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1
Youth Participation in Education and Training Bill
2003
YOUTH PARTICIPATION IN EDUCATION
AND TRAINING BILL 2003
EXPLANATORY NOTES
Short Title of the Bill
The short title of the Bill is the Youth Participation in Education and
Training Bill 2003.
Policy Objectives of the Bill
The primary policy objective of the Bill is to make necessary legislative
changes to support the implementation of the Education and Training
Reforms for the Future.
These reforms were announced in the Education and Training Reforms
for the Future - A White Paper in November 2002. The reforms are aimed
at ensuring that young people leave the education and training system
better equipped for future success. The reforms will raise the school
leaving age from 15 to 16 or when the young person has completed Year
10, whichever comes first. Young people will then be required to continue
to participate in education or training, or work, for another 2 years, or until
they have achieved a senior certificate or a certificate III vocational
education qualification. The requirement will cease once the young person
turns 17.
Reason that the proposed legislation is necessary
The compulsory schooling obligation is currently legislated in the
Education (General Provisions) Act 1989. For the requirement for young
people to stay at school until they complete Year 10 or turn 16 to be
meaningful, the age of compulsory attendance within the meaning of the
Education (General Provisions) Act 1989 must be changed.
Legislation for the continued participation of young people in learning
post Year 10 or 16 years, is required because the government cannot place a
meaningful obligation on people without a legislative basis. Legislating for
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Youth Participation in Education and Training Bill
2003
the obligation sends a powerful message to the public about the seriousness
of the obligation. In addition, the legislation will set out a framework for
which participation options are considered to be worthwhile for young
people to maximise their chance for success. Also, the legislation will
provide a regime for monitoring and enforcement of the obligation.
The legislation is enabling legislation, designed to provide a broad
framework for the implementation of the reforms, and to facilitate the
development of a range of policies and practices that will provide
opportunities for young people to be involved in education and training.
With the substantive parts of the Bill not proposed to commence until 2006,
it is anticipated that policies and guidelines can be developed and informed
by the trials, which commenced in second semester this year in seven areas
of the State.
How the Policy Objectives will be Achieved
The Youth Participation in Education and Training Bill 2003 will create
an Act by that name, as well as amending other pieces of legislation.
The compulsory participation requirement
The proposed Youth Participation in Education and Training Act 2003
will introduce the concept of the "compulsory participation phase", which
commences when a young person stops being of compulsory school age,
and finishes when the young person either gains a senior certificate or
certificate III, has participated for 2 years beyond the compulsory school
age, or turns 17.
The Bill creates an obligation for parents of young people in the
compulsory participation phase to ensure that the young person participates
in defined education and training options or employment skills options. In
addition, the Bill includes provisions to enable young people to comply by
working in paid employment for at least 25 hours a week. Young people
will also be able to apply for an employment exemption if they want to
participate by working, but cannot gain employment for the full 25 hours a
week, or want to engage in unpaid employment. Further, the Bill sets out a
process for gaining a dispensation from the obligation.
It will be an offence for parents to fail to ensure the young person
participates, unless the parent has a reasonable excuse. Prosecution cannot
occur until the parent has been issued with a warning notice about the
parent's obligation, at least one meeting has been held, or attempted to be
held, with the parent, and the chief executive has consented to prosecution
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Youth Participation in Education and Training Bill
2003
being commenced. Policy and procedures will be developed to ensure
parents are adequately helped and supported in meeting their obligation
and that appropriate options are available for the young person. The
provisions coupled with the underpinning policies should facilitate
participation while minimising the number of prosecutions.
The student accounts
The Bill will also introduce the concept of student accounts in which
young people can bank learning credits. The student account has two
purposes. The first purpose is to support the Queensland Studies
Authority's certification function in the sense that the student account will
form the basis for the young person to bank enough learning credits to earn
a senior certificate. The senior certificate issued under the Education
(Queensland Studies Authority) Regulation 2002 is currently under review,
and it is anticipated that any reforms to the certificates will accommodate a
greater range of accredited learning. The student account will be a
repository of young people's learning credits, and a young person will be
able to bank their learning credits from a variety of learning providers
accumulated in one place.
Secondly, the student account will enable the Queensland Studies
Authority to provide statistical information to the chief executive (and
other relevant authorities) about the choices of young people and the rate at
which young people disengage from learning. This statistical information
will support the chief executive in performing the planning for more
effective participation by the cohort. As well as providing aggregated
information to the chief executive, the Queensland Studies Authority will
also be able to identify those young people who disengage and provide
their details to the chief executive for the purpose of re-engagement. This
information will be critical in assisting the chief executive to carry on
reengagement activities. The chief executive will rely on localised
strategies to reengage young people. Districts work collaboratively to
identify, at the local level, the resources available in the community to
support young people. Therefore, the Bill gives chief executive power to
share with relevant entities the personal information about young people
for the purpose of reengaging those young people in education and
training.
To safeguard the information collected and possibly shared with other
agencies and entities, the Bill includes a confidentiality provision, creating
an offence for use or disclosure of the student account information, as well
as other personal information collected under the Bill, such as information
about dispensation applications.
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Youth Participation in Education and Training Bill
2003
In addition, the Bill will amend the Freedom of Information Act 1992 to
exempt the student account information from the purview of legally
enforceable access by the public to information from the student account
system. This is in effect an extension of exemptions currently applying
under the Freedom of Information Regulation 1992 to information about
student achievement, including test results and certification results collated
by the Queensland Studies Authority. The policy objective behind this
exemption is to avoid damaging comparisons of schools based on
simplistic conclusions about student participation or performance which
does not take into account other information which impacts on the
performance of students.
The compulsory schooling amendments
The Bill will amend the Education (General Provisions) Act 1989 in a
number of ways to facilitate the reforms. The most significant of these
changes is the definition of compulsory school age, which will change the
school leaving age from the current 15 years of age to 16 years of age or
when the young person has completed Year 10. This amendment will not
take effect until 1 January 2006. However, other amendments to the
concept of schooling will commence by proclamation. These amendments
relate to what does it mean to attend school and be involved in an
educational program.
Section 114 of the Education (General Provisions) Act 1989 will be
amended so that the obligation is met if a child is enrolled in a state
educational institution (as opposed to the more narrow class of state
educational institutions that are state schools) or non-state schools, and the
child attends the institution or school on every school day for the
educational program for which the child is enrolled. The meaning of
"attend" is then defined to include participation in the educational
programs of the institution or school in a way other than physically
attending the institution or school.
In addition, amendments have been included about the obligation where
a child is suspended or excluded from school, to clarify that where the child
is not attending a school because of a school disciplinary absence, the
parent is nevertheless meeting their obligation, and is not in breach of the
law. In this context, an amendment is included to clarify that the principal's
supervisor cannot exclude from all state educational institutions across the
State, but only from those state educational institutions within the
principal's supervisor's district.
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Youth Participation in Education and Training Bill
2003
Instead, the chief executive is given original jurisdiction to exclude a
student from all state educational institutions where the student's
attendance at school would pose a risk of harm to other students and staff.
In addition, to coincide with the repeal of principals' power to cancel a post
compulsory student's enrolment, the chief executive is also given original
jurisdiction to exclude a student where the student has persistently engaged
in gross misbehaviour that adversely affects the education of other
students. The cancellation power can currently be exercised where the
student's behaviour amounts to a refusal to participate, or where the
student's persistently disruptive behaviour adversely affects other students.
The former ground is simply inconsistent with the compulsory
participation requirement and is therefore repealed, and the latter ground
will be able to be dealt with under the suspension and exclusion provisions.
A provision is included to legitimise existing practice where the child
cannot attend school because of a short-term illness. Technically, such
absences would require a ministerial dispensation to avoid a parental
breach of the obligation. The new provision will excuse non-attendance for
up to ten days, where a parent has complied with obligations prescribed by
regulation.
The flexible arrangements
Flexible arrangements is a new concept, which in essence will provide
flexibility to organise a program for a child or young person whose needs
cannot be met through the ordinary educational program. Flexible
arrangements are to be made with the consent of the young person or child
and where relevant the parent. The decision-maker is required to consider
an assessment by a registered teacher about the needs of the child or young
person, the learning outcomes that might flow from a proposed program
and the suitability of the provider of the program, as well as how the young
person or child's participation in the program will be monitored and how
the program and the providers will be monitored and evaluated. Flexible
arrangements must be appropriate to the student's individual needs and
circumstances and should be most likely to achieve the best learning
outcomes for the child or young person. In addition, the flexible
arrangement should be a full-time equivalent program, unless this level of
participation would be inappropriate.
The Bill will amend the Education (General Provisions) Act 1989 to
include two separate powers, one for students enrolled in a non-state school
and one for students enrolled in a state school. These powers will be
available to schools for students of compulsory school age as well as
students in the compulsory participation phase to ensure that students not
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Youth Participation in Education and Training Bill
2003
attending the school for the educational program do not cause their parents
to be in breach of their obligation during either phase. The power may be
relevant where a child or young person's needs are simply not met by the
educational programs able to be delivered by the school. The program
could, for example, be a life skills program, or an anger management
program.
For non-state schools the power to make the decision will rest with the
school's governing body. A new provision in the Education (General
Provisions) Act 1989 will give the governing body power to make such
arrangements to modify the parental obligation to have the child attend
school for an educational program. The provision will set out a procedure
and require the governing body to consider a range of factors, and be
satisfied that the arrangements are appropriate having regard to the needs of
the student, among other things. The making of flexible arrangements is
intended to be an aspect of the accreditation criteria relating to the
educational program, and as such it is proposed that a regulation be made
to be inserted into the Education (Accreditation of Non-State Schools)
Regulation 2001 which requires schools, if making flexible arrangements,
to comply with the authorising provision in the Education (General
Provisions) Act 1989. As such, the Accreditation of Non-State Schools
Board will be able to consider whether non-state schools who are making
flexible arrangements for their students are doing so in accordance with the
authorising provision as an aspect of the school's accreditation.
For state schools, the power vests in the chief executive. It is intended
that the power be delegated to the principal's supervisor to enable localised
decision-making.
The ministerial grants power
The Bill will insert into the Education (General Provisions) Act 1989 a
ministerial power to give grants to entities for the purpose of helping
children achieve their best learning outcomes, or promoting reengagement
of children in education or training. Under the reforms, money will be
available to local areas to achieve the purposes of the reforms. In keeping
with the intention of the Education and Training Reforms for the Future
and to encourage flexibility, the grants may be paid for a broad range of
social and educational outcomes linked to improving the participation of
young people in education and training.
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Youth Participation in Education and Training Bill
2003
Alternative Method of Achieving the Policy Objectives
There are no appropriate or reasonable alternative ways of achieving the
policy objectives. However, the legislation will not be the whole of the
picture. Essential to the reforms is the localised District Youth Achievement
Plan which will guide how local areas best ensure the optimum outcomes
for young people in their area. In addition a range of policies and
procedures will need to be developed about how the department best meets
the needs of young people, which are not matters for the legislation. The
legislation sets the broad parameters, but the important detail will be a
matter for policies and practices supporting the legislative obligation.
Estimated Cost for Government Implementation
Implementation of the proposed amendments will not result in any
additional costs to the Department of Education that cannot be met from
within the existing budget.
Consistency with Fundamental Legislative Principles
Aspects of the Bill that raise possible fundamental legislative principles
are outlined below.
Raising the age of compulsory schooling and imposing an additional
requirement on parents to ensure that young people participate for a
further period
The Bill will raise the compulsory school age from 15 to 16 or
completion of Year 10. This means that parents must ensure that their child
is enrolled at and attends a school until the child is 16 or has completed
Year 10, and that failure to do so is an offence. In addition, the Bill will
impose an additional obligation on parents to ensure that the young person
who is no longer of compulsory school age continues to participate in
education or training for either a further 2 years, until the young person
gains a senior certificate or certificate III, or until the young person turns
17. An offence is attached to a breach of this obligation as well.
It is arguable that increasing the school leaving age and imposing the
additional participation requirement on parents is a restriction on their
liberties, and the liberties of the young people who will have to continue to
stay at school until 16, and participate for a further period. However, it is
considered that the aim of maximising young people's opportunities for
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Youth Participation in Education and Training Bill
2003
learning in this period is beneficial not only to the young person, but also to
society as a whole. This is so because young people who have achieved
better learning outcomes are likely to have better chances for future success
and better social outcomes generally. These outcomes justify the restriction
on people's liberties.
In addition, attaching an offence to the obligation is justified because it
sits within a tightly controlled framework for when a proceeding against a
parent may be commenced, and includes a reasonable excuse defence for
parents. Attaching the obligation to parents recognises the role and
responsibilities of parents in young people's lives, and the reasonable
excuse defence recognises that in some cases parents are simply not able to
comply with the obligation for reasons beyond their control.
Linking the cessation of the obligation on achieving a Certificate III
which is defined by reference to the non-legislatively based Australian
Qualification Framework
The obligation will cease to exist if the young person achieves a
Certificate III. "Certificate III" is defined by the Dictionary in Schedule 2
as a qualification by that name under the AQF. AQF is in turn defined by
reference to section 19 of the Vocational Education, Training and
Employment Act 2000. Section 19 (which will be inserted into that Act by
the Training Reform Bill 2003) defines the AQF to mean the policy
framework entitled `Australian Qualifications Framework' that defines all
qualifications recognised nationally in education and training within
Australia. It has been endorsed by the Ministerial Council on Education,
Employment, Training and Youth Affairs ("MCEETYA") so as to
commence on 1 January 1995, and that policy framework may be amended
from time to time by MCEETYA.
