Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 is the commencement clause, and provides that the Act comes into force on the day after the date on which it receives the Royal assent.
Amendments to principal Act
Clause 3 states that Part 1 amends the principal Act, that is, the Education Act 1989.
Clause 4 provides that references to sections in Part 26 of the principal Act are references to those sections as substituted by the Education Amendment Act 2006. The provisions of the Education Amendment Act 2006 that substitute a new Part 26 in the principal Act come into force on 1 December 2008: see Education Amendment Act 2006 Commencement Order 2008 (SR 2008/203).
Clause 5 amends the definition of State school to include special schools, and substitutes new meanings for special school and associated expressions, as the specified definitions referred to meanings assigned by section 2 of the Education Act 1964. However, that section did not assign meanings to the relevant expressions.
Clause 6 corrects a technical error.
Clauses 7 and 8 repeal incorrect compare notes.
Clauses 9 to 11 correct errors of expression.
Clause 12 repeals an incorrect compare note.
Clause 13 repeals section 22, which had allowed some exemptions from school attendance for persons who have turned 15. Clause 84 is a transitional provision in relation to clause 13.
Clause 14 makes an amendment to section 23 that is consequential upon the repeal of section 22 by clause 13, and also repeals an incorrect compare note.
Clause 15 specifies some of the reasonable steps a board must take to ensure that students who are required to attend school do so.
Clause 16 corrects an error of expression.
Clause 17 corrects a technical error.
Clause 18 corrects technical errors, including one that occurred when the definitions of domestic student and foreign student changed elsewhere in the principal Act. Also, clause 18 provides new definitions, for unsupervised access to students and vetting-exempted agency, that relate to changed requirements for police vetting. Clause 18 also applies the definitions in section 60 to the provisions of Part 7A of the principal Act.
Clause 19 inserts new sections 60AA and 60AAB in the principal Act. New section 60AA lists functions that boards must, or may, perform. New section 60AAB empowers the Minister, after considering the matters listed, to authorise all boards, or a particular board, to perform other functions, on any conditions specified by the Minister.
Clauses 20 to 22 correct errors of expression.
Clause 23 prohibits a board from authorising courses of education, work experience, or visits outside school premises unless satisfied of the educational benefit of doing so to the students concerned.
Clause 24 corrects a technical error.
Clause 25 includes guidance and counselling on career choices and career pathways in the guidance and counselling that a principal of a State school must ensure is available to students.
Clause 26 substitutes new sections 78C to 78CC for sections 78C to 78CB. New procedures and criteria are set out for obtaining police vets of those who will have unsupervised access to students at schools. Some agencies may be exempted by the Minister, by notice in the Gazette, from police vetting requirements in respect of all the agency's employees, or a class of, or classes of, its employees.
Clause 27 substitutes a new section 78H, which sets out the purpose of Part 7A of the principal Act. New section 78H includes references to interventions that may be used when a board does not perform the functions set out in new section 60AA(1), or does not comply with conditions on functions authorised under new section 60AAB.
Clause 28 amends section 78I to allow interventions in schools whose boards are not performing the functions set out in new section 60AA(1) or not complying with conditions or functions authorised under new section 60AAB.
Clause 29 amends section 78J so that the reasons for the Secretary to require a board to provide specified information include the Secretary's reasonable grounds for concern about the board's performance of the functions set out in new section 60AA(1), or its compliance with conditions on functions authorised under new section 60AAB.
Clause 30 corrects a technical error.
Clause 31 repeals a defunct definition.
Clauses 32 to 35 repeal references to the defunct definition that is repealed by clause 31.
Clauses 36 and 37 correct errors of expression.
Clause 38 substitutes a new section 101(4)(a), relating to dates of elections of trustees to boards (other than elections of student representatives), and those ranges of dates may be different for boards that have staggered election cycles: see new section 101(4A). Clause 38 also amends section 101(10) to make section 101 subject to new section 101AB, which relates to schools under notice of closure.
Clause 39 inserts a new section 101AB, providing that schools under notice of closure are not to hold elections for board trustees or student representatives on boards.
Clause 40 provides a new ground for the Minister to approve an alternative constitution, subject to consultation conditions.
Clause 41 inserts a new section 110A that allows the Minister to establish a combined board for 2 or more newly established schools. If the Minister does so, the combined board is the board of a newly established school for the purposes of section 98 (which relates to the composition of the school's board).
Clauses 42 to 44 repeal incorrect compare notes.
Clause 45 inserts a new section 128A, allowing information matching between the New Zealand Teachers Council and the Ministry to identify the registration status of people employed in teaching positions, and who they are employed by, and to identify their entitlement and eligibility for allowances available on the basis of registration.
Clause 46 repeals an incorrect compare note.
Clause 47 omits references in section 139AE to the New Zealand Teachers Council obtaining police vetting of people other than teachers.
Clause 48 corrects an error of expression.
Clause 49 amends section 139AU to allow the Complaints Assessment Committee to apply to the chairperson of the Disciplinary Tribunal for the interim suspension of a teacher's practising certificate or authority during the investigation by the Complaints Assessment Committee, the New Zealand Police, or the teacher's employer, of a complaint of possible serious misconduct by the teacher.
