2011

LEGISLATIVE ASSEMBLY OF THE
NORTHERN TERRITORY

MINISTER FOR EDUCATION AND TRAINING

EDUCATION AMENDMENT BILL 2011
SERIAL NO. 160

EXPLANATORY STATEMENT

GENERAL OUTLINE

This Bill amends the Education Act.

The purpose of this Bill is to amend Part 4 of the Education Act, “Enrolment, attendance and participation” to enable the Department of Education and Training to better address educational issues relating to young Territorians under the age of 17 years. 

Broadly, the Bill:

·	repeals the current Part 4 of the Act and replaces it with the provisions in the Bill;

·	amends and modernises many of the current provisions in Part 4 of the Act which have remained unchanged for more than 30 years;

·	restructures the provisions in Part 4; 

·	introduces a wide range of additional powers aimed at achieving significant improvements in enrolment, attendance and participation by young Territorians;

·	significantly enhances the enforcement powers under the Act; 

·	makes a child of or above the age of 14 years who lives independently of their parents personally responsible for complying with the requirements of the Act;

·	amends the Education (Infringement Notice) Regulations to provide for Infringement Notices for the new offences created; 

·	effects a range of Statute Law Revision amendments to modernise terminology in the remainder of the Act.

NOTES ON CLAUSES

Part 1		Preliminary matters

Clause 1	Short title

This is a formal clause which provides for the citation of the Bill. The Bill when passed may be cited as the Education Amendment Act 2011.

Clause 2	Commencement

This clause provides that the Act will commence on a day fixed by the Administrator by notice in the Gazette.

Part 2		Amendment of Education Act

Clause 3	Act Amended

This clause provides that Part 2 of the Bill will amend the Education Act (herein referred to as the Act).

Clause 4	Section 4 amended

This clause provides for new definitions and amends some existing definitions in the Act.

Sub-clause (1) provides the following new definitions relevant to the Act as a whole:

acting in an official capacity means an authorised officer when exercising powers or performing functions under or in relation to the Act.

attends for the purposes of a child attending school is defined by section 19A.

authorised officer means the Chief Executive Officer, a person authorised by the Chief Executive Officer pursuant to section 25 and a departmental officer when exercising a power or performing a function under the Act.

authorised person has the meaning given at section 25.

CEO has not previously been defined in the Act and means the Chief Executive Officer of the agency administering the Act.

compliance notice for Part 4 has the meaning given in section 23A(2).

departmental officer means a Public Sector employee in the Department of Education and Training who carries out a function or exercises a power under the Act.

distance education centre means a school of the air, a correspondence school and the Northern Territory Open Education Centre. 

home education has the meaning given in section 19.

information notice means a formal written notice given to a parent, or child of or above the age of 14 years living independently – see section 23(2).

living independently has the meaning given in section 19C.

principal replaces the current term “head teacher” and means the person to whom the administration and control of a school is committed. 

reasonably believes means to believe on reasonable grounds.

school day has not been previously defined and means a day on which instruction is provided for the children enrolled in a particular school.

second or subsequent offence is a new term and has the meaning provided by section 19B.

Sub-clause (2) changes the current definition of compulsory school age to reflect the changed numbering of the provisions in Part 4.

Sub-clause (3) amends the definition of eligible option to reflect the changed numbering of the provisions in Part 4. 

Clause 5	Part 4 replaced

Clause 5 repeals the current Part 4 of the Act and inserts the new Part 4, as below.

Part 4		Enrolment, attendance and participation

Division 1	Preliminary matters

Proposed section 19	 	Definitions
Sub-clause (1) provides the following definitions applicable to Part 4:

attends for the first time defines what it means to attend school and has the meaning given in proposed section 19A.

authorised person means a person authorised by the CEO pursuant to section 25 to deal with enrolment, attendance and participation issues.

compliance notice is a new term and has the meaning given in proposed section 23A(2).

compulsory school age is unchanged other than it will now be defined in proposed section 20(1).

eligible option is unchanged other than it will now be defined in proposed section 20(3)(a).

home education is a new term and means education provided by the parents of a child in a home context – see section 20E .

information notice is a new term defined in proposed section 23(2).

living independently has the meaning given in section 19C.

principal replaces the former term “head teacher” as currently used in the Act.

second or subsequent offence is a new term and is defined by proposed section 19B.

Proposed section 19A	Attending school

This is a new provision which provides the meaning of “attends” in relation to a child attending a school.

