Education Act 1990

The Act casts a wide net. Parents (defined in s 3 to include guardians and anyone with custody or care) bear the primary duty to ensure attendance or registration for home schooling (s 22). They may object to special religious education (s 33), seek certificates of exemption (s 25), and participate in conferences and undertakings under Part 5. Failure to discharge the duty can result in fines, community service orders or compulsory schooling orders enforceable by the Children’s Court.

Students of compulsory school-age are both beneficiaries and subjects of the Act. They are entitled to free secular instruction in government schools (s 31) and to enrol at the government school serving their intake area (s 34(2)). They may be subject to enrolment or non-attendance directions if their behaviour poses a health or safety risk (ss 26H, 26HA). Candidates for the RoSA and HSC must complete approved courses and assessments; those with disabilities may follow modified pathways (s 95A).

Government schools and their principals must keep enrolment and attendance registers (s 24), implement the minimum curriculum, maintain safe environments, and comply with additional Ministerial requirements (s 17). Principals may require proof of eligibility for enrolment (s 34A) and must display certificates of registration where applicable.

Non-government schools, their proprietors, responsible persons and approved system authorities are heavily regulated. They must satisfy the 12 registration criteria in s 47(1), including financial viability, fit-and-proper-person tests, governance policies, child-protection compliance and not-for-profit operation. Only registered schools may operate; only accredited schools may present candidates for the RoSA or HSC. Funding is conditional on not operating for profit (s 83C) and on compliance with annual reporting obligations.

The Minister and the Secretary exercise broad policy, establishment, registration, funding and enforcement powers. The Minister may close government schools after a statutory review process (s 28), grant or refuse registration and accreditation, issue non-attendance directions, and make for-profit or non-compliance declarations on the advice of the Non-Government Schools Not-for-profit Advisory Committee (ss 83D–83F).

The Authority (NSW Education Standards Authority) develops syllabuses, monitors compliance, accredits non-government schools, grants awards, conducts basic skills testing, and advises the Minister (s 20A). It also approves providers of courses to overseas students (Part 7A).

Other bodies—TAFE establishments, public health organisations, the NSW Police Force, and the Department of Communities and Justice—may be required to supply information for attendance or risk-assessment purposes (ss 22A, 26C–26D). Overseas students and their providers are subject to fee and approval regimes (s 31A, Part 7A).

In summary, the Act directly shapes the legal environment of every child, parent, school and education administrator in the State.

Duties are distributed asymmetrically. Parents owe the core compulsory-schooling duty (s 22(1)). The State owes a duty to ensure every child receives an education of the highest quality and to provide public education as its principal responsibility (s 4(c)–(d)). Government schools must deliver free secular instruction (ss 30–31) and maintain registers (s 24). Non-government schools must satisfy the detailed registration criteria in s 47(1) and, if accredited, the curriculum requirements in ss 8–12. The Authority must arrange basic skills testing (s 18(2)), monitor compliance, and grant awards only when statutory conditions are met (ss 94–95). Responsible persons for non-government schools must ensure governance, child-protection and not-for-profit compliance (s 47(1)(b1), (g)).

Rights are expressed both positively and defensively. Every child has a right to receive an education (s 4(a)). Parents have the right to choose government, registered non-government or home schooling, to object to special religious education (s 33), and to seek exemptions (ss 25–26). Students unable to attend for medical or other reasons enjoy statutory defences to prosecution (s 23(2)–(3)). Non-government schools have a right to apply for registration and accreditation and to procedural fairness before adverse recommendations (ss 50, 55, 88, 91 and Part 10). The Act also confers rights to information: parents must be consulted during risk assessments (s 26E) and may obtain transcripts of study (s 98).

The interplay between duty and right is most visible in the enforcement cascade. A parent who breaches the s 22 duty commits an offence (s 23), but enjoys a long list of defences including medical certificates, distance education, approved alternative programs, and independent living by the child. If a compulsory schooling order is made, the maximum penalty rises to 100 penalty units and the Secretary may enrol the child directly (s 22D(9)).

The Act deploys a graduated enforcement pyramid. At the base are administrative measures: information requests (s 22A), undertakings (s 22B), conferences (s 22C) and compulsory schooling orders (s 22D). Breach of an order escalates the offence under s 23 to 100 penalty units for a parent and creates a separate offence for a child over 15 (1 penalty unit, no conviction recorded).

Principal offences carry modest but cumulative penalties. Conducting an unregistered school attracts 5 penalty units plus 5 penalty units per day (s 65). Failing to keep or produce an attendance register attracts 5 penalty units (s 24(5)). Not notifying parents when a school’s registration or accreditation is reduced or cancelled carries the same penalty (ss 57A(5), 87A(5)). Publishing school results in breach of s 18A(4) attracts 50 penalty units for an individual and 500 for a corporation.