The fact that the Bill incorporates not only external documents, but
documents that can be amended by a body other than Parliament raises the
fundamental legislative principle relating to the Bill having sufficient
regard to the institution of Parliament. Where an Act incorporates external
documents in ambulatory form, Parliament effectively delegates the
making of Queensland Law to outside bodies.
The AQF is the nationally recognised policy framework for training
qualifications. It provides for the mutual recognition of qualifications
across all Australian jurisdictions, therefore ensuring a consistent national
scheme. The maintenance and development of the AQF is the responsibility
of MCEETYA. Both the Minister for Education and the Minister for
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Youth Participation in Education and Training Bill
2003
Employment and Training are members of MCEETYA, along with
counterparts from other Australian jurisdictions. Although the AQF is
subject to change as new qualifications are listed or withdrawn, or the
attributes of existing qualifications are amended, the Queensland Ministers
will remain accountable to Parliament for decisions made regarding the
AQF. Consequently, Parliament is afforded its due respect and can enact the
law enabling the policy as it sees fit.edu
One of the key aims of the Bill is to ensure that young people are
engaged in learning that is worthwhile. Working towards a Certificate III is
one of the ways of ensuring that the learning activities undertaken will lead
to positive learning outcomes for the young person. Linking the obligation
to the AQF as amended from time to time ensures maximum flexibility in
what young people can do, which is linked to a consistent national
approach to training.
It should also be noted that the AQF is publicly accessible both via the
internet and in hard copy publication, so readers of the Bill will be in a
position to know which courses will lead to a Certificate III.
Consultation
An exposure draft of the Bill was posted on the ETRF website and on the
Generate website on 9 July 2003 with an invitation to the public to provide
feedback. In addition a range of consultation meetings were held with key
stakeholders during June and July across the State.
Among others, youth peak organisations, non-state schools authorities,
TAFEs and registered training organisations, private training providers
peak organisations, principals associations and parent groups have been
consulted in the process.
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Youth Participation in Education and Training Bill
2003
NOTES ON PROVISIONS
PART 1--PRELIMINARY
Division 1--Introduction
Clause 1 sets out the short title of the Act.
Clause 2 provides for the commencement of the Act and certain
amendments to other legislation on 1 January 2006. Other provisions will
commence by proclamation. These provisions comprise:
· amendments to the Education (General Provisions) Act 1989 set
out in Part 7, divisions 1 and 2 and Schedule 1 (consequential
amendments);
· amendments to the Education (Accreditation of Non-State
Schools) Act 2001 set out in Part 8, division 1; and
· amendments to the Education (Teacher Registration) Act 1988
set out in Part 8, division 3.
The provisions that will commence by proclamation relate to the
compulsory school age obligation, flexible arrangements for school
students and associated consequential amendments. However, the change
to the compulsory school age from 6 to 15 to 6 to 16 or completion of Year
10 and repeal of the cancellation of enrolment provisions will not
commence until 1 January 2006 (Part 7, division 3).
Division 2--Application, objects and guiding principles
Clause 3 provides that the Act will bind all persons, including the State,
the Commonwealth and the other States. The Commonwealth and the other
States will only be bound so far as the legislative power of the Parliament
permits. Subclause 2 provides that the State, the Commonwealth and
another State will not be liable to be prosecuted for an offence. The offence
provisions are the parental obligation set out in clause 19, and the
confidentiality provision in clause 60 of the Bill.
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Youth Participation in Education and Training Bill
2003
Clause 4 explains how the Act interacts with other legislation.
Subclause 1 explains that provisions requiring young people to continue
their schooling until they are 16 years or have completed Year 10,
whichever happens first, is provided for in the Education (General
Provisions) Act 1989.
Subclause 2 explains that the Act includes provisions requiring young
people to continue in education and training for a further period for the
purpose of achieving a senior certificate or certificate III. "Senior
certificate" is defined by the dictionary in Schedule 2 at the end of the Bill
to mean a certificate of achievement of that type issued under the
Education (Queensland Studies Authority) Act 2002. "Certificate III" is
defined by the dictionary to mean a qualification by that name under the
Australian Qualifications Framework. This framework defines all
qualifications recognised nationally in education and training within
Australia. The Australian Qualifications Framework was endorsed by the
Ministerial Council on Education, Employment, Training and Youth Affairs
and commenced on 1 January 1995.
Subclause 3 explains that the Vocational Education, Training and
Employment Act 2000 includes provisions about some of the eligible
options available to young people during this further period of learning.
"Eligible options" are defined by clause 12 of the Bill, and include a course
of vocational education and training provided by a TAFE institute or a
registered training organization under that Act, a departmental employment
skills development program, and an apprenticeship or traineeship under
that Act. The Vocational Education, Training and Employment Act 2000
includes provisions about these options.
Subclause 4 explains that the Education (Queensland Studies Authority)
Act 2002 includes provisions about the maintenance of student accounts to
record young people's participation in education and training. In particular,
by inserting a new section 14A into that Act, the Queensland Studies
Authority will have a new participation function which enables the
Authority to keep a student account for young people in the student
account phase under the Youth Participation in Education and Training Act
2003 and to deal with the information in the way required by that Act. In
addition, a new section 18A is inserted to oblige learning providers to bank
young people's learning credits with the Queensland Studies Authority.
Clause 5 provides for a definition of the term "ministerial declaration".
The ministerial declaration is the declaration of commitment to young
people of Australia by Ministers for Education, Employment, Training,
Youth Affairs and Community Services endorsed in July 2002 by the
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Youth Participation in Education and Training Bill
2003
Ministerial Council on Education, Employment, Training and Youth
Affairs. The declaration is otherwise known as "Ministerial Declaration
`Stepping Forward': Improving Pathways for all Young People". Subclause
2 explains that this declaration is attached as an attachment to the Act, and
subclause 3 provides that the attachment is not part of the Act. It has been
included to reaffirm the government's commitment to young people.
Clause 6 provides for the main objects of the Act.
The first main object is to implement initiatives, consistent with the
ministerial declaration, to ensure that young people participate in education
and training for a period after turning 16 years of age or completing Year
10. This is done through providing a range of eligible options in which a
young person may chose to participate, and building in sufficient flexibility
for young people. For example, this may involve young people undertaking
employment or participating in flexible arrangements determined by the
school in which the young person is enrolled. In addition, young people
may be granted a dispensation from the obligation.
The second main object is to outline a range of education and training
options for young people during this period. These options are set out in
clause 12 of the Bill, and include educational programs at school, higher
education courses at university or non-university providers, vocational
education and training at TAFE or a registered training organisation, an
apprenticeship or traineeship or a departmental employment skills
development program.
The third main object is to provide for young people's participation and
learning achievements during this period to be recorded. This is done
through the student account system established by Part 4. The student
account system will enable providers to bank learning credits into one
central repository. This will enable young people to access their learning
credits through their account no matter which provider they have been
enrolled with and no matter which provider has granted them the learning
credits.
Clause 7 provides for activities that the chief executive of the
Department of Education may carry on to achieve the objects of the Bill.
Firstly, subclause 7(a) sets out planning activities in terms of monitoring
the operation and effectiveness of the Act, by carrying out planning relating
to the matters dealt with under the Act and developing strategies to better
achieve the objects of the Act.
In performing these activities the chief executive may request statistical
information about the success of the reforms under the provisions relating
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Youth Participation in Education and Training Bill
2003
to the student account (see Part 4, subclause 46(3)). Information aggregated
from the student account system will enable the chief executive to monitor
the pathways of young people across the range of education and training
options. Such information is critical for the government to assess whether
or not the reforms are effective in achieving the goals of the Education and
Training Reforms for the Future and to assist the development of better
options for young people to give them better chances for future success.
Secondly, subclause 7(b) set out re-engagement activities in terms of re-
engaging young people who are not participating in education or training
during the compulsory participation phase.
The first re-engagement activity is about identifying young people in the
compulsory participation phase who are not participating full-time in an
eligible option. "Compulsory participation phase" is defined by clause 11
to start when the young person stops being of compulsory school age, and
end when the young person either gains a senior certificate or certificate III,
has participated in eligible options for 2 years or turns 17. "Eligible
options" are set out in clause 12 of the Bill, and include educational
programs at school, higher education courses at university or non-
university providers, vocational education and training at TAFE or a
registered training organisation, an apprenticeship or traineeship or a
departmental employment skills development program. "Full-time" is
defined by the Dictionary to mean participation that is full-time either
under clause 15 (for a program or course) or clause 18 (for an apprentice or
trainee). Clause 15 sets out that "full-time" is a reference to participation in
an eligible option at a level that is full-time under the requirements of the
option, and includes part-time participation in 2 or more eligible options to
the extent that is at least equivalent to full-time participation in 1 option.
Clause 18 provides that participation in apprenticeships and traineeships is
taken to be full-time where the young person is an apprentice or trainee
under the Vocational Education, Training and Employment Act 2000. In
essence, this activity is about identifying young people who are not
participating and are in breach of the requirements of the legislation, or
who are not in breach, but are participating through employment or non-
departmental employment skills development programs.
The second re-engagement activity is about giving these young people
information about the options available to them. The third activity is to
encourage the young people to participate in a way that achieves the best
learning outcomes for them, and the fourth activity is about encouraging
and helping their parents play a role in the matters stated in the first to third
activity.
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Youth Participation in Education and Training Bill
2003
The student account provisions in Part 4 are critical to the chief
executive's reengagement activities. Under subclause 46(5) the chief
executive may ask for personal information from the Queensland Studies
Authority about young people who are not engaged in an eligible option,
and have not been engaged for a period of three months. The information
that is to be provided is limited to the young person's name, address, date
of birth and the details of the last eligible option in which the young person
has participated, including the last provider. Once the chief executive has
received this information, clause 47 will enable the chief executive to
provide the information, at the local level, to appropriate entities to help the
chief executive carry out the other reengagement functions. The strategies
for reengagement will depend on the local community and the strategies set
out in the District Youth Achievement Plan for the local area. The
effectiveness of the reengagement functions will depend on the ability of
the local community to galvanise resources to make appropriate options
available to young people and ensure that those options are relevant to the
needs of the young people of that local community.
It should be noted that it is not intended that the provisions create an
enforceable duty on the chief executive, which may expose the chief
executive to a legal liability for failure to follow up a young person in a
particular way. The provision is intended as merely enabling for the chief
executive to carry out these activities if it is appropriate to do so.
Clause 8 provides guiding principles for the administration of the Act. In
administering the Act, sufficient regard should be had to these guiding
principles.
Subclause (a) provides that the State should develop practical ways to
improve the social, educational and employment outcomes of young
people, and, in particular, for young people who are at risk of disengaging
from education and training.
Subclause (b) provides that the State should foster a community
commitment to young people by involving members of the community and
community organisations in:
· developing education and training opportunities for young
people; and
· reengaging young people in education and training; and
· developing ways to improve the social outcomes of young
people.
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Youth Participation in Education and Training Bill
2003
This guiding principle seeks to capture the community commitment
necessary to be developed for the reforms to be effective. In a policy sense,
the District Youth Achievement Plans will be the vehicle for capturing this
community commitment.
Subclause (c) provides that the State should work with parents to achieve
the best outcomes for young people.
Subclause (d) provides that the State should work in consultation with
non-government entities to achieve the objects of the Act. For the
Education and Training Reforms for the Future to be successful it is critical
that government and non-government entities work together to provide the
best learning outcomes for young people. The Bill reinforces this guiding
principle in relation to the involvement of certain non-state school entities
in Part 6, Division 1 of the Bill. While consultation with certain entities is
expressly provided for in this Part, ongoing consultation with all key
stakeholders is critical to the success of the reforms.
Division 3--Interpretation
Clause 9 provides that particular words used in the Act are defined in the
dictionary in Schedule 2 of the Bill.
Clause 10 clarifies that a note in the text of the Act is part of the Act. The
Bill makes use of notes for user-friendly reading of the Bill and to aid
understanding.
PART 2--COMPULSORY PARTICIPATION IN
EDUCATION OR TRAINING
Division 1--Key terms
Clause 11 defines the key term "compulsory participation phase". This
phase commences when a young person stops being of compulsory school
age; that is when the young person turns 16 years of age or completes Year
10, whichever comes first. The dictionary in Schedule 2 refers the reader to
the definition in the new section 4A of the Education (General Provisions)
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Youth Participation in Education and Training Bill
2003
Act 1989, inserted into that Act by clause 85. This new section defines
"compulsory school age" in this way.
The compulsory participation phase will conclude when the young
person either gains a senior certificate or a certificate III, has participated
for 2 years in education or training options after the phase commences, or
turns 17 years of age. "Senior certificate" is defined by the dictionary in
Schedule 2 to mean a certificate of achievement of that type issued under
the Education (Queensland Studies Authority) Act 2002. "Certificate III" is
defined by the dictionary to mean a qualification by that name under the
Australian Qualifications Framework. This framework defines all
qualifications recognised nationally in education and training within
Australia. The Ministerial Council on Education, Employment, Training
and Youth Affairs endorsed the Australian Qualifications Framework to
commence on 1 January 1995.
This term is key to the obligation placed on young people through their
parents in clause 19 of the Bill. When a young person is no longer in the
compulsory participation phase, the obligations will cease.
Clause 12 defines the terms "eligible option" and "provider" for each
option. These terms are key terms setting out the types of options in which
a young person can chose to participate to meet the obligation, and the
providers who are able to provide each option. Each of the options is an
eligible option for the purpose of the obligation in clause 19. In addition, a
young person may participate across a number of these options, provided
the participation amounts to a full-time program. This is further explained
in clause 15.
Clause 12 sets out a table with each eligible option in the left hand
column, and the provider for the option in the right hand column.