Clause 50 inserts a new section 139AUA, which allows the interim suspension to continue initially for a period of 3 months or less, then to be renewed for further 3-month periods. An initial period of interim suspension must be reviewed by the chairperson of the Disciplinary Tribunal at the request of the teacher, and any further 3-month interim suspension period may be the subject of a hearing by the Disciplinary Tribunal if the teacher believes that there is an unreasonable delay in concluding the matter.
Clauses 51 and 52 correct errors of expression.
Clause 53 amends section 139AZD to reflect that the New Zealand Teachers Council will no longer co-ordinate police vetting of persons other than teachers with unsupervised access to children in schools and early childhood services.
Clause 54 repeals a redundant definition in section 159.
Clauses 55 and 56 update references to enactments.
Clauses 57 to 60 correct technical errors.
Clause 61 repeals the definition of secondary school in section 246, and inserts a definition of relevant school. The term relevant school replaces references to secondary school throughout Part 20. Relevant school includes schools registered under section 35A, as had been the intention with the previous term, secondary school, and special schools are included as schools that may be authorised by the Authority to do such things as provide training towards certain qualifications. A validation provision relating to the substitution of terminology made by clause 61 is located at clause 85.
Clause 62 amends section 253 to reflect the changed terminology in section 246, and to correct inexact references to institutions and other bodies in that section.
Clauses 63 to 65 amend terminology in accordance with amendments to section 246 made by clause 61.
Clause 66 corrects inexact references to institutions in section 258A.
Clause 67 amends terminology in accordance with amendments to section 246 made by clause 61.
Clause 68 corrects inexact references to institutions in section 259A.
Clauses 69 and 70 amend terminology in accordance with amendments to section 246 made by clause 61.
Clause 71 corrects a technical error.
Clause 72 corrects an error made during earlier amendments, reinstating wording mistakenly repealed.
Clause 73 amends section 307 to refer to an extended range of persons who are not in receipt of a statutory allowance or loan as non-recipients who have duties to provide information to the Secretary.
Clause 74 inserts a new section 307AAA that sets out some consequences, previously included in section 307, of failure or refusal to comply with requests for information, either produced in document form or in response to questions during an investigation under section 307(4).
Clause 75 amends section 307AA, which relates to offences concerning allowances. Clause 75(1) corrects a technical error. Clause 75(2) substitutes new section 307AA(2) and (2A), creating new offences of refusal to comply with section 307(5), and knowingly making a false or misleading statement in an application for a student allowance or student loan.
Clause 76 corrects an error of expression.
Clause 77 amends section 309 to provide new definitions, for unsupervised access to children, and vetting-exempted agency, that relate to changed requirements for police vetting.
Clause 78 substitutes new sections 319D to 319FA for sections 319D to 319F. New procedures and criteria are set out for obtaining police lists of those who will have unsupervised access for children at schools. Some agencies may be exempted by the Minister, by notice in the Gazette, from police vetting requirements in respect of all the agency's employees, or classes of its employees.
Clause 79 corrects an error of expression.
Clause 80 corrects a technical error and an error of expression.
Clause 81 substitutes a new clause 8(3) in Schedule 6, related to the timing of meetings of the board to deal with vacancies, depending on the time the vacancy occurs in relation to election years.
Clauses 82 and 83 correct technical errors.
Transitional provision, validations, and consequential amendments
Clause 84 allows certificates of exemption that are issued under section 22(1) prior to its repeal by clause 13 in respect of people under 16 years of age to remain in force, unless repealed by the Secretary in accordance with clause 84(2).
Clause 85 provides for the validity of the Authority's actions to be determined as if section 246, and the other provisions of Part 20, had referred to relevant schools, and not to secondary schools, at all material times.
Clause 86 provides that actions done under the Education Act 1989 or the Private Schools Conditional Integration Act 1975 are not invalid solely because of a defect or error in the processes relating to a change of proprietor of an integrated school.
Clause 87 amends the Privacy Act 1993 to add the New Zealand Teachers Council to the list of specified agencies in section 97 of that Act. Clause 87 also adds new section 128A of the Education Act 1989 to the item relating to that Act in Schedule 3 of the Privacy Act 1993. These amendments are consequential upon the insertion of new section 128A, which relates to information matching, into the Education Act 1989.
Regulatory impact statements
Matching of teacher registration information between Ministry of Education and New Zealand Teachers Council
This regulatory impact statement sets out a proposal to establish an authorised information-matching programme between the Teachers Council and the Ministry of Education (the Ministry) to enable effective identification of the registration status of teachers.
The key impacts of this proposal will be—
The information-matching programme carries no compliance or financial costs for schools.
This regulatory impact statement has been assessed as being adequate according to the objectives defined by Cabinet [Cabinet Office Circular CO (07) 3 refers, dated 3 April 2007].
