Urgent Action Needed: Education and Training Bill
Currently before parliament is the Education and Training Bill which completely rewrites and replaces (almost) all existing legislation around education from ECE through to tertiary. If you do nothing else, please, please read the information below about Clause 37, which replaces the 1989 Act Section 21 (ie long-term exemptions from enrolment), and consider making a submission - this is far too important to ignore! Deadline is 14th February 2020.
I will outline the general purpose and history of the Bill. In a separate post I will provide information on all the sections of it that are relevant to home educators (some of which you may wish to comment on in your submission). For this post, however, I will focus on the most vital section - Section 37 and why submissions need to be made (and how to do that).
If you're short on time, please read the sections titled "The Issues," "Another Matter.." and "How to Make a Submission," then read whatever else you need in order to take action.
Background to the Bill (a short version)
Since being elected, Education Minister Chris Hipkins has been on a mission to overhaul the entire education system. He has intiated reviews of everything from ECE to primary to secondary, including NCEA, tertiary including polytechs, ITOs, Tomorrow's Schools (which drove the 1989 legislation) and more. Pretty much nothing is untouched by the overhaul and reviews, and over the last couple of years there has been a series of summits, public meetings, consultation processes etc etc.
In the midst of all this, there was never any interest expressed in changing anything around home education - home educators are essentially such small fish in the pond of NZ education, and Minister Hipkins' sights were set on bigger things. That does not mean, though, that the process of rewriting legislation leaves us untouched!
You see, in order to carry out all the changes decided upon, a rewrite of the legislation was inevitable. At the same time, the government proposed to tidy up the legislation by putting all the important matters around education in one place, and to "modernise language, correct errors, address inconsistencies..and remove spent and redundant provisions." The Education and Training Bill, which once passed will become an Act, replaces the Education Acts 1964 and 1989, parts of the State Sector Act 1988, parts of the Education (Update) Amendment Act 2017, creates amendments to a huge number of other Acts (there's an entire attached Schedule devoted to those amendments), and replicates provisions from recent reform Bills (Education - Vocational Education and Training Reform - Bill, and Education - Pastoral Care - Amendment Bill), and is expected to also replace the Industry Training and Apprenticeships Act 1992.
The progress of the Bill can be seen here: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_93294/education-and-training-bill. Currently it is before the Select Committee, and is open for submissions until Feb 14th 2020. Folks, that means we have 28 days to act from the time of writing this!
Clause 37 - replaces Sect 21 of the 1989 Act - Exemptions
Here is the full wording in the Bill of Clause 37, which will replace Section 21 in the existing Act, governing the granting of (home education) exemptions and related matters. I'm going to put Section 21 next to it so you can easily compare wording:
Clause 37 (proposed):
Long-term exemptions from enrolment
​(1) The Secretary may, on application by a parent of the student, grant the parent a certificate that exempts the student from the requirements of section 34 if the Secretary is satisfied that the student--
5) If the Secretary thinks any student to whom an exemption certificate applies to would be better off if receiving special education, the Secretary may revoke the certificate and issue a direction under section 36.
The new version is obviously a lot shorter, but that is not a problem in itself. An update of wording, and removing Subsection 9 which is no longer relevant is entirely appropriate.
​But there is one KEY issue here - in fact two issues, but they are related:
1) The wording of Subsection 1 says simply "the Secretary" rather than "designated officer" as per Section 21. Why does this matter? We all know the Secretary doesn't personally carry out everything assigned to him by the Act - his/her staff in the Ministry do. But it is important here because of the way in which exemptions are processed by regional offices (more on this below), but also because of the most important matter, which is:
2) They have completely omited all right of appeal if an exemption is declined!!
In regards to my first point above, if the Secretary grants an exemption, then it makes no sense to appeal to the Secretary, does it? But given that the Secretary does NOT grant exemptions personally, then it is logical to appeal to him/her in the event that staff act inappropriately in processing an application. Without this right, there is NO effective recourse against regional offices who act improperly. Let me explain further....