Sub-section (1) provides that a child attends school if the child is present at the school at which they are enrolled at the times during the school day when instruction is provided at that school.

Sub-section (2) makes it clear that a child is attending school when they participate in a school activity such as a school camp which is not held on the school premises. 

Proposed section 19B	Meaning of second or subsequent offence

There is currently no provision for second or subsequent offences against Part 4 and this new provision provides the meaning of second or subsequent offence now used in Part 4. 

Proposed section 19C 	Child Living Independently

This section defines the term “living independently” as now used throughout Part 4.

Sub-section (1) provides that a child is living independently if the child is of or above the age of 14 years and is not living with a parent.

Sub-section (2) provides that a child is also taken to be living independently if they are still living with a parent but the parent is unable to control the child’s behaviour to the extent necessary to ensure compliance with Part 4.

Proposed section 19D	Application of Criminal Code

This section provides that the offence provisions of the Act will fall within the criminal responsibility provisions of the Criminal Code Act.

Division 2	Compulsory education

Proposed section 20		Compulsory school age

This section incorporates current section 20A into the new Part 4 without amendment other than the addition of sub-section (8) that provides for a notice of exemption from participation to be given to a child living independently where appropriate.

Proposed section 20A	Compulsory enrolment

This section amends and modernises current section 21.

Sub-section (1) provides that the parent of a child of compulsory school age must enroll the child in (a) a Government school or (b) a non-Government school, and failure to comply with this requirement is an offence. 

Sub-section (2) is a new provision that places the onus on a child of compulsory school age living independently to comply with the enrolment requirement in sub-section (1), and such a child who fails to comply commits an offence. 

Sub-section (3) provides that an offence against sub-section (1) or sub-section (2) is an offence of strict liability, that is no fault elements apply. The requirements of an offence of strict liability are set out in section 43AN of the Criminal Code Act.

Sub-section (4) provides that the enrolment requirements in sub-sections (1) and (2) do not apply to a child who is (a) complying with Part 5 of the Act (b) is enrolled in another State or another Territory and is receiving education equivalent to that required in the Territory or (c) receiving Home Education under section 20E.

Sub-section (5) provides for a defence of “reasonable excuse” in relation to an offence against sub-sections (1) or (2). 

Proposed section 20B	Direction about enrolment

This section significantly amends current section 26 by broadening the powers of the CEO to enable the CEO to make a written direction in relation to an existing or new enrolment of a child in a Government school.

Sub-section (1) provides that this section applies if the CEO reasonably believes that (a) the enrolment of a child in a particular Government school may constitute a risk to that child, the staff or other students of that school or (b) the enrolment of a child in other than a particular Government school may constitute a risk to that child, staff or other students or (c) a particular Government school may be better able to meet a child’s special needs.

Sub-section (2) provides the power for the CEO to direct that (a) a child not be enrolled in a specified Government school or (b) if a child is to be enrolled in a Government school then the child must be enrolled in a specified Government school or (c) if a child is already enrolled in a Government school then they must be enrolled instead in another specified Government school from a specified date.

Sub-section (3) provides that a direction must be in writing, and, must be given to either the parent having the actual custody of a child, or, to the child if the child is living independently.

Sub-section (4) provides that a child must not be enrolled in a school in contravention of a written direction by the CEO.

Sub-section (5) provides that this section does not affect the operation of Part 5 of the Act, “Children with special learning needs”.

Sub-section (6) provides that “risk” includes risk of both physical and psychological harm. 

Proposed section 20C	Compulsory attendance at school

This section both modernises and broadens the provisions of current section 22, Compulsory attendance at school. 

Sub-section (1) provides that this section applies to a child of compulsory school enrolled in a school.

Sub-section (2) provides that a parent who has the actual custody of a child enrolled in a school must ensure that the child attends school every day on which instruction is provided for children at the school. Failure to comply with this requirement constitutes an offence.

Sub-section (3) provides that an offence against sub-section (2) is an offence of strict liability, that is no fault elements apply. 

Sub-section (4) provides a defence of “reasonable excuse” in relation to a prosecution for a breach of sub-section (2).

Sub-section (5) provides that a defence of reasonable excuse may include that a parent is unable to control the child’s behaviour to the extent necessary to ensure that the child attends school.

Sub-section (6) provides that if the child is living independently of their parents then the requirement to attend school rests with the child personally and not their parents, and, the child commits an offence if they fail to comply with this requirement.

Sub-section (7) makes an offence by a child against sub-section (6) an offence of strict liability.

