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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Education Legislation Amendment Bill
2006
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Education Act 1990 No 8 2
4 Amendment of Education Regulation 2001 2
5 Amendment of Education (School Administrative
and Support Staff) Act 1987 No 240 2
6 Amendment of Teaching Service Act 1980 No 23 2
7 Amendment of Freedom of Information Act 1989 No 5 2
8 Repeal of Act 2
Schedule 1 Amendment of Education Act 1990 3
Schedule 2 Amendment of Education Regulation 2001 12
Schedule 3 Amendment of Education (School Administrative
and Support Staff) Act 1987 13
Schedule 4 Amendment of Teaching Service Act 1980 14
Schedule 5 Amendment of Freedom of Information Act 1989 16
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2006
New South Wales
Education Legislation Amendment Bill
2006
Act No , 2006
An Act to amend the Education Act 1990 with respect to students, with respect to
compulsory schooling and with respect to reports; to amend the Education (School
Administrative and Support Staff) Act 1987 with respect to delegations; to amend the
Teaching Service Act 1980 with respect to the making of regulations under that Act;
to amend the Freedom of Information Act 1989 in relation to information about
students; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Education Legislation Amendment Bill 2006
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Education Legislation Amendment Act 2006.
2 Commencement
(1) This Act commences on the date of assent to this Act, except as
provided by this section.
(2) Section 7 and Schedules 1 [5] and 5 commence on a day or days to be
appointed by proclamation.
3 Amendment of Education Act 1990 No 8
The Education Act 1990 is amended as set out in Schedule 1.
4 Amendment of Education Regulation 2001
The Education Regulation 2001 is amended as set out in Schedule 2.
5 Amendment of Education (School Administrative and Support Staff)
Act 1987 No 240
The Education (School Administrative and Support Staff) Act 1987 is
amended as set out in Schedule 3.
6 Amendment of Teaching Service Act 1980 No 23
The Teaching Service Act 1980 is amended as set out in Schedule 4.
7 Amendment of Freedom of Information Act 1989 No 5
The Freedom of Information Act 1989 is amended as set out in
Schedule 5.
8 Repeal of Act
(1) This Act is repealed on the day following the day on which all of the
provisions of this Act have commenced.
(2) The repeal of this Act does not, because of the operation of section 30
of the Interpretation Act 1987, affect any amendment made by this Act.
Page 2
Education Legislation Amendment Bill 2006
Amendment of Education Act 1990 Schedule 1
Schedule 1 Amendment of Education Act 1990
(Section 3)
[1] Section 3 Definitions
Insert in alphabetical order in section 3 (1):
Director-General means the Director-General of the Department
of Education and Training.
TAFE establishment has the same meaning as it has in the
Technical and Further Education Commission Act 1990.
[2] Section 18A Publication of results of certain tests and other matters
Omit "or other assessments" from section 18A (1) (b).
Insert instead "and related assessments".
[3] Section 18A (1A)
Insert after section 18A (1):
(1A) The regulations may also make provision for or with respect to
the extent to which information contained in periodic reports to
parents on student achievement may be publicly revealed or must
be kept confidential.
[4] Sections 26 (1), (2) and (4), 28 (5) (b), 34 (3), 35 (3) and (5), 100 (2) (a),
116 (2) (c) and 119
Omit "of School Education" wherever occurring.
[5] Part 5A
Insert after section 26:
Part 5A Health and safety risks at schools arising
from student behaviour
Division 1 Preliminary
26A Definitions
In this Part:
enrolment includes prospective and continuing enrolment.
guidelines means the guidelines under Division 4.
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Education Legislation Amendment Bill 2006
Schedule 1 Amendment of Education Act 1990
non-government schools authority means an approved authority
for a system of non-government schools within the meaning of
section 40.
relevant agency--see section 26C.
school means a government school or a registered
non-government school.
student includes:
(a) a student who is above the age of 18 years, and
(b) a prospective student.
Division 2 Obtaining information about students
26B Purpose of obtaining information about students
(1) Information may be obtained under this Division solely for the
purposes of assisting the Director-General or schools:
(a) to assess whether the enrolment of a particular student at a
school is likely to constitute a risk (because of the
behaviour of the student) to the health or safety of any
person (including the student), and
(b) to develop and maintain strategies to eliminate or minimise
any such risk.
(2) However, nothing in this Division operates to prevent the
provision or disclosure of information as required or permitted by
or under any other Act or law.