Status quo and problem
Presently, because of different data collection requirements associated with teacher registration and payroll systems, neither the Teachers Council nor the Ministry is able to identify the registration status of a teacher and the name of the school where the teacher is teaching. This means that the Teachers Council cannot identify people who are teaching without a current practising certificate or authorisation, and the Teachers Council has difficulties in contacting registered teachers.
The purpose of Part 10 of the Education Act 1989 is to ensure that only those who have a current practising certificate or authorisation are employed in teaching positions in New Zealand schools and kindergartens. The reason for allowing only registered or authorised teachers in New Zealand classrooms is to ensure that the learning environment is safe and that it maximises students’ learning. In effect, the purpose of registration fails where non-registration is ignored.
Because some teachers move without notifying the Teachers Council of their new postal address, the Teachers Council has had difficulty trying to contact registered teachers. The Teachers Council needs to do this for the following reasons:
The Ministry also needs to identify which teachers are registered to honour collective agreement allowances. This currently involves time-consuming and costly manual identification processes.
New Zealand schools should comply with the Education Act 1989 and only employ teachers with a current practising certificate or authorisation.
The Teachers Council should rely upon a reliable and effective mechanism to enforce such compliance by monitoring teacher registration and tracking employment.
The Ministry should be able to easily identify the registration status of teachers for payment of allowances.
Identifying schools employing teachers without a current practising certificate or authorisation could be achieved by asking the Privacy Commissioner to issue a Code of Practice. However, considering that identifying teachers’ registration status by school potentially concerns individuals’ livelihoods, this matter is better dealt with through primary legislation.
In 2005, the Ministry asked schools to provide the registration numbers of teachers on the payroll so it could set up a database to determine teachers’ eligibility for collective agreement allowances. Poor levels and degrees of compliance resulted in inaccurate data. This experience, combined with the need to minimise compliance costs for schools, means that this is not a preferred option.
An authorised information-matching programme would allow the Teachers Council to identify schools employing teachers who do not hold a current practising certificate or authorisation. The programme would also allow the Ministry to streamline its presently inefficient method of determining a teacher’s registration status and correctly pay those allowances that are dependent on such status.
In December 2006, the Minister of Education indicated a preference for an authorised information-matching programme over the issuance of a Code of Practice.
The information-matching programme carries no compliance costs for schools or teachers. Financial savings will be made for both the Teachers Council and the Ministry if the information-matching programme is implemented. The money required to finance the development and ongoing administration associated with the new system will come from within department budgets.
The legislation stating that New Zealand schools may only employ in teaching positions those who have a current practising certificate or authorisation will not change as a result of this programme.
Legislation would be enacted to provide for an Authorised Information-Matching Programme. This would include—
The only new information about an individual that the Ministry will receive from the Teachers Council as a result of the information-matching programme is teacher registration information: registration status; registration number; and expiry date. The only new information about an individual that the Teachers Council will receive from the Ministry is the name of the school where the teacher is teaching. Risks regarding data security are addressed separately in detail in an information-matching privacy impact assessment document which has been provided to the Privacy Commissioner.
Risks and impacts
Impacts on school students, parents, and the community
Teachers who do not hold a current practising certificate or authorisation will be required to obtain them or leave their job. An unknown number of unqualified people may be required to demonstrate competence to be able to retain a teaching role.
Those individuals will also be required to go through the police vetting procedure that accompanies the process of gaining a practising certificate or authorisation. This will provide health and safety benefits for students while ensuring that all students are taught by suitably qualified teachers.
Impacts on the status of the teaching profession
That some teachers in schools do not hold a current practising certificate or authorisation undermines the status of the profession. A system that better enables enforcement of registration requirements will address this.
Public concern may arise if it is found that there have been significant numbers of teachers teaching without a current practising certificate or authorisation. This could be damaging to the status of the profession in the short term. Teachers Council intervention using the results of the information-matching programme would ensure that such a situation would not exist again, thus helping to allay any concerns that may arise.
Impacts on teachers, schools, and communities
There may be staffing impacts for some schools where teachers are employed who would not be able to gain a practising certificate or authorisation. Some schools may find it difficult to recruit suitably qualified teachers. Some schools may resent dismissing teachers who they deem competent, despite their lack of registration or qualifications.
Teachers and schools may be prosecuted as a result of the information-matching programme.
Teachers teaching without a current practising certificate or authorisation are breaking the law. The information-matching programme serves to reveal those teachers. The risks listed above are outweighed by the benefits to be gained from this programme—ie, an appropriately qualified, trained and registered workforce.
Implementation and review
The Ministry is ready to initiate the information-matching programme as soon as consent is granted.
A review of the programme will be conducted after 6 months and annually thereafter. Effectiveness will be evaluated against the objective of all teaching staff being registered.
When a school employing a teacher who does not hold a current practising certificate or authorisation is identified, the Teachers Council will write to the individual and the school alerting them to the non-compliance. As the information matching will be done on a fortnightly basis, this will enable a school and/or an individual to act on the information immediately. If, at the next fortnightly match, the situation is unchanged the Teachers Council will investigate to prosecute either a school or an individual.
Details about this information-matching programme will be included in information regarding teacher registration on the Teachers Council website. A similar statement will also be placed on teacher payroll forms which are published by the Ministry on the Payroll website.