Part 5A adds civil directions rather than criminal sanctions. An enrolment direction (s 26H) or non-attendance direction (s 26HA) is enforceable by the Secretary or Minister; breach may trigger further risk assessment or funding sanctions. For non-government schools, the ultimate sanctions are cancellation of registration (s 59), cancellation of accreditation (s 91), or termination of financial assistance after a for-profit or non-compliance declaration (ss 83D–83J). The Minister may recover wrongly paid funding as a debt (s 83J).

Procedural safeguards are substantial. Recommendations to refuse, reduce or cancel registration or accreditation must be notified to the school; the school may seek administrative review by the Civil and Administrative Tribunal (Part 10). The Tribunal may confirm, vary or substitute its own recommendation to the Minister. Ministerial decisions on non-attendance directions for longer than 20 days in a 12-month period are also reviewable (s 107(1)(i)).

The Act is deliberately knitted into a wider statutory web. Section 3(1) expressly incorporates definitions from the Interpretation Act 1987 and cross-references the Education Standards Authority Act 2013 (for the constitution and rules of the Authority), the Teacher Accreditation Act 2004, the Children and Young Persons (Care and Protection) Act 1998, the Public Health Act 2010, the Child Protection (Working with Children) Act 2012, the Children’s Guardian Act 2019, and Commonwealth migration and vocational-education legislation.

Information-sharing provisions override privacy legislation but remain subject to client legal privilege and specific health and child-protection confidentiality clauses (ss 22A(5), 26F(2)). Part 5A’s risk-assessment regime interacts with the Government Information (Public Access) Act 2009 by prohibiting disclosure of certain student information except to the student, parent or enrolling school (s 26B(2)).

Financial-assistance rules in Division 3 of Part 7 engage the Australian Education Act 2013 (Cth). Section 83BA creates a statutory debt-recovery mechanism for Commonwealth overpayments that the State must recoup from the relevant approved authority. Not-for-profit requirements mirror but are not identical to Commonwealth and taxation-office tests; the Minister may issue guidelines (s 83L) that schools must follow (s 83M).

Curriculum and award provisions intersect with the Higher Education Act 2001 and the National Vocational Education and Training Regulator Act 2011 (Cth) when students move into tertiary pathways. Discipline and suspension powers (s 35) must be exercised consistently with the Anti-Discrimination Act 1977 and procedural-fairness doctrine.

The Act itself disclaims creation of private causes of action (s 127) and contains a supremacy clause for school-results publication (s 18A(8)). Court challenges are channelled through the Civil and Administrative Tribunal for most registration and accreditation decisions (Part 10) and through the Children’s Court for compulsory schooling orders.

The Act has been amended more than 30 times since 1990. Three clusters are particularly significant.

The Education Amendment (School Attendance) Act 2009 raised the leaving age from 15 to the completion of Year 10 or 17 (whichever first), introduced the participation requirement in approved education, training or paid work, and created the graduated enforcement regime in ss 22A–22D. The change reflected national policy to increase retention rates and reduce youth unemployment.

The Education Amendment (Publication of School Results) Act 2009 inserted s 18A after controversy over league tables. It prohibits publication of school rankings except in limited circumstances, protects individual student privacy, and authorises national reporting under agreements with the Commonwealth. The provision was a direct legislative response to media practices that the Parliament considered educationally harmful.

The Education Amendment (Not-for-profit Non-Government School Funding) Act 2014 added Division 3 of Part 7. It prohibits funding to schools that operate for profit (s 83C), creates a statutory Advisory Committee, allows for-profit and non-compliance declarations, and authorises recovery of wrongly paid funds. The reforms followed a highly publicised audit of a large Islamic school that was found to have made substantial payments to related entities. The changes ensure public money supports only genuine not-for-profit providers and give the Minister transparent, reviewable powers to protect the integrity of the funding stream.

The Education and Teaching Legislation Amendment Act 2016 strengthened registration criteria (s 47), introduced s 53A (conditions of registration), and aligned government-school monitoring with non-government standards (s 27A). These amendments responded to audit findings that some registered schools were not meeting minimum curriculum or safety requirements.

Each wave of reform has been driven by a mix of national agreements, public scandals, and evidence that existing provisions were insufficient to guarantee quality, equity or fiscal responsibility.

Because most registration, accreditation and funding decisions are reviewable by the Civil and Administrative Tribunal rather than the Supreme Court, reported case law is sparse. Nevertheless several themes emerge from Tribunal and court decisions.

First, the fit-and-proper-person test in s 47(1)(b) has been litigated where proprietors have prior regulatory breaches or criminal convictions. The Tribunal has emphasised that the test is protective, not punitive, and looks to future risk rather than past guilt alone.

Second, procedural fairness challenges have succeeded where schools were not given adequate notice of adverse material or an opportunity to respond before a recommendation to cancel registration. The statutory scheme in ss 50–51, 55–56 and Part 10 is designed to meet those requirements; failure to follow it renders the Minister’s ultimate decision vulnerable.