The first education or training option is an educational program provided
by a state educational institution under the Education (General Provisions)
Act 1989. That Act sets out the framework for provision of state education.
State educational institutions are institutions established under sections 16,
17 or 18 of that Act. The term includes state schools (see section 16), other
ways of educational instruction, for example schools of distance education
(see section 17), and other state educational institutions (see section 18).
The educational programs delivered by state educational institutions are
also provided for in this Act. Section 19A provides for a curriculum
framework to be issued by the Minister which is to apply to state
educational institutions. Section 19B provides that state educational
institutions, in providing education may only implement syllabuses
approved or accredited by the Queensland Studies Authority under the
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Education (Queensland Studies Authority) Act 2002. In addition, section 14
of the Education (General Provisions) Act 1989 provides for the provision
of an educational program to students attending a state educational
institution, as the Minister approves. Note that the terminology of
"educational program" will substitute the existing language of "program of
instruction" by the amendment to section 14 included in this Bill in clause
66.
Enrolment in a state educational institution and participation in the
educational program provided for the student is one option.
The second option is an educational program provided by a non-state
school under the Education (Accreditation of Non-State Schools) Act 2001.
Under that Act, non-state schools must be accredited or provisionally
accredited to operate as a school (see section 10). Furthermore, to be
accredited, a school must meet accreditation criteria prescribed under
section 9 of that Act in a regulation. One of these accreditation criteria
(subsection (c)) relates to a school's educational program. Sections 6 to 9
of the Education (Accreditation of Non-State Schools) Regulation 2001 set
out the criteria for the educational program.
Enrolment in a non-state school and participation in the educational
program provided is another option.
The third option is a course of higher education under the Higher
Education (General Provisions) Act 1993. Under that Act a course of
higher education may be provided by universities as self-accrediting
institutions (see section 9) or by non-university provider where the
Minister has accredited the course (see section 10). This option is included
to enable young people to continue a practice that occurs now, where the
young person is enrolled with a school part-time, and also enrolled with a
university in one or more first year subjects. In addition, the option will
enable the academically brilliant young person to attend university full-
time, even though the young person is still in the compulsory participation
phase, and may not have achieved a senior certificate.
Enrolment at a higher education institution, including a university, and
participation in a higher education course is the third option.
The fourth option is to participate in a course of vocational education
and training by enrolling either with a TAFE institute or a registered
training organisation. This option arises out of the framework established
by the Training and Employment Act 2000. The concurrent Training
Reform Bill 2003 will amend the name of the existing Training and
Employment Act 2000 to the Vocational Education, Training and
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Employment Act 2000. This Act sets out the framework for the registration
of training organisations and the accreditation of vocational education and
training courses delivered by registered training organisations, including
TAFE institutes. "Registered training organisations" are defined by the
Dictionary in Schedule 2 by reference to section 14 of the Vocational
Education, Training and Employment Act 2000. The definition notes that
an agricultural college under the Agricultural Colleges Act 1994, section 3
is a registered training organisation.
Chapter 2, Part 2 of the Vocational Education, Training and Employment
Act 2000 provides a scheme for the registration of training organisations,
the accreditation of vocational education and training courses, and the
issuing of nationally recognised qualifications and statements of
attainment. Accredited courses ensure that the young person is issued with
a vocational education and training qualification or statement of attainment
provided for under the Australian Qualifications Framework.
Enrolment with a TAFE institute or registered training organisation
(including an agricultural college) and participation in an accredited
vocational education and training course is the fourth option.
The fifth option contains two options, namely an apprenticeship or a
traineeship under the Vocational Education, Training and Employment Act
2000. Apprenticeships and traineeships are administered under Chapter 3
of that Act. The vocational education and training component of an
apprenticeship and traineeship is provided by a training organisation
registered under that Act.
The final option is a departmental employment skills development
program delivered by the chief executive of the department that administers
the Vocational Education, Training and Employment Act 2000. Under a
new section 106C to be inserted by the Training Reform Bill 2003 into the
Vocational Education, Training and Employment Act 2000. This new
section will oblige the chief executive to ensure that employment skills
development programs are developed to meet the diverse needs of young
people in the compulsory participation phase, and that these programs are
accessible by those young people. In addition, the chief executive may
deliver departmental employment skills development programs under
section 106C. The definition of "departmental employment skills
development programs" in the Dictionary of the Bill makes reference to
section 106C(2) of the Vocational Education, Training and Employment
Act 2000. If an employment skills development program is provided by the
chief executive under that section, it is an eligible option for participation.
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Division 2--Participation in a program or course
Clause 13 explains that the division contains relevant definitions about
what it means to participate in an eligible option, other than an
apprenticeship or traineeship under the Vocational Education, Training and
Employment Act 2000. Participation in an apprenticeship or traineeship is
dealt with in Division 3, clause 18 of the Bill. The definitional provisions in
Division 2 apply to participation in any program or course and are essential
to determine whether or not a parent is meeting their obligation under
clause 19.
Clause 14 provides a definition of "participation" in a program or
course. Subclause 1 provides that a young person is participating in an
eligible option only if the young person is enrolled with the provider in the
relevant program or course, and complying with the provider's attendance
requirements for the program or course. Subclause 2 clarifies that a
provider's attendance requirements are the requirements about physically
attending, at particular times, the provider's premises or another place. This
means that a young person is participating in an eligible option, for
example, if the young person is enrolled at a school for an educational
program, and is physically attending the school or other place as directed
by the school for the educational program.
Subclause 3 makes special provision for programs delivered in ways
other than face-to-face. Despite subclause 2, where the program is a
program of distance education, the requirement for attendance is to
complete and return assigned work for the program. School of distance
education is defined by the Dictionary in Schedule 2 by reference to the
definition section in the Education (General Provisions) Act 1989 (section
2(1)). Clause 65 will insert into that section a definition of the term "school
of distance education" to mean either a state educational institution (other
than a state school) offering distance education, or a non-state school
accredited or provisionally accredited under the Education (Accreditation
of Non-State Schools) Act 2001 to provide distance education.
Subclause 3 also provides that despite subclause 2 where the program is
another external program, the provider's attendance requirements are its
requirements about communicating with or contacting the provider for the
purpose of participating in the program or course. "External program" is
defined by the Dictionary in Schedule 2 to include an alternative
educational program under section 30 of the Education (General
Provisions) Act 1989, a flexible arrangement made under section 114A or
114B of the Education (General Provisions) Act 1989 (to be inserted into
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that Act by clause 73) or another program or course for which the
provider's requirements do not include physically attending, at particular
times, the provider's premises or another place.
Clause 15 provides a definition of what it means to be participating full-
time in an eligible option. The obligation on parents in clause 19 is to
ensure that the young person is participating full-time. A reference to full-
time participation is a reference to participation in an eligible option at a
level that is full-time under the requirements of the option, and "full-time
participation" includes part-time participation in two or more options to an
extent that is at least equivalent to full-time participation in one option.
For example, a full-time state school program for a Year 11 student may
consist of study of five subjects, requiring attendance at the school for 25
hours. Where a young person choses to study only two subjects at the
school (40% of a full-time load), the young person must fill the remaining
60% of another full-time program which is an eligible option, for example
a 60% full-time program at a TAFE. Another example may be a student
engaged in one university subject worth 25% of a full-time load. This
student would have to participate in one or more education or training
options for the remaining 75% of a load. This may mean participation in
four school subjects.
Note that this provision does not cater for the situation where a young
person might want to study a part-time load, and part-time work. For the
young person to do this, a decision would be required to be made, either by
the Training Employment and Recognition Council under the Vocational
Education, and Training and Employment Act 2000, or as a flexible
arrangement under either this Act or the Education (General Provisions)
Act 1989, where the young person is enrolled in a school.
Where a young person wants to participate in a way that is less than full-
time, the young person may apply for a dispensation under Part 3 of the
Bill.
Clause 16 provides that participation is taken to continue during an
absence allowed by the requirements of the education or training option
chosen by the young person. For example, where a young person is
enrolled at a learning provider who requires written notice in case of
absences caused by an illness, the young person will continue to be
participating, even if the young person is not attending the program or
course during the illness. The clause allows for the flexibility required
across the range of settings and gives a great deal of autonomy to each
learning provider in determining its administrative requirements.
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Clause 17 makes provision for the situation where a young person is
suspended or excluded from a provider. Subclause 1 provides that if a
young person stops attending the provider because the person has been
suspended from the provider, the person's participation is taken to continue
during the period of the suspension.
Subclause 2 provides that subclause 1 does not apply where a young
person is enrolled at a state educational institution, and has been placed in
an alternative educational program under section 30 of the Education
(General Provisions) Act 1989. This provision comes into play where a
student has been suspended from school for more than 5 days under either
section 29 or 34 of the Education (General Provisions) Act 1989. In those
circumstances, the principal is obliged under section 30 to coordinate
arrangements for placing the student in an alternative educational program
that allows the student to continue with the student's education. The effect
of subclause 2 is that the young person must be participating in the
alternative educational program in accordance with the requirements of
that program, to meet the parental obligation in clause 19.
Subclause 3 provides that if a young person stops attending a provider
because the young person has been excluded from the provider, the person
is taken to be continuing to participate in an eligible option at the same
level as before the exclusion for the time reasonably required to resume
participation in an eligible option. This means that a parent of a young
person excluded from a provider will not be in breach of their obligation in
clause 19 for the reasonable time required to enrol and commence
attending with another provider.
Clause 17 presupposes a system of suspension or exclusion with all the
relevant providers of a program or course. These systems are diverse and
determined differently for each type of provider. For example, suspensions
and exclusions from state educational institutions are governed by the
provisions of Part 4 of the Education (General Provisions) Act 1989. For
non-state schools, rules about suspension and exclusions do not have any
statutory basis, but may form part of the contractual relationship with the
parent of the student.
Division 3--Participation in an apprenticeship or traineeship
Clause 18 provides for participation in an apprenticeship or traineeship
under the Vocational Education, Training and Employment Act 2000.
Where a young person is an apprentice or trainee under that Act, the young
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person is taken to be participating full-time. This means that so long as the
young person remains an apprentice or trainee, their parent will be meeting
the obligation in clause 19.
Division 4--Parents' obligation
Division 4 creates a parental obligation with an offence attached to
ensure that young people in the compulsory participation phase participate
full-time in an eligible option. While the legislative policy is clear that
there is to be an obligation on parents which may lead to the commission of
an offence if contravened, it must be emphasised that it is the intention that
prosecutions should only occur as a last resort. It is intended that a range of
steps be taken before proceedings are commenced. For example, it is
anticipated that the department and youth agencies work extensively with
the parent and the young person to find a suitable option for the young
person and counsel the young person to participate. Some of these steps to
be taken before prosecution are expressly provided for in clause 22 which
limits when proceedings may be taken against a parent. However, many
more, locally suitable strategies may be devised through the District Youth
Achievement Plan, and implemented at the local level. It is intended that
policies and procedures will be in place to guide the chief executive's
decision to consent to a prosecution, which is also required under clause
22.
Clause 19 provides for an obligation placed on parents of a young
person in the compulsory participation phase to ensure that the young
person is participating full-time in an eligible option, unless the parent has
a reasonable excuse. Subclause 1 provides that it is an offence for parents
to fail to ensure the young person's participation. The maximum penalty
for the first offence is 5 penalty units, which currently would equate to a
maximum fine of $375, and the maximum penalty for the second and
subsequent offences is 10 penalty units, which would equate to $750. The
key terms in this provision are defined in Division 1 and Division 2 of Part
2. "Compulsory Participation Phase" is defined in clause 11. "Eligible
option" is defined in clause 12, and clauses 14 to 18 to clarify what it
means to participate in an option. "Full-time" is defined in clause 15.
Subclause 2 provides a non-exhaustive list of reasonable excuses for
parents. Firstly, it is a reasonable excuse if the young person lives with
another parent and the first parent believes, on reasonable grounds, that the
other parent is ensuring the young person's participation. This excuse is to
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cater for the situation where the young person lives with one parent, and
the other parent believes that the first parent is meeting the obligation.
Secondly, it is a reasonable excuse if in all the circumstances, the parent is
not reasonably able to control the young person's behaviour to the extent
necessary to ensure the young person participates. This may be the
situation where the parent has no say in the young person's life, perhaps
because the young person has moved away from home. It may also be a
reasonable excuse if the parent is suffering some illness or disability and is
unable to ensure the young person's participation because of the illness or
disability. It is important to note that these two reasonable excuses are
simply examples and are not intended to limit the scope of reasonable
excuses in any way. Other situations may exist where the parent should be
reasonably excused for reasons that are very different from those set out in
subclause 2.
Clause 20 provides for exceptions to the obligation. These exceptions
recognise that young people may want to chose employment or a non-
departmental employment program, but highlights the fact that the
underpinning policy of the legislation is that it is preferable that young
people are participating in an eligible option. Employment and non-
departmental employment programs have been included in the legislation
as exceptions in recognition that a young person's learning opportunities
may be diminished by undertaking one of these exceptions and that the
primary objective is for young people to be participating in education or
training.
Subclause 1 provides that the obligation in subclause 19(1) does not
apply to the extent provided under a dispensation in force under Part 3. Part
3 sets out the grounds for granting an application, the process for applying
for a dispensation, and the rights of review.
Subclause 2 provides that the obligation in subclause 19(1) does not
apply where the young person is in paid employment for at least 25 hours
each week. Subclause 2 further provides that the obligation does not apply
where the young person has an employment exemption and is in paid
employment for less than 25 hours each week, or unpaid employment.
