Youth Participation in Education and Training (Guaranteeing Futures) Act 2005
An Act to provide for the continuing participation of young persons in education and training after they attain the age of 16 years and for related purposes
[Royal Assent 6 May 2005]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Youth Participation in Education and Training (Guaranteeing Futures) Act 2005 .
(1) Parts 1 , 4 , 5 , 6 and 7 commence on 1 January 2007.(2) Parts 2 and 3 commence on 1 January 2008.
The objects of this Act are to –(a) implement initiatives to ensure that, in most circumstances, young people participate at a full-time level in a period of education or training, through participation in eligible options, after they attain the age of 16 years; and(b) encourage those people to so participate in eligible options for a minimum period of 2 years.
This Act is to be administered in a way that has regard to the principle that the State should develop practical ways to improve the social, educational and employment outcomes for young people including, in particular, those who are at risk of disengaging from education and training.
In this Act, unless the contrary intention appears –aggregated information means information contained in participation records that could not reasonably be expected to result in the identification of any of the persons to whom it relates;approved form means a form approved by the Secretary;attending, in relation to a provider, means complying with the provider's attendance requirements in the relevant way stated in section 10(2) or (3) ;Australian Qualifications Framework means the policy of that name, defining all qualifications recognised nationally in post-compulsory education and training within Australia, endorsed by the Ministerial Council on Education, Employment, Training and Youth Affairs so as to commence on 1 January 1995, as amended from time to time;authorised officer means the Secretary or a State Service employee or State Service officer authorised to be an authorised officer under section 47 ;certificate III means a qualification by that name issued under the Australian Qualifications Framework;dispensation means a dispensation granted under section 20 that fully or partially excuses a young person from participation in an eligible option;distance education means education provided where students and teachers are not regularly in the presence of each other for that purpose but communicate with each other in writing, by print or by electronic means or other like means;eligible option has the meaning given by section 7 ;external program means –(a) an educational instruction, other than in a school or by home education or distance education, determined under section 38(3) of the Education Act 1994 ; or(b) another program or course for which the provider's requirements do not include physically attending, at particular times, at the provider's premises or another place;full-time, in relation to participation in one or more eligible options, means participation at a level that is full-time under section 11 ;guardian means a person who is recognised in law as having all the duties, powers, responsibilities and authority that, by law, parents have in relation to their children;higher education award means –but does not include a qualification that is awarded or issued in respect of vocational education and training within the meaning of the Vocational Education and Training Act 1994 ;(a) an award of a diploma or advanced diploma; or(b) an award of a graduate diploma or graduate certificate; or(c) an award of an associate degree, bachelor degree, masters degree or doctoral degree; or(d) any other award specified in the Australian Qualifications Framework as a higher education award; or(e) a prescribed award –higher education course means a course of study that entitles a person who satisfies the course requirements to the conferral or issue of a higher education award;information includes a document;notice means written notice;parent includes a guardian;participating, in an eligible option, has the meaning given by section 10 ;participation record means a participation record opened under Division 2 of Part 5 ;participation record phase has the meaning given by section 30 ;planning activity means –(a) monitoring the operation and effectiveness of this Act; or(b) carrying out planning relating to the matters dealt with under this Act; or(c) developing strategies to better achieve the objects of this Act;principal, of a registered school with no position by that name, means the person responsible for the school's day-to-day management;provider means a person who provides an eligible option, including a home educator;Qualifications Authority means the Tasmanian Qualifications Authority established under the Tasmanian Qualifications Authority Act 2003 ;re-engagement activity means –(a) identifying young persons in the required participation phase who are not participating full-time in an eligible option; or(b) giving such young persons information about the options available to them; or(c) encouraging such young persons to participate in a way that achieves the best learning outcomes for them; or(d) encouraging and helping the parents of such young persons to play a role in the activities referred to in paragraphs (a) , (b) and (c) ;registered school has the same meaning as in the Education Act 1994 ;required participation phase has the meaning given by section 8 ;Secretary means the Secretary of the Department;Secretary (families) means the Secretary of the Department responsible for the administration of the Children, Young Persons and Their Families Act 1997 ;State school means a State school within the meaning of the Education Act 1994 ;unpaid employment includes voluntary, charity or community work that is not paid;young person means a person who –(a) has not yet attained the age of 16 years; or(b) is in the required participation phase.