Section 21 (existing):
Long term exemptions from enrolment
(1) An employee of the Ministry designated by the Secretary for the purpose (in this section and section 26 referred to as a designated officer) may, by certificate given to a person's parent, exempt the person from the requirements of section 20,--
(a) on the parent's application; and
(b) if satisfied that the person--
(i) will be taught at least as regularly and well as in a registered school; or
(ii) in the case of a person who would otherwise be likely to need special education, will be taught at least as regularly and well as in a special class or clinic or by a special service.
(2) A certificate under subsection (1) continues in force until it is revoked or expires under this section.
(3) If a designated officer refuses to grant a certificate under subsection (1), the applicant parent may appeal to the Secretary who, after considering a report on the matter from the Chief Review Officer, shall confirm the refusal or grant a certificate.
(5) Every certificate under subsection (1) or subsection (3) shall state why it was given.
(6) Subject to subsection (7), the Secretary may at any time revoke a certificate under subsection (1) or subsection (3).
(7) The Secretary shall not revoke a certificate under subsection (1) or subsection (3), unless, after having--
(a) made reasonable efforts to get all the relevant information; and
(b)considered a report on the matter from the Chief Review Officer,--
the Secretary is not satisfied of whichever of the grounds specified in subsection (1)(b) the certificate was originally granted on.
(8) If the Secretary thinks any person exempted under subsection (1) would be better off getting special education, the Secretary may revoke the certificate and issue a direction under section 9.
(8A) A certificate for the time being in force under subsection (1) or subsection (3) expires when the person to whom it applies turns 16 or enrols at a registered school, whichever happens first.
(9) Every certificate of exemption under section 111 of the Education Act 1964 that was in force on 30 September 1989 shall be deemed to have been granted--
(a)on the ground specified in subsection (1)(b)(i) if it was in fact granted--
(i)before 20 July 1987, under section 111(4)(a) of the Education Act 1964; or
(ii)after 19 July 1987, under section 111(3)(a) of that Act; and
(b)on the ground specified in subsection (1)(b)(ii) if it was in fact granted--
(i)before 20 July 1987, under section 111(4)(b) of the Education Act 1964; or
(ii)after 19 July 1987, under section 111(3)(b) of that Act;--
and may be revoked under this section accordingly.
Why this is SO important
The way in which exemption applications are processed by the Ministry has evolved over time. When my kids were small, there were 5 regional offices processing exemptions, usually by one key person in each office. Now there are 11 regional offices handling them, and in some offices that work is spread among up to 20 or so staff members. Naturally, this can lead to quite a bit of variance in how it's done. On the plus side, the writing of a Home Education Policies and Procedure's Manual for Ministry staff in 2018 has brought greater consistency, but there remains a big problem:
All regional offices act completely autonomously, under their Regional Director. The National office can advise but not direct the regional offices in any sense.
This means that if one has a problem with anything happening in a regional office, one is required to complain to that office's Director. There is no higher power to complain to or seek action from in most matters, unless legislated otherwise. If you attempt to complain to the national office about even very significant matters, you are directed back to the Regional Director. Trust me - been there, done that, plenty of times.
In general, regional offices do a good job with most applications, with some minor or not-so-minor issues, but they can usually be dealt with regionally. However, from time to time there arises a case where the regional office declines an exemption without appropriate cause, or without giving the parents appropriate opportunity to respond to whatever they see as the issue. The ONLY way to get the actions of that office in such a case reviewed and overturned is by the right of appeal to the Secretary. This process is also a very essential method of providing accountability and preventing regional offices from being a "law unto themselves" and just doing as they please.
