We are often asked "What does the law say about
The answer is education in Australia is a state responsibility
and each state has separate legislation in relation to homeschooling.
The legislation and regulations for each state may be
found at the following links.
General Index for all
Education Act 2004
Education Regulations 2005
Education Act 1990
NSW Education Regulations 2001
Victorian Education and Training Reform Act 2006
Victorian Education and Training Reform Regulations 2007
Queensland Education (General Provisions) Act 2006
Queensland Education (General Provisions) Regulations 2006
South Australia Education Act 1972
South Australia Education Regulations 1972
Northern Territory Education Act
Northern Territory Education (Board of Studies) Regulations
Western Australia School Education Act 1999
Western Australia School Education Regulations 1999
Tasmanian Education Act 1994
Tasmanian Education Regulations 2005
Zealand Education Act 1989
Commonwealth Welfare to Work legislation
Homeschooling families have reported difficulty with
Centrelink with the welfare to work legislation. Centrelink are requiring
families to be registered for homeschooling with the Education Departments in
the state in which they live. Many families have objections to registering and
cannot comply with their request. The welfare to work legislation does not
require registration as a condition, only that state laws are complied with.
Most states allow a reasonable excuse as an alternative to enrolling a child in
The Social Security Act 1991 requires the following
conditions to be met in exempting parents from looking for work.
5C� Home educators
A person is a home
educator of a child if the Secretary is satisfied that:
(a) the child is receiving,
in the person’s home, education that wholly or substantially replaces the
education that the child would otherwise receive by attending a school; and
(b) the person meets the requirements (if any) of the law of
the State or Territory in which the person resides that the person must meet in
order to be permitted, under the law of that State or Territory, to provide
that education to the child; and
(c) the person is suitably involved
in providing and supervising that education.
In 1990 the Christian Family School Association, a
homeschooling group, made a complaint to the Victorian Equal Opportunity Board
against the Public Transport Corporation in Victoria for failing to issue
student concession cards to homeschooled students who had not been approved to
be taught at home. The Equal
Opportunity Board is also an agent for the Commonwealth Human Rights Commission.. It was
argued that a religious belief was held by some parents that did not allow them
to be approved to teach their children. The Board made the following
observation in its decision.
Taking all the
evidence into account, even though the system adopted by the Public Transport
Corporation does cater for the majority of students in Victoria, the Board does
not find it is reasonable for the Public Transport Corporation to refuse to
consider alternative methods of proving that a child is a full—time
student even though he or she is not on the list approved by the Education
Department where the applicant provides alternative objective documentary proof
of the child’s status. Despite the fact that the Respondent clearly did
not intend to discriminate when they made a policy decision to only grant
concession cards to those students approved by the Ministry of Education, the
effect of this decision has been shown by the Complainant, Mr. Marett, to be
discriminatory in a case such as his where, because of his religious belief, he
cannot get Ministry of Education approval for his home—schooled children.
In this regard the Board took note of the reasons in the High Court decision of
Australian Iron & Steel Pty. Ltd. v Banovic &
Anor. (1989) EOC 92—271 in
regard to indirect discrimination resulting from a policy decision taken.
Parents experiencing difficulties with Centrelink
should make them aware of this decision and take along other documentary
evidence to demonstrate that they are homeschooling.
A full copy of the decision may be found at the
following link�� Victorian
Equal Opportunity Decision 1/1900
The Welfare to Work legislation involving
homeschooling can only be made to work if the states pass laws to register
homeschooling families, the Commonwealth does not have the constitutional
powers to pass laws relating to education. Section 51 of the Australian
Constitution limits the areas that laws may be made by the Commonwealth and
education is not on the list.
The High Court has passed comment on the
coercive powers of the Commonwealth to force the states to pass laws that the Commonwealth
cannot pass. This situation appears to exist in the recent changes to state
laws requiring registration of homeschoolers. In Victoria, for example, legislation was
rushed through parliament in the latter part of 2006 despite concerns of homeschooling
families being made to their local members of parliament and not having those
concerns addressed in parliamentary debate. The new Act then lay dormant until
it was proclaimed on the first day of the financial year on 1st July
2007. The timing appears unusual as changes brought in by the new act apply to
all aspects of education and it would have been more logical to have introduced
them at the beginning of the school year. The following High Court judgement
brings into question the validity of state legislation compulsorily requiring
registration of homeschoolers.
