Education Act 2016

Education Act 2016

This Act may be cited as the Education Act 2016.

Section 8 commences on the day on which Part 3 of the Education Amendment Act 2017 commences or is taken to have commenced.

The remaining provisions of this Act commence on 10 July 2017.

The objects of this Act are –

to make available to each Tasmanian child a high-quality education that – helps maximise the child's educational potential; and provides the foundation to enable the child, throughout childhood and as an adult, to lead a fulfilling life and to contribute to the Tasmanian community; and to provide for 13 years of compulsory education and training; and to provide for access to pre-compulsory education; and to provide for the operation, governance and monitoring of State schools; and to provide for the operation, governance and monitoring of non-government schools; and to provide for the registration and monitoring of home education.

The principles on which this Act is based are the following principles:the right of every child to receive an education until the child completes Year 12, the year of home education equivalent to Year 12 or an approved learning program; the right of every child, during the years of education from kindergarten to the year commonly known as Year 2, to be supported by developmentally appropriate learning frameworks that recognise the child as an active learner and support the delivery of an enquiry-based curriculum; that the State recognises the role and importance of a child's parents in the education of their child; that the State recognises that a child's parents are the first and most important educators of the child; that the State recognises – that parents have a responsibility to ensure that their child receives an education; and that the State has a responsibility to support parents in ensuring that they meet their responsibilities under this Act; the importance of a child having the opportunity, and being encouraged, to be actively involved in decisions affecting the child's participation in education, having regard to the age and understanding of the child; the importance of the State, education regulators, parents, teachers, schools, other educational institutions (including TasTAFE and the University of Tasmania) and the wider community working collaboratively to engender a commitment in all sectors in Tasmania to achieving the best educational outcomes for children; the importance of the provision by the State of universal access to education through the maintenance of a government education system; the importance of providing the foundation for lifelong learning; that the provision of education at a school recognises the individual needs of children with disabilities and, to that end, persons involved in the administration of this Act and the provision of education at a school will make appropriate, reasonable provision for those needs; that all students are entitled to education of a quality that is capable of enabling them to reach their potential and so maximise their achievements and contribution to the community.

A person performing a function, action or duty, or exercising a power, under this Act, is to have regard to the principles set out in subsection (1).

For the purposes of subsection (1)(b), a learning framework is a framework that describes the principles and practices to support and enhance learning and the outcomes to be achieved from that learning as approved from time to time by the Ministerial Council responsible for early childhood education and care in accordance with the Education and Care Services National Law (Tasmania).

In this Act, unless the contrary intention appears –

administrative authority, in relation to a school, means – in relation to a State school, the Secretary; or in relation to a registered individual school, the governing body of the school; or in relation to a registered system school, the approved authority for the system of non-government schools of which the school is a member;

apprentice has the same meaning as in the Training and Workforce Development Act 2013;

approved authority means the approved authority for a system of non-government schools, within the meaning of section 146(1);

approved home education program means a proposed home education program that has been approved under section 69, as amended from time to time;

approved learning program means a learning program that is approved under section 29 or 84, as amended from time to time;

Australian Qualifications Framework means the national policy of that name for accredited qualifications in Australian education and training (including addenda to that policy added from time to time) that – defines qualifications recognised nationally in education and training undertaken within Australia; and is published by the Commonwealth government department having responsibilities in relation to education and training; and took effect on 1 July 2011 – as amended or substituted from time to time;

certificate of registration, in relation to a registered system of non-government schools or a registered individual school, means the certificate of registration issued under section 153 or 177;

child means a person who has not attained the age of 18 years;

compulsory conciliation conference means a conference referred to in section 41(b);

Compulsory Schooling Order has the meaning given by section 52;

conciliator includes mediator;

corporal punishment means physical punishment by means of a cane, stick, strap, belt or hand or by any other means;

disability, in relation to a person, means a disability which – is attributable to an intellectual, cognitive, neurological, psychiatric, sensory or physical impairment or a combination of those impairments; and is permanent or likely to be permanent; and results in – a substantially reduced capacity of the person for communication, learning or mobility; and the need for continuing support services; and may or may not be of a chronic episodic nature;

distance education means education provided to a school-aged child that is – characterised by the separation of the teacher and child in time or place; and provided by using a variety of methods of delivery;

education regulator means – the Registrar; or the Registration Board; or the Tasmanian Assessment, Standards and Certification Board established by section 7(1) of the Tasmanian Assessment, Standards and Certification Act 2003; or the Teachers Registration Board of Tasmania continued by section 5(1) of the Teachers Registration Act 2000.

