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Education and Training Reform
Amendment (School Attendance) Bill
2013
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Bill. The main purpose of the Bill is
to amend the Education and Training Reform Act 2006 in
relation to compulsory enrolment and attendance at school.
Clause 2 provides for the commencement of the Act.
Subclause (1) provides that subject to subclause (2) the Act
comes into operation on a day or days to be proclaimed.
Subclause (2) provides that if a provision of the Act does not
come into operation before 1 April 2014, it comes into operation
on that day.
Clause 3 provides that in this Act the Education and Training Reform
Act 2006 is called the Principal Act.
Clause 4 inserts definitions of school attendance notice and school
enrolment notice into the Principal Act.
Clause 5 Subclause (1) substitutes the heading to section 2.1.2 of the
Principal Act to remove reference to an offence against that
section. This is because the current offence and penalty are
repealed by subclause (2).
Subclause (2) repeals the penalty at the foot of section 2.1.2 of
the Principal Act. The penalty of 1 penalty unit for each day on
which the duty is not complied with, will not apply to the duty of
a parent to ensure the enrolment and attendance of a child at a
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registered school. The penalty of 1 penalty unit for each day on
which the duty is not complied with will still apply to the duty of
a parent to provide instruction to a child registered for home
schooling and is preserved by new section 2.1.2A of the Principal
Act (inserted by clause 6).
Clause 6 inserts new section 2.1.2A into the Principal Act, which provides
that it is an offence for a parent not to provide instruction to a
child registered for home schooling. This offence and the penalty
were previously set out under section 2.1.2 (see clause 5) and are
preserved in new section 2.1.2A.
Clause 7 Subparagraphs (a) to (c) amend section 2.1.3 of the Principal Act
to provide that the section also applies to new Division 3 of
Part 2.1 of the Principal Act (inserted into the Principal Act by
clause 13). Section 2.1.3 of the Principal Act sets out a non-
exhaustive list of reasonable excuses for the failure to comply
with the duty set out in section 2.1.2, to ensure that a child is
enrolled and attends at a registered school or is registered for
home schooling; or with the duty set out in new section 2.1.2A,
to ensure that a child registered for home schooling receives
instruction.
Subparagraph (d) amends section 2.1.3 of the Principal Act to
remove "the child's absence from Victoria" as a reasonable
excuse for the purposes of that section.
Subparagraph (e) inserts 2.1.3(fa) into the Principal Act, which
provides a new ground for reasonable excuse in that a principal
has discretion to accept an excuse given by a parent that is
outside of those reasons prescribed as a reasonable excuse.
Subparagraph (f) amends 2.1.3 of the Principal Act to provide
that a reasonable excuse may be that the child has been exempted
from enrolment by the Minister. This Act gives the Minister the
power to exempt a child from enrolment, as well as attendance
(see clause 8).
Clause 8 amends section 2.1.5 of the Principal Act to allow the Minister to
exempt a student from enrolment at school, attendance at school
or both enrolment and attendance at school. The Minister
currently has the power to exempt a student from attendance at
school; the provision is expanded to allow an exemption from
enrolment as well.
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Clause 9 amends section 2.1.9 of the Principal Act to exclude the
requirement of a school attendance officer to produce his or her
identity card for inspection when exercising powers under new
Division 3 of Part 2.1 of the Principal Act (inserted by clause 13).
This is because the powers in Division 3 of Part 2.1 will not be
exercised in person, rather by mail, and it is impractical to have a
requirement of an identity card to be shown.
Clause 10 amends section 2.1.10 of the Principal Act to require a principal,
on the request of the school attendance officer, to provide the
officer with any information regarding the enrolment or
attendance of students that the officer may require for carrying
out the officers functions. The amendment also authorises a
school attendance officer to access, use or disclose information
recorded in the Student Register for the purposes of monitoring
and ensuring student enrolment and attendance. These powers
will assist the school attendance officer to make reasonable
enquiries before issuing a school enrolment notice or school
attendance notice to a parent.
Clause 11 amends section 2.1.12 of the Principal Act to allow a school
attendance officer to bring proceedings for any offence under
new Division 3 of Part 2.1 (inserted by clause 13) which provides
for offences where a parent fails to comply with a school
enrolment notice or school attendance notice.
Clause 12 repeals section 2.1.14 of the Principal Act. Section 2.1.14
provided that in relation to an offence under section 2.1.2 of the
Principal Act the burden of proving the grounds of a reasonable
excuse lies on the accused. The offence and penalty from
section 2.1.2 are repealed by clause 5 of the Bill. While the
offence and penalty from section 2.1.2 are preserved in relation
to home schooling by the creation of new section 2.1.2A
(inserted by clause 6), this offence has a requirement to provide
a reasonable excuse, and a reverse onus of proof provision is not
necessary.
Clause 13 inserts new Division 3 of Part 2.1 into the Principal Act.
Division 3 consists of new sections 2.1.15 through to 2.1.24.
New section 2.1.15 provides that if a school attendance officer,
after making reasonable enquiries, has reasonable grounds to
believe that a child of compulsory school age is not, at the time
of making the enquiries, enrolled at a registered school and is not
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registered for home schooling, he or she may issue a school
enrolment notice to a parent. The enquiries made by the school
attendance officer may include ascertaining whether the child is
registered for home schooling on the State Register, ascertaining
whether the child is included on the Student Register and
ascertaining details contained on the Student Register regarding
the child, and ascertaining whether the child is included on the
register of students kept by the child's designated neighbourhood
Government school.