This statement was developed in consultation with the New Zealand Teachers Council. The presidents of the major teacher unions—the New Zealand Education Institute and the Post-Primary Teachers Association—have been fully informed and support the information-matching programme.
Amending police vetting requirements for non-permanent non-teaching staff, contractors and volunteers in Early Childhood Education services and schools
The Education Act 1989 was amended in 2001 to provide minimum standards for the police vetting of non-teaching staff and contractors in schools and Early Childhood Education (ECE) services. These standards were introduced to prevent people with serious criminal records gaining access to children in these settings. They do not, however, provide sufficient protection for children, as—
they allow for some staff and contractors to have unsupervised access to children prior to a police vet being obtained; and
they do not apply to volunteers, who may have ongoing, unsupervised access to children.
They also place a heavy compliance burden on the education sector and on contractors.
The preferred option would introduce unsupervised access as the sole criterion for the police vetting of all non-teaching staff, contractors and volunteers. It would also remove the New Zealand Teachers Council as the conduit for police vetting for all non-teaching staff and contractors.
This Regulatory Impact Statement has been assessed as being adequate according to the objectives defined by Cabinet [Cabinet Office Circular CO (07) 3 refers, dated 3 April 2007].
Status quo and problem
The Education Act 1989 (the Act) currently requires schools and ECE services to obtain a police vet for—
all permanent non-teaching staff prior to appointment:
all non-permanent non-teaching staff within 2 weeks of appointment:
contractors and their staff, if they
“regularly work” at the school or the ECE service during operating hours, within 2 weeks of first starting work.
Schools and ECE services are also obliged under the Act to send requests for police vets to the New Zealand Teachers Council, which forwards any such requests on to the New Zealand Police.
The New Zealand Police provide a record of any convictions on the Law Enforcement System that have not been cleared by the Criminal Records (Clean Slate) Act 2004 and undertake an additional check for information of a sexual or violent nature that has not resulted in a conviction. The resulting information is then sent to the New Zealand Teachers Council, which forwards the original material to the job applicant and provides a copy of this to the school or ECE service that requested it.
Concerns have been raised by members of the schooling and ECE sectors, by contractors employed in both sectors, and by commentators such as the Children’s Commissioner about several aspects of the current system.
Firstly, there are safety concerns—
many people other than staff and contractors come into ECE centres and schools and have contact with children. This creates a significant safety risk if they have unsupervised access to children because there will have been no police vet:
a window of 2 weeks is provided for the police vetting of non-permanent staff and of contractors who
“regularly work” in a school or ECE service. This creates a safety risk in the intervening period before a police vet is obtained. By using regularity as the relevant threshold, rather than unsupervised access (in the case of contractors), it also overlooks the potential for a safety risk to arise through even occasional or one-off access to children.
There are also compliance concerns for schools, ECE services and contractors (which are generally small- to medium-sized businesses)—
the statutory role of the New Zealand Teachers Council in facilitating police vets is subsidised by user schools and ECE services, which incur a $10 fee per police vet. This is a needless cost, as the New Zealand Police is able to provide a police vetting service free of charge to all schools and ECE services:
all contractors who regularly work in a school or ECE service during operating hours are required to undergo a police vet, even though many would never have unsupervised access to children. This creates needless compliance costs for the schools and ECE services that employ these contractors. This is exacerbated by the lack of any definition in the Act for
“regularly”, which results in inconsistent and excessive police vetting:
there is no allowance in the Act for the recording or sharing of police vetting information between schools and ECE services. This means that contractors who work within multiple schools and/or ECE services are required to complete a new police vet for every school or ECE service, creating excessive compliance costs for all affected parties.
The status quo entails a low cost for the Crown but a high cost for schools, ECE services, contractors, the New Zealand Teachers Council and the New Zealand Police. The status quo also creates a potentially high risk for some children because of its failure to provide adequate safeguards.
To improve children’s safety.
To remove needless compliance costs for schools, ECE services and contractors.
To promote risk management strategies in schools and ECE services.
Non-regulatory option one: information campaign and centralised register
An information campaign could be used to improve safety by highlighting the importance of police vetting for all staff who have unsupervised access to children. The campaign could also reduce needless compliance by providing a clear, consistent message about what constitutes regular work (as it applies to contractors) under the Act.
In conjunction with this, the development of a centralised system for the copying and retention of completed police vets could assist in eliminating duplicate vetting. The apparent advantage of this approach would be eroded, however, through the increase in price that would be needed to cover the additional administrative costs that this option would create for the New Zealand Teachers Council. In this way, the option would merely replace existing compliance costs for schools and ECE services with new compliance costs.
Non-regulatory option two: development of a police vetting confirmation card
Option two considered the development of a police vetting confirmation card, which could confirm that an individual had successfully completed a police vet and allow for employment across the education sector. This could be renewable on a 3-yearly basis.
This system already operates in a number of other countries and would address safety concerns caused through delays in obtaining police vets. It would also reduce the compliance costs associated with duplicate vetting requirements. This option would not, however, address all safety and compliance concerns.