"Employment exemption" is defined in the Dictionary in Schedule 2 to
mean an employment exemption in force under Chapter 5, Part 3, Division
5A of the Vocational Education, Training and Employment Act 2000. The
concept of an employment exemption is to be introduced into that Act by
the Training Reform Bill 2003. The Training and Employment Recognition
Council will have power to grant an employment exemption to young
people who wish to participate through employment for less than 25 hours.
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Subclause 3 provides that the obligation in subclause 19(1) does not
apply if the young person is enrolled with an entity providing a non-
departmental employment skills development program, and attending the
entity for the program. The Training Reform Bill 2003 will insert
provisions into the Vocational Education, Training and Employment Act
2000 which will enable the Training and Employment Recognition Council
to recognise employment skills development programs that are not
provided by the department within which the Act is administered (the
Department of Employment and Training). The Council must keep a
register about recognised non-departmental employment skills
development programs. These programs may be provided by the
Commonwealth or by community organisations, but need to be recognised
and included on the register before a young person's participation in the
program will excuse a parent from the obligation under subclause 19(1).
Subclause 4 clarifies that the obligation in clause 19 does not apply to
the extent of any inconsistency with a law of the Commonwealth under
which the young person in the compulsory participation phase may carry
on an activity other than participation in an education or training option.
For example, where a young person is job-seeking as an eligible activity
under the Youth Allowance scheme.
Clause 21 provides for the giving of an information notice to, and the
holding of a meeting with a parent who is in breach of the obligation.
Subclause 1 clarifies that the clause applies if an authorised officer
reasonably suspects that a young person is in the compulsory participation
phase and is not participating full-time in an eligible option. "Authorised
officer" is defined by subclause 6 to mean the chief executive or an officer
of the department authorised by the chief executive for clause 21. Before
the processes in clause 21 can take place, the authorised officer must firstly
reasonably suspect that the young person is in the compulsory participation
phase, and secondly reasonably suspect that the young person is not
participating full-time in an eligible option.
Subclause 2 provides that the officer may give a parent of the young
person a notice in the approved form about the parent's obligation under
clause 19. The form is to be approved by the chief executive under clause
62. The notice will inform the parent of their legal obligation to ensure the
young person's full-time participation in an eligible option. In addition, the
notice may include information about specific eligible options available in
the particular area.
Subclause 3 provides that the officer may also meet with the parent to
discuss the obligation. This is an important step that must be fulfilled
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before the commencement of a proceeding against the parent (see clause
22).
Subclause 4 provides that if the officer has taken reasonable steps to
meet with the parent, but no meeting is held, the officer may give the parent
a warning notice in the approved form. This second notice is an alternative
to holding the meeting under clause 22, which sets out the steps that must
be taken before a proceeding can be commenced against a parent. While
this step represents the final step in the official process undertaken by an
authorised officer prior to commencing a proceeding for the offence, it
should be noted that in practice several notices may be issued to a parent,
and several meetings may be held with a parent over a period of time to
ensure compliance with the requirements. It is intended that policy
guidelines will be developed to ensure greater consistency across the State
in the application of these powers.
Subclause 5 clarifies that an authorised officer under this clause is a
public official performing a function authorised by this Act for the purpose
of section 14 of the Police Powers and Responsibilities Act 2000. This will
enable an authorised officer to seek help from a police officer in giving the
warning notice to the parent or hold the meeting with the parent.
Subclause 6 provides the definition of an authorised officer for clause 21.
The authorised officer is either the chief executive, or an officer of the
department authorised by the chief executive to undertake these roles.
Clause 22 provides for the limits on proceedings against a parent. Firstly,
proceedings for an offence may only be brought by the chief executive or
with the chief executive's consent. It is intended that the chief executive
develop guidelines to guide when consent to prosecution should be given.
These guidelines may set out the steps, over and above those required by
this clause, that should be taken with the parent and young person before
the chief executive consents to prosecution. Secondly, a proceeding is not
to be brought unless the parent has been given a notice under subclause
21(2), and at least one meeting has been held under subclause 21(3) or the
parent has been given a warning notice under subclause 21(4).
Subclause 2 provides that the chief executive of the department in which
the Child Protection Act 1999 is administered is not liable to be prosecuted
for an offence in relation to a young person of whom the chief executive
has been granted guardianship under the Child Protection Act 1999.
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PART 3--DISPENSATIONS
Division 1--Bases for granting a dispensation
Clause 23 explains that the division provides for the bases on which the
chief executive may grant a dispensation to a young person. If the chief
executive grants a dispensation, the parent will not have to comply with
section 19(1) to the extent of the dispensation.
Clause 24 provides that the chief executive may grant a dispensation in
two circumstances. Firstly, the chief executive may grant the dispensation
if satisfied the young person cannot participate in any education or training
option. For example, a young person may not be able to participate in any
education or training option because of a long-term illness. The second
basis for granting a dispensation is when the chief executive is satisfied that
it would be unreasonable in all the circumstances to require the young
person to participate in any education or training option. For example, it
may be unreasonable to require a young person whose parent is terminally
ill, or a young person who has just become a parent, to participate full-time.
Clause 25 provides the chief executive with power to approve a
dispensation on the basis that the young person will be home schooled by a
registered teacher in compliance with the requirements prescribed under a
regulation. It is anticipated that the regulation may provide for matters
about the educational program, the place of delivery of the program, and
the resources available for the young person to learn. This dispensation
caters for so-called "own program home schoolers", where the young
person is not enrolled with a school of distance education. Home schoolers
enrolled with a school of distance education will not need a dispensation
under this clause. Clause 14 provides for what participation is, and
subclause 14(3)(a) clarifies that a young person enrolled in a school of
distance education "attends" by completing and returning the assigned
work for the program. This means that a young person enrolled with a state
school of distance education, or an accredited or provisionally accredited
non-state school of distance education will be meeting the participation
requirements if they are returning completed work assigned for the
program.
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Division 2--Application process
Clause 26 provides for the process of applying for a dispensation. An
application is made to the chief executive. Subclause 2 sets out the
requirements for the application:
· it must be made in the approved form;
· it must state whether it is sought under clause 24 (because the
young person cannot participate, or it is unreasonable in all the
circumstances to require participation) or clause 25 (own
program home schooling dispensation);
· it must state the period for which the dispensation is sought; and
· it must include the signed consent of a parent of the young
person.
Subclause 3 deals with the requirement for the application to include the
parent's signed consent. If the chief executive is satisfied that it would be
appropriate in all the circumstances, the chief executive may accept the
application which does not include parental consent. This may be relevant
where the young person lives independently, or where the young person's
parent is simply not interested in the young person's participation, or
relevant in the young person's life. In addition, the chief executive may also
accept an application made by the parent, where the young person is not
capable of making their own application.
Subclause 4 provides that the young person, or parent, applying for
dispensation must provide any other relevant information reasonably
required by the chief executive. For example, the chief executive may
require further information about the educational program to be taught for
a home schooling application, or evidence of the young person's medical
condition if a dispensation is sought on the ground that it would be
unreasonable to require participation because of the young person's health.
This subclause should be read in conjunction with clause 27, which sets out
the way in which the chief executive makes such a request.
Subclause 5 provides that the chief executive must make the decision on
the application as soon as practicable. This subclause should be read in
conjunction with clause 28 which provides that once a young person, or
parent, has applied to the chief executive for a dispensation, the young
person does not have to participate while the chief executive is making the
decision. This will ensure that the young person, or parent, is not
disadvantaged by a delay in decision-making.
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Clause 27 provides for circumstances where the application may lapse
where an applicant has not complied with a request for further information
(see subclause 5). If the chief executive wishes to make a requirement
under subclause 26(4) for further information this may be done by giving
the applicant notice stating the information which is required, the time by
which the information is to be provided and that, if the information is not
provided by that time, the application will lapse. The time within which the
information is to be given must be reasonable, and must be at least 14 days
after the requirement is made. Subclause 3 provides that the chief executive
may withdraw the request or part of the request at any time. Also, subclause
4 provides that the chief executive may give the applicant a further notice
extending the time stated, where the chief executive is satisfied that it
would be reasonable in all the circumstances to extend the time. This
clause serves to prevent a situation where a person is excused from
participating under clause 28 only because they have applied for a
dispensation without providing sufficient information for the application to
be decided. The provision enables the application to lapse if the person
fails to provide further information requested and once the application has
lapsed the obligation is again on the parent to ensure the young person
participates.
Clause 28 provides for a temporary dispensation for the time after an
application has been lodged and before a decision is made. Subclause 1
removes the obligation on the parent to ensure the young person
participates (see clause 19(1)) until the application has been decided or
until it lapses. If the decision is not to approve the application, the parent
has 14 days to comply after the chief executive has given notice (see clause
32).
Subclause 2 makes clear that if an application is made while an existing
dispensation is in force, the existing dispensation continues to apply until
the application is decided, or until it lapses.
Clause 29 provides for the contents of a dispensation where the chief
executive has decided to grant the dispensation. The dispensation is
required to state the day on which it is granted, the name of the young
person to whom it relates, and whether it is full or partial. If it is partial, the
dispensation must also state the extent to which the person is excused from
participation. For example, a dispensation may be approved for the young
person to participate only part-time at school or TAFE. In addition, the
dispensation must also state whether it applies until the end of the person's
compulsory participation phase or only until a stated earlier time. For
example, the dispensation may be for one term only, or may be until the
young person turns 17, in which case the participation requirement no
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longer applies. Finally, the dispensation must include any conditions on
which the application is granted. For example, the dispensation may be
granted on the basis that the young person is travelling overseas for a stated
period. The dispensation may be granted on the condition that the young
person is overseas, and that it falls away if the young person returns home
before anticipated.
Clause 30 provides that the chief executive must give the applicant
notice of the decision about the application. Subclause 2 provides that
where the chief executive decides the application in a way stated in clause
31 (refuses to grant the dispensation, grants the dispensation on stated
conditions, or grants the dispensation for a lesser period than the period
applied for) the chief executive must include in the notice certain
information. The notice must state the decision, the reasons for the
decision, the applicant's rights of review and how the applicant may apply
for review.
Division 3--Review of decision by chief executive
Clause 31 provides that the review division applies where the chief
executive has decided to refuse to grant the dispensation, to grant the
dispensation on stated conditions, or has granted the dispensation for a
lesser period than the period applied for. Such a decision is known in the
remainder of the division as the "original decision", and gives rise to rights
to seek a review of the decision in accordance with the division.
Clause 32 provides that an applicant may apply to the chief executive for
a review of the original decision, that is a decision to refuse to grant the
dispensation, to grant the dispensation on stated conditions, or grant the
dispensation for a lesser period than the period applied for. The review is an
"internal review" of the decision. Clause 33 makes provision for the way in
which an application for review must be made.
Subclause 2 provides for the timeframe within which an application for
review may be made. In essence, the applicant has 28 days to apply for an
internal review whether or not the chief executive has given a notice under
clause 30. If notice has been given, the applicant has 28 days from the
notice being given to apply for internal review. If a notice has not been
given, but the applicant has become aware of the decision in some other
way, the applicant has 28 days to apply for internal review. Subclause 3
provides the chief executive with discretion to extend the time for making a
review application.
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Subclause 4 provides that the application must be in the approved form,
and must be supported by enough information to enable the chief executive
to decide the application. Clause 62 provides that the chief executive
approves forms under this Act.
Clause 33 provides for the making of an internal review decision.
Subclause 1 provides for the circumstances where the chief executive has
delegated the power to make the initial decision under clauses 24 or 25, and
the power to make the internal review decision under clause 34. Where the
initial decision has been made by a delegated officer, the internal review
application must not be dealt with by that delegated officer, or by an officer
who is in a less senior office than the original decision-maker. This ensures
that the review decision is not made by the same delegated officer who
made the initial decision, and that it is made by an officer who is either at
the same level or at a more senior level than the initial decision-maker. For
example, if the initial decision-maker is an AO8 level officer, the review
decision-maker must either be an AO8 officer or an officer at a higher level.
Where the initial decision-maker is the chief executive, the chief executive
must also make the review decision.
Subclause 2 provides that the review decision must be made within 28
days after receiving the application for review. To make the internal review
decision, the decision-maker must review the initial decision, and make a
review decision either confirming or amending the original decision, or
substituting another decision for the original decision. For example, if the
initial decision was to grant the dispensation only for one school term on
the condition that the young person would meet with district office staff
one month before the expiration of the term, the review decision could be
to confirm this decision or amend the decision by extending the period of
the dispensation to two terms, or substituting the decision with a decision
to grant the dispensation unconditionally until the end of the young
person's compulsory participation phase. Alternatively, the decision could
be substituted with a decision not to grant the dispensation at all.
Subclause 3 provides that the decision-maker must make the internal
review decision on the material that led to the original decision, and any
other material the decision-maker considers relevant. For example, the
chief executive may obtain further information from the young person
about a medical condition, which was not provided to the initial decision-
maker.
Subclause 4 provides that the decision-maker must provide the applicant
with a notice of the review decision.
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Subclause 5 provides that if the review decision is made in a way
mentioned in clause 31(a) to (c), the notice must state the decision, the
reasons for the decision and the appeals mechanism available to the
applicant.
It should be noted that the existence within this Bill of a review
procedure for dispensation decisions is not intended to exclude the
operation of section 24AA of the Acts Interpretation Act 1954. This section
provides that if an Act authorises the making of a decision, the power
includes a power to amend or repeal the decision. Where an initial
decision-maker has made a decision, it is intended that the initial decision-
maker continue to have the power to repeal or amend that decision, until
such time when a review decision has been made. This means that a young
person aggrieved by a decision made by the local decision-maker could
appeal to the decision-maker with further evidence about the reasons for
dispensation. For example the young person may have sought the
dispensation to care for her baby, due to be born during the next school
term and the dispensation may have been granted partially so as to enable
the young mother to continue participation in a part-time capacity, but
when the baby is born it has severe disabilities and needs constant and
special care. The young person could ask the initial decision-maker to
consider this new information and amend the initial decision, without
requiring the young person to appeal under the internal review provisions.
