education age. This is because a child who has completed year 12 or an
equivalent has attained an education standard above which the ACT Government
does not seek to mandate participation. A child who completes year 12 prior to
turning 17 will be encouraged to continue to engage in a course of education,
training or employment if they wish, however, they are not required to do so
under the Act.
Section 9D Guidelines
– certain chief executive functions
The
chief executive may establish and implement guidelines by means of a notifiable
instrument which state what ‘reasonable grounds’ the chief executive
may consider in deciding whether parents have a reasonable excuse for
non-compliance, for the purposes of sections 10(5)(c), 10A(3), 10D(4) and
14D(3).
These guidelines will ensure that the
decision making process gives due consideration to human rights and promotes a
consistent approach.
Part 2.2 Compulsory education
requirements
Section 10 Child of compulsory education age –
enrolment and registration requirement
All
children of compulsory education age and living in the ACT must be either
enrolled with an education provider or registered for home education (or both)
by the child’s parents. Failure to enrol or register a child may result in
the child’s parents receiving a notice from the chief executive requiring
enrolment or registration to occur.
Section 10
outlines the timeframes in which the child’s parents must ensure enrolment
or registration (or both) has occurred. The purpose of the section is to ensure
all children receive an education which meets the minimum education standard
stipulated by the government.
Section 10 does
not apply if an exemption certificate is in force for the child, or the child is
participating in an approved training or employment alternative.
Subsection (5)(c) states that section 10 does
not apply if the chief executive is satisfied on reasonable grounds that the
child’s parents have a reasonable excuse for non-compliance.
Section 10A Child of compulsory education age
– school attendance requirement
This
section requires a child’s parents to ensure the child attend the school
at which they are enrolled regularly and consistently. A child’s
participation in an education course provided by an education provider other
than a school is regulated by
section 10D.
Attendance at school includes
all activities at which the school requires the child’s attendance, such
as school sports days or school concerts. If a school event, such as an
excursion is voluntary, non-attendance will not be in breach of section
10A.
Section 10A does not apply if the chief
executive is satisfied that the child’s parents have a reasonable excuse
for non-compliance. For example, a reasonable excuse may be that the parents
suffer from an illness or disability which makes the parents incapable of
ensuring the child’s attendance.
Section
10B Meaning of participates in education course – div
2.2.2
A child who is engaged in an education
course through an education provider other than a school must meet the
provider’s participation requirements.
A
child is participating in an education course if the child is enrolled with the
education provider and complying with the provider’s attendance
requirements for the course.
Subsection (b)
provides for the attendance requirements where an education course is not
delivered face-to-face. Where a child is enrolled in a distance education course
(however described) the child must meet the attendance requirements of the
distance education provider, such as completing and returning assigned work
within a specified time frame.
Section
10C Meaning of full-time participation in education course – div
2.2.2
Participation in an education course must
be full-time. Full-time is defined by the education provider’s
requirements or is at least 25 hours per week. A child may participate part-time
in two or more courses that equate to full-time participation in one course.
This section gives children maximum flexibility to engage in education courses
in a way that best meets their needs.
Section
10D Child of compulsory education age – participation
requirement
This section requires a
child’s parents to ensure the child participates in an education course
conducted by an education provider other than a school regularly and
consistently.
Section 10D does not apply if
the chief executive is satisfied that the parents have a reasonable excuse for
non-compliance. For example, a reasonable excuse may be that the parents have no
involvement in the child’s life because the child has moved out of
home.
Section 11 Participation requirement
– absence
This section permits a child to
be absent from participation in an education course if the absence is allowed by
the education provider. For example, if a child is enrolled with an education
provider that requires a medical certificate for absences caused by illness, a
child absent due to illness but supplying a medical certificate will be taken to
continue to participate.
This section gives
flexibility to education providers and enables them to determine their own
administrative requirements.
The section also
permits a child to be absent from participation in an education course if the
child is prohibited from attending an education course under the law of the
Commonwealth or a state or territory. For example, if a child is subject to a
court order which instructs the child not to attend the place at which the
education course is delivered.
Section
11A Participation requirement –
suspension
A child who has been suspended from
an education provider will be taken to continue to meet the attendance or
participation requirement for the period of suspension. This section ensures a
child who has been suspended is not taken to be breaching the participation
requirement.
Section 11B Participation
requirement – exclusion
To ensure a child
who has been excluded from an education provider is not in breach of the
participation requirement, this section gives an excluded child time to resume
participation in education or apply for approval to participate in a training or
employment alternative, without contravening the obligation to participate under
section 10D.
The time ‘reasonably
required’ takes into account circumstances such as education provider
shutdown periods during which the child may be unable to resume
participation.