It would not prevent unsupervised access to children and would do nothing to encourage schools to develop a risk management process—indeed, reliance on a card as a proxy for
“safety” may encourage complacency in this area. This option would also introduce a new safety concern through the inherent risk of card fraud.
This option would also introduce new costs for schools and ECE services. Initial investigations suggest that the per-card cost may be $45, once all production and processing costs are taken into account. This cost is not likely to be offset through the reduction in the number of police vets most schools and ECE services would be required to obtain.
The preferred option is to—
“Unsupervised access to children” will mean
“Access to a child or children on the site of an ECE centre or school that is not overseen, or in any other way observed, or able to be directed if necessary, by a registered teacher, another member of staff with appropriate police clearance or, in the case of an individual child, the child’s parent/s.”
This would apply only when the ECE centre or school is open for instruction, which is consistent with the existing duty-of-care responsibilities of ECE managers and school boards of trustees.
Parents and others who act as volunteers will be affected by this amendment only if—
they assist on the ECE or school site during ECE or school hours; and
they can control and direct children because teachers or other (police vetted) school staff have no way of intervening in the event of danger to children caused by the volunteer.
In practice, it will be most likely to affect parents who have an ongoing voluntary position in the school, as schools will be able to avoid unsupervised access to children in most other situations.
Parents who act as volunteers will not be affected by this amendment if they assist with offsite activities or if they assist with activities on the ECE or school site outside of operating hours. In these circumstances, ECE managers and school boards of trustees will have their own risk management strategies to keep children safe.
The application of the proposed amendment to common scenarios is considered below.
|Parent affected|| ||Parent not affected|
|A parent who coaches children’s swimming on the school site, during school hours, with no teachers or other (police vetted) school staff in the vicinity of the swimming pool (reason: unsupervised access to children)|| ||A parent who helps another teacher to supervise children’s swimming on the school site, during school hours, with teachers present in the vicinity of the swimming pool (reason: access to children is not unsupervised)|
|A parent who supervises children’s reading in the school library during school hours, with no teachers or other (police vetted) school staff present (reason: unsupervised access to children)|| ||A parent who assists with a school camp (reason: offsite activity)|
| ||A parent who coaches after-school sports (reason: outside school hours)|
| ||A parent who drives students to a museum as part of a class trip (reason: offsite activity)|
|A parent who comes into a school to mentor small groups of students without teachers or other (police vetted) school staff present|| |
| ||A parent who leads a Bible in Schools class in a primary school (reason: outside school hours)|
| || |
This option is preferred as it will meet all the policy objectives without incurring the risks associated with the alternative options. It will have the following positive impacts:
it will provide a high level of safety, by removing the risk that some staff, contractors or volunteers with serious criminal records may have unsupervised access to children—whether on a one-off or ongoing basis:
it will significantly reduce compliance costs for schools, ECE services and contractors by avoiding needless police vetting (where contractors will have no unsupervised access to children) and the $10 cost this incurs, and by reducing the need for duplicate vetting:
it will promote risk management strategies in schools and ECE services by ensuring that the possibility of non-permanent staff, contractors and volunteers having unsupervised access to children is actively considered prior to appointment, and actively avoided where inessential.
This proposed amendment has been tested internationally (in the United States, England, Canada and Australia) and found to provide an effective safeguard for child safety.
There is a risk that this option may create some additional compliance costs for schools and ECE services by imposing a requirement that volunteers also be subject to police vetting. As there is no centrally-held data about the use of volunteers in schools and ECE services, it is not possible to quantify the impact of this new requirement. It is likely, however, to affect most schools and ECE services.
To minimise the risk of these additional compliance costs, a proposed amendment will allow the Minister of Education, by notice in the Gazette, to specify those agencies that are approved to undertake their own police vetting. This is likely to be particularly helpful in the case of large organisations that provide volunteer services to schools, and which are able to assume this responsibility for their own workforce.
The preferred option does not conflict with, or make redundant, any pre-existing regulations.
Implementation and review
General information will be sent to all schools to advise of the legislative change, which will be supported by new police vetting guidelines. The impact of the changes will be monitored through informal feedback with schools, ECE services and industry groups.
This Regulatory Impact Statement was prepared in consultation with the New Zealand Teachers Council, the New Zealand Police and the Office of the Privacy Commissioner. The following education sector organisations were provided with a copy of this statement and invited to provide their feedback: the New Zealand School Trustees’ Association, the New Zealand Principals’ Federation, the Secondary Principals’ Association of New Zealand, the Post-Primary Teachers’ Association (Secondary Principals’ Council), the New Zealand Educational Institute, Te Tari Puna Ora/New Zealand Childcare Association, New Zealand Kindergartens, Barnardos New Zealand, the Early Childhood Council, the Montessori Association of New Zealand, the Christian Early Childhood Education Association, the Hospital Play Specialists Association, the Federation of Rudolph Steiner Schools, the New Zealand Playcentre Federation and Te Kohanga Reo National Trust.
