Circular 1999/02 - Implementation of Education Amendment Act (No 2) 1998

Date: 19 February 1999
Circular Number: 1999/02
Category: Miscellaneous

Implementation of Education Amendment Act (No 2) 1998

This circular is about: Actions to be taken by boards of trustees and principals to implement changes resulting from the Education Amendment Act (No 2) 1998:

• Enrolment schemes
• Suspensions and expulsions
• Amendments on a range of other educational issues

The action required is: Actions for boards of trustees and principals are noted at the beginning of each section.

It is intended for: Board chairpersons and principals in all state, state-integrated and registered private schools.

For further information: Contact your local Ministry of Education office.

Introduction

This circular outlines the major sections of the Education Amendment Act (No. 2) 19998 which came into force on 19 December 1998. The Act significantly amends some provisions of the Education Act 1964, the Education Lands Act 1949, and many provisions of the Education Act 1989 and the Private Schools Conditional Integration Act 1975.

In this circular:

• "the board(s)" means board(s) of trustees
• "the Secretary" means Secretary for Education
• "the ministry" means the Ministry of Education.

The amendments contained in the Act principally relate to three major educational issues:

• enrolment schemes
• suspensions and expulsions
• curriculum

The Act also contains amendments on a range of other educational issues, many of which are technical in nature. These amendments have generally come about because earlier provisions have either become outdated or proved inadequate when put into practice.

Please note carefully:

• These amendments to the education laws are significant.
• The ministry recommends that school trustees and principals read the following information carefully and consider the implications for their operations.
• 'Actions required by boards' have been summarised at the beginning of each section.

This circular also includes a brief commentary on amendments to the Private Schools Conditional Integration Act 1975.

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Enrolment schemes

The new legislation replaces sections 11A-11K and 12B in the previous legislation. It introduces new requirements for boards and gives an increased role to the Secretary for Education.

This legislation applies to all state schools, including schools that have previously been exempt, specifically:

• integrated schools
• designated character schools
• Kura Kaupapa Māori.

Neither the application of enrolment scheme principles nor the provisions for the Secretary's role can be applied in a way that is inconsistent with the charters of designated character schools or Kura Kaupapa Māori, or the integration agreements of integrated schools.

Action required by boards

Boards who current have enrolment schemes

Boards are not required to take any action until further notice from the ministry. In the meantime, all current schemes will continue to apply.

The ministry is consulting with national organisations on implementation issues relating to enrolment schemes and will shortly supply boards with detailed guidelines to help them develop schemes that comply with the new legal requirements.

Boards will then need to examine their current schemes, making any necessary amendments to ensure they comply with the new legislation. Having done this, boards will need to undertake appropriate consultation and submit their schemes to the Ministry of Education for approval. Some schools may, in fact, no longer need a scheme.

Once the new schemes are ready, a Governor-General's Order in Council will specify the date the old schemes will go out of existence and the new schemes come into operation.

Boards who do not currently have enrolment schemes

Boards who do not currently have enrolment schemes should familiarise themselves with the new legislation in the possible event of:

• need to adopt an enrolment scheme in the future
• being affected by another school wishing to adopt or amend an enrolment scheme.

Major features of the new legislation related to enrolment schemes

Purpose of enrolment schemes

The purpose of enrolment schemes is to:

• avoid overcrowding or the likelihood of overcrowding of schools
• enable the Secretary for Education to make reasonable use of the existing network of schools.

Principles of enrolment schemes

When developing, adopting, amending and implementing an enrolment scheme, boards of trustees must, as far as they can, ensure that the scheme:

1. excludes no more prospective students than is necessary to avoid overcrowding or the likelihood of overcrowding
2. reflects the desirability of students being able to attend a reasonably convenient school
3. enables the Secretary to make reasonable use of the existing network of schools, by taking into account the location and capacity of other schools that are reasonably convenient for students in the general area served by the school
4. enables students to attend a school of their choice to the extent that is reasonable and practical to do so without detracting from the principles above.

'Reasonably convenient'

Please note in particular the need for a student to be able 'to attend a reasonably convenient school'. This is a new requirement. The term 'reasonably convenient school' means a school that a reasonable person living in the area in which the school is situated would judge to be reasonably convenient for a particular student. This consideration takes into account such factors as:

• distance
• time likely to be spent in travel
• available modes of travel
• common public transport routes
• relevant traffic hazards
• age of student
• type of school, eg single sex or co-educational; a contributing primary, full primary, intermediate, secondary, composite or area school.