Let me provide a couple of examples of the kinds of scenarios that have or might occur where an appeal would be appropriate:
1) A family, new to the country, submitted 3 applications without fully understanding the requirements. The Ministry met with this family several times and wanted to see evidence of previous work completed (outside the scope of an application, as an application is future-based, not past-based). The family subsquently acted on advice and withdrew the applications, then worked on new ones that did meet the requirements, which they submitted. Despite the fact that natural law requires new applications to be treated on their own merits, the office concerned immediately responded by asking for a meeting and samples of work. When the family declined to do this for very good reasons, but invited the Ministry to ask for any further information they needed by email, the response of the Ministry was to just decline the applications, even though regional staff admitted that the applications themselves met the requirements. This decision was appealed, and subsequently overturned, with the exemptions being granted.
2) Another family whose case is currently being appealed applied for an exemption and was declined despite the application meeting the requirements, due to the opinions of certain professionals who wrote to the Ministry with the agenda of preventing the exemption, but whose "concerns" and letters were never disclosed to the parents nor were they given the opportunity to respond.
The appeal process in such cases not only gives the parents the opportunity to gain the exemption which may have been unfairly denied, but it also creates a situation where particularly troublesome actions or processes of regional offices that might have occurred and be relevant can be brought to the attention of senior staff at the national office, and one can hope that further discussion and training takes place so there is no repetition. Without the right of appeal, neither of these families would likely gain their exemptions, as simply reapplying would not overcome the issues, which weren't with their applications as such.
On the other side of the coin, the appeal process also protects regional Ministry staff. If they feel, for whatever reason, that they are unable to "be satisfied a child will be taught as regularly and well" (especially for reasons that are less straightforward than usual), then they know that in declining an exemption, the potential appeal process would essentially "kick the decision up the ladder" and more senior national office staff would be responsible for making the ultimate decision.
It's important also to note that when an appeal is filed, the wording of the current law requires that a report on the matter from ERO be considered - this means that ERO reviews all the paperwork, including the application, but does not visit the family, and writes a report with their own conclusion about whether the exemption should be granted or not. ERO is independent of the MoE, so this process allows for independent review, which is also very important!
This Right of Appeal MUST be protected!
At the end of the day, it's up to all of us as home educators and those passionate about home education not to let this matter slide! My own kids are grown, but this will affect my grandkids, as well as the families I regularly advocate for. Maybe it won't directly affect you - but what about all those who come behind?
So, how do we change this? By making submissions! Please write one yourself, and get as many people as you can think of to do the same. Encourage those in your local home education circles to read this and make their own submissions too.
Note: I've been asked what the "agenda" is in them removing the right of appeal. I don't know that there is one - it could be simply an oversight - I've noted a number of errors in the Bill as I've read it's entire 660 pages - or someone thinking it wasn't "logical" to have an appeal of the Secretary's decision to the Secretary after they updated the first part of the wording. The people drafting this Bill are extremely unlikely to have any intimate knowledge of home education matters. However, we can't know for sure, so lots of submissions are important.
​The wording that should be in the Bill is much as is currently in the Education Act 1989 (see above):
​Subsection 1 should state "An employee of the Ministry designated by the Secretary for the purpose may..."
​(?) If a designated officer refuses to grant a certificate under subsection (1), the applicant parent may appeal to the Secretary who, after considering a report on the matter from the Chief Review Officer, shall confirm the refusal or grant a certificate.
Another matter to consider:
Clause 38 deals with Early Leaving Exemptions (aka ELX) for 15 year olds. It has long been an issue for home educated students who wish to move onto alternative training or a job at 15 that they generally cannot access ELXs, preventing them taking part in any funded training or full time employment.
I propose a way around this that makes a lot of sense (I think - I'd love to hear your thoughts in the comments below or Contact Me):
Add a subsection to Clause 37 that reads along these lines:
(?) An exempt student who has attained the age of 15, may engage in full or part time employment or be enrolled in any alternative or tertiary education programme for which they are eligible on the same basis as a student who has been exempt under Clause 38, if--
(a) the parent is satisfied that the student has completed their home education to an appropriate level; and
(b) the student has a satisfactory offer of employment or access to training or alternative education
This would put the control back in the hands of the family, formalising their right to make appropriate decisions for their older students (which the MoE often informally tells parents they can do), and removing barriers. The wording above also prevents students of that age simply "doing nothing" as it is conditional upon the parents satisfaction and a suitable job or further training option being in place. And it would allow us to stop having to battle the ELX issue for so many students. I'll post about this in more detail separately HERE, but wanted to raise this point in this post for those who will move right on to making submissions without reading any other posts.