Section 11C Giving information
notice
This section enables the chief
executive to obtain further information in circumstances where there are
reasonable grounds to suspect a child is not enrolled at an education provider,
registered for home education or participating in a training or employment
alternative. Likewise, it enables the chief executive to obtain further
information about a child’s attendance and participation in education,
training or employment.
By being authorised to
require further information, the chief executive can ensure that she/he is
informed of the child’s circumstances before deciding whether to take
action to ensure compliance with the obligation to be enrolled, registered,
attending or participating in education, training or
employment.
Section 11D Contents of
information notice
To ensure that the recipient
of an information notice clearly understands the obligations contained in the
notice, this section outlines what information the notice must contain.
Section 11E Extension of time for compliance
with information notice
This section enables
the chief executive to extend the period in which parents must respond to an
information notice. This section gives the chief executive the flexibility to
take into account the particular circumstances of the notice
recipients.
Section 11F Revocation of
information notice on compliance
This section
requires the chief executive to revoke an information notice if the chief
executive is satisfied the notice has been complied with.
Part 2.3 Exemption
certificates
Section 11G Meaning of full-time participation
requirement – pt 2.3
Notes that the
meaning of full-time participation requirement in part 2.3 has the
meaning given by section 10D(3).
Section
11H Exemption certificate –
application
In some circumstances it may be
appropriate to exempt a child from the requirement to be enrolled at an
education provider or registered for home education, or to meet the full-time
participation requirement. For example, if a child has health problems which
restrict the child’s ability to engage in education.
A parent may apply to the chief executive to
exempt a child from these requirements. The application may be for an exemption
until the child is no longer of compulsory education age, or it may be for a
shorter period. An application may be made to exempt the child from the
full-time participation requirement.
An
exemption may be granted for a child who seeks to engage in a training or
employment alternative prior to completing year 10.
For example, if a child who has not yet
completed year 10 is offered a unique employment opportunity which may no longer
be available when the child has completed year 10, the chief executive may issue
an exemption certificate permitting the child to engage in an employment
alternative despite not having completed year 10. The chief executive may place
a condition on the exemption certificate stating that the child must comply with
the participation requirements outlined in part 2.4 ‘After year 10 –
training and employment
alternatives’.
Section 12 Exemption
certificate – requirement for further
information
To assist the chief executive in
determining whether it is appropriate to issue an exemption certificate, this
section gives the chief executive the authority to request further information
or documents.
Section 12A Exemption certificate
– issue
The chief executive has the power
to issue or refuse to issue an exemption certificate. In reaching the decision,
the chief executive may consider, but is not limited to considering, the
child’s health, education, sense of racial, ethnic, religious or cultural
identity, and development. The chief executive may also consider whether the
exemption would benefit the child. The chief executive is not limited to these
considerations, and may take into account other information as appropriate in
the circumstances.
Section 12B Exemption
certificate – form
To ensure that the
recipient of an exemption certificate clearly understands the
certificate’s scope, this section outlines what information the
certificate must contain.
Section
12C Exemption certificate –
conditions
This section enables the chief
executive to issue an exemption certificate subject to conditions, provided the
chief executive has reasonable grounds for imposing the
condition.
Section 12D Exemption certificate
– duration
This section enables the chief
executive to limit the duration of the exemption certificate by reference either
to a period of time or to a condition of the certificate.
Section 13 Exemption certificate –
revocation
This section enables the chief
executive to revoke an exemption certificate in specific circumstances.
Part 2.4 After year 10
– training and employment alternatives
Section 13A Meaning of training alternative
and training alternative provider -
ActA training alternative provider is an
organisation which provides a training alternative. Table 13A lists the training
alternatives available in column 2, and the corresponding provider in column 3.
The chief executive may approve additional training alternatives and training
providers in a notifiable instrument.Section
13B Meaning of employment alternative -
ActEmployment alternatives available to
children who have completed year 10 include paid work under a contract of
service and paid work under a contract for services. The contract may be written
or unwritten. An employment alternative does not include volunteering.
