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Education Legislation Amendment Bill 2012
Education Legislation Amendment Bill
2012
Explanatory Notes
Short title
The short title of the Bill is the Education Legislation Amendment Bill
2012.
Policy objectives and the reasons for them
E-kindy
The Bill amends the Education (General Provisions) Act 2006 (EGPA) to
enable State Schools of Distance Education to deliver e-kindy to eligible
children.
The e-kindy program is a digital, teacher-directed learning program,
deliverable on the internet, and focused on preparing kindergarten-age
children for the Preparatory year of school. It is based on the best practice
models for distance education and the Queensland Kindergarten Learning
Guideline.
In 2008, all jurisdictions including Queensland, agreed to provide universal
access to quality early childhood education and endorsed the National
Partnership Agreement for Early Childhood Education (NP ECE). Under
the NP ECE, Queensland is implementing specific strategies to support
access to kindergarten and participation of children from rural and remote
communities and those with other diverse needs.
Most Queensland families are able to access a kindergarten program for
their children via a centre-based long day care or kindergarten service.
However, in a geographically dispersed state like Queensland, access to a
centre-based kindergarten program is not available to all children.
E-kindy has been developed to ensure children in remote and isolated
locations or those with medical issues or itinerant lifestyles have equitable
access to a quality kindergarten program. E-kindy will be provided free to
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Education Legislation Amendment Bill 2012
children who are eligible to be registered because of their remote location,
medical issues or itinerant lifestyles.
E-kindy is to be delivered by State Schools of Distance Education,
leveraging on the schools' infrastructure, administrative processes and
expertise in delivery of distance education programs. State Schools of
Distance Education have expertise and experience in providing
individually tailored education programs to meet the needs of all children
including children with disabilities and those from culturally and
linguistically diverse backgrounds. Teaching staff have well established
professional development networks and supports to facilitate the delivery
of inclusive education programs for every child regardless of their personal
circumstances.
Delivery by State Schools of Distance Education also supports transitions
to schooling via distance education as some children accessing e-kindy will
go on to access schooling through State Schools of Distance Education.
Currently, under the EGPA, State Schools of Distance Education do not
have the capacity to deliver kindergarten. The school is established to
delivery primary, secondary and special education. Amendments are
required to enable delivery of e-kindy.
National Professional Standards for Teachers
The Melbourne Declaration on Education Goals for Young Australians was
made by the Ministerial Council for Education, Early Childhood
Development and Youth Affairs (MCEEDYA) in December 2008.
MCEEDYA released its Four Year Plan to support the Declaration in March
2009, which includes the National Partnership Agreement on Improving
Teacher Quality (the National Agreement).
One of the agreed strategies under the National Agreement was
implementing national professional standards for teachers in all
jurisdictions. Education Ministers endorsed the National Professional
Standards for Teachers (National Professional Standards) developed by the
Australian Institute for Teaching and School Leadership (AITSL) in
December 2010.
Under the Education (Queensland College of Teachers) Act 2005 (QCT
Act), the Queensland College of Teachers (QCT) has a function to develop,
maintain and amend professional standards. In accordance with this
function, the QCT has developed the Professional Standards for
Queensland Teachers (the Queensland Standards).
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Education Legislation Amendment Bill 2012
The QCT Act does currently not permit the QCT to adopt standards
developed by other entities, including the National Professional Standards.
The Act needs to be amended to facilitate the QCT adopting the National
Professional Standards in lieu of the current Queensland Standards.
Professional standards articulate what teachers are expected to know and
be able to do during stages of their career and are used for the QCT's
functions of registering teachers for provisional and full registration and
approving courses of initial teacher education. The Graduate and
Proficient levels of the National Professional Standards set out the
requirements for beginning teachers to gain provisional registration to enter
the profession, and for teachers with the requisite experience to gain full
registration.
Adoption of the National Professional Standards will reduce red tape by
improving the mobility of teachers throughout the nation and requiring the
same standards and consistent processes to achieve teacher registration and
accreditation of courses of initial teacher education in all jurisdictions.