I need to know the thoughts of the wider community on this before I can make a submission along these lines myself, as a representative of the wider community, so please get in touch! And of course, if you are in agreement, consider including this in your own submission.
Making a Submission
A submission can be made online or by mail. Online is likely the better option. You can make a submission here: https://www.parliament.nz/en/pb/sc/make-a-submission/document/52SCEW_SCF_BILL_93294/education-and-training-bill
Information on how to make a submission can be found here: https://www.parliament.nz/en/pb/sc/how-to-make-a-submission/
This document gives specific guidance and includes a "template": https://www.parliament.nz/media/2019/makingasubmission2012-2.pdf
In preparing a submission, you can type up or write your actual submission in a separate document (recommended), which you will then upload (or post with a cover letter). In your submission, you should include your name and the details of the Bill you are submitting on, but do NOT include personal info such as your address, phone number or email, as the submission will be published publically once it has been read by the Select Committee. Your personal details DO need to be included either in a cover letter, or filled in on the website when you make a submission.
If you wish to review other sections of the Bill that may be of concern before making a submission, read my summary of sections of interest here: http://www.cynthiahancox.com/information/sections-of-law-of-interest-to-home-educators-1
Your submission should:
Be focussed on the Bill - a copy of which can be found HERE
First, state your general position on the Bill, whether you support or oppose the measure being proposed, and give your reasons.
Give detailed comments on clauses that are of concern to you. If you feel certain clauses need to be changed, say so, and give your reasons. You can suggest wording for clauses you think ought to be changed. Using clauses as numbered in the Bill is a good way to organise your submission
In your covering letter or on the webform, you will include your personal information, and also state whether you wish to make an oral submission before the committee.
I have written a new post which gives simple instructions on submissions and includes examples HERE
Deadline for Submissions is 14th February 2020. Act now!
Education Bill Submissions - How To and Examples
Since I wrote about the need for submissions on the Education and Training Bill, I've been asked by a number of people to supply example submissions to help them with writing their own, and more info on how to easily make a submission. So here we go.....
The Steps to Making a Submission
1) Think about what you want to include in your submission. What points of the Bill are of concern to you, and what do you want changed? Do you have any suggested wording? I have written HERE and HERE and HERE about the various aspects of the Bill that may be of interest to you in regards to submissions. The first article covers the two most important points (I believe), but do have a read of the others and see if there is anything else that concerns you. (The first article and the parliament link below also have more info on the submissions process etc.)
2) Write up your thoughts and comments. I recommend you do this in Word or similar, and convert it to a pdf. You do have the option of typing your submission directly into the online form, but then you will not have your own copy of it, which could be useful, and it's harder to think it through and refine it first. So I believe it's better to write it up on your computer, and then upload the file when you put the submission in as below.
There is a standard format to submissions:
They should clearly identify the Bill you are submitting on - in this case "Education and Training Bill 193-1"
You should open with a statement about whether you support or oppose the Bill as a whole, and why
You can then add specific contents. It is sensible to use headings to identify the sections of the Bill you are commenting on - I use the Subsection numbers and headings from the Bill.
If you wish, you can include specific suggestions on wording, but you should definitely make clear your recommendations and reasons for them.
Remember NOT to include your personal contact info in the actual submission, as they will be published publically once they have been read by the Select Committee. The place to put your contact info is in the webform when uploading it.