Changes to school attendance legislation
New Zealand currently has very low rates of engagement in schooling: truancy rates continue to rise and retention in schooling until age 16 remains low compared to other OECD member countries. While the legislative settings for school attendance are unlikely to drive engagement, they do influence the way that this may occur and may currently limit engagement in a number of ways. Changes to New Zealand’s school attendance legislation could signal, at the highest level, the possibilities for increasing student engagement in education.
The preferred option will enhance accountability for ensuring that school attendance occurs.
This regulatory impact statement has been assessed as being adequate according to the objectives defined by Cabinet [Cabinet Office Circular CO (07) 3 refers].
Status quo and problem
Most New Zealand students stay at school until at least the age of 16 and more are leaving school with qualifications than ever before, but it is clear that not all young people are engaged in learning. Retention in schooling until age 16 is lower today than in 1993, the year in which the school-leaving age was raised from 15 to 16, and is low by international comparisons. The number of students who are truant from school also continues to increase: approximately 24, 223 students were truant from school on any given day in 2004; in 2006, this number had risen to 29, 470. There is also a noticeable spike in truancy rates at the transition point from primary to secondary schooling—from 2.09% to 5.34%—revealing a general decline in engagement at this point. Combined, these statistics suggest that urgent action is needed to find new ways to engage all students in education; and particularly secondary-aged students.
While attendance is not the same as engagement, it is a prerequisite. Currently some of the provisions for school attendance in the Education Act 1989 (the Act) may limit engagement by providing only limited accountability for ensuring that student attendance occurs.
Limited accountability for ensuring that student attendance occurs
The Act shares the responsibility between 3 parties for ensuring that attendance occurs: parents, school boards of trustees and the Crown:
parents are required to enrol children in school between the ages of 6 and 16 and ensure that they regularly attend:
school boards of trustees are required to
“take all reasonable steps” to ensure the attendance of students, which may include the prosecution of parents where their children do not attend:
the Crown may prosecute parents where their children do not enrol in schooling.
Currently the lines of responsibility are clear but the means of giving effect to these are not.
To enhance accountability for ensuring that student attendance occurs.
Non-regulatory approach: promulgate
“best practice” advice
An information campaign could be used to promulgate best practice advice, highlighting the effective practices that schools have already developed to ensure student attendance. However, the Ministry of Education already promulgates best practice, but this has not been enough to reverse the trends in student retention.
Non-regulatory approach: develop funding incentives to encourage attendance
Tying schools’ public funding to student retention could provide a powerful incentive to boost student engagement in learning. Under this model, the funding would follow the student and where a student leaves school, the school would lose the funding. This approach is likely, however, to create significant negative externalities, as it may have the effect of penalising schools for student behaviour that is beyond their control. The
“punitive” effect of this approach is likely to impact on low-decile schools, in particular, which are disproportionately affected by truancy and early drop-out, and may compromise their viability. The costs of this approach are therefore likely to outweigh its possible benefits.
The preferred option is to amend the Act by enhancing accountability for ensuring that student attendance at school occurs, by—
specifying the minimum steps that a board of trustees must ensure are taken to ensure that student attendance occurs, to include—
monitoring all students’ attendance (either on or off the school site) and identifying patterns, including frequent truancy:
contacting parents on the first day that unexplained or unjustified absence is identified:
following up on all persistent unexplained or unjustified absence:
removing the Secretary for Education’s ability to provide early leaving exemptions to 15-year-old students.
This option is preferred as it will meet all the relevant policy objectives without incurring the risks associated with the alternative options.
Costs and benefits
Minimum steps to ensure attendance
The amendments seek to build on existing effective practice in schools and should overlap with this in most cases. For some schools, however, there will be new compliance costs associated with the requirements to take minimum steps to ensure attendance. These minimum steps will require schools to undertake new activities in some cases, including more detailed monitoring of attendance, more regular communication with parents and more routine interventions where absence is unjustified or unexplained. Of these activities, the requirement to contact parents on the first day that unexplained or unjustified absence is identified is likely to impose the greatest cost for schools.
The majority (at least 78%) of all schools already contact parents on the first day that unexplained or unjustified absence is identified, and only 10% wait 2 or more days to contact parents. This latter group of schools is most likely to comprise mid-decile full primary schools.
The total annual per-school cost to be $7,066 for those primary schools that already contact parents on the first day an absence is identified. This will represent a new cost for the 10% of primary schools that do not currently follow this practice. Correspondingly, however, the new requirement is likely to decrease the average truancy rates of the affected schools from 5.7% to an estimated 1.8%—resulting, in absolute terms, in an extra 5 100 students regularly attending school. So over time the cost per school would decrease. There will also be benefits for students and parents through enhanced student safety—particularly at the primary school level. While we cannot quantify these benefits, we expect them to be significant.
Early leaving exemptions
Removing early leaving exemptions is likely to reduce the number of students enrolling with education providers who cater for students under the age of 16. This will be compensated for by the increase in 16 to 18 year olds remaining engaged in education, skills, or structured learning under Schools Plus.
Since 2007 there has been a significant reduction in applications for exemptions as a result of the Ministry of Education tightening up on the criteria and application process and schools taking greater responsibility for meeting the needs of their students. For the period January to April 2007 there were 1 451 applications and for the same period in 2008 there were 326 applications.