Sub-section (8) provides a defence of “reasonable excuse” in relation to a prosecution for a breach of sub-section (6).

Sub-section (9) provides that the offence provisions in sub-sections (2) or (6) do not apply if (a) a child is exempt from attendance or prohibited from attending under Part 4 or (b) the parents of a child, or a child living independently, gives a reason for the child’s absence from school which is acceptable to the principal or (c) the child’s absence is on a day of significance to the child’s ethnic group and this reason is communicated to the principal.

Subsection (10) provides that the requirement to physically attend school does not apply to a child enrolled in a distance education centre, and provisions relating to such a child are set out in proposed section 20D below.

Proposed section 20D	Compulsory attendance at distance education centre

There are currently no “attendance” provisions applicable to a child enrolled the Northern Territory Open Education Centre or a School of the Air and this new section establishes requirements to ensure that a child enrolled in a distance education centre participates appropriately in the instruction provided by such a school. 

Sub-section (1) provides that this section applies to a child of compulsory school age enrolled in a distance education centre. A distance education centre includes the Northern Territory Open Education Centre and a School of the Air.

Sub-section (2) provides that a parent who has the actual custody of a child must ensure that the child reasonably attends to all of the course requirements of the educational instruction provided for a child by a distance education centre, and failure to comply with this requirement constitutes an offence.

Sub-section (3) provides that an offence against sub-section (2) is an offence of strict liability.

Sub-section (4) provides a defence of reasonable excuse in relation to the prosecution for an offence against sub-section (2).

Sub-section (5) provides that a defence of reasonable excuse can include a parent establishing that they are unable to control the child’s behaviour to the extent necessary to ensure that the child reasonably attends to all of the course requirements.

Sub-section (6) provides that a child living independently is personally responsible for reasonably complying with the course requirements if they are enrolled in a distance education centre, and a child who fails to comply commits an offence. 

Sub-section (7) provides that an offence against sub-section (6) an offence of strict liability.

Sub-section (8) provides for a defence of “reasonable excuse” in relation to the prosecution for an offence against sub-section (6).

Sub-section (9) provides that the offence provisions of sub-sections (2) and (6) do not apply where (a) a child has been exempted from the course requirements or (b) the parent, or a child living independently, gives an acceptable reason to the principal for the failure to comply with the requirements or (c) the child’s failure to participate is on a day of significance to the child’s ethnic group and the distance education centre is advised of that reason by the parent or by a child living independently. 

Proposed section 20E	Home Education

This section establishes the term “Home Education” and modernises and amends the existing provisions relating to parents who wish to educate their child at home.

Sub-section (1) requires a parent wishing to educate their child of compulsory school age at home to (a) apply to the CEO for approval to provide home education and (b) provide the CEO with details of the proposed home education.

Sub-section (2) provides that in order to determine if a proposal for home education is suitable the CEO may inquire into a proposal before approving it.

Sub-section (3) provides that the CEO may approve home education for a child where satisfied that the proposed education is suitable.

Sub-section (4) provides that approval for home education must be in writing and is subject to the conditions that (a) the approval is for one school year only (b) the parents must allow inspections by departmental officers from time to time and (c) the CEO may impose such conditions as are considered appropriate in the notice of approval.

Proposed section 20F	Exemption by Minister

This section broadens current section 24, Exemption by Minister, by providing that the Minister may now exempt a child of compulsory school age from the course requirements provided by a distance education centre, and not just from attendance at a school as is currently the case.

Proposed section 20G	Child may be withdrawn from specified course

This section modernises and amends current section 23 of the Act which currently provides that a child may be withdrawn from a specified course of instruction in a school.

Sub-section (1) provides that a parent may ask the principal of a school to withdraw their child from a specified course of instruction provided by the school.

Sub-section (2)(a) provides that the principal may agree to a request.

Sub-section (2)(b) provides that the principal must agree to the request if (i) the course of instruction is a course of religious instruction or (ii) if the parent claims to have a conscientious objection to the child attending the course and the course is not an essential part of the curriculum.

Proposed section 20H	Person not to attend school in certain circumstances

Section 25 of the Act currently provides that a principal may by written notice exempt a child from attendance at school for a specified period where the child is suffering from an infectious or contagious disease. The proposed section amends section 25 by providing that a student of any age, and not just a child, can be exempted from attendance.

Sub-section (1) provides that this section applies if a person is enrolled in a Government school and the principal reasonably believes that the person is suffering from an infectious or contagious disease.

