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Education (General Provisions) Amendment Bill 2003
EDUCATION (GENERAL PROVISIONS)
AMENDMENT BILL 2003
EXPLANATORY NOTES
FOR
AMENDMENTS TO BE MOVED IN COMMITTEE BY
THE HONOURABLE
ANNA BLIGH MP
Title of the Bill
Education (General Provisions) Amendment Bill 2003
Objectives of the Amendment
There are three objectives of these amendments:
1. to retrospectively validate the Guidelines approved by the
Governor-in-Council in August 1989 under section 115(2)(a)(i)
of the Education (General Provisions) Act 1989 in respect of
dispensations for home schooling;
2. to prospectively validate legitimate and necessary aspects of the
Guidelines to allow for future approval of home schooling
dispensations in the interim period until the outcome of a Review
of Home Schooling can be implemented; and
3. to ensure that directions are given in writing where directions are
given to prohibit a person from entering school premises for a
period for up to 60 days made under the proposed sections
48F(1) and 48O(1) to be included into the Education (General
Provisions) Act 1989 by clause 9 of the Bill.
The impetus for the first and second policy objectives is that the
Guidelines under which home schooling dispensations have been granted
have been legally invalid. It is therefore necessary to retrospectively
validate things done under the Guidelines for the past 14 years, and
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Education (General Provisions) Amendment Bill 2003
prospectively validate aspects of the Guidelines to allow for future approval
of home schooling dispensations. The Guidelines were approved under
section 115(2)(a)(i) by the Governor in Council and gazetted on 5 August
1989. Since then, successive governments have relied on the Guidelines to
grant home schooling dispensations as well as charging fees for enrolment
at state schools of distance education.
Achievement of the Objectives
The first policy objective is achieved by retrospectively validating things
done under the Guidelines in good faith and reliance on the validity of the
guidelines. This will validate dispensations granted and fees charged in
reliance on the validity of the Guidelines by successive governments since
1989.
The second policy objective is achieved by amending section
115(2)(a)(i) to expand the guideline making power to validate otherwise
invalid aspects of the Guidelines to allow for future approval of home
schooling dispensations. In addition, the objective is achieved by removing
those parts of the Guidelines that are no longer relevant, including the fees.
The third policy objective is achieved by adding the word "written"
before the word "direction" in the proposed sections 48F(1) and 48O(1).
This will clarify that such directions are to be made in writing.
Consistency with Fundamental Legislative Principles
Retrospective validation of decisions made and, especially, fees charged
under the Guideline is a breach of fundamental legislative principles. The
effect of decisions made under the Guidelines is to excuse parents from
their obligation to have their school age child enrolled at and attend a
school. Not validating these decisions would leave these parents in a
situation where they inadvertently were in breach of the legal requirement
about compulsory schooling in the Education (General Provisions) Act
1989. For this reason retrospectively validating the decisions is justified.
With respect to validation of the fees charged, it is significant that the
instrument under which the fees were charged was presumed to be valid. It
had been drawn up on legal advice reflecting the department's policy in
relation to home schooling. There was no reason for the administrator to
question its validity in light of this. Furthermore, the collection of fees was
done in good faith and in accordance with government policy about home
schoolers accessing distance education. The retrospective validation of the
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Education (General Provisions) Amendment Bill 2003
fee does not signify any policy change with respect of the fee; it merely
rectifies a technical legal problem.
Another potential breach of fundamental legislative principles arises
from the inclusion of requirements for being granted a dispensation in a
guideline, rather than on the face of the legislation. Whilst at this stage the
intention is to preserve the essence of the Guidelines, it is intended that a
more suitable framework will be implemented in the near future, following
the outcome of review of home schooling. As such this amendment is
intended to be an interim measure only, and its purpose is to simply
continue the existing position.
Consultation
Given that the amendments are technical in nature, in that they correct a
legal problem in the instrument implementing existing government policy,
there has been no community consultation about the amendments. The
effect of the amendments, however, is that the fee charged for enrolment at
a school of distance education has been abolished. This change in policy
has been widely supported by the home schooling community.
NOTES ON PROVISIONS
Clause 1 amends clause 2 of the Bill. Clause 2 is the commencement
clause that provides for commencement by proclamation. The amendment
will mean that sections 9A and 13, to be included by clauses 4 and 5 of
these amendments, will not commence by proclamation. Rather, by virtue
of section 15A of the Acts Interpretation Act 1954 these sections will
commence on assent.
Clause 2 amends clause 9 of the Bill. Clause 9 inserts among other
provisions section 48F into the Education (General Provisions) Act 1989.
This section provides for the chief executive's power to prohibit a person
from entering the premises of State educational institutions for up to 60
days. The effect of clause 2 is to ensure that such a direction is made in
writing.
Clause 3 also amends clause 9 of the Bill. The proposed section 48O
provides for the governing body of a non-state school to prohibit a person
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Education (General Provisions) Amendment Bill 2003
from entering the premises of the school for up to 60 days. The effect of
clause 3 is to ensure that such a direction is made in writing.
Clause 4 inserts a new clause 9A into the Bill. Clause 9A will amend
section 115 of the Education (General Provisions) Act 1989 by inserting a
new subsection 2A. This subsection will clarify that guidelines issued
under section 115(2)(a)(i) for approval of home schooling dispensations
may provide for notification of the decision and internal review rights. This
amendment will have the effect of prospectively validating sections 7 and 8
of the Guidelines, and will allow any future guidelines to deal with such
matters.
Clause 5 inserts a new clause 13 into the Bill. Clause 13 will insert a new
Part 13 into the Education (General Provisions) Act 1989. This part will
provide for the validation of things done under the Guidelines and amend
the guidelines in certain respects.
The new section 168 will provide for definitions for Part 13.
The new section 169 will provide for validation of the Guidelines in
general, and for validation of fees charged and collected under the
Guidelines in particular. This provision will have the effect of not only
validating the fees collected, but also validating dispensation decisions
made pursuant to the Guidelines. This measure will protect parents who in
good faith and in reliance on a dispensation granted in accordance with the
Guidelines have not complied with the compulsory schooling provision in
section 114 of the Education (General Provisions) Act 1989.
The new section 170 will amend the Guidelines to remove certain parts
which are no longer applicable. Firstly, subsection (1)(a) will remove any
reference to fees payable for enrolment in schools of distance education.
Secondly, subsection (1)(b) will omit the procedural provision in section 6
of the Guidelines. Thirdly, subsection (1)(c) will omit the reference to the
"Regional Director" in section 7 of the Guidelines which is the notification
section.
Subsection (2) will excuse any outstanding debt in respect of fees
payable under the Guidelines. The section provides that any amount
payable under the guideline, but not paid before commencement of these
amendments, will no longer be payable.
Subsection (3) clarifies that despite the fact that the amendments, when
passed, will amend the Guidelines, the Governor in Council is still entitled
to approve a further amendment or revoke the approval of the guidelines.
Of course, none of the amendments will take away the Governor in
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Education (General Provisions) Amendment Bill 2003
Council's power to approve fresh Guidelines in lieu of the Guidelines
amended by these sections.
� State of Queensland 2003