(1) This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.(2) Nothing in this Act renders the Crown liable to be prosecuted for an offence against this Act.
PART 2 - Required Participation in Education and Training
Division 1 - Preliminary
The following courses are eligible options:(a) accredited senior secondary courses, within the meaning of the Tasmanian Qualifications Authority Act 2003 ;(b) courses provided in secondary schooling or by home education;(c) higher education courses, whether the courses are provided by providers situated in Tasmania or elsewhere;(d) accredited training courses, within the meaning of the Vocational Education and Training Act 1994 ;(e) traineeships under training agreements, within the meaning of the Vocational Education and Training Act 1994 ;(f) prescribed courses.
8. Required participation phase
A person's required participation phase –(a) starts when the person attains the age of 16 years; and(b) ends when the first of the following occurs:(i) the person has participated in eligible options for one year after attaining the age of 16 years;(ii) the person gains a certificate III;(iii) the person attains the age of 17 years.
Division 2 - Participation in eligible options
9. Young persons to participate full-time in eligible options
Except as otherwise provided by this Act, a person in the required participation phase is to participate in one or more eligible options at a full-time level.
(1) A young person is participating in an eligible option if the person is –(a) enrolled with, or being provided with education or training by, the provider in the relevant eligible option; and(b) complying with the provider's attendance requirements for the eligible option.(2) The provider's attendance requirements for an eligible option are the requirements about physically attending, at particular times, at the provider's premises or another place.(3) Despite subsection (2) –(a) the provider's attendance requirements for a program of distance education are to complete and return the assigned work for the program; and(b) the provider's attendance requirements for an external program are its requirements about communicating with or contacting the provider for the purpose of participating in the program.
A reference to full-time participation in eligible options –(a) is a reference to participation in an eligible option at a level that is full-time as determined by the guidelines issued under section 48 ; and(b) includes participation in 2 or more eligible options to an extent that is at least equivalent to full-time participation as determined by those guidelines.
A young person's participation in an eligible option is taken to continue during an absence allowed under the requirements of the option.
(1) If a young person participating in an eligible option stops attending because the person has been suspended from attending by the provider, the person's participation in the option is taken to continue during the period of the suspension.(2) If a young person participating in an eligible option stops attending because the person has been excluded from attending by the provider, the person is taken to be continuing to participate in an eligible option, at the same level as before the exclusion, for the time reasonably required for the person to resume participation in an eligible option.
Division 3 - Parents' obligation
14. Obligation to ensure participation
(1) Each parent of a young person in the required participation phase must ensure the young person is participating full-time in an eligible option, unless the parent has a reasonable excuse.(2) Without limiting subsection (1) , it is a reasonable excuse for a parent that –(a) the young person primarily resides with another parent and the first parent believes, on reasonable grounds, that the other parent is ensuring that the young person participates full-time in an eligible option; or(b) in all the circumstances, the parent is not reasonably able to control the young person's behaviour to the extent necessary to ensure that the young person participates full-time in an eligible option.(3) Proceedings for an offence against subsection (1) may be brought against a parent –(a) only by the Secretary or by a person authorised by the Secretary; and(b) only if the alleged offence occurred after –(i) the parent was given a notice under section 16(1)(a) ; and(ii) at least one meeting has been held with the parent under section 16(1)(b) or the parent has been given a warning notice under section 16(2) .(4) The Secretary (families) is not liable to be prosecuted for an offence against subsection (1) in relation to a young person in respect of whom he or she has been granted guardianship under that Act.
(1) Section 14(1) does not apply in relation to a young person who, under section 17 , is exempt from the requirement to participate in an eligible option.(2) Section 14(1) does not apply to the extent provided under a dispensation in force under Part 4 .(3) Section 14(1) does not apply to the extent of any inconsistency with a law of the Commonwealth under which a young person in the required participation phase may carry on an activity other than participating full-time in an eligible option.