Sub-section (2) provides that the principal may give a written notice directing that a person not to attend school to (a) the parent who has the actual custody of a child or (b) a child living independently or (c) an adult student.

Sub-section (3) provides that if a principal is given a certificate signed by a medical practitioner certifying that the person is fit to attend school then the principal must permit the person to resume attendance even if the specified period has not ended.

Division 3	Suspension and expulsion

Proposed section 21		Suspension by principal

This section modernises and incorporates current section 27 of the Act, Suspension by head teacher. 

Sub-section (1) provides that this section applies if the principal of a Government school is satisfied that a person should be suspended from attending school because the person’s presence would be harmful to the health or moral welfare of other persons at the school.

Sub-section (2) provides the power for the principal, by written notice given to the person, to suspend the person from school.

Sub-section (3) provides that the principal must give a copy of the notice of suspension to (a) the CEO and (b) to a parent who has the actual custody of a child if the suspended person is a child.

Sub-section (4) provides that a suspension has effect for (a) a period not exceeding one month specified in the notice or (b) if the Minister expels the person within the period specified in the notice, until the expulsion takes effect.

Proposed section 21A	Expulsion by Minister

This section amends current section 28 of the Act, Expulsion by Minister, by providing that a person of any age may now be expelled from a Government school and not just a child as is currently the case.

Sub-section (1) provides that the Minister may, by written notice given to the person, expel a person from the school at which they are enrolled.

Sub-section (2) provides that the Minister must, after expelling a child who is not living independently, give a copy of the notice of expulsion to the parent having actual custody of the child as soon as practicable.

Sub-section (3) provides that the Minister may review an expulsion and revoke that expulsion by written notice if satisfied that the person should no longer be expelled.

Sub-section (4) provides that the Minister must give a copy of a notice of revocation of expulsion to (a) where the child is not living independently, the parent having actual custody of a child or (b) in any other case to the person expelled, including a child living independently. 

Proposed section 21B	Parent to ensure non-attendance

This section both modernises and amends current section 29 of the Act, Parent to ensure non-attendance, which requires that a parent ensure that a child not attend school if the child has been excluded on health grounds or because they have been suspended or expelled from school.

Sub-section (1) provides that this section applies to a child subject to a notice that they are not to attend school because (a) of an infectious or contagious disease or (b) the child is suspended from school or (c) the child is expelled from school.

Sub-section (2) establishes the time periods for which a parent must ensure non-attendance, and creates an offence for failure to comply with the requirements.

Sub-section (3) makes an offence against sub-section (2) an offence of strict liability.

Sub-section (4) provides a defence of reasonable excuse to a prosecution for an offence against sub-section (2).

Subsection (5) provides that a defence of reasonable excuse may include that the parent is unable to control the child’s behaviour to the extent necessary to ensure that the child does not attend school.

Sub-section (6) creates an offence for a child living independently who attends school while subject to a notice described in sub-section (1).

Sub-section (7) makes an offence against sub-section (6) an offence of strict liability and sub-section (8) provides for a defence of “reasonable excuse”.

Proposed section 21C	Re-enrolment after expulsion

This section modernises and incorporates current section 29A of the Act, Re-enrolment after expulsion. 

It provides that a person expelled from a Government school may only be enrolled in another Government school (a) with the permission of the Minister or (b) in a distance education centre.

Division 4	Further education or training

Proposed section 22		Parents to ensure participation in an eligible option

This section amends and incorporates current section 22A, Parent to ensure participation in eligible option.

Sub-section (1) provides that this section applies to a child who has completed year 10 and is below the age of 17 years and is not exempted from participating in an eligible option.

Sub-section (2) requires the parent who has the actual custody of a child referred to in sub-section (1) to ensure that the child participates in an eligible option. This sub-section also creates an offence for failing to comply with this requirement.

Sub-section (3) makes an offence against sub-section (2) an offence of strict liability and sub-section (4) provides for a defence of “reasonable excuse” in relation to a prosecution.

Sub-section (5) provides that a defence of reasonable excuse may include a parent establishing that they are unable to control the child’s behaviour to the extent necessary to ensure the child participates in an eligible option.

Sub-section (6) requires a child living independently to participate in an eligible option and the child commits an offence if they fail to comply with this requirement. There is currently no capacity under the Act to take action in relation to a child living independently who does not participate as required and this new provision rectifies that.