Employment of children in the ACT under the
age of 15 is subject to the provisions of the Children and Young People Act
2008. The employment of children over the age of 15 is subject to industrial
instruments relevant to the type of employment
undertaken.Section 13C Meaning of full-time
participation in training or employment alternative –
pt 2.4Participation in a training or
employment alternative must be full-time. Full-time is determined by the
requirements of the alternative, or for at least 25 hours per
week.A child may participate in a combination
of training and employment alternatives that equate to full-time participation
in one alternative. This section gives children maximum flexibility in finding a
training or employment alternative arrangement that best suits their needs and
plans for the future.Section 13D Approval
statement – applicationIn order to
engage in a training or employment alternative, as opposed to continuing in
education after completing year 10, a child’s parents must apply to the
chief executive for an approval statement. Applications are required to enable
the chief executive to monitor the engagement of a child in training or
employment alternatives, and to support a child in pursuing the best possible
employment or training path for the
child.Section 14 Approval statement –
requirement for further informationTo assist
the chief executive in making an informed decision about whether to issue an
approval statement, the chief executive may give an applicant a written notice
requiring the applicant to provide further information to support their
application.Section 14A Approval statement
– issueThe chief executive has the power
to issue or refuse to issue an approval statement. In reaching the decision the
chief executive may consider, but is not limited to considering, the
child’s health, education, sense of racial, ethnic, religious or cultural
identity, and development. The chief executive may also consider whether the
education or training alternative would benefit the child. The chief executive
is not limited to these considerations, and may take into account other
information as appropriate in the circumstances.
Section 14B Approval statement -
formTo ensure that the recipient of an
approval statement clearly understands the statement’s scope, this section
outlines what information the statement must contain.
Section 14C Approval statement –
conditionsThis section outlines the conditions
attached to approval statements. This section enables the chief executive to
issue an approval statement subject to conditions, provided the chief executive
has reasonable grounds for imposing the
conditions.Section 14D Approval statement
– compliance requirementA child’s
parents must ensure the child complies with an approval statement, and any
conditions contained within it.This section
does not apply if the chief executive is satisfied the parents have a reasonable
excuse for non-compliance.Section 15 Approval
statement – durationThis section enables
the chief executive to limit the duration of the approval statement by reference
either to a period of time or to a condition of the statement.
Section 15A Approval statement –
revocationThis section enables the chief
executive to revoke an approval statement in specific circumstances.
Section 15B Return to education while approval
statement in forceIn the event a child has a
current approval statement but enrols with an education provider, the
child’s parents must notify the chief executive that child has done so.
This is to ensure the chief executive can effectively monitor the child’s
engagement in education or a training or employment
alternative.Section 15C Training and
employment alternatives – absenceThis
section ensures a child is not in breach of the participation requirement during
an allowed absence from a training or employment provider. For example, absence
during an employer’s shut down period would be considered an allowed
absence. This section also states that a child
is not in breach of the participation requirement if the child is prohibited by
law of the Commonwealth or a state or territory from attending the place at
which the child is engaged in employment or training.
Section 15D Training alternative –
suspensionIf a training provider suspends
(however described) a child enrolled with the provider, the child’s
participation is taken to continue during the suspension. This is to ensure the
suspended child is not in breach of the participation requirement for the
duration of the suspension. Section
16 Training alternative –
exclusionIf a training
provider excludes (however described) a child enrolled with the provider, the
child’s participation is taken to continue for the time reasonably
required to enrol in an education course or apply for approval to participate in
another training or employment alternative. This is to ensure the excluded child
is not in breach of the participation requirement whilst the child seeks to
re-enrol or apply for approval to participate in another training or employment
alternative. The child must act promptly to
seek re-enrolment or approval to participate in another alternative following
the exclusion.Section 16A Employment
alternative – terminationIf an employer
terminates a child’s employment, the child’s participation is taken
to continue for the time reasonably required to enrol in an education course or
apply for approval to participate in another training or employment alternative.
This is to ensure the excluded child is not in breach of the participation
requirement whilst the child seeks to re-enrol or apply for approval to
participate in another training or employment alternative.
The child must act promptly following the
termination.
Part 2.5 Compliance
notices
Section 16B Giving compliance
notice
This section enables the chief executive
to issue compliance notices in relation to the enrolment and registration
requirement, attendance requirement, participation requirement and the
compliance requirement.
By creating offences
based on the failure to comply with a compliance notice rather than strict
liability offences, the chief executive can respond to children not meeting the
Act’s requirements in a case-sensitive
way.
Compliance notices clearly demonstrate to
the recipient that they are in breach of their obligations under the Act and the
steps they must take to ensure
compliance.
Section 16C Contents of compliance
notice
This section specifies what information
the chief executive must include in a compliance notice so that the recipient
can clearly identify the contravention and the steps the person needs to take to
comply.
Section 16D Extension of time for
compliance with compliance notice
This section
ensures the chief executive has the authority to extend a compliance notice
period if, for example, the chief executive becomes aware that the period of
time specified in the notice is insufficient for the recipient to meet the
obligations within it.
Section 17 Revocation of
compliance notice on compliance
The chief
executive must revoke a compliance notice if satisfied on reasonable grounds
that the parent has complied with the notice.
Part 2.6 Offences -
parents
Section 17A Contravention of information and
compliance notices
A person who contravenes a
compliance notice commits an offence for which the person may be prosecuted.
Contravention of a compliance notice is a strict liability
offence.
