Education Standards Authority Act 2013

The Act casts a wide net. Its primary addressees are the Authority itself, its Board, Chief Executive Officer, staff and inspectors. However, the practical impact radiates outward.

All schools—government, Catholic systemic and independent—are subject to the Authority’s curriculum, assessment, registration and accreditation functions (s 12(2)(a), (f)). Principals and teachers must comply with professional teaching standards developed by the Authority (s 12(2)(h)). Early childhood education centres fall within the accreditation and inspection regime via the Teacher Accreditation Act 2004 linkage (s 14(6)(c)). Providers of initial teacher education courses and continuing professional development must obtain approval (s 12(2)(b), (d)).

Parents and students are indirectly but materially affected: the quality of the curriculum, the rigour of HSC and RoSA credentials, and the standard of teaching they receive are all within the Authority’s remit. Overseas students and their education providers are expressly covered (s 12(2)(g)).

Teacher unions have guaranteed Board representation (s 6(2)(b)(ii)), as do the three school sectors, Aboriginal education, and various other stakeholder groups (s 6(2)(c)). Universities and vocational education providers are both regulated (through course approval) and represented on the Board.

The Minister exercises overarching control and direction except in relation to the content of advice, reports or recommendations, or functions under Part 8 of the Education Act 1990 (s 5). Relevant agencies (defined in s 16(5)) may enter information-sharing arrangements with the Authority.

Finally, any person who lodges an official document with the Minister or the Authority must not include false or misleading statements (s 17), and anyone on education premises must not obstruct an inspector (s 14(3)).

The Act creates a mixture of positive duties, discretionary powers and protective rights.

Duties

• The Board must determine general policies and strategic direction, oversee all functions (including financial), advise the Minister, and ensure decisions are made under its authority (s 7). Each Board member must exercise functions so as to promote the Authority’s objectives and the interests of students (s 6(4)).
• The Chief Executive Officer must manage day-to-day activities and report to the Minister when requested or when the CEO thinks fit (s 8(2)–(3)).
• Inspectors must exercise powers only for the statutory purposes listed in s 14(2).
• The Authority must maintain a charter (s 10(1)) and operate consistently with any annual Statement of Expectations issued by the Minister (s 10(2)).
• Money in the Fund that derives from teacher-accreditation fees may be used only for accreditation, monitoring, maintaining and developing teacher quality (s 15(3)).

Rights and powers

• The Authority may conduct reviews into any matter arising under the education and teaching legislation and compel information (s 12A).
• It may delegate functions (other than the power of delegation) to a wide class of authorised persons and bodies (s 12B).
• It may establish committees (with Ministerial approval) and those committees may establish subcommittees (s 12C–12D).
• Inspectors enjoy broad entry, inspection, copying and audit powers without notice (s 14).
• The Authority may enter information-sharing arrangements despite other secrecy laws (s 16(3)).
• It may accept gifts, devises or bequests and agree to conditions; the rule against perpetuities does not apply to such conditions (s 19).
• Board members, staff and persons acting under the Authority’s direction enjoy personal immunity for good-faith acts or omissions (s 18).

Procedural rights

• Appointed Board members have fixed terms (Schedule 1 cl 2), rights to remuneration (cl 4), and procedural protections before removal (cl 6).
• Natural justice is implicitly protected by the detailed conflict-of-interest rules in Schedule 1 cl 7.

The Act contains relatively few direct offence provisions, preferring to rely on the enforcement machinery of the Education Act 1990 and Teacher Accreditation Act 2004.

Two standalone offences appear:

• Obstructing or hindering an inspector (s 14(3)) — maximum 5 penalty units. The defence in s 14(4) requires the prosecutor to prove both identification and a warning.
• Making a false or misleading statement, or omitting material matter, in any official document given to the Minister or the Authority (s 17(1)) — maximum 50 penalty units. “Official document” is defined in s 17(2).

Penalty notices may be issued for any offence under the education and teaching legislation that is prescribed by regulation (s 23). The Fines Act 1996 applies. Proceedings are summary before the Local Court (s 22).

The Act’s main enforcement teeth lie in the registration, accreditation and approval regimes of the companion statutes. Non-compliance with Authority standards can result in refusal or cancellation of school registration, teacher accreditation or course approval. The inspector’s audit and document-removal powers (s 14) supply the evidentiary foundation for such action.

The Act is deliberately embedded in a legislative ecosystem. The definition of “education and teaching legislation” in s 3(1) ties it to the Education Act 1990 and the Teacher Accreditation Act 2004. Functions listed in s 12(2) are largely exercised under those Acts.

Ministerial direction is excluded in respect of Part 8 of the Education Act 1990 (school registration and accreditation) and the content of advice or reports (s 5). The Quality Teaching Committee established under the Teacher Accreditation Act 2004 is automatically a committee of the Board (s 3(1)).

Public sector rules are imported: staff are employed under the Government Sector Employment Act 2013 (ss 8 and 9), the Fund is managed under the Government Sector Finance Act 2018 (s 15(3)–(4)), and the Interpretation Act 1987 applies (note to s 3(1)).

Information sharing overrides other secrecy obligations (s 16(3)), but does not limit s 83S of the Education Act 1990 or s 18(3) of the Teacher Accreditation Act 2004. Service rules in s 20 supplement, but do not displace, court rules or other statutory methods.