Division 4--Appeal to Magistrates Court
Clause 34 explains that division 4 applies where an internal review
decision has been made under clause 33, in a way mentioned in clause 31
(a), (b) or (c), ie. the internal review decision was to refuse to grant the
dispensation, to grant the dispensation on stated conditions or grant the
dispensation for a lesser period than the period applied for.
Clause 35 provides that an applicant may appeal against a review
decision to the Magistrates Court. Subclause 2 provides for the time within
which an appeal must be started, that is within 28 days of receiving the
notice of the decision under subclause 33(4), or if no notice has been
provided, within 28 days of becoming aware of the review decision.
Subclause 3 provides the court with discretion to extend the time for
making the appeal.
Clause 36 provides for the conduct of the appeal. The appeal is to be
started by filing a notice of appeal in the court. Subclause 2 provides that
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the court is to conduct the appeal by rehearing the material before the chief
executive, unaffected by the review decision, and any further evidence
allowed by the court. Subclause 3 provides that the court may allow the
appeal and make any order it considers appropriate or dismiss the appeal.
PART 4--STUDENT ACCOUNTS
Division 1--Preliminary
Clause 37 explains the purposes for keeping a student account for every
young person in the compulsory participation phase. The purposes are: to
support the Queensland Studies Authority in performing its certification
function and to enable the chief executive to carry on planning and re-
engagement activities, as set out in clause 7. The requirements regarding
student accounts in this division are underpinned by the purposes set out in
this clause.
Division 2--Opening student accounts for young persons of compulsory
school age
Clause 38 requires that a student account be opened within one year
before the end of a young person's compulsory attendance phase before the
start of their compulsory participation phase. For most young people, it is
anticipated that a student account will be opened when the young person is
in Year 10.
Clause 39 requires that the account be opened either by the principal of a
State educational institution or non-State school if the young person is
enrolled at a school, or by the chief executive. To ensure that a young
person who has received a dispensation has an account with the
Queensland Studies Authority, the chief executive may open the account
for this young person in the absence of a school principal undertaking this
function.
Clause 40 explains the process for opening a student account. This
involves a provider giving notice to the Queensland Studies Authority in
the approved form (this may be lodged electronically). The chief executive
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may approve the form under clause 62. To open the account, the following
information about the young person must be provided to the Queensland
Studies Authority: name and any previous names, address, date of birth,
other information prescribed under a regulation, and the eligible option that
the young person proposes to participate in when they start the compulsory
participation phase.
Subclause (d) allows for a regulation to be made to prescribe that other
information be collected as part of the student account. This has been
included to allow for greater flexibility in including appropriate
information in this collection, should it be necessary at some time in the
future. Importantly, any additional information that is collected as part of
the student account will need to be consistent with the purposes of the
student account and will be subject to consultation with key stakeholders
including the Queensland Catholic Education Commission and the
Association of Independent Schools Queensland (as required under clause
58).
Division 3--Student account phase
Clause 41 defines the student account phase for the purpose of the
requirements of this division. The student account phase is the period
when a young person is in the compulsory participation phase or when they
are not yet in that phase but a student account has been opened for them,
for example, to ensure that changes to enrolment details are captured for a
young person that changes their enrolment with a provider before
completing Year 10 or turning 16.
Clause 42 requires that a provider responsible for enrolling a young
person in the student account phase notify the Queensland Studies
Authority of that young person's enrolment in the approved form (this may
be lodged electronically).
Clause 43 requires that if a young person in the compulsory participation
phase does not have a student account with the Queensland Studies
Authority it is the responsibility of that provider to open an account for the
young person with the Queensland Studies Authority. In opening the
account the provider must give the Queensland Studies Authority the
following information about the young person: name and any previous
names, address, date of birth, other information prescribed under a
regulation, and any eligible options that the young person is participating in
or has participated in since the start of the compulsory participation phase.
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The Queensland Studies Authority must open the student account after
receiving the request in the approved form from the provider (this may be
lodged electronically).
Clause 44 requires that the provider, where a young person is enrolled,
notify the Queensland Studies Authority if they become aware, that student
account information changes or is incorrect or the young person stops
being enrolled. There is a requirement for the provider to forward this
information to the Queensland Studies Authority in the approved form (this
may be lodged electronically) and at the times prescribed under a
regulation.
Clause 45 allows the chief executive of the Department of Employment
and Training to provide information required as part of the student account
to the Queensland Studies Authority on behalf of TAFE institutes,
registered training organisations and any entity registered as an approved
employment skills development program with that Department. This must
occur with the written agreement of the chief executive of the Department
of Employment and Training through a notice from the provider. Where the
Department of Employment and Training provides this information to the
Queensland Studies Authority the provider will be taken to comply with the
requirements of providers under Part 4.
Division 4--Use and disclosure of information
Clause 46 sets out the requirements for the use and disclosure of
information contained in the student account. Under subclause 1, the
Queensland Studies Authority will be able to utilise student account
information for the purpose of its certification function. Subclause 2
provides that the Queensland Studies Authority may disclose student
account information to providers to verify the accuracy of the information.
Subclause 3 provides that the Queensland Studies Authority must
provide the chief executive with aggregated information to enable the chief
executive to carry on planning activities as set out in clause 7(a). Under
subclause 4 each request for aggregated information made by the chief
executive must be detailed in the Queensland Studies Authority's annual
report. "Aggregated information" is defined in subclause 6.
Subclause 5 provides that the Queensland Studies Authority must give
the chief executive any of the "prescribed information" (name and any
previous names, address, date of birth and details of last eligible option in
which, according to the person's student account, the person was enrolled,
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including the last provider) which the chief executive asks for to carry out
the chief executive's re-engagement activities as set out in clause 7(b). In
particular, information about a young person who has stopped being
enrolled with a provider and not re-enrolled with another provider within a
three month period.
Subclause 6 defines aggregated information, prescribed information and
student account information for the purpose of this clause.
Clause 47 provides for the chief executive to disclose information about
a young person in the compulsory participation phase for the purpose of
carrying out the chief executive's re-engagement activities. Only the
following information can be provided: name and any previous names,
address, date of birth, the last eligible option in which the young person has
participated or the chief executive is aware that they have participated. The
chief executive may only disclose this information to an entity that the
chief executive considers appropriate. In practice, the chief executive or
chief executive's delegate should only be providing this information as
necessary to a particular entity that is directly assisting with the re-
engagement of a particular young person.
It is envisaged that at a local level this may be a provider of education or
training, a youth support organisation or a Commonwealth, State or local
government entity which provides services or support to young people in
the areas of education, family support, health or housing. This clause
recognises the importance of working collaboratively with other entities
who may already be case-managing a young person or who would be an
important stakeholder in the young person's re-engagement. Whilst the
clause does not name all potential entities and set out the exact process for
disclosure by the chief executive, it is intended that protocols at a local
level will govern the way in which information is shared and ensure that
young people's privacy is protected. Importantly, clause 60 also serves to
safeguard young people's information by attaching a penalty to the misuse
of information by these entities.
Division 5--Miscellaneous
Clause 48 applies to division 2 which relates to opening student accounts
for young people of compulsory school age and division 3 which relates to
the student account phase requirements. The clause removes overseas
students from any requirements regarding the student account unless the
overseas student provides their written agreement to have a student account
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opened and information stored with the Queensland Studies Authority.
Subclause 3 defines an overseas student as a person who holds a student
visa issued under the Migration Act 1958 (Cwlth).
PART 5--LEGAL PROCEEDINGS
Division 1--Evidence
Clause 49 explains that Division 1 applies to a proceeding under the Act,
for example a proceeding against a parent for an offence under clause 19,
or an appeals proceeding under Part 3, Division 4 against an internal review
decision pertaining to an application for dispensation.
Clause 50 provides that in a proceeding against a parent it is not
necessary to prove the appointment of the chief executive or an authorised
officer. It is also not necessary to provide the authority of the chief
executive or an authorised officer to do anything under the Act. However, a
party may, by reasonable notice, require proof of the appointment or the
authority.
Clause 51 provides that a signature purporting to be the signature of the
chief executive or an authorised officer is evidence of the signature it
purports to be.
Clause 52 provides for other evidentiary aids where the chief executive
has signed a certificate, the certificate becomes evidence of the matter
stated. The clause provides that a stated document which purports to be an
approval, decision or requirement made under the Act or a notice given
under the Act is evidence of such approval, decision or requirement. The
clause further provides that a stated document which purports to be a copy
of a document is evidence of the approval, decision or requirement.
Subclause (c) provides that where the certificate states that on a day, or
during a period, the appointment of an authorised officer was, or was not,
in force for a stated person it is evidence of the person's status. Subclause
(d) provides that where the certificate states that on a day a person was
given a notice under the Act is evidence of such notice. Subclause (e)
provides that a certificate stating that on a day a requirement was made of a
person is evidence of that requirement being made.
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Division 2--Offence proceedings
Clause 53 provides that proceedings for an offence under clause 19 or
clause 60 must be taken as summary proceedings, that is in a summary way
under the Justices Act 1886. In addition, subclause 2 provides for timelines
for commencement of proceedings for the offence. The proceedings must
start either within one year after the commission of the offence, or within
six months after the offence comes to the complainant's knowledge, but
within 2 years after the commission of the offence.
Clause 54 provides that where the complaint that starts the proceeding
states that the matter of the complaint came to the complainant's
knowledge on a stated day, this statement is evidence of when the matter
came to the complainant's knowledge. As such this provision supports the
time requirements in clause 53.
Clause 55 provides that where the chief executive has signed a certificate
stating that the chief executive consents to the bringing of the proceedings
for an offence against clause 19, the certificate is evidence of the consent.
Under clause 22 a proceeding cannot commence unless the chief executive
has consented to the commencement of the proceeding, or the chief
executive is commencing the proceeding. Clause 22 also imposes other
limitations on commencement of proceedings, namely a warning notice
must have been given to the parent, and at least one meeting must have
been held with the parent.
PART 6--MISCELLANEOUS
Division 1--Involvement of certain non-State school entities
Clause 56 explains that Division 1 applies to the Association of
Independent Schools of Queensland Inc (the "AISQ") and the Queensland
Catholic Education Commission (the "QCEC"). The Division is about the
involvement of these bodies in relation to the chief executive's planning
activities, making of certain Regulations under the Act and the provision by
the Queensland Studies Authority of aggregated information to those
entities. The Division recognises the special role played by AISQ and
QCEC in the delivery of senior secondary education in Queensland.
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Clause 57 provides that in carrying on the planning activities provided
for in subclause 7(a) the chief executive must consult regularly with the
AISQ and QCEC.
Clause 58 provides that before recommending to the Governor in
Council about making a regulation under clause 40(d), 44(2) or 59, the
Minister must consult with the AISQ and QCEC. The regulation that may
be made under clause 40(d) relates to other information which may be
required to be provided for the purpose of opening a student account. The
regulation to be made under clause 44(2) is to provide for the times when
the provider must give notice to the Queensland Studies Authority about
any change to student account information or the day when the young
person stops being enrolled with the provider. The regulation to be made
under clause 59 will govern the times when aggregated information is to be
provided by the Queensland Studies Authority to the AISQ and QCEC as
well as the type of aggregated information that is to be provided.
The requirement that the Minister must consult with those bodies will
ensure that their views are taken into account before the regulations are
made. This will not preclude the Minister from consulting with other
bodies who will be affected by the making of a regulation, such as, for
example, other learning providers.
Clause 59 provides that the Queensland Studies Authority must give the
AISQ and QCEC the aggregated information prescribed by regulation, at
the times prescribed by regulation. "Aggregated information" is defined in
subclause 2 to have the same meaning as subclause 48(6), that is
information about young people in the student account phase that
comprises or includes, or is derived from, information given to the
Queensland Studies Authority under Part 5, and could not reasonably be
expected to result in the identification of any of the individuals to whom it
relates. Information which may be provided under this clause could be
statistical information about the intended learning options of young people
in schools affiliated with AISQ or QCEC respectively, or statistical
information about the number of young people disengaging from learning
from those schools.
Division 2--Other matters
Clause 60 is a confidentiality provision, which protects personal
information collected about a student in the student account phase under
the Bill. "Student account phase" is defined by clause 41.
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Subclause 1 provides that the confidentiality provision applies to a
person who, in connection with administration of the Act, has gained or has
access to personal information about a young person in the student account
phase. It applies to the chief executive or a public service employee of the
Department of Education (note that teachers in state educational
institutions are public service employees). It applies to employees of
providers and the Queensland Studies Authority, and it applies to an entity
or its employees to whom the chief executive has provided information
under clause 47. Clause 47 provides that the chief executive may disclose
certain personal information about a young person who has disengaged
from education or training to another entity to help carry on reengagement
activities. The reengagement activities are set out in subclause 7(b). The
range of persons covered by the section thus is very wide. "Employee" is
defined for this section by subclause 4. It should be noted that the provision
captures employees who have since left the department, the Queensland
Studies Authority, a provider or entity (see subclause 3).