This section does not apply if the
parent has a reasonable excuse for complying with the notice. Determining what
is a reasonable excuse will be determined on a case-by-case
basis.
Clause 6 New section
146A
This section has been recast for
clarity. It requires the chief executive to establish procedures for recording
student transfers within ACT schools.
Clause 7 New section
153A
In a proceeding for an offence under
the Act, evidence of enrolment and attendance may be provided by a signed
certificate from a school principal or the person giving an approved educational
course.
Evidence of enrolment and participation
at an education provider or training provider may be provided by a signed
certificate from the provider’s registrar (however
described).
Evidence of employment and hours of
work may be provided by a signed certificate from the
employer.
The presumption that a certificate
issued under section 153A is evidence only exists while there is not evidence to
the contrary. Should the authenticity of a signed certificate be challenged in a
court, the presumption that the certificate is evidence will
lapse.
Clause 8 New chapter
9
Chapter 9 Transitional
provisions
Section 300 Meaning of amending Act –
ch 9
States the meaning of amending
Act for the purpose of chapter 9.
Section
301 Application of amending Act
Provides that
this Act does not apply to a child who, in 2009, is 15 years old or older, and
not enrolled at a school or registered for home
education.
Section 302 Transitional
regulations
Permits the creation of regulations
to prescribe transitional measures necessary for the enactment of the amending
Act.
The purpose of this section is to make
provision for anything that is not, or is not adequately or appropriately dealt
with in the amending Act. This is a standard transitional provision designed to
deal with unforseen contingencies.
Section
303 Expiry – ch 9
States that chapter 9
of the Act (transitional provisions) expires 2 years after the day it
commences.
Clause 9 Schedule 1, items 1 and
2
States which decisions made under chapter
2 of the Act are reviewable
decisions.
Clause 10 Dictionary, note
2
Adds foreign country to the list of
definitions under the Legislation
Act.
Clause 11 Dictionary, new
definitions
Defines approval statement,
completes year 10, completes year 12 and compliance notice by reference to
relevant sections of the Act.
Clause
12 Dictionary, definition of compulsory school
age
Replaces the existing definition of
compulsory school age with compulsory education age, defined for the purpose of
chapter 2 by reference to section 9.
Clause
13 Dictionary, new definitions
Defines
education course, education provider and employment
alternative by reference to relevant sections of the
Act.
Clause 14 Dictionary, definition of
exemption certificate
Defines
exemption certificate by reference to section
11H.
Clause 15 Dictionary, new
definitions
Defines full-time
participation, full-time participation requirement, information
notice and participates by reference to relevant sections of the Act.
Clause 16 Dictionary,
definition of school, paragraph
(b)
Defines school for the purposes of
chapter 2 and part 6.2 as meaning a government or non-government
school.
Clause 17 Dictionary, definition of
school-leaving age
Removes the
definition of school-leaving
age.
Clause 18 Dictionary, new
definitions
Defines training
alternative and training alternative provider by reference to
relevant sections of the Act.
Part 1.1 Children and Young People Act
2008
Clause [1.1] Section 86 (1) and
note
Changes the reference to
school-leaving age to a reference to 15 years old or older to retain the
original intention of the Act.
Clause
[1.2] Section 397 (d) and note
Changes the
reference to school-leaving age to a reference to 15 years old or older
to retain the original intention of the
Act.
Clause [1.3] Section 645 (1) (a) and
note
Changes the reference to
school-leaving age to a reference to 15 years old or older to retain the
original intention of the Act.
Clause
[1.4] Section 779
Omits section 779
because it was a reference to the definition of school-leaving age in the
Education Act, and the term no longer
exists.
Clause [1.5] Section 780,
definition of work experience and
note
Changes the reference to
school-leaving age to a reference to under 15 years old to retain the
original intention of the
Act.
Clause [1.6] Section 782
(a)
Changes the reference to
school-leaving age to a reference to under 15 years old to retain the
original intention of the Act.
Clause
[1.7] Part 21.4 heading and notes
Changes
the reference to school-leaving age to a reference to under 15 years old
to retain the original intention of the Act.
Part 24.1 Employment of children and
young people under 15 years old
Clause [1.8] Dictionary, definition of
school-leaving age and note
Omits
the definition of school-leaving age as the term no longer exists in the
Education Act, by which the term is
referenced.
Clause [1.9] Further
amendments, mentions of school-leaving
age
Replaces the reference to
school-leaving age with 15 years old to retain the original intention of
the Act.
Part 1.2 Evidence (Miscellaneous
Provisions) Act 1991
Clause [1.10] Section 74 (2) (b)
(iii)
Changes the reference to
school-leaving age to a reference to under 15 years old to retain the
original intention of the Act.
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