Schedule 1 cl 8 disapplies certain public-sector employment restrictions so that Board members may hold other offices. The rule against perpetuities is disapplied for conditional gifts (s 19(3)).

Transitional provisions in Schedule 2 expressly dissolve the former Board of Studies and NSW Institute of Teachers, transfer their assets and staff, and convert references in other instruments to the new Authority.

The most significant amendments were made by the Education and Teaching Legislation Amendment Act 2016 (No 50). That Act substituted an entirely new Part 2, renamed the body from “Board of Studies, Teaching and Educational Standards” to “NSW Education Standards Authority”, reconstituted the Board with a smaller core of appointed members plus sectoral representatives (s 6), introduced the statutory charter and Statement of Expectations (s 10), elevated the principal objectives to a new s 11, expanded the review power (s 12A), clarified delegation and committee rules (ss 12B–12D), and updated the Fund and information-sharing provisions.

The changes responded to a perception that the pre-2016 structure was overly bureaucratic and insufficiently focused on strategic leadership and evidence-based policy. The 2016 reforms emphasised “improving student learning while maintaining flexibility” (s 11(1)(c)) and required the Board to include persons with “business acumen and strategic advisory skills” (s 6(2)(c)). Subsequent minor amendments have aligned the Act with the Government Sector Finance Act 2018 (ss 10(3), 15(4)) and refined inspector powers (2021 amendments to s 14).

The review clause (s 26) required a statutory review after five years; that obligation has been discharged, although the Act itself remains in force without wholesale replacement.

The source text contains no reference to decided cases. The Act’s drafting appears designed to minimise litigation. Section 18 confers broad good-faith immunity on Board members, staff and delegates. The exclusion of Ministerial direction over advice and reports (s 5) and over Part 8 Education Act 1990 functions reduces the scope for judicial review of policy content. The requirement that Board members act in the interests of students (s 6(4)) and the conflict-of-interest rules (Schedule 1 cl 7) provide internal checks.

Controversies that have arisen in practice have tended to concern the exercise of functions under the companion legislation rather than the constitution of the Authority itself. Issues around curriculum content, HSC scaling, teacher accreditation standards and the rigour of school registration inspections have generated public and parliamentary debate, but these are not challenges to the Act. The absence of reported decisions construing core provisions such as the inspector powers in s 14 or the delegation rules in s 12B suggests that the legislation has operated largely as intended, with disputes resolved through administrative or political channels rather than litigation.

Most practitioners assume the Authority’s powers are purely recommendatory. That is incorrect. Once a function is engaged under the Education Act 1990 or Teacher Accreditation Act 2004, the Authority’s decision is the operative regulatory act—refusal of registration, cancellation of accreditation, or withdrawal of course approval carries immediate legal consequences.

The “without notice” inspection power in s 14(2A) is wider than many school principals realise. Because “education premises” includes proposed non-government schools that have merely applied for registration, an inspector may lawfully attend and audit a new school’s premises before it has opened.

Board members’ duty under s 6(4) to “exercise his or her functions as a member in a manner that promotes the objectives of the Authority and the interests of students” creates a statutory fiduciary-like obligation that sits above ordinary conflict-of-interest rules. A member who votes according to sectoral interest rather than student interest may breach the Act even if pecuniary conflict is absent.

The ring-fencing of teacher-accreditation fees in s 15(3) is absolute. Money paid under the Teacher Accreditation Act 2004 cannot be used for general curriculum development or basic skills testing. Compliance officers sometimes discover that internal cost allocations have inadvertently mixed the streams, exposing the Authority to audit criticism.

Finally, the delegation power (s 12B) excludes only “this power of delegation”. All other functions under the three Acts may be delegated to a committee that itself contains non-Board members (s 12C(3)). The practical effect is that significant regulatory decisions can be made by persons who have never been appointed by the Minister, provided the Board has approved the committee.

Schools and early childhood centres should maintain an up-to-date register of all Authority requirements (curriculum, assessment, professional development, child-protection clearances) and map them to the relevant sections of the three Acts. Policies should explicitly reference the Authority’s professional teaching standards (s 12(2)(h)).

Providers seeking course approval or schools seeking registration must ensure all official documents are accurate; the strict-liability flavour of s 17 means even careless omissions can attract 50 penalty units.

When an inspector attends, the principal should immediately ask for identification and record the warning given under s 14(4). Documents may be copied or removed; a receipt should be requested and a privileged or confidential marking applied where appropriate. Legal advice should be obtained before any challenge to the inspector’s purpose, given the breadth of s 14(2).

Board members and senior executives must understand the interplay between the charter (s 10(1)), the annual Statement of Expectations (s 10(2)) and the principal objectives in s 11. Annual board agendas should expressly address evidence-based improvement and sectoral flexibility.

Organisations entering information-sharing arrangements under s 16 should draft memoranda that limit data use to the statutory purposes listed in s 16(2) and include reciprocal privacy safeguards.

Finally, any person authorised to issue penalty notices under s 23 must be formally delegated in writing by the Authority. Because the Fines Act 1996 regime applies, procedural fairness in the underlying offence must still be observed even though the notice itself is an administrative shortcut.

Compliance is best achieved by treating the Authority not as an external regulator but as the statutory steward of the entire school-education ecosystem. Regular horizon scanning of the Authority’s website, rules made under s 25, and updates to the three linked Acts is essential.