16. Information notice and meeting
(1) If an authorised officer reasonably suspects a young person is in the required participation phase and is not participating full-time in an eligible option, the officer may –(a) give a parent of the young person a notice in the approved form about the parent's obligation under section 14 ; and(b) meet with the parent to discuss the obligation.(2) If, after the authorised officer has taken reasonable steps to meet with the parent under subsection (1)(b) , no meeting is held, the officer may give the parent a warning notice in the approved form.
PART 3 - Employment Exemption
A person in the required participation phase is exempt from the requirement to participate in an eligible option if the person is in employment for not less than 25 hours each week.
PART 4 - Dispensations
Division 1 - Application for, and grant of, dispensation
18. Application for dispensation
(1) A young person, or a parent of a young person, may apply to the Secretary for a dispensation.(2) The application is to –(a) be in the approved form; and(b) state the grounds on which the dispensation is sought; and(c) state the period for which the dispensation is sought; and(d) if the application is made by a young person, include the signed consent of his or her parent; and(e) be lodged with the Qualifications Authority.(3) Subsection (2)(d) does not apply if the Secretary is satisfied it would be inappropriate in all the circumstances to require the signed consent of a parent.(4) The applicant is to provide any other relevant information reasonably required by the Secretary by notice provided to the applicant.(5) If the applicant fails to comply with a notice provided under subsection (4) , the application lapses.(6) The Secretary must decide the application as soon as practicable.
19. Temporary dispensation until application is decided
(1) If an application for dispensation is made before the young person starts the required participation phase, section 14(1) does not apply to a parent of the young person until the young person has attained the age of 16 years and either –(a) the period of 14 days after the Secretary gives notice of the decision on the application to the applicant under section 22 has ended; or(b) the application has lapsed.(2) If the application is made while an existing dispensation is in force for the young person, the existing dispensation continues to apply until –(a) 14 days after the Secretary gives notice of the decision on the application to the applicant under section 22 ; or(b) the application lapses.
(1) On receipt of an application under section 18 , the Secretary may –(a) refuse to grant a dispensation excusing the young person from participation in an eligible option; or(b) subject to subsections (2) and (3) , grant a dispensation fully or partially excusing a young person from participation in an eligible option for the period specified in the application or a shorter period.(2) The Secretary may only grant a dispensation fully excusing a young person from participation in an eligible option if satisfied that –(a) the young person is unable to participate in any eligible option; or(b) it would be unreasonable in all the circumstances to require the young person to participate in any eligible option.(3) The Secretary may only grant a dispensation partially excusing a young person from participation in an eligible option if satisfied that –(a) the young person is unable to participate in an eligible option at a full-time level; or(b) it would be unreasonable in all the circumstances to require the young person to participate in any eligible option at a full-time level.(4) A dispensation may be granted subject to the conditions stated in it.
A dispensation is to state –(a) the day on which it is granted; and(b) the young person to whom it relates; and(c) whether it is full or partial and, if it is partial, the extent to which the young person is excused from participation; and(d) whether it applies until the end of the young person's required participation phase or only until a stated earlier time; and(e) any conditions on which it is granted.
22. Notice about decision and right to seek review
(1) The Secretary is to give an applicant for a dispensation notice of the decision on the application.(2) If the Secretary refuses to grant a dispensation, grants a dispensation on conditions or for a lesser period than that applied for or grants a partial dispensation when the applicant applied for a full dispensation, the notice is to state –(a) the decision; and(b) the reasons for the decision; and(c) that, within 28 days after receiving the notice, the applicant may apply to the Secretary for a review of the decision; and(d) how the applicant may apply for the review.
23. Notice about decision to Qualifications Authority
The Secretary is to give the Qualifications Authority notice about the decision on an application for dispensation.
Division 2 - Review of decision on application for dispensation
In this Division –original decision means any of the following decisions relating to an application for a dispensation:(a) a refusal to grant an application;(b) a grant of a dispensation subject to a condition;(c) a grant of a dispensation for a lesser period than that applied for;(d) a grant of a dispensation partially excusing the young person from participation in an eligible option if the application was for a dispensation fully excusing the young person from such participation;review decision means a decision made under section 26(2) .