3) Once you have you submission ready to go, to go the parliament website here: https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_93294/education-and-training-bill and click on Make a Submission. You will then be guided through entering your personal info, and uploading your submission, through to actually submitting it all. Your submission should simply have your name on it, and the organisation you represent if applicable. I have not included a name in the examples below - you can add this in if you wish below the Bill title - eg "Submission by Jane Smith"
One of the first questions you will be asked is whether you wish to make an oral submission before the Select Committee. If you do so, it does add strength to your overall submission, but even if you don't think you wish to make an oral submission, I would encourage you to tick YES, and here's why:
You will be contacted later about making an oral submission. You can always change your mind then.
There is another option which may be possible - to nominate someone to represent you in the oral submissions. This would give people the option of nominating a representative of homeschooling such as myself, Todd Roughton, regional group leaders or other persons who may be able to do a good job of presenting on behalf of the wider home educating community. If they are nominated by many people, then they will ususally be given additional time to speak and present their case. There is no guarantee this will happen, but it's valuable if it does.
You can, if you prefer, send a submission via mail - info at the link above. In that case, you will need to use a covering letter to provide your personal info, separate to the submission itself.
Example Submissions
Ideally, your submission should be in your own words and reflect your personal views. However, it is ok to borrow someone else's words if they say what you want to. To make it easier on those who need it, I have put together two example submissions (with somewhat different wording to my own actual submission). The first covers only the issue of the right of appeal, and the second covers that and the ELX issue. If you have any other issues you wish to discuss, then just follow the same format and add the other parts. And of course, feel free to change the wording of either of these to suit you, or just use them as a guide/base on which to write your own. Click on the titles/links below to download these examples. They are in Word for ease of amending/typing into. If you have difficulty with these, please contact me for an alternative version.
Sample Submission 1 - appeals only
Sample Submission 2 - appeals and ELX
Early Leaving Exemptions (ELX) - Issues and Solution (?)
Under Section 22 of the current Education Act 1989, and under Section 38 of the proposed Education and Training Bill currently before parliment, which will replace the 1989 Act, parents may apply for a student aged 15 to be exempt from the requirements to attend school. The wording of the Bill is:
38 Exemption from enrolment of student who has turned 15
(1) The Secretary may, on application by a parent of a student who has turned 15, grant the parent a certificate that exempts the student from the requirements of section 34 if the Secretary is satisfied that it is sensible to do so, having regard to--
(a) any educational problem the student may have; and
(c)the benefit (if any) the student is likely to get from attending another available school.
(2) However, the Secretary may not exempt any student who--
(b) has not enrolled for a year level above year 8.
(3)The Secretary must tell the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 the name and address and any other available contact details of every student exempted under subsection (1).
A Section 38 (or currently Section 22) exemption allows 15 year old students to do any of the following:
Quit school
Enter employment during school hours
Enter an apprenticeship or other training or tertiary study for which they are eligible
Take part in Youth Guarantees courses, which are funded for 16-19 yos, or 15yos with an ELX
However, a 15yo student with a home education exemption cannot do any of these things in the fullest sense. If a student wishes to do so, they are usually told they need an Early Leaving Exemption, but if a family approach the Ministry to apply for one, they are most often told they cannot get an ELX for a home educated student. This is because the criteria as laid out by the law will usually not be met by a home educated student - ie having educational problems, conduct issues, and being unlikely to gain benefit from available schools. Not that these are "AND" scenarios, not "OR" - ie all three must be in place.
Now, this has been an issue of discussion on and off over the years with the Ministry. There is quite some history to the issue, which I won't expound on here for the sake of brevity. The main thing to know is that currently the Ministry are sticking to this position:
"It is highly unlikely that an ELX can be granted to home educated students because they would not meet the statutory criteria set out in the relevant legislation. Although it is unlikely for a home educated student to be granted an ELX, there have been cases in the past where they have been granted, however these decisions are made at the Ministry's Regional offices and at their own discretion."
Why should home educated students be able to get ELX or equivalent?