Proposed section 22A	Enquiries about participation in eligible option

This section amends and incorporates current section 31A of the Act, Inquiries about participation in eligible option.

Sub-section (1) provides that the CEO may make such inquiries as he considers appropriate for the purpose of determining whether a child is participating in an eligible option as required.

Sub-section (2) provides that if the CEO has information that a person is providing an eligible option for a child then the CEO may ask that person to provide relevant information about the child’s participation.

Sub-section (3) provides that a request for the purposes of sub-section (2) must be in writing.

Sub-section (4) provides that it is an offence for a person not to comply with a request by the CEO for information.

Sub-section (5) provides that an offence against sub-section (4) is an offence of strict liability.

Sub-section (6) provides that the CEO may also ask a child for relevant information.

Sub-section (7) provides that a request for information from a child must be in writing.

Sub-section (8) provides that it is an offence for a child not to comply with a request for information.

Sub-section (9) provides that an offence against sub-section (8) is an offence of strict liability.

Sub-section (10) provides for a defence of reasonable excuse in relation to an offence against sub-sections (4) or (8).

Sub-section (11) provides that the CEO’s specific power to request information from a person or a child pursuant to sub-section (2) and (6) does not limit the CEO’s very broad power under sub-section (1).

Sub-section (12) defines the “provider of an eligible option” to mean a person who (a) provides the child with approved education or training or (b) employs the child. 

Division 5		Enforcement powers

Proposed section 23		Information notice

This is a new provision which enables the CEO to require a parent or a child living independently to provide information in relation to a child’s enrolment, attendance or participation in an eligible option.

Sub-section (1) provides that the CEO may require information where it is reasonably believed that a child is not complying with the enrolment, attendance and participation requirements of Part 4.

Sub-section (2) provides that the CEO may give a written notice (an Information Notice) to a parent with the actual custody of a child, or to a child living independently, requiring that they provide information specified in the Notice.

Sub-section (3) mandates the information to be included in an Information Notice, including that failure to comply with a Notice is an offence.

Sub-section (4) provides that the CEO may include information over and above that mandated by sub-section (3).

Sub-section (5) provides that a parent who fails to comply with an Information Notice commits an offence.

Sub-section (6) provides that a child living independently who fails to comply with a Notice commits an offence.

Sub-section (7) makes an offence against sub-sections (5) or (6) an offence of strict liability and sub-section (8) provides a defence of “reasonable excuse” in relation to a prosecution of an offence against sub-sections (5) or (6).

Proposed section 23A	Compliance notice

This is a new section which enables the CEO to issue a written notice (a Compliance Notice) to a parent having the actual custody of a child or to a child living independently advising them of their legal obligations under Part 4 of the Act and requiring the person to comply with those legal obligations. Failure to comply with the requirements is an offence.

Sub-section (1) provides that this section applies where the CEO believes on reasonable grounds that a parent, or a child living independently, is not complying with the enrolment, attendance or participation requirements of Part 4.

Sub-section (2) provides that the CEO may issue a Compliance Notice to a parent with actual custody of a child or to a child living independently.

Sub-section (3) provides that specified information must be included in a Compliance Notice, including that failure to comply with a Notice is an offence.

Sub-section (4) provides that the CEO may include additional information in a Compliance Notice.

Sub-section (5) provides that the CEO may, on their own initiative or at the request of the recipient of a Notice, extend the period in which a person must comply with a Compliance Notice.

Sub-section (6) provides that the CEO cannot exercise the discretion referred to in sub-section (5) if the initial compliance period has already expired.

Sub-section (7) provides that a parent who fails to comply with a Compliance notice commits an offence.

Sub-section (8) provides that a child who fails to comply with a Notice commits an offence.

Sub-section (9) provides than an offence against sub-sections (7) or (8) is an offence of strict liability and sub-section (10) provides for a defence of “reasonable excuse”.

Sub-section (11) permits the CEO to revoke a Compliance Notice if satisfied that the Notice is being complied with.

Proposed section 23B	Compulsory conference

This is a new provision which enables the CEO to require a parent and/or a child and other relevant persons to attend a compulsory conference if the CEO reasonably believes that a parent/child is not complying with the enrolment, attendance or participation requirements of Part 4.

Sub-section (1) provides that this section applies if the CEO reasonably believes that the provisions of Part 4 are not being complied with in relation to a child.

Sub-section (2) provides that the CEO may give a written direction to attend a conference to a parent(s) of a child, the child concerned and to other persons that the CEO considers appropriate.