(1) An applicant for a dispensation may apply to the Secretary for a review of the original decision.(2) The application must be made –(a) within 28 days after the notice under section 22 is received; or(b) any longer period allowed by the Secretary.(3) The application is to be in an approved form and supported by enough information to enable the Secretary to decide the application.
(1) Unless the Secretary made the original decision personally, the Secretary is to ensure that an application under section 25 is not dealt with by –(a) the person who made the original decision; or(b) a person in a less senior office than the person who made the original decision.(2) Within 28 days after receiving an application under section 25 , the Secretary is to review the original decision and make a decision –(a) confirming the original decision; or(b) amending the original decision; or(c) substituting another decision for the original decision.(3) The Secretary is to make the review decision on the material that led to the original decision and any other material the Secretary considers relevant.(4) As soon as practicable after making the review decision, the Secretary is to give the applicant notice of the decision.(5) If the review decision is such that the result is a refusal to grant a dispensation, the grant of a dispensation on conditions or for a lesser period than that applied for by the applicant for the dispensation or the grant of a partial dispensation when the applicant for dispensation applied for a full dispensation, a person aggrieved by the review decision may appeal to the Magistrates Court (Administrative Appeals Division) for a review of the review decision.
27. Notice of review, &c., to Qualifications Authority
The Secretary, as soon as is practicable, is to give the Qualifications Authority notice of each of the following:(a) the making of an application for review of an original decision;(b) the review decision made on that application;(c) the lodging of an appeal with the Magistrates Court (Administrative Appeals Division) for a review of that review decision;(d) the determination of the Magistrates Court (Administrative Appeals Division) of the appeal for a review of that review decision.
PART 5 - Participation records
Division 1 - Preliminary
(1) This Part provides for the keeping of a participation record in respect of every young person.(2) A participation record is a record about the person's participation or intended participation in eligible options during the required participation phase.
Division 2 - Opening participation records
29. Opening participation record
(1) A participation record is to be opened for each young person within one year before the young person attains the age of 16 years or, where the young person is continuing to complete a year of secondary schooling after attaining that age, before the person so completes that year.(2) The following person is responsible for opening a participation record in respect of a young person:(a) if the young person is enrolled with a State school or registered school, the principal of the school;(b) if the young person is undertaking home education, a parent of the young person;(c) in any other case, the Secretary.(3) A participation record is opened for a young person by giving notice to the Qualifications Authority, in the approved form, containing the following information about the young person:(a) name and any previous names;(b) address;(c) date of birth;(d) a participation plan for the person that includes one or more of the following statements:(i) a statement specifying the eligible options in which the person proposes to participate during the required participation phase;(ii) a statement that the person will be participating in employment for not less than 25 hours each week;(iii) a statement that the person is applying for a dispensation and the grounds on which the dispensation is sought;(e) other prescribed information.
Division 3 - Participation record phase
30. The participation record phase
A person is in the participation record phase if –(a) the person is in the required participation phase; or(b) the person is not yet in the required participation phase but a participation record has been opened for the person.
31. Obligation to open an account
(1) If the Qualifications Authority or Secretary receives information that a person who is in the required participation phase does not have a participation record, the Secretary may give directions for the opening of a participation record for the person.(2) A person who is required to open a participation record in respect of another person by the direction of the Secretary given to the person under subsection (1) is to open a participation record for the other person by giving to the Qualifications Authority the approved form containing –(a) the information specified in section 29(3)(a) , (b) , (c) and (e) ; and(b) a statement of any eligible options in which the person is participating or has participated since starting the required participation phase.