Third, the non-attendance direction regime in s 26HA has generated controversy. Critics argue the power is too broad, especially the terrorism-related limb, and that the Minister’s ability to withhold reasons on public-interest grounds (s 108(4)) offends natural justice. No reported superior-court challenge has yet settled the boundaries, but the internal-review mechanism in s 26KA and Tribunal review for directions longer than 20 days provide statutory safeguards.

Fourth, the not-for-profit amendments have been controversial within the non-government sector. Some schools argue the test in s 83C is stricter than the Commonwealth test and creates compliance uncertainty. The Advisory Committee’s role has been criticised as insufficiently independent. The Minister’s power to recover past funding (s 83J) has raised retrospectivity concerns, although the transitional provisions in Schedule 3, clause 30 make clear that pre-2014 conduct is judged under the former s 21A.

Finally, the prohibition on corporal punishment (ss 47(1)(h), 35(2A)) has been upheld against religious-freedom arguments in the Tribunal. The statutory language is absolute; no exception is available for schools whose philosophy otherwise permits it.

Most practitioners miss three recurring traps.

First, provisional registration is not a rubber stamp. Section 52 allows initial registration for a maximum of 12 months. If the Authority is not satisfied that the s 47 criteria are being met, it may issue a notice requiring remedial action; failure can lead to a reduction of the registration period under s 57A. Many proprietors assume registration once granted will run for five years. The Act expressly contemplates staged compliance.

Second, the not-for-profit test looks through corporate structures. Section 83C(2)(b) catches payments to related entities for goods or services above reasonable market value or not required for the operation of the school. A school that leases premises from a related property trust at above-market rent, or pays management fees without transparent cost allocation, risks a for-profit declaration even if it is technically a charity. The guidelines issued under s 83L are lengthy and prescriptive; failure to maintain the records they require is itself evidence of non-compliance.

Third, home-schooling registration is conditional, not absolute. A certificate of registration for home schooling (s 72) is granted only if the Minister is satisfied the child will receive instruction meeting the minimum curriculum. The conditions may require periodic inspection, submission of work samples and attendance at assessment days. Breach of any condition allows cancellation after notice and Tribunal review (s 74). Parents who treat registration as a complete exit from the system are often surprised when the registration is revoked and a compulsory schooling order follows.

A fourth, less obvious gotcha concerns overseas students. Section 31A allows the Secretary to set fees and to terminate enrolment for non-payment. Because the provision overrides the Anti-Discrimination Act 1977, schools may lawfully charge overseas students higher fees. However, once an overseas student is enrolled in a government school, the full suite of attendance and discipline rules applies; the school cannot simply “send them back” without following procedural fairness and, where relevant, visa-reporting obligations under Commonwealth law.

Compliance begins with mapping the school’s obligations against the registration criteria in s 47(1). A practical checklist includes:

• Governance: Ensure the proprietor is a corporation or approved legal entity; all responsible persons (directors, governing-body members, principal) satisfy the fit-and-proper test. Maintain policies on child protection, discipline (expressly banning corporal punishment), complaints, and annual public reporting of educational and financial performance.

• Curriculum: Map every year’s program against the Authority syllabuses and guidelines. For non-government schools, obtain Ministerial approval for any modifications based on religious or philosophical outlook (ss 8(3), 10(3)). Keep evidence that courses are delivered by appropriately qualified staff and that facilities are adequate.

• Attendance and welfare: Keep an approved register (s 24). Have systems to identify unexplained absences within three days and to issue medical-certificate reminders. For students at risk, prepare for possible compulsory schooling conferences and orders. If the school boards students, maintain separate safety and welfare policies (s 47(1)(i)).

• Not-for-profit: Implement the financial controls required by the s 83L guidelines. Ensure all payments to related entities are at or below reasonable market value, supported by independent valuations, and that no private benefit flows to responsible persons except reimbursement of genuine school expenses. Retain records for at least seven years.

• Overseas students: If the school wishes to enrol fee-paying overseas students, obtain Authority approval under Part 7A before advertising or enrolling. Comply with the Education Services for Overseas Students Act 2000 (Cth) and the National Code.

• Awards: For RoSA and HSC candidates, follow the Authority’s assessment and certification rules to the letter. Document all decisions on special provisions (s 96) and maintain records that will withstand audit.

• Risk management: Train staff on Part 5A information-sharing protocols. If a student’s behaviour raises a serious violent-conduct or terrorism risk, follow the guidelines before seeking a non-attendance direction. Understand that the Minister may withhold reasons on public-interest grounds.

Annual compliance audits, engagement with the Authority’s monitoring program, and prompt response to any s 55 or s 57 notice are the best defences against reduction or cancellation of registration. Schools that treat the Act as a checklist rather than a living regulatory framework quickly find themselves on the wrong side of a Tribunal recommendation or Ministerial declaration.