The preferred option does not conflict with, or make redundant, any pre-existing legislation.
Implementation and review
General information on how to comply with all new requirements will be issued to schools when the amendments come into force. The impact of the legislative changes will be monitored through national student attendance, truancy and retention data.
The following schooling sector groups have been consulted on the content of this Regulatory Impact Statement: the New Zealand School Trustees’ Association, the New Zealand Principals’ Federation, the Secondary Principals’ Association of New Zealand and the New Zealand Secondary Principals’ Council.
Expansion of offence provisions in Part 25 of the Education Act 1989 relating to student allowances and loans
Part 25 of the Education Act 1989 (the Act) requires recipients of student allowances and loans, and third parties, to supply the Ministry of Social Development (the Ministry) with specific information required to assess student allowance and loan entitlements and provides offence provisions for when this does not occur.
The offence provisions associated with the above powers, however, are ineffective. This creates operational and enforcement difficulties for the Ministry in its assessment of correct student entitlements.
The proposal is that existing offence provisions be expanded to cover—
additional situations where false and misleading statements are made by students; and
students who refuse to provide required information; and students and third parties refusing to answer relevant questions during an investigation.
The amendments are necessary to act as a deterrent and to provide a sanction for those who make false or misleading statements or refuse to supply information required to assess student allowance and loan entitlements. The amendments will fix inconsistencies and gaps in the current legislation (which provides an offence for those who fail to advise of a change in circumstances but not for those who falsely advise of a change in circumstances, for example).
It is envisaged that use of the proposed offence provisions would be limited.
The Ministry, as lead government agency affected by the proposed amendments, has reviewed this Regulatory Impact Statement (RIS) and has determined it is adequate according to the criteria agreed by Cabinet. The Regulatory Impact Analysis Unit has not reviewed this RIS as the proposals will not have any significant potential impact on economic growth.
Status quo and problem
Section 307 of the Act requires recipients and third parties to supply specific information related to student allowance and loan entitlement.
The offence provisions as they currently stand are insufficient. The problem is discussed in detail below.
False statements made by students
Section 307AA(1) of the Act states that a person commits an offence against the Act who, in response to a requirement under section 307(3) or a question asked under section 307(4), knowingly—
Section 307AA(2) of the Act provides for a maximum penalty of up to 12 months imprisonment or a fine not exceeding $5,000 if a recipient of a student allowance or student loan knowingly fails to notify a change in circumstances, for the purpose of receiving or continuing to receive a payment to which they are not entitled.
Legal advice is that it is not an offence under section 307AA(1) or section 307AA(2) for a student to knowingly make a false declaration in an application for a student allowance or student loan or in a change in circumstances notification, as these provisions are overly narrow. Section 307AA(1) is only likely to apply in respect of students who make false or misleading statements, or provide false or misleading documents, in response to a requirement to provide information or particulars or in questioning during an investigation. Section 307AA(2) appears to only apply to students who fail to provide any particulars at all.
The current offence provisions then are insufficient with no apparent justification for the distinction between those types of misleading statements or failure to provide legally required information for which prosecution is provided for, and those for which it is not.
Refusal to provide relevant information
Section 307(3) of the Act provides that recipients of student allowance and loans may be required to provide papers, documents, etc and information and particulars, and section 307(4) for investigations of recipients’ circumstances. Section 307(5) provides that a person (whether or not a recipient) who is asked questions, during an investigation, under section 307(4) must answer those questions.
If a person refuses to comply with section 307(3) or answer questions under section 307(5), the Ministry can, under section 307(6), suspend a student allowance (but not a loan), or may refuse to grant a student allowance or a student loan. This provision is useful when a student or their parent fails to provide information or answer questions relevant to a student’s entitlement.
The above power, however, is insufficient if the Ministry needs information from a third party or it has some evidence that past entitlement has been based on inaccurate information and thus it should be seeking to establish and recover overpayments. Suspending or refusing to grant an allowance is unlikely to impact on a third party who has refused to answer statutorily authorised questions from the Ministry about a particular recipient’s entitlement. Similarly, the power to suspend a student’s allowance may be an ineffective sanction, if the student judges that the historical overpayments are higher than any future payments might be (in particular, when the recipient is no longer receiving a student allowance or loan).
Appropriate offence provisions are necessary to better ensure that the Ministry has the right information to calculate correct student allowance and loan entitlements. Offence provisions act as a deterrent as well as a punishment for an offence. The objective of these proposals is to further the above by correcting obvious gaps in the current legislation and helping to ensure that where overpayments have been made, overpayments are better enable to be established and recovered.