eligible capital expenditure means expenditure incurred for the educational or residential purposes of school students relating to – the acquisition of land; and the erection, alteration and extension of buildings; and the installation of essential services;

eligible loan means a loan that is – taken out wholly or partly for the purpose of eligible capital expenditure; and repayable within a period of 20 years; and repayable by principal and interest;

full-time employment has the same meaning as in the Australian Bureau of Statistics Labour Force Survey;

governing body means – in relation to a registered school, the person or organisation that owns, manages or operates the registered school; or in relation to a proposed new non-government school, the person or body that proposes to establish the new non-government school; or in relation to a State school, the Secretary;

home education means the education of a school-aged child or youth by a home educator in accordance with an approved home education program;

home education assessment means an assessment carried out by a registration officer for a purpose specified in section 86;

home educator means a parent named in an approved home education program as a parent who provides home education to his or her child under that program;

hostel means a facility for the residential accommodation of school students;

individual education program means a program authorised and supervised by a principal of a school that meets the individual educational needs of a child enrolled at that school;

individual non-government school means a non-government school which is not a member of a system of non-government schools;

intake area, in relation to a State school, means the area determined – by the Minister under section 97 or 98 to be the intake area for that school; or once the Secretary determines the intake area for the school under section 99(1), that intake area;

kindergarten means the year of education that – immediately precedes the first year of compulsory education; and is offered to children by a school;

learning program means – education at a school; or education through an individual education program; or vocational education and training, within the meaning of the Training and Workforce Development Act 2013; or an apprenticeship or traineeship under a training contract approved under section 32 of the Training and Workforce Development Act 2013; or education at a university; or a combination of any approved learning programs referred to in paragraph (a), (b), (c), (d) and (e);

Ministerial instructions means instructions issued by the Minister under section 6;

new individual non-government school means a non-government school that, immediately before an application for registration of the school is made under Division 3 of Part 6, was not registered – as a member of a system of non-government schools under Division 2 of Part 6; or as an individual non-government school under Division 3 of Part 6 – whether or not the school had previously been so registered;

non-government school means a school, other than a State school, that provides educational instruction at any level up to and including the final year of secondary education;

overseas student means a person who holds a visa under the Migration Act 1958 of the Commonwealth under which the person, whether expressly or otherwise, may study in Tasmania;

parent includes – a legal guardian of a child; and another person who has the care, control or custody of a child; and another person who generally acts in the place of a parent of a child and has done so for a significant length of time;

primary education means education at a school from the first year of compulsory education following kindergarten to the school year commonly known as Year 6 (inclusive);

principal means the individual in charge of the day-to-day operation of a school;

Principal Officer, Non-attendance means the person appointed as the Principal Officer, Non-attendance under section 215;

provider, in relation to an approved learning program, means any of the following persons who, under the program, are involved in providing the whole or any part of the program:a principal of a school;TasTAFE; another registered training organisation within the meaning of the National Vocational Education and Training Regulator Act 2011 of the Commonwealth; an employer of an apprentice or trainee; the University of Tasmania; a university or other tertiary education institution of another jurisdiction;

registered individual school means a non-government school which is registered under Division 3 of Part 6;

registered school means – a registered system school; or a registered individual school; or a campus of a school that is registered, managed or controlled by a school in another State or a Territory;

registered system of non-government schools means a system of non-government schools that is registered under section 150;

registered system school means a non-government school that is registered as a member of a registered system of non-government schools under Division 2 of Part 6;

Registrar means the person appointed as the Registrar, Education under section 218;

Registration Board means the Non-government Schools Registration Board established under section 229;

registration inspection means an inspection carried out in accordance with a request made by the Registration Board under section 186;

registration officer means a person appointed as a registration officer under section 228;

registration review means a review carried out in accordance with a request made by the Registration Board under section 182(1);

regulations means regulations made and in force under this Act;

relevant record means any record, book, document, account or other information compiled, recorded or stored by any means, including a record relating to students, which is relevant to the approval, granting, making or determination of a grant or additional grant under section 203 or 206;

Review Panel means the Review Panel established under section 234;

school means – a State school; and a centre, unit or institute of the State which provides educational instruction at any level up to, and including, the final year of secondary education; and a registered school – but does not include TasTAFE;

school-aged child means a child, other than an overseas student, who – is required under section 11(1) to be enrolled at a school or provided with home education; or would be required under section 11(1) to be enrolled at a school or provided with home education if not exempted under Part 3;

school association means a school association established by the Minister under section 110;

school's relevant financial year means the financial year of an individual non-government school during which a grant or additional grant under section 203 or 206 was received by it;

school student means a school-aged child, youth or other person enrolled at a school;

secondary education means education at a school from the school year commonly known as Year 7 to the school year commonly known as Year 12 (inclusive);