Subclause 2 makes it an offence for the person to make a record of the
information, disclose the information to anyone else, or give access to the
information to anyone else, except in certain circumstances. A person may
disclose the information for a purpose of the Act. This exception enables
the Queensland Studies Authority to provide the chief executive with
personal information about young people who have disengaged from
education or training, and it enables the chief executive to provide the
information to another entity for the purpose of carrying on the
reengagement activities. However, it does not enable that other entity to
disclose the personal information to another entity, even if it is for the
purpose of following up with the young person, unless the entity has the
consent of the young person. The second exception listed in subclause 2 is
where the person to whom the information relates has consented to the
recording, disclosure or access to the information by someone else. The
third exception is where the disclosure occurs in compliance with lawful
processes requiring production of documents or giving of evidence before a
court or tribunal. This would enable the information to be, for example,
subpoenaed for production in court. The final exception is where the use or
disclosure is permitted or required by another Act, such as for example a
disclosure made under the Evidence Act 1977.
A maximum penalty of 50 penalty units applies to recording, disclosure
or giving access to someone else in contravention of subclause 2.
Subclause 3 provides that subclause 2 continues to apply to personal
information about a young person in the student account phase after the
phase ends.
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Subclause 4 defines key terms for clause 60 only.
"Disclose" is defined to include giving access to the information.
"Employee" of a provider, the Queensland Studies Authority or another
entity is defined inclusively to include a person appointed to a position with
the entity, a person engaged by the entity under a contract for services and
an unpaid employee of the entity. For example, a parent volunteer helping
at a school may be an employee of a provider captured by the
confidentiality provision.
"Personal information" is defined to mean information or an opinion,
whether true or not, about an individual whose identity is apparent, or can
reasonably be ascertained, from the information or opinion. This definition
is intended to capture the same information that is intended to be covered
by Information Standard 42: Information Privacy. Any information
collected or come into contact with as a result of an opportunity provided
as a result of this Act, which is capable of identifying an individual young
person, will be captured by the confidentiality provision, subject to the
stated exceptions.
Clause 61 provides for delegation of the chief executive's powers. Under
subclause 1 the chief executive may delegate the chief executive's powers
under the Act to an appropriately qualified officer or employee of the
Department of Education or the Department of Employment and Training.
"Appropriately qualified" is defined by subclause 3 as including having
qualifications, experience or standing appropriate to exercise the power.
Subclause 3 uses the example of standing of a person's classification level
within the public service.
Subclause 2 provides for the possibility of subdelegation. The chief
executive may delegate the power to an appropriately qualified officer with
the permission for that officer to subdelegate the power to another
appropriately qualified officer. Subdelegation may be relevant where the
circumstances are such that the delegated officer could not effectively
perform the decision-making function, but another appropriately qualified
officer may be better placed, perhaps because of a better local
understanding of the issues surrounding the decision-making.
Clause 62 provides that the chief executive may approve forms for use un-
der the Act. Forms are required in relation to the following clauses:
· clause 21 (information notice to be given to parents about their
obligation is to be an approved form and warning notice to be
given to parents following attempts to set up a meeting is to be an
approved form)
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· clause 26 (application for dispensation to be in the approved
form)
· clause 32 (application for internal review of a dispensation
decision to be in the approved form)
· clause 40 (notice to be given by schools and the chief executive
to the Queensland Studies Authority to open the account is to be
in the approved form)
· clause 42 (notice to be given by providers to the Queensland
Studies Authority about a young person's enrolment with the
provider is to be in the approved form)
· clause 43 (notice to be given by providers where Queensland
Studies Authority has asked the provider to open an account for a
young person is to be in the approved form)
Clause 63 provides that regulations may be made by the Governor in
Council. Provision for the making of regulations is made under
· clause 25 (about home schooling dispensations);
· clause 40 (other information to be provided for a student account
to be opened);
· clause 44 (the times when the provider must notify the
Queensland Studies Authority of a change in student account
information); and
· clause 59 (the times when the Queensland Studies Authority
must provide aggregated information to the Association of
Independent Schools Queensland Inc and Queensland Catholic
Education Commission).
PART 7--AMENDMENT OF EDUCATION (GENERAL
PROVISIONS) ACT 1989
Division 1--Preliminary
Clause 64 provides that amendments made under this part and schedule
1 will amend the Education (General Provisions) Act 1989.
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Division 2--Amendments commencing on proclamation
Clause 65 provides for the amendment of terms and definitions in the
interpretation section of the Education (General Provisions) Act 1989.
The term and definition of "age of compulsory attendance" is replaced
with the more contemporary and representative term "compulsory school
age" and a simplified definition of the current requirement.
The term "excluded person" is now also cited in section 36E(3) in
addition to section 36.
The term "registered teacher" is defined for the purposes of the
requirements for flexible arrangements in section 114A.
The term "school of distance education" is defined in the interpretation
section to mean either a State educational institution offering distance
education or a non-State school accredited or provisionally accredited to
provide distance education.
The definition of "teacher" is amended to clarify that a teacher is a
registered teacher.
Clause 66 provides for the replacement of the term "a program of
instruction" with the contemporary term "educational program" in section
14 of the Education (General Provisions) Act 1989.
Clause 67 amends section 19B of the Education (General Provisions)
Act 1989 which deals with the implementation of syllabus or preschool
guideline at a State educational institution. The provision currently allows
for the implementation of an approved syllabus for an area of learning. The
amendment will allow schools to implement an accredited course if the
school is a registered training organisation. The amendment includes
definitions of "accredited course" and "registered training organisation"
which are referenced to the Vocational Education, Training and
Employment Act 2000.
Clause 68 amends the division heading for Part 4, Division 3. The
amendment will add the words "by supervisor", so that the heading will
read "Exclusion of students by supervisor". This is to distinguish the new
division to be inserted by clause 71 of the Bill.
Clause 69 amends the heading of section 33 to reflect the distinction
between exclusions by supervisor and exclusions by chief executive. The
heading will read "Grounds for exclusion of student by supervisor".
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Clause 70 amends section 36 to reflect the distinction mentioned above.
The heading will read "Exclusion of student by supervisor". In addition,
the new subsection 6 clarifies that the supervisor's power to exclude a
student only applies if the supervisor is the supervisor of the principal of
the institution in which the young person is in attendance. This power now
will vest only in the chief executive under the division inserted by clause 71.
Clause 71 inserts a new division 3A after section 36. This division will
set out the powers of the chief executive to exclude a student. The division
allows the chief executive to exclude a student from a stated State
educational institution or from all State educational institutions in
circumstances where the chief executive is satisfied that a ground exists for
exclusion. These amendments remove the power for exclusion of a student
from all state educational institutions from the supervisor of a principal of a
state educational institution and places it with the chief executive. This is
in recognition of the seriousness of such a decision. It is anticipated that
the power to exclude a young person from all state educational institutions
would be used very infrequently but is necessary should there be a serious
risk to staff and students.
The new section 36A provides for the chief executive with the power to
exclude a student if satisfied that the grounds exist for the exclusion. The
grounds are provided for in the new section 36B. Subsection 2 clarifies that
the chief executive may act under this division whether or not the student
has already been suspended or excluded under this part. This power may be
needed if there is a concern that the risk to safety may apply across all State
educational institutions or in the absence of a decision made under section
36.
The new section 36B provides for the grounds for exclusion which relate
to the student's attendance presenting an unreasonable risk to the safety of
staff and students or the student being persistently engaged in gross
misbehaviour which affects the education of other students.
The new section 36C provides for suspension pending final decision
about exclusion. Subsection 1 allows for the chief executive to immediately
suspend a student if the student is not already suspended or excluded until
such time as a final decision is made about the exclusion. This recognises
that there may be an immediate threat to the safety of staff and students
which necessitates an immediate suspension.
Subsection 2 requires that the chief executive give the student a notice
informing the student of the suspension or if the student is already
suspended, inform the student that the current suspension or exclusion will
continue until such time as a final decision is made about the proposed
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exclusion. In addition, the notice must provide information to the student
about the scope of the proposed exclusion, the reasons for the proposed
exclusion, whether the proposed exclusion is permanent and how a student
can make a submission to the chief executive against the proposed
exclusion.
Subsection 3 requires that the chief executive give copies of the notice to
the principal of the student's institution and the principal's supervisor.
The new section 36D provides for submission by the student against the
proposed exclusion. Subsection 1 permits a student who has been given
notice under section 36C to make a submission against the proposed
exclusion as specified in the notice. Subsection 2 requires that the student
make the submission no later than 5 school days after the notice is given
and state the grounds and facts relied upon in relation to the proposed
exclusion in the submission. Subsection 3 allows the student to request an
extension of the time allowed to make submissions provided this request is
made within 5 school days of the notice being given.
The new section 36E provides for the exclusion by the chief executive.
Subsection 1 requires that following consideration of any submissions
received within the stated time, the chief executive must decide whether to
exclude a student and if so, the period of the exclusion. Subsection 2 allows
the chief executive to make a decision to only exclude the student for the
period stated in the initial notice. The chief executive must not exclude the
student for a period longer than that proposed in the notice given to the
student under section 36C.
Subsection 3 requires that the chief executive give the excluded young
person a notice stating the following information: the institution/s the
student is excluded from, the reason for exclusion, the period of the
exclusion and information about the student's ability to request a review of
the decision and how this request is to be made.
Subsection 4 requires that where the chief executive decides not to
exclude a student the chief executive must give the student a notice
outlining the decision not to exclude the student and advise the student that
the suspension has ended and that they may return to the stated institution.
Subsection 5 clarifies that the effect of a notice given to advise a student
that a chief executive has decided not to exclude that student causes any
suspension or exclusion given under this part to end.
Subsection 6 requires that the chief executive inform the principal of the
stated institution and the principal's supervisor of the decision regarding an
exclusion of a student enrolled at that institution through a notice.
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Finally, clause 71 inserts a new division heading for division 3B, which
caters for review of decisions about exclusion. The existing provisions
relating to appeal against an exclusion made by the supervisor are in the
following clauses extended to a decision made by the chief executive.
Clause 72 includes a reference in section 37 to the new power for
exclusion by the chief executive under section 36A in addition to the
existing power for exclusion in section 36.
Clause 73 makes consequential amendments to section 38 of the
Education (General Provisions) Act 1989 as a result of the new section
36A included in clause 71. Subclause 1 inserts a time period within which
the decision must be made. Currently, a decision must be made promptly.
However, experience shows that decisions can take a long time to be made.
Therefore, section 38(1) will be amended to require the chief executive to
make the decision within business 40 days after receiving the submission.
Subclause 2 includes a reference to the chief executive's original
decision (in addition to a supervisor's decision) in relation to the
requirement to inform an excluded person and the principal of a chief
executive's decision to affirm, vary or set aside a decision. Under this
requirement, the chief executive needs to let the excluded person know
when the person can return to school if it is a time earlier than if the
supervisor's decision or chief executive's original decision had been
affirmed.
Subclause 3 includes a new requirement for the chief executive to ensure
that a submission against an exclusion made under the new Division 3A is
not dealt with by the person who made the original decision or by a person
in a less senior office than the original decision-maker.
Clause 74 inserts a new section 38A which sets out requirements for the
chief executive to periodically review a decision made about the exclusion
of a student made under division 3A.
Subsection 2 requires that the review by the chief executive must be
commenced within 1 month before the end of each school year in the form
of a notice given to the excluded student. The notice must: inform the
student that they can make a submission to the chief executive to determine
whether the exclusion decision should be revoked; and provide information
to the student about how the submission can be made, including the
timeframe for making the submission.
Subsection 3 provides a power for the chief executive to extend the
timeframe for receiving a submission from the student provided it is before
a decision is made about whether to revoke the exclusion.
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Subsection 4 clarifies that the student is able to make the submission
either in the way stated in the notice from the chief executive or in
accordance with the extended timeframe determined by the chief executive.
Subsection 5 requires that following consideration of any submissions
from the student, the chief executive must decide whether to revoke the
exclusion, provide a written notice of the decision and reasons for the
decision, to the student, to the principal (of the school where the student
was excluded) and to the principal's supervisor.
Subsection 6 requires that the chief executive must revoke the exclusion
decision if the chief executive is satisfied that the student's attendance no
longer presents an unreasonable risk to the safety of other students or staff
or the student's persistent and gross misbehaviour is unlikely to continue.
These are the grounds for the original decision under section 36B.
Subsection 7 provides that otherwise the chief executive must not revoke
the exclusion.
Subsection 8 clarifies that a decision to revoke an exclusion may relate to
either one or more institutions as stated in the original exclusion decision.
This allows the chief executive to partially revoke the exclusion if
appropriate, thereby only restricting attendance at particular institutions
mentioned in the original decision.
Clause 75 replaces section 114 of the Education (General Provisions)
Act 1989 with a new compulsory schooling provision. The new section
broadens the definition of attendance to account for modes of delivery
which may not involve physical attendance on every school day.
Subsection 1 requires that the parent of a child of compulsory school age
ensure that the child is enrolled and attending the State educational
institution or non-State school on every school day for the educational
program in which the child is enrolled.
Subsection 2 clarifies that a child attends only if complying with the
institution or school's requirements about physically attending, at
particular times, its premises or another place. This takes account of the
different requirements of schools in relation to physical attendance and
serves to remove any doubt about a how a parent can ensure that they meet
these requirements.
Subsection 3 sets out the requirements for attendance at a school of
distance education, that is, to complete and return assigned work for the
program. In addition, subsection (b) clarifies that a child enrolled in
another program without physical attendance requirements can comply
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with this requirement by meeting the communication or contact
requirements of that institution or school.
Subsection 4 states that the requirements of subclause (1) apply subject
to this part.
The insertion of section 114A sets out a framework for the approval of
flexible arrangements for a child enrolled in a non-State school. Flexible
arrangements are able to be approved for a young person on a case-by-case
basis in circumstances where the young person would benefit from
participating in a program other than the school's educational programs.