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Role of the Secretary for Education in development and maintaining enrolment schemes

The Secretary will:

• determine whether there is, or is likely to be, overcrowding at the school unless an enrolment scheme applies and inform the board in writing
• approve the enrolment scheme if satisfied that:
• the scheme complies with the purposes and principles set out in the Act
• the board has complied with the consultation requirements set out in the Act
• issue guidelines that:
• help boards in the development and implementation of enrolment schemes
• describe how the Secretary's powers will be exercised.

In addition, the Secretary may:

5. appoint a facilitator to help resolve a dispute between boards over an enrolment scheme or a proposed enrolment scheme
6. bring an unresolved dispute between boards to an end by requiring one or more boards to amend an enrolment scheme or proposed enrolment scheme
7. require a board to amend its enrolment scheme or proposed enrolment scheme where there is a disagreement between the Secretary and the board about the content
8. require a board to abandon its enrolment scheme if satisfied that there will not be, or is not likely to be, overcrowding at the school as a result.
9. Much of this legislation is new. In particular, boards should be aware of the Secretary's power to:
• issue guidelines to help boards in developing and implementing schemes
• approve a school's enrolment scheme
• require a board to abandon an enrolment scheme if it is no longer needed to prevent overcrowding.

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Procedures a board must follow in developing and adopting a scheme

1. Consultation
   When developing a proposed enrolment scheme, a board must take all reasonable steps to discover and consider the views of people and organisations it considers appropriate. In particular, it must discover and consider the views of:
   • the parents of students at the school
   • the community in the general area served by the school
   • the boards of other schools that could be affected by the proposed scheme.
   The board of an integrated school must also consult with the proprietor. Boards of designated character schools and Kura Kaupapa Māori must also consult with those people and organisations that the board believes have an interest in fostering the aims, purposes and objectives that constitute the school's different character.
2. Population movements
   Besides complying with the purposes and principles of enrolment schemes, a board must also make provision for the likely population movements in the general area served by the school that may occur during the school year or after the end of the pre-enrolment period.
3. Public notification
   As soon as practicable after adopting an enrolment scheme, a board must publish a notice of the nature and effect of the enrolment scheme in a daily or community paper that circulates in the area served by the school.
4. Availability
   A board that has adopted an enrolment scheme must ensure that a copy of the scheme is available for inspection at the school at all reasonable times.
5. Pre-enrolment
   A board may apply the pre-enrolment procedures contained in the enrolment scheme at any time after the public notification of the scheme in a newspaper, even if the scheme has not yet commenced.

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Procedures a board must follow in amending a scheme

All requirements related to the development and adoption of an enrolment scheme also apply to the development and adoption of any amendment to the scheme.

Procedures a board must follow in abandoning a scheme

A scheme may be abandoned at any time by a board on its own initiative. It may also be abandoned at the next board meeting after receiving a written notice from the Secretary requiring it to abandon the scheme.

When a board abandons an enrolment scheme, it must:

• notify the Secretary of the date the scheme ended or will end
• publish in a daily or community newspaper that circulates in the area served by the school, a notice of the date the scheme ended or will end.

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Rejection of student enrolment applications

A board may reject a student enrolment application only under the conditions outlined in its enrolment scheme. In particular, it may reject:

• an application for pre-enrolment only in accordance with a scheme that has been notified in a newspaper before receipt of the application
• an application for enrolment only in accordance with a scheme that commenced on or before the date the application was received.

If a board declines an application for enrolment or pre-enrolment, it must give written notice of the decision to the parents of the applicant, and to the applicant if age and maturity warrant.

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Directed enrolment

The Secretary may direct a board to enrol an applicant whose application has been declined under an enrolment scheme, where the interests of the particular student justify such action. Consultation must occur with the student's parents, the relevant board and the student, if age and maturity warrant, before a direction to enrol the applicant is given. The board must comply with the direction.

The Secretary may not give such a direction unless satisfied that the consequences of not doing so would be:

• that the person is not able to attend any reasonably convenient school of the appropriate class
• so disadvantageous to the person that overriding the enrolment scheme in this case is justified.

The Secretary may not direct the board of a Kura Kaupapa Māori, a designated character school, or an integrated school, to enrol a student unless the parents of the student agree, and the student is suitable for enrolment, considering the special character of that school.

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Annual review

Before 1 May each year, a board operating an enrolment scheme must review the operation of the scheme. The review needs to assess whether the scheme continues to comply with the purposes and principles set out in the Act. The board must also ask the Secretary whether he agrees with their view about the continuing need for a scheme.