Secretary means the Secretary of the Department;

senior secondary education means education at a school for the school years commonly known as Year 11 and Year 12;

State school means a school, including a college for senior secondary education – established, or formed by the amalgamation of schools, under section 97; or established, or formed by the amalgamation of schools, under the Education Act 1994 or any other enactment that provided for the establishment of schools by the Crown;

student means a child, youth or person – enrolled at a school; or provided with home education; or participating in an approved learning program;

support school means a school established by the Minister for the purpose of providing specialised, and personalised, teaching and learning programs for students with disability;

system of non-government schools means a system of non-government schools formed in accordance with section 145;

TasTAFE means TasTAFE as continued by the TasTAFE (Skills and Training Business) Act 2021;

trainee has the same meaning as in the Training and Workforce Development Act 2013;

transition statement means a statement issued to a person under section 90 or section 91;

transitioning non-government school means a non-government school that is referred to in section 155(6), section 156(4) or section 163(5);

University of Tasmania means the university continued under that name under section 4 of the University of Tasmania Act 1992;

vocational education and training has the same meaning as in the Training and Workforce Development Act 2013;

Year 10 means the school year of secondary education commonly known as Year 10;

Year 12 means the school year of secondary education commonly known as Year 12;

Year 12 completion certificate means a certificate issued to a person under section 92 on completion of Year 12 or under section 93 on completion of the year of home education equivalent to year 12;

youth means a child, other than an overseas student, who – is required under section 24 to participate in an approved learning program or be home educated; or would be required under section 24 to participate in an approved learning program or be home educated if not exempted under Part 3.

In this section – specified means specified in the Ministerial instructions.

The Minister may issue instructions, in writing, in relation to the activities, functions and practices undertaken, and the guidelines, principles and procedures to be observed, by the Secretary, an education regulator, principals, schools, parents and children in relation to – enrolment at school, including the enrolment of a child who is not yet a school-aged child; and attendance at schools and approved programs; and the management of the non-attendance of a child at a school; and the approval of, and the revocation of the approval of, any person as a conciliator for the purposes of convening and facilitating compulsory conciliation conferences; and any matter concerning the registration of a home educator, the approval of a home education program or the continuing assessment of a home educator or an approved home education program; and any matter concerning the exercise of powers, or performance of functions, of education regulators under this Act, the Tasmanian Assessment, Standards and Certification Act 2003 or the Teachers Registration Act 2000; and any matter relating to an independent review conducted in accordance with section 221C or section 229B of this Act, section 14A of the Tasmanian Assessment, Standards and Certification Act 2003 or section 10D of the Teachers Registration Act 2000; and any matter concerning the registration of a system of non-government schools or a non-government school and the processes to be followed by the Registration Board in complying with this Act or any other Act; and any matter relating to the form, and timing of the provision of, statements, agreements, plans, reports and other documents required under this Act, the Tasmanian Assessment, Standards and Certification Act 2003 or the Teachers Registration Act 2000; and such other matters relating to the purposes and administration of this Act, the Tasmanian Assessment, Standards and Certification Act 2003 or the Teachers Registration Act 2000, as the Minister considers appropriate.

Before issuing a Ministerial instruction in relation to a registered school, or which will affect a registered school, the Minister is to consult with whichever one or more of the following is relevant in the circumstances:the governing body of the registered school; the approved authority for the system of non-government schools of which the registered school is a member; if the registered school is a member of an association of schools that represents those schools, that association.

Ministerial instructions may be issued so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the instructions and, in particular, may be issued so as to – apply at all times, at a specified time or for a specified period; and apply to – all education regulators, schools, principals, teachers, parents, children and other persons; or a specified class of education regulators, schools, principals, teachers, parents, children and other persons; or a specified education regulator, school or principal.

Ministerial instructions may – provide that the Secretary, an education regulator, a principal or a member of a class of principals determine a specified matter; and exempt an education regulator, a school or a person, or a class of schools or persons, from the requirement to comply with a specified provision of the Ministerial instructions, whether on specified conditions or unconditionally and either wholly or to such extent as is specified.

A Ministerial instruction issued in relation to the guidelines, principles, practices and procedures to be observed by an education regulator is not to seek to direct the education regulator in relation to a decision made under this or any other Act regarding an individual case.

The Minister, from time to time, may amend the Ministerial instructions, rescind them or rescind them and substitute new Ministerial instructions.

The Ministerial instructions are to be published in the manner that the Minister considers appropriate.

An amendment of the Ministerial instructions is taken to be incorporated with the instructions.

A Ministerial instruction that is inconsistent with this Act is invalid to the extent of the inconsistency.

