Compulsory schooling orders

[14-1000] Practice and procedure

Last reviewed: May 2023

Rachel Dart, SIC — Care & Protection, 13 October 2010, revised August 2012.

On 1 January 2010 amendments to the Education Act 1990^[1] commenced, enabling the Department of Education and Communities to apply to the Children’s Court for compulsory schooling orders in circumstances where a child of compulsory school-age is not receiving compulsory schooling.

Relevant legislative provisions

Compulsory school-age (s 21B)

Of or above the age of 6 and below the minimum school-age.
“Minimum school-age” is the completion of year 10 or 17 years (whichever occurs first). However, a child who has completed year 10 but is not yet 17 years old is of compulsory school-age unless the child participates, on a full-time basis in:
- Approved education or training;^[2]
- If the child is of or above the age of 15 years — paid work or a combination of approved education or training and paid work.

Duty of parents (s 22)

It is the duty of a parent^[3] to cause a child of compulsory school-age to be:

enrolled at, and to attend, school; or
be registered for home schooling and receive instruction in accordance with the conditions to which the registration is subject.

Conferences to deal with unsatisfactory school attendance (s 22C)

The Children’s Court may order a conference of all relevant parties if a child is not receiving compulsory schooling.^[4]

The primary purpose of the conference is to ensure that a child is provided with compulsory schooling and the conference may:

(a): identify and resolve any issues in dispute, and
(b): identify any services directed to the child or family which will assist the child to attend school, and
(c): formulate undertakings and orders for consideration by the Children’s Court.

Parties are entitled to be legally represented at the conference.

Anything said or done or any document prepared in relation to the conference (other than the undertakings arising from the conference) are not admissible in any proceedings before any court or other body other than in care proceedings.^[5]

Compulsory schooling orders (s 22D)

A compulsory schooling order may be made by the Children’s Court on the application of the Secretary of the Department of Education and Communities.

That order may require a parent to cause a child to receive compulsory schooling in accordance with the terms of that order.

Such order may be directed against a child who is aged 12 years and above in circumstances where the Children’s Court is satisfied that:

the child is living independently from his or her parents or
the parents are unable, because of the child’s disobedience, to cause the child to receive compulsory schooling.

A compulsory schooling order may be made as both an interim and final order and may be revoked on the application of the Secretary of the Department of Education and Communities or any other party.

When making a compulsory schooling order (or when dismissing an application or revoking such an order), the court may:

(a): accept written undertakings from a parent, and from any other participant to the conference; and
(b): may recommend that a relevant institution^[6] provide services to the child or their family in order to assist the child to receive compulsory schooling.

Such orders cease to have effect at the end of the period specified in the order or when the child ceased to be of compulsory school-age, whichever occurs first.

Penalties

It is a criminal offence for a parent of a child of compulsory school-age to fail to cause a child to be enrolled and to attend school (s 23). Such prosecutions are commended by the Department of Education and Communities in the Local Court.

If a parent has been found guilty of an offence under s 23 in circumstances where there is a compulsory education order in place, the maximum penalty is increased to 100 penalty units (currently $11,000).

In the case of a child above the age of 15 fails to comply with the order without reasonable excuse, the child is guilty of an offence and the maximum penalty which may be imposed is 1 penalty unit ($110) with no conviction recorded.

The Act does not prescribe any penalty in the case of a child aged between 12 and 15 who fails to comply with a compulsory schooling order.

Procedure

When a child’s school attendance falls below 80% (equivalent to non-attendance exceeding two days missed per fortnight), departmental practice is that a school may refer the child to a field officer who will then work with the child and family over a period of 10 weeks with the aim of improving school attendance.

If the child’s school attendance does not reach an acceptable level after that 10 week period, the matter must be referred for legal action.

Proceedings for a compulsory education order are commenced in the Children’s Court by way of an application accompanied by a written report, which is personally served on the respondent by either the sheriff or a process server.

On the first return date of the application, the Department of Education and Communities will generally seek that the matter be referred to a confidential conference.^[7]An interim compulsory schooling order will often also be sought on the first return date.

The conference is convened by internal departmental personnel (usually a former school counsellor or equivalent).

The matter will return to court following the conference, with a view to a final compulsory schooling order being made. When making the final compulsory schooling order the court may accept written undertakings from a parent, and from any other participant in a compulsory conference.^[8]

In making a final compulsory schooling order, the court may specify the period that the order is to remain in force. If no period is specified, the order remains in force until the child ceases to be of compulsory school-age.^[9]

[14-1020] Practice notes

Last reviewed: May 2023

Practice Note 7: Legal representation for children and young persons in proceedings for compulsory schooling orders

Practice Note 7 commenced 27 February 2012.

[14-1040] Legislation

Last reviewed: May 2023

Education Act 1990.

^[1]As amended by the Education Amendment (School Attendance) Act 2009.

^[2]Defined by s 21B(6) as participation in a higher education course, a vocational education training (VET) course, and apprenticeship or traineeship or any other education and training approved of by the Minister.

^[3]Defined as including a guardian or other person having the custody or care of a child: s 3.

^[4]The Secretary of the Department of Education and Communities may also direct that such a conference occur at any time before or after such proceedings: s 22C(1)(b).

^[5]Under Ch 5 Children and Young Persons (Care and Protection) Act 1998.

^[6]Defined meaning a government department or other public authority (whether Commonwealth, State or Territory), including a government school or registered non-government school, any registered vocational training organisation and any non-government organisation that is in receipt of government funding: s 3.

^[7]Section 22C(1)(a).

^[8]Section 22D(7)(a).

^[9]Section 22D(8) states that a compulsory schooling order (unless revoked by the Children’s Court) ceases to have effect at the end of the period specified during the order or when the child ceases to be of compulsory school-age.