Sub-section (3) provides that a child may attend a conference without a parent if (a) a child is living independently (b) a child requests this and the CEO agrees to the request or (c) the CEO considers that a conference is more likely to be a success without the presence of a parent(s).

Sub-section (4) provides that if a child attends a conference without a parent in keeping with sub-section (3) then any direction given to a parent to attend is deemed to be withdrawn and not binding on the parent.

Sub-section (5) provides that a child may, subject to the agreement of the CEO, have a support person attend a conference with them.

Sub-section (6) requires that a conference be conducted by a departmental officer – that is an employee of the Department of Education and Training.

Sub-section (7) provides that the purpose of a conference is to ensure that a child receives education or training in accordance with Part 4.

Sub-section (8) provides that a conference may (a) seek to identify and resolve issues in relation to the education or training of a child (b) seek to identify services that can be provided to a child and/or their family to facilitate the child’s education or training (c) make recommendations to the CEO in relation to the education or training of a child and/or (d) formulate undertakings for a Family Responsibility Agreement or a Family Responsibility Order under Part 6A of the Youth Justice Act.

Sub-section (9) provides that participants in a conference may disclose in the conference information about a child or their family without offending the privacy provisions of the Information Act.

Sub-section (10) provides that, in order to encourage full and frank discussions, evidence of things said or admissions made in a conference, or in documents prepared for a conference, are not admissible in any court proceedings. However, written undertakings prepared during or after a conference are not covered by this exemption.

Sub-section (11) provides that a parent who fails to comply with a direction to attend a conference commits an offence. 

Sub-section (12) provides that a child who fails to comply with a direction to attend a conference commits an offence.

Sub-section (13) provides that an offence against sub-section (11) or (12) is an offence of strict liability, and sub-section (14) provides a defence of “reasonable excuse” in relation to a prosecution for an offence against sub-section (11) or (12).

Proposed section 23C	Truancy from school or eligible option

This section modernises current section 31 of the Act, Truancy, and also significantly broadens the functions and powers of a person authorised by the CEO to assist with the enforcement of Part 4. The section also enables an authorised officer to deal with issues in relation to the failure to participate in an eligible option, and not just enrolment and attendance issues as is currently the case.

Sub-section (1) provides that this section applies to both a child of compulsory school age and a child subject to the requirement to participate in an eligible option.

Sub-section (2) provides that where authorised person sees a child in a public place they may require a child to (a) provide their name, age and address (b) advise the school at which they are enrolled or give details of any eligible option that they are participating in and (c) explain why they are not attending school or participating in an eligible option.

Sub-section (3) provides that a child must comply with the requirements in sub-section (2) and that it is an offence for a child not to comply. 

Sub-section (4) provides that an offence against sub-section (3) is an offence of strict liability, but there is no defence of “reasonable excuse”.

Sub-section (5) provides that if it appears to an authorised person that a child is of compulsory school age and they are not satisfied by the explanation given by the child then they may (a) accompany the child to the school at which they are enrolled, if any or (b) accompany the child to their home or to another place that is considered appropriate or (c) take any action they consider appropriate in relation to the non-participation of a child in an eligible option. 

The ability to take a child to their home or another appropriate place is a new provision as is the discretion to take such other action as may be considered appropriate. The capacity to deal with a child’s non-participation in an eligible option is also new. 

Proposed section 23D	Authorised person may require information about enrolment or eligible option

This section also amends current section 31 of the Act, Truancy.

Sub-section (1) provides that a person authorised by the CEO may attend at an address between the hours of 8 am and 7 pm and require any person apparently of or above the age of 14 years to provide (a) the full names of all children of compulsory school age who ordinarily live at that address and (b) the names of the schools in which these children are enrolled or places at which the children participate in an eligible option.

Sub-section (2) requires that an adult must comply with the requirements of sub-section (1) and failure to comply is an offence.

Sub-section (3) provides that a child must comply with the requirement in sub-section (1) and failure to comply is an offence. 

Sub-section (4) provides that an offence against sub-section (2) or (3) is an offence of strict liability and sub-section (5) provides a defence of reasonable excuse.

Proposed section 23E	Authorised person may direct child be enrolled

This is a new provision which provides that a person authorised by the CEO may direct the parent of a child in writing to enroll a child in a school within a specified time. An authorised person may similarly direct a child living independently to enroll in a school. It is an offence for a parent or a child to fail to comply with such a direction.