The Ministerial instructions, an amendment of the Ministerial instructions and a rescission of the Ministerial instructions are not statutory rules for the purposes of the Rules Publication Act 1953.

In this section – specified means specified in the Secretary's instructions.

The Secretary may issue instructions, in writing, in relation to matters under this Act, including, but not limited to – the entitlement of school-aged children, youths and persons whose homes are not in the intake area for a State school to enrol at that school; and the attendance at a State school of children referred to in section 8; and the process to be followed by State schools in managing the absences of their students not authorised by Part 3; and the regulation of the conduct and discipline of students, including the expulsion and suspension of students; and the transfer of students at State schools between classes and between courses; and the transfer of students between State schools; and the curriculum, teaching practice, homework, assessment and reporting procedures at State schools; and religious instruction at State schools; and the development of plans, budgets and reports for State schools; and the charging of fees, levies and charges by principals of State schools for matters incidental to the provision of education; and the management of hostels for State school students; and powers of school associations; and any other matter in relation to which this Act provides that the Secretary is to, or may, issue instructions; and any other matters that the Secretary considers appropriate or that are prescribed by the regulations.

The Secretary's instructions may be issued so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance or otherwise, specified in the instructions and, in particular, may be issued so as to – apply at all times, at a specified time or for a specified period; and apply to – all schools, principals, teachers, parents, children and other persons; or a specified class of schools, principals, teachers, parents, children and other persons; or a specified school or principal.

The Secretary's instructions may – provide that a principal or a member of a class of principals determine a specified matter; and exempt a school or a person, or a class of schools or persons, from the requirement to comply with a specified provision of the Secretary's instructions, whether on specified conditions or unconditionally and either wholly or to such extent as is specified.

The Secretary, from time to time, may amend the Secretary's instructions, rescind them or rescind them and substitute new Secretary's instructions.

The Secretary's instructions are to be published in the manner the Secretary considers appropriate.

An amendment of the Secretary's instructions is taken to be incorporated with the instructions.

A Secretary's instruction that is inconsistent with this Act is invalid to the extent of the inconsistency.

The Secretary's instructions, an amendment of the Secretary's instructions and a rescission of the Secretary's instructions are not statutory rules for the purposes of the Rules Publication Act 1953.

A child who attains the age of 4 years on or before 1 January in any year is entitled to be enrolled at and attend a State school in that year for kindergarten.

If a registered school is registered under Part 6 to provide kindergarten, a child who attains the age of 4 years on or before 1 January in any year may be enrolled at and attend that school in that year for kindergarten in accordance with the policy of the school.

Section 12 applies, with any necessary modification, to the enrolment of a child at a school under this section.

The object of this Part is to ensure that a child completes at least 13 years of education or training as follows (unless exempted under this Part):

by remaining at school, or being home educated, until he or she is issued with a transition statement;

by then – continuing at school until he or she is issued with a Year 12 completion certificate; or participating in an approved learning program in another manner, or being home educated, until the child attains the age of 18 years or completes the approved learning program.

Unless exempted under this Division, a child who is at least 5 years of age as at 1 January in any year must be – enrolled at a school until issued with a transition statement (whether or not the child attains the age of 18 years before the commencement of, or during, Year 10); or provided with home education by a registered home educator for that year and subsequent years until the child is issued with a transition statement.

Each parent of a school-aged child must ensure, unless the child is exempted from enrolment under section 13 or the parent has a reasonable excuse, that the child is – enrolled at a school; or being provided with home education by a parent of the child who is registered as a home educator in respect of that child. Fine not exceeding – 10 penalty units for a first offence; and 15 penalty units for a second or subsequent offence.

Without limiting subsection (2), it is a reasonable excuse for a parent that the school-aged child primarily resides with another parent and the first parent believes, on reasonable grounds, that the other parent – is ensuring that the school-aged child is enrolled at a school; or is a home educator providing the school-aged child with home education.

A school-aged child may not be enrolled at more than one school unless the child – has disability; and is a member of a class of school-aged children that the Ministerial instructions allows to be enrolled at more than one school; and is enrolled in accordance with the Ministerial instructions.

A parent is to enrol a school-aged child at a school by lodging a completed application with the school's principal.

An application for enrolment of a school-aged child is to include any information the Ministerial instructions require in relation to – the identity of the child; and the identity of the parent of the child; and the place of residence of the child; and any other matter the Minister considers relevant.

If requested by the school's principal, a parent wishing to enrol a school-aged child is to provide evidence of – the age of the child; and the family name of the child; and the parent's guardianship, the parent's parental responsibility under a parenting plan, or parenting order, under Part VII of the Family Law Act 1975 of the Commonwealth or the parent's other care and control of the child.