For example, an arrangement may be approved which allows a young
person to participate part-time in school and part-time in a life-skills
program offered by a community organisation. To ensure the
accountability of these decisions, it is proposed that compliance with this
provision become an accreditation criterion through an amendment to the
Education (Accreditation of Non-State Schools) Regulation 2001.
Subsection 1 provides for an authorised entity for a non-State school to
approve arrangements for a student enrolled with the school. These
arrangements are to apply instead of participation in the school's usual
educational programs. "Authorised entity" is defined by subsection 6.
Subsection 2 sets out requirements for the approval of these
arrangements. It is anticipated that detailed guidelines will be developed to
support the legislative requirements and to provide further guidance to
authorised entities in making decision regarding flexible arrangements.
Subsection (a) requires that a registered teacher prepare written
assessments of the child's educational and other needs, the learning
outcomes intended by the arrangements and the suitability of the provider
in delivering the program. It has been determined that a registered teacher
is in the most informed position to make these subjective assessments of
the child and to the determine the appropriateness of the arrangement,
having regard for the particular needs of that child. Further, the
requirement for a registered teacher to make these written assessments
provides additional safeguards for these arrangements, ensuring that they
are appropriate, in the best interests of the child and outcome focused.
Subsection (b) requires that the authorised entity give consideration to
the written assessments prepared by the registered teacher and how and by
whom the child's participation will be monitored and how and by whom
the provider's involvement and effectiveness will be monitored.
Importantly, the authorised entity can only approve the arrangements if
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there is a mechanism in place to oversee and monitor the effectiveness of
these arrangements.
Subsection (c) requires that the authorised entity is satisfied that the
arrangements are appropriate, having regard to the child's individual needs
and circumstances, the best learning outcomes for the child and where
appropriate, whether the arrangements are equivalent to full-time
participation in the school's educational programs. It is intended that
where possible, a child should be participating full-time either in the usual
way a child participates under the compulsory schooling requirements or
for an equivalent period as part of a flexible arrangement. In addition, the
entity must have regard to any other matter prescribed under a regulation.
Subsection 3 requires that the non-State school keep the written
assessments prepared by a registered teacher, the written agreements and a
record of the authorised entity's consideration of the matters in (2)(b) for at
least 5 years.
Subsection 4 provides that where it is impracticable or inappropriate in
the circumstances, an authorised entity is not required to obtain a parent's
written consent to the arrangements for a young person of compulsory
school age. For example, where a young person is living independently
from their parents it may not be appropriate to discuss these arrangements
with the child's parents.
Subsection 5 defines "authorised entity" for the purpose of this part as
being a school's governing body or a staff member of the school who is
given written authorisation by the governing body. This enables the
governing body to delegate the decision-making power to, for example, the
principal of a non-State school. "Provider" is defined as an entity directly
involved in providing a program to the student under the arrangements.
"Student" is defined as a student of compulsory school age.
The insertion of section 114B provides a power for the chief executive to
approve flexible arrangements for a child enrolled in a State educational
institution in the same way that an authorised entity can approve
arrangements for a child enrolled in a non-State school in the previous
section.
Subsection 2 places the same requirements for approval of flexible
arrangements in State educational institutions as for non-State schools.
These include requirements relating to the approval process, requirements
relating to what must be considered before approving an arrangement and a
requirement to obtain written agreement from parents and discuss the
arrangements with the child. The only difference between the requirements
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for State and non-State schools in relation to flexible arrangements is that
the chief executive is not subject to the requirement under section 114A (4)
relating to record keeping given that State is subject to requirements under
the Public Records Act 2002.
Clause 76 provides for amendments to section 115 of the Education
(General Provisions) Act 1989. Section 115 deals with the granting of a
dispensation from the compulsory schooling requirement.
Subclause 1 replaces the term "the age of compulsory attendance" with
"compulsory school age".
Subclause 2 removes the power to make decisions regarding
dispensations from the Minister and provides this power to the chief
executive. Given the administrative nature of these decisions it is
determined to be more appropriate to provide this power to the chief
executive, given the chief executive's functions.
The references to approval of a dispensation being approved on the basis
of a child `s home being a particular distance from a State educational
institution have been removed. This is in recognition that these matters no
longer represent specific grounds for the approval of a dispensation given
that the meaning of "attend" under section 114 has been widely defined so
that a child may attend through returning completed work to the school of
distance education. It should also be noted that the dispensation provisions
contain a power for the chief executive to approve a dispensation for any
reason the chief executive considers to be valid.
Subclause 3 clarifies that the compulsory schooling requirement does
not apply to a child who has a dispensation or provisional dispensation, to
the extent outlined in the dispensation.
Clause 77 creates new provisions (section 116A and section 116B)
which serve to clarify that the compulsory schooling requirement does not
apply to a child who is suspended or excluded or is temporarily ill. This is
to ensure that a parent is not in technical breach of their obligations during
this period.
Section 116A clarifies that the compulsory schooling requirement does
not apply for a child who has been permanently excluded from all State
educational institutions.
Subsection 2 provides that the compulsory schooling requirement as set
out in section 114(1)(b) does not apply for the period while a child is
excluded from all state educational institutions or for the period while a
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child is suspended and not in an alternative program or for the period while
a child is suspended from a non-State school.
Subsection 3 defines what it means to be suspended and excluded with
reference to part 4 of the Education (General Provisions) Act 1989.
Section 116B clarifies that the compulsory schooling requirement does
not apply for a child who is ill for not more than 10 consecutive school
days.
Subsection 1 specifies that the absence must not be for more than 10
consecutive days during which time the child is too ill to attend the State
educational institution or non-State school in which they are enrolled. This
provision has been included to avoid the parent of the child having to apply
for a dispensation for short-term absences.
Subsection 2 allows for a regulation to provide for obligations on parents
in relation to a child's absence due to illness. For example, a regulation
may require a parent to notify the school in writing of the child's absence
after a particular period.
Clause 78 omits section 117 of the Education (General Provisions) Act
1989 which provides an alternative obligation on parents who are
geographically isolated to enrol their children in distance education. This
clause omits section 117 because the new meaning of attend has made
special treatment of distance education enrolments superfluous. Instead a
new section 117 is inserted regarding the information notice and meeting
framework used prior to prosecuting a parent for non-compliance with the
compulsory schooling requirement.
Subsection 1 provides that the clause applies when an authorised officer
reasonably suspects that a child of compulsory school age is not enrolled or
not attending a State educational institution or non-State school on every
school day for the program in which the child is enrolled.
Subsection 2 provides for an authorised officer to give a parent of a child
a notice in the approved form about the compulsory schooling requirement
and the offence attached to non-compliance. This is intended to be the first
step in making contact with a parent and informing them of their
obligations under the legislation.
Subsection 3 provides that an authorised officer may also meet with the
parent to discuss the compulsory schooling requirement and the offence
attached to non-compliance. In addition, the purpose of the meeting with a
parent is to work with the parent to develop practical strategies to remedy
the contravention.
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Subsection 4 provides that despite the fact that the authorised officer
tried to hold a meeting and a meeting could not be held, the officer may
give the parent a warning notice. This step represents the final step in the
official process undertaken by an authorised officer prior to commencing a
proceeding for the offence. However, it should be noted, that in practice,
several notices may be issued to a parent and several meetings may be held
with a parents over a period of time to ensure compliance with the
requirements. It is intended that policy guidelines will be developed to
ensure greater consistency across the State in the application of these
powers.
Subsection 5 clarifies that an authorised officer under this clause is a
public official performing a function authorised by this Act for the purpose
of section 14 of the Police Powers and Responsibilities Act 2000. This will
enable an authorised officer to seek help from a police officer in issuing
notices and holding meetings with parents.
Subsection 6 defines authorised officer to mean the chief executive or an
officer of the department authorised by the chief executive. The delegation
of this power will be clearly outlined in policy guidelines to ensure that
those officers authorised to carry out this function are aware of their
responsibilities.
Clause 79 amends section 118 of the Education (General Provisions)
Act 1989 which deals with a penalty for non-compliance with compulsory
education provisions.
Subsection 1 replaces the existing obligation with essentially the same
requirement except that it uses the new terminology of "compulsory
school age" and includes the concept of a reasonable excuse. Subsection 1
also sets out that the maximum penalty for a first offence is 5 penalty units
($375) and for a second or subsequent offence the penalty is 10 penalty
units ($750).
Subsection 2 provides for a reasonable excuse for a parent who has
contravened the requirements in particular circumstances. These excuses
relate to a parent being unable to ensure enrolment or attendance because
the child was not living with them, or because the parent is unable to
control the child's behaviour in order to ensure compliance or because the
child has been excluded and the parent has not yet organised the child's
new enrolment (the parent has a reasonable time to do this). The
reasonable excuses have been included in the framework to recognise that
there are particular circumstances in which it is unreasonable to expect that
a parent could meet their obligations.
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Subsection 2A provides for the process to be followed in commencing a
proceeding for the offence. A proceeding is to be brought either by the
chief executive, or with the chief executive's consent. In addition, a
proceeding may only be brought against a parent who is alleged to have
committed the offence following the issuing of a notice to the parent
explaining their obligations and at least one meeting has been held or a
warning notice has been issued in the absence of a meeting being held. It is
intended that these steps will at least ensure that consideration is given to
the parents' circumstances and the factors which may be contributing to the
contravention and provide a mechanism, through the meeting to work with
parents to remedy the contravention.
Subclause (2) replaces section 118(3)(b) which included wide-ranging
evidentiary provisions about a parent's failure to comply with a simplified
provision clarifying that in a complaint, a statement that a child was of
compulsory school age at the time of the offence is taken to be evidence of
that fact.
Subclause (3) replaces the role of the Minister in issuing dispensation
certificates for the purpose of evidence of a dispensation with the Director-
General. This is consistent with the delegation of other administrative
decisions.
Subclause (4) replaces the term "the age of compulsory attendance" with
"compulsory school age".
Subclause (5) provides further evidentiary provisions to be inserted into
subsection 118(3).
Clause 80 amends section 119 of the Education (General Provisions)
Act 1989 which deals with restrictions in relation to employing children of
school age.
Subclause (1) inserts "compulsory" into the heading for consistency in
terminology.
Subclause (2) replaces the term "the age of compulsory attendance" with
"compulsory school age".
Subclause (3) inserts new subsections into section 119 which have the
effect of recognising that employment approved as part of a flexible
arrangement or as a consequence of a law of the Commonwealth are not
subject to the restrictions against employing child who is subject to the
compulsory schooling requirements.
Clause 81 amends section 123 of the Education (General Provisions)
Act 1989 which relates to the calculation of a student's allocation of
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semesters where the student does not begin schooling at a State educational
institution. The clause replaces the term "a program of education or
instruction" with "an educational program".
Clause 82 inserts a new section into the Education (General Provisions)
Act 1989 (section 142B) which provides for a new power for the Minister
to approve grants to entities for the purposes of helping children to achieve
their best learning outcomes or to promote the re-engagement of children
in education or training. This power has been included to recognise that by
virtue of the reforms the Minister may be approving grants to entities that
are not strictly education based and for purposes which are more focused
on supporting young people to achieve learning outcomes rather than for
the provision of education. To remove doubt about the Minister's power to
approve funding for these broader purposes this provision has been
included.
Clause 83 provides for the inclusion of transitional provisions as a result
of the Youth Participation in Education and Training Act 2003. Clause 83
inserts a new Division 4 into Part 11 of the Education (General Provisions)
Act 1989. The insertion of section 166A provides for a definition of
"commencement day" to mean the day the provision commences and for
"dispensation" to include a provisional dispensation.
The insertion of section 166B provides that where a dispensation was in
force immediately before the commencement day it continues to be in
force until it expires or otherwise ends under the Act.
The insertion of section 166C provides that the chief executive can
continue to deal with making a decision regarding a dispensation which
was applied for to the Minister before the commencement day.
The insertion of section 166D provides that the requirements for starting
a proceeding under section 118(2A) only apply to those proceedings
started on or after the commencement day. In addition, a certificate issued
by the Minister before the commencement day is taken to be evidence of
the matters stated.
Division 3--Amendments commencing on 1 January 2006
Clause 84 amends section 2(1) which is the definition section for the
Education (General Provisions) Act 1989.
Firstly, clause 84 removes the definition of "cancel" and "person under a
cancellation". These definitions are no longer required as a result of the
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omission of Part 4, Division 4 which deals with cancellation of enrolment
of post-compulsory students (see clause 86).
Secondly, clause 84 omits the definition of "compulsory school age"
from section 2(1). The definition of "compulsory school age" is to be
inserted into section 2(1) by clause 65 to commence on proclamation. This
definition is to be omitted on 1 January 2006 when clause 85 inserts a new
definition of that term in a new section 4A.
Clause 85 inserts a new section 4A after the existing section 4. This new
section defines "compulsory school age" in a way that implements the new
school leaving age announced by the Education and Training Reforms for
the Future. The new subsection 4A(1) provides that a child is of
"compulsory school age" if the child is at least 6 years and less than 16
years. The new subsection 4A(2) provides that a child will no longer be of
compulsory school age, if the child has completed Year 10. This gives
effect to the requirement that children and young people should be at
school until they turn 16 or have completed Year 10, whichever comes first.
Clause 86 omits Part 4, Division 4 of the Education (General
Provisions) Act 1989. Part 4, Division 4 provides for the cancellation of
enrolment of students above the compulsory school age. Under the
Division a principal of a state educational institution can cancel a student's
enrolment in circumstances where the student's persistently disruptive
behaviour is adversely affecting the education of other students at the
institution, or where the student's behaviour amounts to a refusal to
participate in the educational program provided at the institution. In
addition, Division 4 provides for mechanisms for review by the principal's
supervisor of a decision to cancel a students enrolment.