26C Relevant agencies from which information may be obtained about
students
(1) Information may be obtained in accordance with this Division
from any one or more of the following (relevant agencies):
(a) schools,
(b) the Department of Education and Training,
(c) a non-government schools authority,
(d) the TAFE Commission and TAFE establishments,
(e) public health organisations within the meaning of the
Health Services Act 1997,
(f) the Department of Ageing, Disability and Home Care,
(g) the Department of Community Services,
(h) the Department of Juvenile Justice,
(i) NSW Police,
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Education Legislation Amendment Bill 2006
Amendment of Education Act 1990 Schedule 1
(j) any other agency prescribed by the regulations.
(2) For the purposes of this Division, memoranda of understanding
for the provision of information to:
(a) schools, or
(b) a non-government schools authority, or
(c) the Department of Education and Training,
may be entered into, in accordance with the guidelines, between
any one or more relevant agencies.
26D Obtaining information about particular students
(1) The Department of Education and Training, a non-government
schools authority or a school may request a relevant agency to
provide such information about a particular student as would
assist in making an assessment, or developing or maintaining
strategies, of the kind referred to in section 26B.
(2) The Department, authority or school may provide the relevant
agency with such information about the student as may assist the
agency to provide the information sought.
(3) A relevant agency has a duty to provide information sought under
this section if the agency has the information in its possession or
under its control.
(4) Information obtained under this section may be passed on to
other schools, the Department or a non-government schools
authority (or to any other person or body as permitted by this Act
or the guidelines).
(5) Information of the kind referred to in subsection (1) may be
provided by one school to another school at which the student
concerned enrols:
(a) without the need for any request from the other school, and
(b) regardless of whether the information was obtained under
this section or otherwise.
(6) However, this section:
(a) does not authorise or require the provision of information
if its disclosure is prohibited by:
(i) section 20G, 20P or 23 of the Health Administration
Act 1982, or
(ii) section 29 (1) (f) of the Children and Young Persons
(Care and Protection) Act 1998, and
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Education Legislation Amendment Bill 2006
Schedule 1 Amendment of Education Act 1990
(b) does not require the provision of information if the
guidelines authorise the relevant agency to refuse to
provide the information.
26E Consultation during assessment of risk and development of
strategies
In making an assessment, and (if necessary) developing a
strategy, referred to in section 26B, the Director-General or
school (as the case may be) must, unless the guidelines otherwise
provide:
(a) consult the student concerned and the parents or a parent
of the student, and
(b) disclose to the student, parent or parents any relevant
information obtained under this Division.
26F No offence or liability for disclosure of information
(1) An Act or law that prohibits the disclosure of information does
not operate to prevent the provision of information under this
Division. This subsection applies unless its operation is expressly
excluded by this or some other Act.
(2) Subsection (1) does not apply to a disclosure of information that
is prohibited by:
(a) section 20G, 20P or 23 of the Health Administration Act
1982, or
(b) section 29 (1) (f) of the Children and Young Persons (Care
and Protection) Act 1998.
(3) If information about a student is provided under this Division in
good faith and with reasonable care:
(a) no liability for defamation is incurred because of the
provision of the information, and
(b) the provision of the information does not constitute a
ground for any other civil proceedings, and
(c) the provision of the information does not constitute a
breach of professional etiquette or ethics or a departure
from accepted standards of professional conduct.
Note. If the information is provided in the form of a document, the
document is an exempt document for the purposes of the Freedom of
Information Act 1989 (except in relation to the student, the student's
parents and any person nominated by the student or the student's
parents)--see clause 20 (1) (h) and (4) of Schedule 1 to that Act.
Page 6
Education Legislation Amendment Bill 2006
Amendment of Education Act 1990 Schedule 1
Division 3 Directions about enrolment at government
schools
26G Operation of Division
(1) This Division has effect despite any entitlement to enrolment at a
government school under section 34 (1) or (2).
(2) Nothing in this Division affects the operation of section 34 (4).
26H Directions about enrolment
(1) The Director-General may direct that a student is not to be
enrolled at any government school other than a government
school of a kind specified in the direction.
(2) A direction under this section may be given only if the
Director-General believes on reasonable grounds that the
enrolment of the student otherwise than as permitted by the
direction would constitute a risk (because of the behaviour of the
student) to the health or safety of any person (including the
student).
(3) A student is not to be enrolled at a government school in
contravention of a direction in force under this section.
(4) Any facility conducted by the State for the purpose of educating
students in Kindergarten or any of Years 1-12 is taken to be a
government school for the purpose of a direction under this
section and, for that purpose, may be so referred to in the
guidelines.