The Secretary, may exempt a board for a period not exceeding three years from conducting an annual review if the Secretary considers that compliance is unnecessary. The exemption may be reversed at any time.

Suspensions and expulsions

Existing provisions for the suspension and expulsion of students continue to apply. The Ministry of Education will consult all schools on proposed Rules on student suspension procedures. After this consultation, the new Rules will be published in the New Zealand Gazette. The new suspension/expulsion provisions and Rules come into force on a date to be published by Order in Council.

Action required by boards

Boards should familiarise themselves with materials sent out by the ministry on the proposed Rules for the suspension of students, as schools are encouraged to participate in the consultation process.

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New legislation

Section 7 of the Education Amendment Act (No. 2) 1998 repeals ss.13-18 of the Education Act 1989 and substitutes new ss.13-18 and s.18AA.

The Ministry of Education is working to the following broad timeline for consultation on the proposed Rules, and implementation of the amended provisions in 1999:

February - Preparation for consultation about proposed rules

March - April - Consultation

April - May- Analysis of responses from consultation and amendments to proposed rules

June - Rules drafted by Parliamentary Counsel

July

1. Rules published in the New Zealand Education Gazette
2. Date published by Order in Council for amended provisions and Rules to come into effect
3. New legislation (including rules) takes effect.

Schools will be notified of the date from which the amended legislation will become effective.

The ministry will provide clear guidelines to schools on the processes to be followed when the legislation has come into effect.

Schools will be notified of the date from which the amended legislation will become effective.

The ministry will provide clear guidelines to schools on the processes to be followed when the legislation has come into effect.

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Curriculum

Several major changes to the way that curriculum may be given legal effect are also included in the new legislation.

Action required by boards

No immediate action is required by boards until specific notices¹ are published about national curriculum developments. However see note below regarding secondary schools year 9 and 10 programme.

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Major features of the new Legislation related to curriculum

The amendments in the curriculum section of the Act mainly ensure that legislative requirements for the curriculum have now been brought into the Education Act 1989. In particular, the amendments ensure that:

• foundation curriculum policy statements on learning and assessment can be gazetted in the future. This will be in addition to the individual national curriculum statements that are currently gazetted for essential learning areas
• the New Zealand Gazette notice for a national curriculum statement may now specify whether the curriculum statement will apply to all schools or to some schools only and to all students or to some students only. As examples, some curriculum statements may apply to students in specified year groups only or to students in Māori-medium education only
• the notice may also specify a transitional period during which a board of trustees may elect to comply with a new or existing national curriculum statement. The notice will also, as in the past, specify a date on which a board must begin to comply with a new statement.

In addition, the Act revokes the Education (Secondary Instruction) Regulations 1975. These regulations specified minimum units and hours of instruction for particular subjects or combinations of subjects in each year and in total over the first three years of a student's secondary education. These Regulations no longer apply.

Secondary schools are now able to adjust their year 9 and 10 programmes to give effect to the New Zealand Curriculum as set out in the National Curriculum Statements.

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General

This section contains amendments to existing legislation on numerous issues. Many of these amendments are technical in nature but all need to be considered carefully by boards of trustees and principals.

Action Required by Boards

All provisions listed under the General section of this circular are now in force. Boards of trustees and school principals are therefore recommended to consider the provisions carefully as to how they might affect their school's current and future operations.

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Student enrolment records

Principals of all schools are now required to:

• ensure that an Enrolment Record, as specified by the Secretary of Education, is kept for each student who is enrolled at the school
• take reasonable steps, when a student moves from one school to another, to send the student's Enrolment Record to the principal of the second school
• comply with the rules as notified in the New Zealand Gazette by the Secretary.
• The rules have been published in the New Zealand Gazette, and have been sent to all schools in Circular 1999/03, Rules for Student Enrolment Records.

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Flexibility in scheduling the school day

The Minister of Education now has discretion to vary the scheduling of the school day for any particular school at the request of a board of trustees. A board applying to vary the scheduling of the school day must be able to demonstrate that:

• it has consulted with parents, staff and the local community and the proposal is generally acceptable
• the proposal would not result in the students of the school spending less time in school than other students in comparable schools.
• The ministry will advise boards of the procedures to apply for this variation later in 1999.

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Special Education appeals and agreements

Section 10 of the Education Act 1989 allows for an appeal of a decision made by the Secretary under section 9. Section 10 has been amended so that no new information can be introduced during the appeal process.

If there is new information, this should be provided for consideration by the Secretary (or his delegate), using, for example, a new Ongoing or Transitional Resourcing Scheme application form.