Mandatory reporting of sexual abuse
The Education and Training Legislation Amendment Act 2011 amended the
EGPA to expand existing reporting requirements so that staff members of
state and non-state schools are required to report to the police suspected
sexual abuse perpetrated by any person, not just employees, as well as a
likelihood of future sexual abuse. No penalty was prescribed for failing to
report a likelihood of future sexual abuse under new sections 365A and
366A to mitigate concerns that the risk of criminal sanction would increase
reporting of inappropriate low level matters. It was intended that failing to
report under new sections 365A and 366A would be dealt with by
employing authorities, which would consider taking disciplinary action in
appropriate cases.
Subsequent to the amendment it was identified that despite the policy
intention, a person who fails to report the likelihood of future sexual abuse
may be guilty of a misdemeanour under section 204 of the Criminal Code,
which carries a maximum penalty of one year imprisonment. Section 204
provides that a person who fails to comply with a statutory obligation is
guilty of a misdemeanour unless a mode of proceeding against the person
is expressly provided.
An amendment is required to ensure section 204 does not apply to failing
to report a likelihood of future sexual abuse under new sections 365A and
366A of the EGPA. If an amendment is not made, it would be possible that
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Education Legislation Amendment Bill 2012
the police could seek to prosecute a person for failing to report a likelihood
of sexual abuse. This is contrary to Parliament's original intention and not
the position presented to key education stakeholders during development of
the provisions.
Anniversary letters
Chapter 12 of EGPA provides for the exclusion of students from state
schools. A student may be excluded for a period of up to one year or
permanently from the school at which they are enrolled, certain state
schools or all state schools. A person may seek a review of an exclusion
decision. Also, a student who is permanently excluded may periodically
seek that the decision be revoked until they reach 24 years of age under
sections 314 and 315 of the EGPA.
Section 314 of the EGPA requires a notice to be sent to persons who have
been permanently excluded, advising them they may make a submission to
have the exclusion decision revoked. These `anniversary letters' must be
sent after each anniversary of the person's exclusion until they reach the
age of 17.
The effectiveness of the anniversary letters in reminding persons who have
been permanently excluded is in question. For example, anniversary letters
are required to be sent to persons who have successfully re-enrolled in
alternative schools or education programs or have even left the region and
are unlikely to seek a revocation of the exclusion decision.
The preferred way to inform persons about their right to seek a revocation
of a permanent exclusion decision is to advise the person at the time the
exclusion decision is made. It is therefore proposed to remove the
requirement to send anniversary letters. Instead, the notification of the
person's permanent exclusion will include advice about the person's right
to periodically seek a revocation of the decision. In addition, advice about
review rights, including revocation of the decision, will be included on
DETE's website. This proposal will reduce red tape for regional
Departmental staff and enhance support for front line educational services.
Regional case managers are appointed to work with all excluded persons to
facilitate the person's successful re-engagement in education or another
eligible option such as TAFE. Case managers also follow up with the
person within one month of their enrolment in a new school or other
education or training program, and again within six months, to ensure their
continued engagement. Case managers are able to assist students and their
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Education Legislation Amendment Bill 2012
parents to understand their review rights and capacity to seek a revocation
of the decision.
Achievement of policy objectives
E-kindy
The Bill will enable State Schools of Distance Education to deliver e-kindy
to eligible children. The Bill amends the EGPA to enable the Minister to
approve a distance education pre-preparatory learning program for State
Schools of Distance Education. The Bill provides a process for seeking
registration in e-kindy and sets the eligibility criteria for registration.
National Professional Standards for Teachers
The Bill will amend the QCT Act to enable the QCT to adopt the National
Professional Standards relevant to its teacher registration and pre-service
teacher education program approval functions. The amendment prescribes
that the QCT must adopt the National Professional Standards or, with the
approval of the Minister, develop or adopt other professional standards.
The Bill provides the QCT with the function to develop or adopt other
professional standards in the event the National Professional Standards are
not maintained in the future. When adopted by the QCT, the National
Professional Standards will replace the current Queensland Standards.
The Bill requires the QCT to consult with the Director-General of the
Department of Education, Training and Employment (the
Director-General) and other representative entities when either adopting
the National Professional Standards or when developing, adopting or
amending the other professional standards. The Bill prevents the National
Professional Standards being amended by the QCT.
The QCT will continue to make the professional standards they adopt
available for inspection on their website.
Mandatory reporting of sexual abuse
The Bill amends the Education and Training Legislation Amendment Act
2011 to insert provisions providing that a person does not commit an
offence under the EGPA or any other Act by failing to report a likelihood of
future sexual abuse under sections 365A and 366A. The intention of the
section is to ensure that a person cannot be prosecuted under section 204 of
the Criminal Code for committing a misdemeanour under that section if the
failure to report is not an offence under any Act.