New section 2.1.16 provides that a school attendance officer may
send a parent a school attendance notice where (1) the school
attendance officer has reasonable grounds to believe a child who
is enrolled in a registered school has been absent from school on
at least five separate days (whether or not the absence was for a
full day or part day) in the previous 12 months, and (2) no
reasonable excuse has been given for the absences, and (3)
measures to improve the students attendance have been
undertaken in accordance with any guidelines issued by the
Minister (see clause 13, new section 2.1.24) and have been
unsuccessful or considered inappropriate in the circumstances.
New section 2.1.17 provides for the content of a school
enrolment notice. A school enrolment notice must be in the
prescribed form and include the full name and address of the
parent to whom the notice is addressed, the full name and date of
birth of the child to whom the notice relates, a statement that the
notice may be complied with by enrolling or conditionally
enrolling the child at a registered school or registering the child
for home schooling, a request that the parent complete the reply
form forwarded with the notice, and the date by which the parent
must respond to the notice being a date no less than 21 days after
the date of the notice.
New section 2.1.18 provides for the content of a school
attendance notice. A school attendance notice must be in the
prescribed form and include the full name and address of the
parent to whom the notice is address, the full name and date of
birth of the child to whom the notice relates, the dates that the
school attendance officer reasonably believes the child did not
attend school, a request that the parent complete the reply form
forwarded with the notice, and the date by which the parent must
respond to the notice being a date no less than 21 days after the
date of the notice.
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New section 2.1.19 provides that a parent who has received a
school enrolment notice must complete the reply form forwarded
with the notice stating in it either the true reason why the child is
not enrolled at school; or that the child has been enrolled or
conditionally enrolled at a registered school or registered for
home schooling and the details of the enrolment or registration;
or that the parent is unable to provide a reason because the parent
does not have parental responsibility for the child within the
meaning of the Family Law Act 1975 of the Commonwealth.
The parent must also sign the reply form and post or deliver the
form so to reach the school attendance officer no later than the
date specified in the notice.
New section 2.1.20 provides that a parent who has received a
school attendance notice must complete the reply form forwarded
with the notice stating in it either the true reason why the child
did not attend school on the dates specified in the notice; or that
the child was not living with the parent on the dates specified in
the notice and details of the parent with whom the child was
living on the relevant dates. The parent must also sign the reply
form and post or deliver the form so as to reach the school
attendance officer no later than the date specified in the notice.
New section 2.1.21 provides certain offences for failing to
comply with a school enrolment notice or school attendance
notice.
New section 2.1.21(1) states that a person who has received a
school enrolment notice must respond to the notice in accordance
with section 2.1.19. A penalty of five penalty units applies.
New section 2.1.21(2) states that a person who has received a
school attendance notice must respond to the notice in
accordance with section 2.1.20. A penalty of five penalty units
applies.
New section 2.1.21(3) provides that a person who responds to a
school enrolment notice but fails to provide a reasonable excuse
as to why the child is not enrolled in a registered school or
registered for home schooling is guilty of an offence and liable to
a penalty not exceeding five penalty units.
New section 2.1.21(4) provides that a person who responds to a
school attendance notice but fails to give a reasonable excuse for
five or more of the dates specified in the notice is guilty of an
offence and liable to a penalty not exceeding five penalty units.
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Where a person responds to a school attendance notice providing
a reasonable excuse for some dates specified in the notice and
there are less than five dates remaining without a reasonable
excuse, the person is not guilty of an offence, however the dates
for which a reasonable excuse was not provided may form the
basis of a future school attendance notice.
New section 2.1.21(5) provides an exemption from penalty to the
Secretary, Department of Human Services, carrying out parental
responsibilities for a child under an order made under the
Children, Youth and Families Act 2005, or a person carrying
out parental responsibility on behalf of the Secretary, Department
of Human Services.
New section 2.1.22 provides that a person who responds to a
school enrolment notice or school attendance notice must not
give any information in the reply form that the person knows is
false or misleading in a material detail. A penalty of five penalty
units applies.
New section 2.1.23 provides that a school attendance officer
may serve an infringement notice on a person who the school
attendance officer has reason to believe has committed an offence
against 2.1.21 (an offence against new section 2.1.22 is not an
infringement offence). An offence against section 2.1.21 is an
infringement offence within the meaning of the Infringements
Act 2006. An infringement penalty for an offence against section
2.1.21 is set at ten per cent of the maximum penalty, that being
half of one penalty unit.
New section 2.1.24 provides that the Minister may issue
guidelines from time to time about matters relating to measures
that may be undertaken to encourage and support the enrolment
of a child or to improve a student's attendance at school.
The guidelines issued by the Minister must not be inconsistent
with the Principal Act or the Regulations. The guidelines may
apply, adopt or incorporate any matter contained in any
document issued or published by a body or person.
The Regulations may require a person, body or school to
comply with any guidelines issued under this section.
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Clause 14 provides for the automatic repeal of this amending Act on 1 April
2015. The repeal of this Act will not affect in any way the
continuing operation of the amendments made by the Act (see
section 15(1) of the Interpretation of Legislation Act 1984).
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