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Homeschooling Laws

Acts

Education Laws

 

We are often asked "What does the law say about homeschooling?"

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 Australian legislation

  

ACT Education Act 2004

ACT Education Regulations 2005

 

NSW 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

 

New Zealand

New 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 school.

 

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 [1981] 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.

 

In Victoria. 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)

 

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