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Education Legislation Amendment Bill 2012
The new reporting requirement introduced in sections 365A and 366A will
commence on a date set by proclamation. It is proposed to commence the
requirement to report a likelihood of future sexual abuse at the beginning of
the 2013 school year in order for the proposed clarifying amendments in
this Bill to be made and facilitate training of school staff in relation to the
expanded requirement.
Anniversary letters
The Bill amends the EGPA to remove the requirement to send anniversary
letters. Persons who have been permanently excluded will continue to have
the right to seek a revocation of their exclusion each year until they turn 24
years of age.
The Bill will amend the EGPA to require that when a student is notified
about the decision to permanently exclude them, they are advised about
their right to periodically seek a revocation of the decision. The Bill
includes transitional arrangements to ensure that any person who is entitled
to an anniversary letter within 12 months of commencement is advised that
the requirement for the letter is being omitted, but that the person may seek
a revocation of the decision under chapter 12, part 3, division 6 of the
EGPA.
Alternative ways of achieving policy objectives
There are no alternatives that would achieve the policy objectives other
than the proposed Bill.
Estimated cost for government implementation
Implementation of the Bill is not expected to result in any additional costs
to the Queensland Government. The cost of implementing e-kindy will be
met from the Australian Government funding under the NP ECE.
Consistency with fundamental legislative principles
Under the Legislative Standards Act 1992, legislation must have sufficient
regard to the rights and interests of individuals. If rights and liberties, or
obligations are dependent on administrative power prescribed in
legislation, the power must be sufficiently defined and subject to
appropriate review. Clause 14 (introducing new section 419G into the
EGPA) provides for a party aggrieved by a decision not to register a child
in an e-kindy program to seek a review of the decision by the
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Education Legislation Amendment Bill 2012
Director-General. Judicial review is also available to persons aggrieved by
decisions about registration in e-kindy. This is considered an appropriate
level of review given the criteria upon which the decision to enrol is made
allows only minimal discretion to be exercised (regarding itinerant
lifestyle). The provisions are aimed at supporting marginalised
stakeholders to attend a kindergarten program.
Consultation
The Isolated Children's Parents' Association, representing children
residing in remote locations, and the School of Distance Education
Alliance, representing parents of school children enrolled in distance
education programs, have been consulted on the proposal for delivery of an
e-kindy program by State Schools of Distance Education.
The QCT has been consulted on the amendments to the QCT Act.
The Queensland Catholic Education Commission and Independent Schools
Queensland have been consulted about the amendments to the mandatory
reporting provisions.
Notes on provisions
Part 1 Preliminary
Clause 1 provides for the short title of the Act, the Education Legislation
Amendment Act 2012.
Part 2 Amendment of Education and
Training Legislation Amendment
Act 2011
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Education Legislation Amendment Bill 2012
Clause 2 provides that part 2 amends the Education and Training
Legislation Amendment Act 2011.
Clause 3(1) amends section 9 of the Education and Training Legislation
Amendment Act 2011 to ensure the requirement to report the likelihood of
future sexual abuse under section 365A of the EGPA applies to children
registered in e-kindy.
Clause 3(2) amends section 9 of the Education and Training Legislation
Amendment Act 2011 to insert new subsection 365A(10) into the EGPA to
avoid the application of section 204 of the Criminal Code to a staff member
of a state school who fails to report a likelihood of future sexual abuse
under section 365A.
Clause 4 amends section 11 of the Education and Training Legislation
Amendment Act 2011 to insert new subsection 366A(9) into the EGPA to
clarify that section 204 of the Criminal Code does not apply to a staff
member of a non-state school who fails to report a likelihood of future
sexual abuse under section 366A.
The new subsections 365A(10) and 366A(9) provide that a person does not
commit an offence under the EGPA, or another Act, only because the
person fails to report a likelihood of sexual abuse under section 365A or
366A. This provision aims to clarify that the failure to report a likelihood
of future sexual abuse under section 365A or 366A is not a misdemeanour
under section 204 of the Criminal Code. As was the original intention, a
failure to report may be dealt with by means other than criminal sanction,
such as disciplinary action by the employing authority, in appropriate
circumstances.