26I Representations by student, parents and others
(1) Before a direction is given under this Division:
(a) the Director-General must ensure that the student the
subject of the proposed direction, the parents or a parent of
the student and any other person identified in the
guidelines for the purposes of this section:
(i) is given access to the information that gave rise to
the proposed direction, and
(ii) is given written notice of the grounds for the
proposed direction, and
(iii) is given an opportunity to make representations
(whether oral or written, or both oral and written, as
the student, parent or other person chooses) in
relation to the information and the proposed
direction, and
Page 7
Education Legislation Amendment Bill 2006
Schedule 1 Amendment of Education Act 1990
(b) the Director-General must take into consideration any
representations so made.
(2) However, the guidelines may provide that the access, notice and
opportunity required by this section may be withheld, in the
circumstances specified in the guidelines, from any person
referred to in this section.
(3) Guidelines referred to in subsection (2) must require the access,
notice and opportunity concerned to be given to at least one adult
person referred to in this section (who may be the student, if the
student is an adult).
26J Notice of direction
The Director-General is to give written notice of a direction
under this Division and of the grounds for the direction:
(a) to the student concerned, and
(b) to the parents or a parent of the student (unless the
guidelines otherwise provide).
26K Variation and revocation of direction
The Director-General may vary or revoke a direction under this
Division:
(a) on the application of the student concerned, or
(b) on the application of a parent of the student, or
(c) on the Director-General's own initiative.
Division 4 Guidelines
26L Issue of guidelines
(1) The Minister may from time to time issue guidelines (not
inconsistent with this Act or the regulations) for the purposes of
this Part.
(2) The guidelines must make provision with respect to each of the
following matters:
(a) the general principles that a person must bear in mind
when exercising a function under this Part,
(b) for the purposes of section 26B, matters that are likely to
constitute a risk to the health or safety of any person,
(c) the way in which assessments of the kind referred to in
section 26B are to be carried out,
Page 8
Education Legislation Amendment Bill 2006
Amendment of Education Act 1990 Schedule 1
(d) memoranda of understanding between relevant agencies
for the purposes of Division 2, including who may enter
memoranda of understanding on behalf of relevant
agencies,
(e) the kind of information that may, or must (if any), be
sought under Division 2,
(f) who may make a request for information under section
26D on behalf of the Department of Education and
Training, a non-government schools authority or a school,
(g) who may provide information on behalf of relevant
agencies,
(h) the circumstances in which a relevant agency may refuse
to provide information requested under Division 2,
(i) the way in which information obtained under Division 2 is
to be kept and the length of time that it is to be kept,
(j) additional circumstances (if any) in which the information
may be passed on, and to whom it may be passed on,
(k) the circumstances in which the Director-General or a
school is not required to consult the student concerned or
the parents or a parent of the student under section 26E,
(l) the procedures (other than those required by section 26I) to
be followed before a direction under Division 3 is given,
varied or revoked by the Director-General,
(m) the kinds of government schools that may be specified in
such a direction,
(n) the circumstances in which notice of such a direction is not
required to be given to the parents of the student
concerned,
(o) the way in which such a direction is to be reviewed
following an application for a variation or revocation of it.
(3) The guidelines may also make provision with respect to such
other matters as the Minister considers appropriate.
(4) The Minister may from time to time amend or revoke the
guidelines.
(5) The guidelines, and any instrument amending or revoking the
guidelines, must be published in the Gazette.
(6) The guidelines as in force from time to time must be made
publicly available in such manner as the Minister thinks
appropriate.
Page 9
Education Legislation Amendment Bill 2006
Schedule 1 Amendment of Education Act 1990
26M Compliance with guidelines
It is the duty of any person or agency involved in the
administration of, or having functions under, this Part to comply
with any applicable guidelines.
[6] Sections 28 (5) (b) and 100 (2) (a)
Omit "that Director-General" wherever occurring.
Insert instead "the Director-General".
[7] Section 28 (5) (e)
Omit the paragraph. Insert instead:
(e) a nominee of the Director-General who is, in the opinion
of the Director-General, a senior member of the
Department,
[8] Sections 95 (1) (b) (iii) and 102 (2) (h)
Omit "within the meaning of the Technical and Further Education
Commission Act 1990" wherever occurring.
[9] Section 107 Applications for review of certain decisions
Insert after section 107 (1) (e):
(e1) a direction of the Director-General under Division 3 of
Part 5A concerning the government schools in which a
particular student may be enrolled,
[10] Section 107 (2)
Insert ", direction" after "recommendation".