Division 4 - Use and disclosure of information
32. Use and disclosure of information by Qualifications Authority
(1) In this section –employer means a person who employs another person who is in the required participation phase;prescribed information, about a person, means –(a) the person's name and any previous names; and(b) the person's address; and(c) the person's date of birth; and(d) details of the eligible options in which, according to the person's participation record, the person intends to participate, is participating or has participated.(2) The Qualifications Authority may use information contained in a participation record to perform its functions.(3) To enable the Qualifications Authority to ensure the accuracy of information contained in a participation record, the Qualifications Authority may disclose that information to a provider, employer or person in charge of an activity under a law of the Commonwealth as specified in section 15(3) .(4) To enable the Secretary to carry on planning activities, the Qualifications Authority is to give the Secretary the aggregated information that the Secretary requests.(5) The Qualifications Authority is to include in its annual report under section 24 of the Tasmanian Qualifications Authority Act 2003 the details of each request under subsection (4) received during the year to which the report relates.(6) To enable the Secretary to carry on re-engagement activities, the Qualifications Authority is to give the Secretary any of the prescribed information that the Secretary requests about a person who, according to the person's participation record –(a) is in the required participation phase; and(b) has stopped being enrolled with a provider; and(c) after a period of at least 3 months, has not re-enrolled with a provider.
33. Disclosure by Secretary to appropriate person
To help in carrying on re-engagement activities, the Secretary may disclose the following information about a person in the required participation phase to a person the Secretary considers appropriate:(a) name and any previous names;(b) address;(c) date of birth;(d) the eligible options in which the person intends to participate, is participating or has participated, so far as the Secretary is aware.
Division 5 - Miscellaneous
(1) This section applies despite Divisions 2 and 3 .(2) A person is not to open a participation record for an overseas student, or give notice to the Qualifications Authority of the enrolment of an overseas student, without the student's written agreement.(3) In subsection (2) –overseas student has the same meaning as in the Education Act 1994 .
PART 6 - Legal Proceedings
Division 1 - Evidence
35. Application of Division 1
This Division applies to a proceeding under this Act.
36. Appointments and authority
It is not necessary to prove the appointment of the Secretary or an authorised officer, or the authority of the Secretary or an authorised officer to do anything under this Act unless a party, by reasonable notice, requires proof of the appointment or authority.
A signature purporting to be the signature of the Secretary or an authorised officer is evidence of the signature it purports to be.
A certificate purporting to be signed by the Secretary and stating any of the following matters is evidence of the matter:(a) that a document is –(i) an approval, decision or requirement made under this Act; or(ii) a dispensation granted under this Act; or(iii) a notice given under this Act;(b) that a document is a copy of a document referred to in paragraph (a) ;(c) that on a day, or during a period, an authorisation as an authorised officer was, or was not, in force for a person;(d) that on a day, or during a period, a dispensation relating to a young person was, or was not, in force;(e) that on a day a person was given a notice under this Act;(f) that on a day a requirement was given to a person under this Act.
Division 2 - Offence proceedings
39. Summary proceedings for offences
(1) A proceeding for an offence against this Act is to be taken in a summary way.(2) The proceeding must be commenced –(a) within one year after the alleged commission of the offence; or(b) within 6 months after the offence comes to the complainant's knowledge, but within 2 years after the alleged commission of the offence.
40. Statement of complainant's knowledge
In a complaint starting a proceeding for an offence against this Act, a statement that the matter of the complaint came to the complainant's knowledge on a particular day is evidence of when the matter came to the complainant's knowledge.
41. Evidence of Secretary's authorisation to take proceedings
A certificate, purporting to be signed by the Secretary, to the effect that the Secretary has authorised a person to take proceedings for an offence against section 14(1) is evidence of the authorisation.
PART 7 - Miscellaneous
Division 1 - Involvement of certain registered school entities
(1) In this Division –entities means the Association of Independent Schools of Tasmania Inc. and the Archbishop of Hobart Corporation Sole.(2) If an entity changes its name, the Minister, by order, may amend subsection (1) by substituting the body's new name.(3) If an entity ceases to exist, the Minister, by order, may amend subsection (1) by doing one or both of the following:(a) omitting that body;(b) substituting the name of a body which the Minister is satisfied substantially represents the interests that were represented by the body that has ceased to exist.
43. Consultation about planning
The Secretary is to consult regularly with the entities or their nominees for the purpose of carrying on planning activities.
The Qualifications Authority is to give each of the entities or their nominees, at the prescribed times, the prescribed aggregated information.