Part 3 Amendment of Education
(General Provisions) Act 2006
Clause 5 provides that part 3 amends the EGPA.
Clause 6 amends section 50(1)(b) of the EGPA so that section 50 also
applies to a child registered in an e-kindy program. The section ensures
that e-kindy will be provided by the State School of Distance Education
free of charge.
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Education Legislation Amendment Bill 2012
Section 50 provides that state education must be free, except in the
circumstances prescribed in sections 51, 52 and 55. These sections will not
apply to a child registered in e-kindy because new section 419H
(introduced in clause 14). Section 419H clarifies that a child registered in a
distance education pre-preparatory learning program is not a student of, or
enrolled in, a state school, nor is the child considered enrolled in a program
of distance education.
Clause 7 amends section 288F of the EGPA to require that if a student is
excluded permanently from a state school by the principal, the notice of a
student's exclusion must state that the student may make a periodic written
submission to the Director-General under chapter 12, part 3, division 6 of
the EGPA. Division 6 enables a person under the age of 24 years to seek a
revocation of their permanent exclusion.
Clause 8 amends section 293 of the EGPA to require that if a student is
excluded permanently from a state school or certain state schools by the
principal's supervisor, the notice of a student's exclusion must state that the
student may make a periodic written submission to the Director-General
under chapter 12, part 3, division 6 of the EGPA.
Clause 9 amends section 302 of the EGPA to require that if a student is
excluded permanently from a state school, certain state schools or all state
schools by the Director-General, the notice of a student's exclusion must
state that the student may make a periodic written submission to the
Director-General under chapter 12, part 3, division 6 of the EGPA.
Clause 10 omits section 314 from the EGPA. Section 314 currently
provides for the sending of anniversary letters.
Clause 11 amends section 315 of the EGPA so that the section applies to all
students under the age of 24 years who have been permanently excluded by
a decision of the principal, principal's supervisor or the Director-General.
Clause 12 amends section 365 of the EGPA to ensure the requirement to
report allegations of sexual abuse under that section applies to children
registered in e-kindy.
Clause 13 amends section 368 of the EGPA to give statutory power to
provide allowances or subsidies to families to offset the cost of
participation in e-kindy, for example, subsidies to support families to meet
the costs of information and communication technology infrastructure
required to participate in an online education program.
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Education Legislation Amendment Bill 2012
Clause 14 inserts the new part 1A (Distance education pre-preparatory
learning program) into chapter 19 of the EGPA. This provides for the
provision of e-kindy by State Schools of Distance Education.
Section 419E Distance education pre-preparatory learning program
New section 419E provides for the Minister to approve a distance
education pre-preparatory learning program to be delivered by State
Schools of Distance Education. The program will be called e-kindy.
Section 419F Registration in programs
New section 419F provides the process for applying for registration in
e-kindy for a pre-preparatory age child. `Pre-preparatory age child' is
defined in subsection 419F(7) to mean a child that will be at least 4 years
and 6 months on 31 December in the year proposed for the child's
participation in the program.
New subsection 419F(2) requires applications to be made to the principal
of the school using an approved form.
New subsection 419F(3) prescribes the eligibility criteria for registration in
e-kindy. The subsection provides that the principal may register a child in
e-kindy if satisfied the child:
� is an Australian citizen or a child of an Australian citizen or
permanent resident; and
� lives in their principal place of residence, at least 16 kilometres by the
most direct route by road to a centre-based service catering to
pre-preparatory aged children;
� has a medical certificate indicating the child is unable to attend a
centre-based service for more than 10 consecutive weeks due to the
child's state of health; or
� has an itinerant lifestyle.
New subsection 419F(4) prescribes what is considered an `itinerant
lifestyle'. Under the Bill, a child has an itinerant lifestyle, if due to the
nature of their parent's occupation, during the year the child is proposed to
register for e-kindy:
� the child's principal place of residence is likely to change at least
twice; or
� the child will spend at least 10 weeks away from their principal place
of residence, consisting of periods of two weeks or more at a time.
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Education Legislation Amendment Bill 2012
The section provides examples of what is considered an occupation with an
itinerant lifestyle, including carnival worker, contract harvester or shearer.
New subsection 419F(5) requires the principal to give a notice of their
decision about whether to grant or refuse an application for registration in
e-kindy. New subsection 419F(6) requires the notice to include reasons for
a decision to refuse an application.