I frequently am contacted by families with 15 yo students, some who are home educated, and some who are not yet exempt, but who have one thing in common: they are simply ready to move on from "school work" and pursue the next steps in their chosen pathway - usually training courses or an apprenticeship or full time work. Some of these students are highly motivated and frustrated at being held back doing "busy work" and others have faced significant struggles, and in those cases often NEED to be given the opportunity to move on to the thing that interests them, before they lose all motivation and simply fall by the wayside.
Bear in mind that until 1993, the school leaving age was 15. Some young people of that age who were not university-bound often did leave school and enter into various jobs and professions, generally with ultimate success. The change to a school leaving age of 16 was driven by a governmental and Ministry belief that kids who remain in school longer achieve better outcomes (a belief that persists today, despite a lack of evidence to support it). This thinking came about somewhere between 1989's Tomorrow's Schools under Labour which recommended the school leaving age remain at 15, and the 1991 Education Amendment Bill under National which changed it to 16 from 1993.
Now, imagine you are the parent of a 15 yo male student who, for example, wants to become a builder. He has completed all the academic work he could possibly need to prepare him for that trade. He has a high standard of literacy and numeracy. Any further schoolwork he does will simply be filling in time. An opportunity arises for him to do some work experience with a local builder. He does so successfully. The builder would now like to employ him full time, and enrol him in an apprenticeship scheme as soon as possible. But the inability to get an ELX is a barrier to this, as he doesn't fit the criteria. If the parents choose to allow him to engage in this work anyway, then both they and the boss will be in breach of the law, and potentially subject to prosecution and penalties. How ridiculous!
Or, a 15 yo girl who has been through a lot recently, and has been struggling with depression. She's now heard from a friend about a training program that strongly interests her and is restoring her enthusiasm and motivation for the first time in a while. She is permitted to visit that program as a "guest student" for a time, and both she and the tutors are enthusastic about how well it fits her, and about her continuing on. But she can't get an ELX, so she isn't allowed to do the program, both for lack of funding, and because it would constitute no longer being home educated, which is not allowed to cease until 16 unless enrolled in a "registered school"- and only primary and secondary schools are "registered schools."
Or, a 15 yo student who wants to do a distance learning program through a tertiary provider in order to gain the high school qualifications he or she needs to open the future doors they need. But the rules of the tertiary provider are that students must be over 16, or 15 with an ELX.
I could go on. But hopefully you see the point. If we want our capable, motivated young people to capitilize on their drive and opportunities that are potentially available to them, we should be removing barriers, not erecting them!
How do we fix this?
There is an Education and Training Bill before parliment currently, which will re-write the entire education law of our country. The section about ELXs is essentially unchanged, with one noteable exception which also deserves submission comment (see below*). However, for the purposes of students who already have a Section 21/Section 37 home education exemption, it remains as inaccessible as ever. At the end of the day, though, the wording of this section which applies to all 15 yos is never going to be a good fit for home educators, for a number of reasons.
That is why, rather than change this section, I propose an addition the Section 37, which applies only to home educators, as follows:
(?) An exempt student who has attained the age of 15, may engage in full or part time employment or be enrolled in any alternative or tertiary education programme for which they are eligible on the same basis as a student who has been exempt under Section 38, if--
The effect of this, if incorporated into the Act, would be to appropriately permit parents and young people to make decisions about the best options for them as 15 yos, and engage in suitable training or work, without needing to jump through the ELX hoops. This would also reduce workload on Ministry staff.
Making this change would remove barriers and allow such students to move forward.
I urge you to consider including this recommendation in your own submission - (click on the link to find out why your submission as a home educator is so important, and how to make a submission)
Submissions close on 14th February 2020.
* The other issue I mentioned about the wording of the new Section 38 - the wording that says "(c)the benefit (if any) the student is likely to get from attending another available school."
Under the current Act, this simply reads "available schools". The change implies that the student is already enrolled in a school, and other available schools must be considered. This is a different focus from the simple idea that school in general is unlikely to benefit the student further. This would make it even more difficult for home educated students to fit the criteria, even those who would under the current wording.
One might consider including this in any submission.