Sub-section (1) provides that an authorised person who reasonably believes that a child of compulsory school age is not enrolled in a school may direct the parent of the child, or if the child is living independently the child themselves, to enroll in a school within 10 school days of the notice.

Sub-section (2) provides that a parent who fails to comply with a direction commits an offence.

Sub-section (3) provides that a child who fails to comply with a direction under sub-section (1) commits an offence.

Sub-section (4) makes an offence against sub-section (2) or (3) an offence of strict liability and sub-section (5) provides a defence of reasonable excuse.

Sub-section (6) provides that a person must, if requested, provide an authorised person with adequate proof that a child is enrolled.

Sub-section (7) provides that an authorised person may extend the 10 day period in which to enroll a child, by no more than another 10 days, if they consider it appropriate to do so. 

Division 6	Offences and evidentiary matters

Proposed section 24	Employment of children

This section both modernises and amends current section 30 of the Act, Employment of children.

In summary the section makes it an offence to employ, or permit to employ, a child of compulsory school age at a time when they are required to attend school or in a manner that will render a child unfit to attend school or to understand instruction when they do attend school.

Sub-section (1) provides that this section applies to a child of compulsory school age who has not completed year 10.

Sub-section (2) provides that it is an offence to employ, or to permit to be employed, a child at a time when a child is required to attend school. An offence against sub-section (2) is not an offence of strict liability and fault elements are prescribed. The penalties for this offence are also substantially increased.

Sub-section (3) provides that it is an offence to employ, or to permit to be employed, a child at any time in employment that is likely to cause the child to be (a) unfit or unable to attend school at times when the child is required to attend school or (b) unfit or unable to understand the instruction provided for the school when they do attend school. The offence created by this sub-section is not an offence of strict liability and fault elements are prescribed. The penalties for this offence are also substantially increased.

Sub-section (4) provides that the offence provisions in sub-sections (2) and (3) do not apply if an exemption under sub-section (5) applies.
Sub-section (5) provides that the Minister may exempt a child from any or all of the provisions of sub-sections (2) and (3) if satisfied it is appropriate to do so because of special circumstances.

Proposed section 24A	Obstruction of authorised officer

This is a new provision intended to enhance the authority of an authorised officer and to provide some protection in carrying out their official duties.

Sub-section (1) provides that a person who obstructs an authorised officer acting in an official capacity commits an offence. The offence is not an offence of strict liability and the fault elements provide that to be guilty of an offence a person must (a) know that the authorised officer is acting in an official capacity and (b) intentionally obstruct the officer. 

Sub-section (2) provides that to obstruct an authorised officer includes to hinder or resist.

Proposed section 24B	Misleading information 

This is a new provision intended to enhance the role of an authorised officer.

Sub-section (1) provides that it is an offence for a person to give misleading information to an authorised officer acting in an official capacity. The offence is not an offence of strict liability and fault elements require that to commit an offence a person must (a) intentionally give the information to the officer and (b) be reckless as to whether the information is misleading and (c) know that the officer is acting in an official capacity.

Sub-section (2) provides that it is an offence for a person to give a document containing misleading information to an authorised officer acting in an official capacity. The fault elements for the offence are that the person (a) intentionally provides the document to an officer and (b) is reckless as to whether the document contains misleading information and (c) knows that the officer is acting in an official capacity.

Sub-section (3) provides that sub-section (2) does not apply if the person (a) draws the misleading aspect of a document to an officer’s attention and (b) to the extent that they can reasonably do so, gives the officer information necessary to remedy the misleading aspect of the document.

Sub-section (4) provides that misleading information means information that is misleading in a material particular or omits information that is misleading in a material particular. 

Proposed section 24C	Evidentiary certificates

This section is intended to facilitate the presentation of documentary evidence in relation to legal proceedings arising out of Part 4 by limiting the need to call a person who creates a document to give evidence that it is their document, and in relation to the content therein. 

Sub-section (1) provides that a document purporting to be signed by a principal of a school stating that a child did or did not attend school on specified dates constitutes evidence of the matters specified in the document.

Sub-section (2) provides that in legal proceedings a certificate purporting to be signed by an authorised person is evidence that (a) a specified person is a parent of a specified child (b) a specified child is of, above, or below, a specified age (c) at a specified time a specified child was or was not enrolled in a school (d) a specified person is the principal of a specified school and/or (e) at a specified time instruction was provided for a specified child at a specified school.

Division 7	Administrative matters

Proposed section 25	Authorised persons

Sub-section (1) provides that an authorised person is (a) a police officer, whether or not in uniform and whether or not on duty and (b) a person appointed by the CEO in accordance with this section.