New subsection 419F(7) provides relevant definitions for the section. This
includes the definition of `centre-based service'. It means an education and
care service, other than a family day care service, under section 5(1)
Education and Care Services National Law as applied in Queensland.
Section 419G Review of decision to refuse to grant an application
New section 419G provides a right of review of a decision to refuse to grant
registration in e-kindy to the Director-General.
Section 419H Status of children registered in programs
New section 419H clarifies that a child registered in e-kindy is not a
student of a state school, nor is the child considered enrolled at the school
or enrolled in a program of distance education at the school. This is
necessary because kindergarten is not part of school. Children enrolled in
e-kindy are not to be considered students of the school for the purpose of
enrolment numbers and funding.
Clause 15 amends section 426 of the EGPA to ensure the confidentiality
arrangements under the Act apply to personal information obtained by
relevant persons in relation to a person who has applied to register or is
registered in e-kindy.
Clause 16 amends section 428 of the EGPA to enable the Director-General
to collect demographic information about a person registered in e-kindy for
the purpose of managing education funding or grants arrangements, such as
information and communication technology subsidies.
Clause 17 inserts new part 5 (Transitional Provisions for Education
Legislation Amendment Act 2012) into chapter 20 of the EGPA.
New section 512 requires a `final notice' to be given to a person who
immediately before commencement was entitled to receive a notice under
section 314 of the EGPA. New subsection 512(2) requires the final notice
to state that the person is no longer entitled to further notices under section
314 and that the person may periodically make a submission to revoke a
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Education Legislation Amendment Bill 2012
permanent exclusion decision under chapter 12, part 3, division 6 of the
EGPA (i.e. section 315).
New subsection (3) provides that if a person has received a notice under
section 314(2) before commencement and the time within which the person
may make a submission had not expired before commencement, the person
may make a submission within the submission period and the submission is
taken to have been made under section 315.
New subsections 512(4) provides transitional arrangements for
submissions made under section 314 for which the Director-General is yet
to make a decision before commencement. The submission is taken to be
made under section 315 and must be dealt with after commencement under
section 315.
Clause 18 inserts the definition of `distance education pre-preparatory
learning program' into schedule 4 of the EGPA.
Part 4 Amendment of Education
(Queensland College of
Teachers) Act 2005
Clause 19 provides that part 4 amends the QCT Act.
Clause 20 amends section 230(i) of the QCT Act. Section 230(i) prescribes
the QCT's function of developing professional teacher standards and
applying the standards for entry to, and continuing membership of, the
teaching profession. Clause 20 amends the section to provide the QCT can
also adopt professional standards and apply the adopted standards for these
purposes.
Clause 21 omits section 235 and inserts a new provision regarding the
professional standards. Section 235 prescribes the QCT's functions in
relation to professional standards, defined in schedule 3 of the Act.
New subsection 235(1) provides that the QCT must adopt the National
Professional Standards, or with the approval of the Minister, adopt or
develop professional standards other than the National Professional
Standards.
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Education Legislation Amendment Bill 2012
New subsection 235(2) prescribes that the QCT may amend standards,
other than the National Professional Standards, that the QCT adopts or
develops.
New subsection 235(3) requires the QCT to consult with the
Director-General and the representative bodies (defined in schedule 3)
when adopting the National Professional Standards or developing, adopting
or amending the professional standards other than the National
Professional Standards. The QCT may also consult with another person or
entity.
New subsections 235(4) and (5) prescribe the purpose of professional
standards and what may be outlined in the professional standards. These
provisions are consistent with the existing provisions of the QCT Act.
New subsection 235(6) ensures that the QCT Act prevails over professional
standards to the extent of any inconsistency. This section applies to the
National Professional Standards, or other standards if developed or adopted
by the QCT.
New subsection 235(7) requires the QCT to make the professional
standards available for inspection on its internet site and in hard copy.
New subsection 235(8) defines the term `National Professional Standards'.
Clause 22 inserts new part 14 (Transitional Provisions for Education
Legislation Amendment Act 2012) into the QCT Act. The transitional
provision in new section 353 ensures professional standards developed by
the QCT prior to commencement remain in force until the QCT adopts the
National Professional Standards, or adopts or develops other professional
standards with the approval of the Minister.
Clause 23 inserts a new definition of `professional standards'.
�The State of Queensland 2012
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