The fundamental premise of the cancellation power is that schools
should not have to cater for students who are no longer compelled to be at
school where they are not interested in continuing their schooling. The
cancellation process is comparatively simple when considered in the
context of its alternative, ie an exclusion from school. However, the net
effect of a cancellation is the same as the effect of an exclusion - the
student can no longer receive an educational program at the school.
However, a cancellation decision is made by the principal with a review to
the principal's supervisor, whereas the process for exclusion involves more
safeguards for the student: a principal makes a recommendation to the
supervisor, and the student may make submissions to the supervisor, who
makes the decision to exclude. There are review rights to the chief
executive (see Part 4 Division 3 of the Education (General Provisions) Act
1989).
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There are two aspects to the grounds for cancellation. The ground that
the student is disrupting other students can be amply dealt with under the
grounds for exclusion (see section 33), or, if sufficiently serious, under the
new power vested in the chief executive by clause 71. The ground that the
student is not participating appears to be inconsistent with the very intent
of the Education and Training Reforms for the Future, that is that young
people must continue to participate in education or training after Year 10 or
after they have turned 16. The reforms are about working with young
people to ensure they participate, not to alienate them from the school
because they do not participate.
Clause 87 amends the division heading for Part 4, Division 5. Division 5
contains miscellaneous provisions about suspensions, exclusions and
cancellations, and clauses 87 to 89 makes amendments that are
consequential upon the removal of the cancellation division. Clause 87
replaces the words "suspensions, exclusions and cancellations" with the
words "suspensions and exclusions" so that the division heading reads
"Miscellaneous provisions about suspensions and exclusions".
Clause 88 amends section 43. Section 43 defines "student" for Division
5, and subsection (c) defines a student to mean a person under a
cancellation. As a result of the removal of the cancellation division, this
definition of student is no longer required, and subsection (c) is removed.
Clause 89 amends section 45. Section 45 provides for submissions to be
made about suspensions, exclusions and cancellations where the student is
under 18 years. In that case, the parent or adult who has the care and
control of the student may also make the submissions against the
suspension, exclusion or cancellation. Subclause 89(1) removes the
reference to cancellation in the heading, so that the heading will read
"Submissions about suspensions and exclusions". Subclause 89(2) will
remove the reference to cancellation in the text of the section.
Clause 90 amends section 114A (that has been included by clause 75 of
the Bill to commence by proclamation). The amendment by clause 90 will
coincide with the commencement of the compulsory participation phase
requirement and will enable schools to enter into flexible arrangements for
students of compulsory school age as well as students in the compulsory
participation phase. While schools in the interim can chose to follow the
process for flexible arrangements for students who are not of compulsory
school age--they are not compelled to do so in a legislative sense.
Clause 90 will omit subsection 114A(2)(d) and (e) and instead insert a
new subsection 2A. Subsection 2A will distinguish between students of
compulsory school age and students in the compulsory participation phase.
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If the student is of compulsory school age, then the parents' written
agreement to the arrangements is required. In addition, a discussion must
be held with the student about the proposed arrangements. The detail of
this discussion with the child will depend on the student's age, and other
relevant circumstances, such as the student's maturity and understanding of
what the arrangements will mean.
For students in the compulsory participation phase, the decision-maker
must ensure that they have the student's written agreement to the
arrangements and ensure that the arrangements are discussed with the
student's parents, to the extent to which this is appropriate and possible.
For example, where a young person is living independently from their
parents it may not be appropriate to discuss these arrangements with the
child's parents.
Subclauses 3 and 4 make amendments to subsections 114A(3)(c) and
114A(4) consequential upon the insertion of the new subsection 2A.
Subclause 5 replaces the definition of "student" for the section to include
a student who is of compulsory school age or in the compulsory
participation phase.
Clause 91 amends subsection 114B(2). This amendment is
consequential upon the insertion of the new subsection 114A(2A).
Clause 92 amends section 115. Section 115 deals with dispensation from
compliance with compulsory enrolment and attendance provisions.
Subsection 115(1) provides that the chief executive may grant a parent a
dispensation from the obligation to have their child enrolled and attend a
school. Subsection 115(2) sets out the grounds that are deemed to be valid
for a decision to grant a dispensation. Subsection 115(2)(d) was omitted by
clause 76, to commence by proclamation. This subsection related to
geographically isolated children, and is no longer relevant because of the
definition to the meaning of "attend" in the new section 114 inserted by
clause 75, also to commence by proclamation.
Clause 92 inserts a new subsection 115(2)(d) which makes it a deemed
valid reason for granting a dispensation where the child is, or has arranged
to become, an apprentice or trainee under the Vocational Education,
Training and Employment Act 2000. This amendment will commence at the
same time as the school leaving age is raised to 16 years or completion of
Year 10 (see the amendment in clause 85). At present, parents of some
young people seek dispensation for their child to enter into the workforce
when the child is still of compulsory school age. Such dispensations are
granted for approximately 70 students a year. When the school leaving age
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is raised, more young people may be in the situation of wanting or needing
to earn a wage. Ideally, this is done by the young person becoming an
apprentice or trainee, rather than entering into employment without any
structured training attached. The amendment will recognise that a young
person securing an apprenticeship or traineeship is engaging in a valid
alternative to schooling. The chief executive of education will still need to
grant the dispensation, but if the young person has signed the
apprenticeship or traineeship contract, or has arranged to do so, this will be
a valid reason for granting a dispensation.
Clause 93 inserts a new section 116C. This section provides that section
114(1) (the obligation on parents to have their compulsory school age child
enrolled in, and attending, school) does not apply to the extent of any
inconsistency with a law of the Commonwealth under which a person of
compulsory school age may carry on an activity other than attending a state
educational institution or non-state school. For example, a young person
may, with parental consent, enlist for service in the Air Force as an airman
apprentice upon reaching 15 years of age (see s93B of the Airforce
Regulation 1927 (Cth). If the young person becomes an airman apprentice
while still of compulsory school age, the obligation on parents in 114 will
not apply to the parent.
PART 8--AMENDMENT OF OTHER ACTS
Division 1--Education (Accreditation of Non-State Schools) Act 2001
Clause 94 explains that this division amends the Education
(Accreditation of Non-State Schools) Act 2001 (the "Non-State Schools
Act").
Clause 95 amends section 39 of the Non-State Schools Act. Section 39 is
included in Part 2, Division 4 about the investigation of suitability of the
school's governing body. Under the Non-State Schools Act, the governing
body must at all times be suitable, and the Non-State Schools Accreditation
Board is empowered to investigate the suitability of the governing body.
Subclause 1 amends subsection 39(2). Subsection 39(2) requires the
Non-State Schools Accreditation Board to decide that a school's governing
body is "not suitable to be, suitable to continue to be, or would be suitable
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to be" the school's governing body where a director of the school's
governing body does not have a current positive notice under the
Commission for Children and Young People Act 2000. Subclause 1 omits
the words "suitable to continue to be, or would be suitable" and inserts
instead the words "not suitable to continue to be, or would not be suitable"
to better reflect the underpinning policy intention of the provision.
Subclause 2 clarifies that the specific provisions in subsections 39(2) and
39(3) are not intended to limit the matters to which the board may have
regard in making a decision about the suitability of the school's governing
body under subsection 39(1). As noted above subsection 39(2) directs the
Non-State Schools Accreditation Board to decide that a governing body is
not suitable if a director does not have a positive notice. Subsection 39(3)
provides for matters that the Non-State Schools Accreditation Board may
have regard to when making a decision about the suitability of the
governing body, which relate to situations where the director of a
governing body has been convicted of an offence. The amendment in
subclause 2 will insert a new subsection 39(4) which will clarify that
subsection (2) and subsection (3) are not intended to limit the matters that
the Non-State Schools Accreditation Board may have regard to when
deciding the suitability of a governing body.
Division 3--Education (Queensland Studies Authority) Act 2002
Clause 96 explains that this division amends the Education (Queensland
Studies Authority) Act 2002.
Clause 97 amends section 3 by inserting subsections 3(1)(d) and
(3)(2)(b). Section 3(1) provides for the objects of the Education
(Queensland Studies Authority) Act 2002, and currently includes three
objects, namely to help schools achieve quality learning outcomes for their
students, to facilitate the transition of students through the sectors of
education, and to maintain public confidence in certificates of achievement.
Subclause 1 inserts a new object, namely to help achieve the objects of the
Youth Participation in Education and Training Act 2003. The Queensland
Studies Authority will help achieve the objects through their central role in
the student account system. This system will be critical to enable providers
to bank young people's learning credits, and to support the planning and
reengagement activities of the chief executive.
Section 3(2) explains how the objects of the Act will be mainly achieved,
namely through the establishment of the Queensland Studies Authority,
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conferring certain functions on the authority and establishing the Office of
the Queensland Studies Authority to help the authority to perform its
functions. Subclause 2 will include another way in which the objects of the
Act will be achieved by including in the list of functions of the authority
the participation of young people in education and training.
These amendments are linked with the following amendments in clause
98, 99 and 100.
Clause 98 inserts a new section 14A after section 14. Section 14A will
confer participation functions on the Queensland Studies Authority. The
participation functions involve the Queensland Studies Authority keeping a
student account for each young person in the student account phase under
Part 4 of this Bill. A young person in the "student account phase" is defined
by clause 41 as a young person who is in the compulsory participation
phase or who is not yet in the compulsory participation phase, but for
whom an account has been opened. In addition, the participation functions
involve the Queensland Studies Authority dealing with the information
recorded in the account in a way permitted or required by Part 4 of this Bill.
Clause 99 amends the heading of Part 2, Division 4 of the Education
(Queensland Studies Authority) Act 2002. Division 4 is currently about
tests and notification of syllabuses and preschool guidelines. The insertion
of an additional provision by clause 100 will expand the scope of Division
4 to also include results. Therefore, the division heading is amended to
reflect this.
Clause 100 inserts a new section 18A, before the existing section 19 to
impose an obligation on a provider to provide result information to the
Queensland Studies Authority. The new subsection 18A(1) provides that a
provider must give to the authority results information prescribed under a
regulation. The new subsection 2 provides that the results information must
be given at the times and in the ways prescribed by regulation. "Result
information" is defined by the new subsection 3 to mean:
· the results of the assessment of a person for an area of learning
that may be recorded on a certificate of achievement; and
· qualifications conferred on the person; and
· other related information including, for example, when the
results were achieved or qualifications conferred.
"Provider" is defined by the new subsection 3 by referring to the
definition in the Youth Participation in Education and Training Act 2003.
This definition refers to clause 12 of the Bill and includes a state
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educational institution, a non-state school, a university or non-university
provider, a TAFE institute or registered training organisation and the chief
executive of the department within which the Vocational Education,
Training and Employment Act 2000 is administered.
The new subsection 18A(1) will require the providers to bank learning
credits, that is provide result information, of young people who have a
student account to the Queensland Studies Authority. This information will
be included in the young person's student account, and be made accessible
to the young person so that the young person can access a comprehensive
statement of their achievements in one place. Ultimately, the Queensland
Studies Authority will be able to use the learning credits banked in the
student account to issue a certificate of achievement.
The regulation will provide which learning credits can be banked, and
the times and ways in which learning credits are to be banked.
Division 4--Education (Teacher Registration) Act 1988
Clause 101 explains that Division 4 amends the Education (Teacher
Registration) Act 1988.
Clause 102 makes definitional amendments to the Education (Teacher
Registration) Act 1988 which are consequential upon the change in
terminology from "age of compulsory attendance at school" to
"compulsory school age" in the Education (General Provisions) Act 1989.
Subclause 1 inserts into section 2 a new definition of "compulsory
school age" by referring to the amended definition in section 2(1) of the
Education (General Provisions) Act 1989. The definition of compulsory
school age in that Act means at least 6 years and less than 15 years, and this
definition will change on commencement of the new definition to be
inserted by clause 85.
Subclause 2 amends the definition of "tertiary education" in section 2 of
the Education (Teacher Registration) Act 1988 to reflect the change in
language from "age of compulsory attendance" to "compulsory school
age".
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Division 5--Freedom of Information Act 1992
Clause 103 explains that division 5 amends the Freedom of Information
Act 1992.
Clause 104 amends the definition section (section 7) of the Freedom of
Information Act 1992 by inserting a new definition for "education entity".
This term is used in the amendment to section 11 inserted by clause 105.
"Education entity" is defined to mean the department within which the
Youth Participation in Education and Training Act 2003 is administered
(that is, the Department of Education), or the Queensland Studies Authority
established under the Education (Queensland Studies Authority) Act 2002,
section 6.
Clause 105 amends the existing section 11(1) by inserting an additional
subsection 11(1)(pb). Section 11 currently provides that the Freedom of
Information Act 1992 does not apply to a range of bodies, including the
Governor, the Legislative Assembly, judicial functions of courts, and
committees declared to be an approved quality assurance committee under
the Health Services Act 1991. Clause 105 will amend section 11 by adding
to the list of bodies exempt from the operation of the Freedom of
Information Act 1992 an education entity, in relation to aggregated
information under the Youth Participation in Education and Training Act
2003, Part 4, Division 4. This is intended to exempt from the operation of
the freedom of information regime aggregated student account
information.
SCHEDULE 1
Schedule 1 makes consequential amendments to the Education (General
Provisions) Act 1989 relating to the change in terminology pertaining to the
compulsory school age.
SCHEDULE 2
Schedule 2 sets out the dictionary terms used in this Act.
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ATTACHMENT
The attachment is referred to in clause 5 and sets out the Ministerial
declaration `Stepping forward: improving pathways for all young people'.
© State of Queensland 2003