Sub-section (2) provides that the CEO may appoint a person to be an authorised person for the purposes of the Act.

Proposed section 25A	Identity card

Sub-section (1) provides that the CEO must give an authorised person who is not a police officer an identity card stating the person’s name and that they are an authorised officer. This sub-section also amends the current requirement that the Minister approve the format of the identity card and that the format will now be approved by the CEO.

Sub-section (2) provides that an identity card must (a) show a recent photograph of the person (b) show the date of issue of the card and (c) be signed by the authorised person.

Sub-section (3) provides that the one identity card may be used to show that a person is an authorised person under the Education Act as well as under another Act.

Sub-section (4) provides that an authorised person, other than a police officer, may only exercise a power in relation to a person if they provide their identity card to the person for inspection.

Sub-section (5) provides that it is an offence for an authorised person to fail to surrender their identity card within 21 days of ceasing to be an authorised person.

Sub-section (6) provides that an offence against sub-section (5) is an offence of strict liability and sub-section (7) provides a defence of “reasonable excuse”.

Proposed section 25B	Protection from liability

This is a new provision that protects a person from civil and criminal liability where the person exercises a power or performs a function under the Act in good faith.

Sub-section (1) provides that a person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or function under the Act.

Sub-section (2) provides that the indemnity provided to a person by sub-section (1) does not affect the liability that the Territory may have for the act or omission of the person.

Sub-section (3) provides that the exercise of a power includes the purported exercise of a power and that the performance of a function includes the purported performance of a function.

Proposed section 25C	Information sharing

This is a new provision intended to ensure that a person or body may disclose relevant information to the CEO for the purposes of ensuring compliance with Part 4 without offending the privacy provisions of the Information Act. The section similarly enables the CEO to disclose information to another body or Agency, including another body or agency in another jurisdiction, for the purposes of Part 4. 

Sub-section (1) provides that information may be disclosed to the CEO to (a) assist the CEO to ascertain information about a child who may not be receiving compulsory education or participating as required by Part 4, or to ascertain the reasons why a child may not be receiving education or participating as required by Part 4 or (b) that might otherwise assist the CEO in relation to compliance with Part 4. 

Sub-section (2) provides that information may be disclosed at the request of the CEO or on a person’s own initiative, and, that information may be disclosed anonymously.

Sub-section (3) provides that when requesting information the CEO may provide information about a child or their family which may assist a person or body to disclose relevant information.

Sub-section (4) provides that provided a person discloses information in good faith they will not be criminally or civilly liable for doing so, nor will they be subject to disciplinary proceedings or commit a breach of professional ethics.

Sub-section (5) provides that the identity of a person disclosing information must not be disclosed except where the CEO considers disclosure is warranted due to exceptional circumstances.

Sub-section (6) provides that the CEO may disclose relevant information to another body or agency, including a body or agency in another jurisdiction, where the body or agency has responsibility for children and the CEO considers disclosure will assist the body or agency to meet its responsibilities.

Sub-section (7) provides that “another jurisdiction” as used in sub-section (6) means the Commonwealth, a State or another Territory, and, that the term “body” includes the Police Force.

Clause 6	Section 74 replaced

Clause 6 provides for the repeal of current section 74 and the insertion of proposed section 74, Consent for prosecution.

Proposed section 74		Consent for prosecution

Sub-section (1) provides that other than for Part 4, legal proceedings for an offence against the Act cannot be commenced without the Minister’s written consent.

Sub-section (2) provides that legal proceedings for an offence against Part 4 cannot be commenced without the CEO’s written consent. This is a new provision.

Sub-section (3) provides that in legal proceedings a document purporting to be the consent of the Minister or the CEO is evidence of that consent.

Clause 7	Act further amended

Clause 7 provides that the Schedule of further Statute Law Reform amendments to the remainder of the Act has effect.

Part 3	Amendment of Education (Infringement Notice) Regulations	

Clause 8	Education (Infringement Notice) Regulations amended

Clause 8 provides that the Education (Infringement Notice) Regulations (the Regulations) are amended by Part 3 of the Bill.

Clause 9	Regulation 3 amended

Clause 9 provides that regulation 3 is amended by Part 3 of the Bill.

Clause 10	Schedule

Clause 10 provides that the existing Schedule to the Regulations, Infringement Notice offences and prescribed amounts, is amended by Part 3 of the Bill.