While there exists the option of utilising the offence provisions under the Crimes Act 1961 for students making fraudulent or misleading statements, this option is not generally appropriate because—
the maximum penalties for making fraudulent statements under the Crimes Act 1961 are significantly higher (3 years imprisonment under section 111 and 7 years under section 114) than the maximum penalty under the Education Act 1989 (12 months imprisonment) for a similar offence. Potentially this could also lead to a student providing false information receiving a significantly higher penalty than a beneficiary committing a similar offence and being penalised under the Social Security Act 1964 (maximum penalty 12 months imprisonment). This raises serious issues about proportionality:
prosecutions under the Crimes Act 1961 should be reserved for the most serious offending:
a 12 months penalty is likely to provide a sufficient deterrent against most such offending:
given that offence provisions already exist under the Education Act 1989, it makes sense to ensure that they are comprehensive and gaps in the legislation are plugged.
In relation to the refusal to provide relevant information, there are no viable alternatives that have been considered beyond adopting the enhanced offence provisions or retaining the inadequate status quo.
There could be some alternative amounts considered in substitution for the proposed offence penalty, ie, $2,000 or $5,000. These proposed amounts, however, mirror existing penalties in the Act, and similar offence provisions in the Social Security Act 1964, and there is no good reason for suggesting a departure from these sanctions.
The preferred option is to expand current offence provisions to plug the gaps that currently exist in the Act and to make the proposed sanctions consistent with similar provisions in other legislation.
Current compliance by recipients and third parties with requirements to provide information relating to student allowance and loan entitlement is already high. As with current offence provisions, it is envisaged that use of the proposed expansion of offence provisions would be limited, but are nevertheless required, both as a deterrent and to provide for punishment for those who may provide false information or refuse to provide information required to assess student allowance or loan entitlement. StudyLink refers approximately 80 cases annually to the Benefit Control Unit for consideration of prosecution, with resulting prosecutions totalling less than 30 a year. It is not expected that the proposed changes will lead to a significant increase in prosecutions over and above this number.
There are unlikely to be any additional compliance costs for business or for the general public arising from the proposals. Only those that do not supply information already legally required to assess student allowance and loans entitlement will be affected by the proposed expansion of offence provisions.
False statement made by students
Section 307AA(2) of the Act provides for a maximum penalty of up to 12 months imprisonment or a fine not exceeding $5,000 if a recipient of a student allowance or student loan knowingly fails to notify a change in circumstances, for the purpose of receiving or continuing to receive a payment to which they are not entitled.
The proposal will expand the coverage of section 307AA(2) so that a student allowance or student loan applicant (or recipient), who knowingly makes a false or misleading statement in an application, or in a notification of a change of circumstances, for the purpose of receiving or continuing to receive a payment to which they are not entitled, commits an offence and is liable to the same penalty referred to in the previous paragraph.
This proposal would make section 307AA(2) more consistent with section 127 of the Social Security Act 1964.
Refusal to supply information
The proposal will expand the current offence provisions in section 307AA(1) of the Education Act 1989 to include—
students who refuse to supply requested information required under section 307(3) to assess past entitlement to a student allowance or loan:
students who refuse to answer questions under section 307(4), during an investigation, required to assess past entitlement to a student allowance or loan:
third parties (including government departments) who refuse to answer questions, during an investigation, required to assess past or present entitlement to a student allowance or loan.
This expansion would make the student or third party liable for a fine not exceeding $2,000, consistent with that provided under section 11(3) of the Social Security Act 1964, where a person refuses to provide information required for benefit purposes.
Students will continue to be able to avail themselves of the privilege against self-incrimination under section 60 of the Evidence Act 2006. This section provides that the person cannot, under a statutory power or duty to provide information, be required to provide self-incriminating information and cannot be prosecuted for failing to provide it. Further, applications for student allowances and loans need not be proceeded with by the student and can be discontinued by them at any stage.
The proposed level of sanction varies as between those who refuse to supply information and those who actively make false or misleading statements to recognise the relative gravity of refusing to comply with an administrative request for information as against effectively committing fraud.
As flagged above, the proposed amendments will complement existing information gathering powers in the Act by filling legislative gaps that currently exist in the offence provisions in respect of those various requirements.
Implementation and review
The proposed amendments will be incorporated into the Education Act 1989 through the 2008 Education Amendment Bill. This Bill (with requested priority status 3) is expected to be introduced into the House in May 2008, with the proposed expansion of offence provisions effective from January 2009.
The Ministry (StudyLink) will not need to make any changes to existing publications as the proposed changes do not affect existing powers but rather bolster existing powers by providing effective sanctions. StudyLink is planning to advise major stakeholders of the proposed changes at its regular stakeholder meetings, once Cabinet agreement has been gained. These meetings will include student unions, as well as tertiary institutions.
As with current offence provisions, it is envisaged that use of the proposed, expanded offence provisions would be limited. StudyLink refers approximately 80 cases annually to the Benefit Control Unit for consideration of prosecution, resulting in fewer than 30 prosecutions a year. It is not expected that the proposed changes will lead to a significant increase in prosecutions over and above this number.
The Ministry of Education and the Ministry (including StudyLink) have been involved in the preparation of this RIS and the Cabinet paper attaching it. In addition, the Ministry of Justice, Housing New Zealand Corporation and the Department of Corrections have been consulted on both the RIS and Cabinet paper and have raised no objections. The Tertiary Education Commission has been informed and provided with a copy of the Cabinet paper.