ATTORNEY-GENERAL (VICT.); EX REL. BLACK v. THE
COMMONWEALTH  HCA 2; (1981) 146 CLR 559 (2 February 1981)
10.� The question that next arises is
whether the Commonwealth can, by a condition of a grant made under s. 96, evade
the prohibition contained in s.116 of
the Constitution. That section is in the following terms:
"The Commonwealth shall not make any law for establishing any religion,
or for imposing any religious observance, or for prohibiting the free exercise
of any religion, and no religious test shall be required as a qualification for
any office or public trust under the Commonwealth."
The question is whether if the conditions
of a grant of financial assistance require the State to which the grant is made
to establish a religion within the meaning of that section, the Act by which the grant is authorized is invalid as
contrary to s.116. It is plain, as Deputy Federal Commissioner of Taxation
(N.S.W.) v. W.R. Moran Pty. Ltd. shows, that a condition may be imposed under
s. 96 for the purpose of persuading a State to do something which the
Commonwealth itself could not do. Pye v. Renshaw
(1951) 84 CLR 58 provides another example. The cases show that the Parliament
has wide power to fix the terms and conditions of a grant made under s. 96.
The Commonwealth (the Roads Case) (1926) 38 CLR, at p 406 , it was said that
the Federal Aid Roads Act 1926 was "plainly warranted by the provisions of
s. 96 of the Constitution, and not affected by those of s. 99 or any other
provision of the Constitution", and the statement that grants made under
s. 96 are not affected by any other provision of the Constitution was repeated
in Deputy Federal Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd.
(1939) 61 CLR, at pp 763, 771 . On the other hand, in Adelaide Company of Jehovah's Witnesses Inc.
v. The Commonwealth (1943) 67 CLR 116,
at p 123 , Latham C.J. said that s.116 "prevails
over and limits all provisions" (of the Constitution) "which give
power to make laws", and McTiernan J. (1943) 67
CLR, at p 156 said that the section
"imposes a restriction on all the legislative powers of Parliament".
I consider that the ordinary rules of
statutory construction should be applied, and that ss.
96 and 116 should be read together, the
result being that the Commonwealth has power to grant financial assistance to
any State on such terms and conditions as the Parliament thinks fit, provided
that a law passed for that purpose does not contravene s.116.
It is one thing to say that the
Parliament, by a condition imposed under s. 96, could achieve a result which it
lacks power to bring about by direct legislation, but quite another to say that
the Parliament can frame a condition for the purpose of evading an express
prohibition contained in the Constitution. As the Judicial Committee pointed
out in W.R. Moran Pty. Ltd. v. Deputy Federal Commissioner of Taxation (N.S.W.)
(1940) 63 CLR, at pp 346-347; (1940) AC, at pp 855, the powers given by s. 51
of the Constitution are expressly made "subject to this Constitution"
which includes s. 96. On the other hand, s. 116 is not expressed to be subject to the Constitution. Of course
the same is true of s. 99, but that section
speaks of "any law or regulation of trade, commerce or revenue" and a
law under s. 96 cannot properly be regarded as such a law: see Deputy Federal
Commissioner of Taxation (N.S.W.) v. W.R. Moran Pty. Ltd. (1939) 61 CLR, at p 775 .
However, whether or not the provisions of
s. 51 can be "completely disregarded" in deciding upon the validity
of a law made under s. 96 (as to which see W.R. Moran Pty. Ltd. v. Deputy
Federal Commissioner of Taxation (N.S.W.)) (1940) 63 CLR, at pp 349-350, I
consider that the Parliament, acting under s. 96, cannot pass a law which
conflicts with s.116.
To take an unlikely example, an Act which
granted money to a State on condition that the State would prohibit entirely
the exercise of a particular religion would, in my opinion, be a law for
prohibiting the free exercise of that religion, and would be invalid. (at p593)