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Exemptions from school enrolment

Long term exemptions from enrolment at a registered school, as issued under Section 21 of the Education Act 1989, will expire when a student enrols at a registered school or turns 16.

Boards of trustee issues

The Secretary is now empowered to direct a board to engage and pay for specialist support when it is at risk of not meeting its statutory obligations. The board must comply with the Secretary's directions.

An amendment has also been made to legislation relating to membership of combined boards of trustees. Parent representatives on a combined board no longer have to be parents of students enrolled at the school.

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School property management

The legislation provides greater flexibility in the way that school property can be managed. The changes mean that:

• any part of a school's playing areas can now be leased to third parties for cultural or sporting purposes when those areas are not required for school purposes
• parts of school sites can also be licensed or leased to third parties if this will bring educational benefit to the school, and can be leased for periods longer than 10 years
• there is now more than one type of occupancy agreement for allowing early childhood groups to occupy school property. This includes a lease or licence in the same form of agreement used for community groups on school sites
• Codes of Practice can now apply to all boards of trustees, including those of integrated schools and state schools occupying non-Crown land.

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The Ministry of Education's powers of entry and inspection of schools

The ministry now has more specific and explicit powers of entry and inspection of schools, in line with new directions emerging from recent case law. In particular, power of entry to premises suspected of being used as an unregistered school has been established.

Role of school commissioner

Several amendments have been made to the role of a school commissioner. These amendments ensure that:

• the Minister of Education can extend the term of a commissioner if he believes that it is in the interests of the school
• the Minister can replace commissioners and re-establish a board of trustees at schools that have appointed, rather than elected boards because of the special nature of the school, eg. health camp schools
• commissioners are exempt from personal liability in respect of any legal action brought against them on a personal level in the course of their role as commissioner.

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Procedures for establishing schools, amending school structures and operations and merging and closing schools

The new legislation provides more flexible procedures for establishing schools, such as middle schools and senior high schools.

Also, the duplication of consultation procedures for amending school structures has been removed. An example of this would be when an intermediate school becomes a Form 1-4 composite school. Under previous legislation, consultation was required about the intermediate becoming a composite school. Once the change of class to "composite" was approved, further consultation was required about the composite being Form 1-4. Under the amendment, consultation will be about the intermediate becoming a Form 1-4 composite school, without the need for a second phase of consultation.

The provision prohibiting relationships between secondary schools and primary schools for curriculum delivery has also been removed. For example, secondary schools were previously unable to provide tuition in technology or language subjects for primary school students. Those legislative barriers no longer exist and schools can now co-operate closely on curriculum provision.

In addition, changes have been made to the procedures for combining boards of trustees, closing schools and merging schools. While boards who want to merge their schools or combine their boards still need to show they have consulted parents adequately, they no longer need to demonstrate that the majority of parents favour the proposal. Further, the Minister can decide not to continue with consultation of the board where the board has agreed to its school closing.

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Role of normal schools in providing pre-service teacher education

Normal schools can now make themselves available to any provider of pre-service teacher education. Previously, normal schools were available for teacher training only to colleges of education.

Home schooling reviews by the Education Review Office

The legislation clarifies the Chief Review Officer's powers to review programmes of students exempted from enrolment at a registered school, particularly students who are home-schooled. Under this section of the legislation the Chief Review Officer has authority to carry out home-schooling reviews.

This section of the legislation also makes explicit the powers of review officers in undertaking home-schooling reviews and makes it clear that no review officer can enter any dwelling house without the consent of the owner or occupier.

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Integration of private schools

Several amendments have been made to the Private Schools Conditional Integration Act 1975. These amendments enable:

• Ministerial discretion to decline applications to integrate from private schools and other persons after considering the nature, character and capacity of the existing network of schools
• integration by schools that are using leased property
• cancellation of an integration agreement by mutual consent of the Minister and the Proprietors, or by either party.
• Some technical amendments that were agreed in the Review of Integration 1991-92, including removal of some obsolete references to Loreto Hall and to the Integration Standing Committee have been incorporated.

Registration and inspection of private schools

An amendment has also been made to section 35A of the Education Act 1989, which lifts the uppermost age of students from 15 to 16 with regard to the registration and inspection of private schools.

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Issued by

Kathy Phillips
Senior Manager, National Operations
National Office
45-47 Pipitea Street, Thorndon
Private Box 1666, Wellington, New Zealand
Telephone: 04 463 8000
Facsimile: 04 463 8001

^1. Official notices are published in the New Zealand Gazette and reprinted in the Education Gazette Tukutuku Korero for the information of schools.