Division 2 - Other matters
(1) In this section –disclose, in relation to information, includes give access to the information;employee, in relation to a provider, or another person, includes –(a) a person appointed to a position with the provider or other person; and(b) a person engaged by the provider or other person under a contract for services; and(c) an unpaid employee of the provider or other person;personal information means information or an opinion, whether true or not, about a person whose identity is apparent, or can reasonably be ascertained, from the information or opinion;prescribed information means information of a kind referred to in paragraph (b) of the definition of prescribed person ;prescribed person means a person –(a) who is or has been –(i) the Secretary or a State Service employee or State Service officer employed or engaged for the purposes of the Department; or(ii) a provider or an employee of a provider; or(iii) a member of the Qualifications Authority or a State Service employee or State Service officer employed or engaged for the purposes of the Tasmanian Qualifications Authority Act 2003 ; or(iv) a person, or an employee of a person, to whom the Secretary has disclosed information under section 33 ; and(b) who, in the course of the administration of this Act or because of opportunity provided by the administration of this Act, has gained or has access to personal information about another person who is in the participation record phase or has a participation record.(2) A prescribed person must not make a record of prescribed information, disclose prescribed information to anyone else or give access to prescribed information to anyone else, other than –(a) for a purpose of this Act; or(b) with the consent of the person to whom the information relates; or(c) in compliance with lawful process requiring production of documents or giving of evidence before a court or tribunal; or(d) as permitted or required by another Act.Penalty: Fine not exceeding 50 penalty units.(3) Subsection (2) continues to apply to personal information about a person who has been in the participation record phase after the phase ends.
The Secretary may delegate any of his or her functions or powers under this Act including this power of delegation.
The Secretary may authorise a State Service employee or State Service officer employed for the purposes of the Department to be an authorised officer.
(1) The Secretary may issue guidelines for the purposes of the administration of this Act.(2) Without limiting the generality of subsection (1) , the guidelines may –(a) specify what constitutes participation in eligible options at a full-time level; and(b) provide for all matters relating to the application for, the granting of or the refusal of dispensations; and(c) specify the information to be contained in a participation plan.(3) In specifying what constitutes participation in eligible options at a full-time level, the guidelines may provide for different full-time levels according to such factors, including participation in part-time employment, as are specified in the guidelines.(4) Without limiting how the guidelines may specify what constitutes participation in eligible options at a full-time level, the guidelines may so specify what constitutes full-time participation –(a) by specifying the number of hours in a particular period of time that a person must attend –(i) one or more particular eligible options; or(ii) one or more eligible options of particular classes of eligible options; or(b) by specifying that attendance at one particular eligible option or one eligible option of a particular class constitutes a certain proportion of full-time participation.(5) The guidelines may be made so as to apply differently according to such factors as are specified in the guidelines.(6) The guidelines may authorise any matter to be from time to time approved, determined, applied or regulated by any person specified in the guidelines.(7) The guidelines are not –(a) a statutory rule for the purposes of the Rules Publication Act 1953 ; or(b) subordinate legislation for the purposes of the Subordinate Legislation Act 1992 .
The Secretary may approve forms for use under this Act.
To remove any doubt, it is declared that, despite any other provision of this Act, a young person is not in the required participation phase if the person attained the age of 16 years or completed the year of secondary schooling commonly known as year 10 before the commencement of Part 5 .
(1) The Governor may make regulations for the purposes of this Act.(2) Without limiting the generality of subsection (1) , the regulations may provide for fees and charges payable in respect of any matter under this Act.(3) The regulations may be made so as to apply differently according to such factors as are specified in the regulations.(4) The regulations may –(a) provide that a contravention of any of the regulations is an offence; and(b) in respect of such an offence, provide for the imposition of a fine not exceeding 50 penalty units and, in the case of a continuing offence, a further fine not exceeding 10 penalty units for each day during which the offence continues.(5) The regulations may authorise any matter to be from time to time determined, applied or regulated by any person specified in the regulations.(6) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or complementary legislation.(7) Regulations made under subsection (6) may take effect on the day on which this Act commences or a later day as specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Education; and(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Education.
[Second reading presentation speech made in:
House of Assembly on 24 MARCH 2005
Legislative Council on 14 APRIL 2005]