[11] Section 108 Determination of application by the Tribunal
Insert ", direction" after "recommendation" in section 108 (1) (a).
[12] Section 108 (1) (a1)
Insert after section 108 (1) (a):
(a1) in the case of an application for the review of a direction of
the Director-General concerning the government schools
in which a particular student may be enrolled--
recommend to the Minister that the direction be varied or
revoked, or
Page 10
Education Legislation Amendment Bill 2006
Amendment of Education Act 1990 Schedule 1
[13] Section 123 Evidence
Insert after section 123 (3):
(4) In any proceedings under this Act for an offence against section
23 (1) (a), a certificate purporting to be signed by the
Director-General stating that, to the best of the
Director-General's belief, on any day specified in the certificate:
(a) a child was not enrolled as a student at a government
school or registered non-government school, and
(b) the child was not registered for home schooling,
is admissible in evidence and is prima facie evidence that the
child was not so enrolled or registered.
[14] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 2 (1):
Education Legislation Amendment Act 2006
Page 11
Education Legislation Amendment Bill 2006
Schedule 2 Amendment of Education Regulation 2001
Schedule 2 Amendment of Education Regulation
2001
(Section 4)
Clause 5 Publication of results and other matters: section 18A
Insert after clause 5 (1) (b):
(c) results of annual assessments of the academic performance
of students contained in reports to parents on student
achievement.
Page 12
Education Legislation Amendment Bill 2006
Amendment of Education (School Administrative and Support Staff) Schedule 3
Act 1987
Schedule 3 Amendment of Education (School
Administrative and Support Staff)
Act 1987
(Section 5)
[1] Section 34 Delegation by Director-General
Omit ", other than this power of delegation".
[2] Section 34 (2)
Insert at the end of section 34:
(2) If:
(a) a function of the Director-General is delegated to a person
in accordance with subsection (1), and
(b) the instrument of delegation authorises the sub-delegation
of the function,
then, subject to any conditions to which the delegation is subject,
the person to whom the function is delegated may sub-delegate
the function to any other person to whom the function may be
delegated under subsection (1).
Page 13
Education Legislation Amendment Bill 2006
Schedule 4 Amendment of Teaching Service Act 1980
Schedule 4 Amendment of Teaching Service
Act 1980
(Section 6)
[1] Section 99 Making of regulations by Governor
Omit the section.
[2] Section 100 Regulations
Omit "The Director-General may, with the approval of the Governor," from
section 100 (1).
Insert instead "The Governor may".
[3] Section 100 (1) (j)
Omit "(Schedule 3 excepted)" wherever occurring.
[4] Schedule 3 Savings and transitional provisions
Insert at the end of clause 2 (1):
Education Legislation Amendment Act 2006
[5] Schedule 3, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Education Legislation Amendment
Act 2006
21 Existing regulations
(1) Any regulation under this Act that was made, or that purports to
have been made, before the date of assent to the Education
Legislation Amendment Act 2006, whether by the Governor or by
the Director-General:
(a) in relation to matters arising before that date, is taken to
have been validly made and always to have had effect
regardless of by whom it was made, and
(b) in relation to matters arising on or after that date, is taken
to have been validly made and has effect, and may be
repealed or amended, as if it had been made by the
Governor.
Page 14
Education Legislation Amendment Bill 2006
Amendment of Teaching Service Act 1980 Schedule 4
(2) Anything done or omitted to be done in accordance with, or in
contravention of, a regulation referred to in subclause (1) has the
same effect, and is taken always to have had the same effect, as it
would have had were this clause to have been in force when it
was done or omitted to be done.
(3) Any reference in this clause to making a regulation includes a
reference to approving the making of a regulation.
Page 15
Education Legislation Amendment Bill 2006
Schedule 5 Amendment of Freedom of Information Act 1989
Schedule 5 Amendment of Freedom of Information
Act 1989
(Section 7)
[1] Schedule 1 Exempt documents
Insert at the end of clause 20 (1) (g):
, or
(h) information provided about a student under Division 2 of
Part 5A of the Education Act 1990.
[2] Schedule 1, clause 20 (4)
Insert after clause 20 (3):
(4) Despite subclause (1) (h), a document containing information
referred to in that paragraph is not an exempt document in
relation to the following persons:
(a) the student the subject of the information,
(b) the parents of the student,
(c) any person nominated in writing for the purposes of this
subclause by the student or a parent of the student.
Page 16
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