Education and Training Act 2020

The Education and Training Act 2020 came into effect on 1 August 2020. It incorporates and replaces the Education Acts 1964 and 1989, and implements changes from the Education Work Programme.

Administrative changes

The Act repeals and replaces all major existing education and training legislation. It is intended to be simpler, more user-friendly and less prescriptive than the previous legislative framework.

The Education and Training Act 2020:

  • introduces a new structure that follows the journey of students through education, starting with early learning, moving to schooling and then tertiary and vocational training,
  • moves some prescriptive detail directly into regulations (so these provisions will not be found in the Act),
  • moves other detailed provisions into Schedules at the end of the Act, with “sunset clauses”, meaning that they will expire after a set period of time and new regulations will need to be developed to replace them, and
  • retains large parts of the existing education legislation, which were transferred into the Act unchanged. We took the opportunity to update some of the language throughout the Act, where we could do so without changing the effect of the law itself.

Streamlining education legislation

System-wide changes 

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Te Tiriti o Waitangi – National level commitments

The Act makes it easy for those in the education sector to understand their rights and obligations under Te Tiriti o Waitangi by locating in one place the key provisions in the Act that recognise and respect the Crown’s responsibility to give effect to Te Tiriti.

The Act also enables the Ministers of Education and Māori-Crown relations: Te Arawhiti, after consultation with Māori, to jointly issue a statement specifying what education agencies must do to give effect to public service objectives that relate to Te Tiriti o Waitangi.

Giving better effect to Te Tiriti o Waitangi at the national level

New powers for the Secretary for Education when a state of emergency, transition period or epidemic notice is in place

The Act gives the Secretary for Education the ability to direct education entities to comply with a requirement:

  • to open or close for attendance or instruction (whether physically or otherwise),
  • to operate, control or manage the entity,
  • to provide instruction in any specified ways, such as through distance learning, and
  • to set any restrictions on attendance with regard to health and safety requirements, in future national or local emergencies or during an epidemic.

The Secretary was temporarily given these powers to respond to COVID-19. The Act gives the Secretary the same powers to respond to future emergencies, but only when a national or local emergency or transition period is declared or an epidemic notice is in force.

The Act also enables the Secretary to direct a board to reopen a school that has been closed due to an emergency, when the Secretary considers that the closure is no longer justified.

New powers for the Secretary of Education

Offshore provision of National Certificate of Education Achievement (NCEA)

To ensure the integrity of NCEA, the Act prohibits the provision of NCEA offshore, except in certain circumstances, and makes it an offence to breach the prohibition.

However, because of COVID-19, the Act also includes a temporary provision to allow New Zealand schools to provide distance education and NCEA to their students based offshore until 31 December 2022, where those students have been enrolled with the school during 2020.

Prohibiting the provision of NCEA offshore

Expansion of ERO power to request information

The Act clarifies that the Chief Review Officer can request any information that is reasonably necessary or desirable from an applicable organisation or person, such as an early childhood provider or school, for the purposes of carrying out their functions.

Changes relating to early childhood education (ECE), including ngā kōhanga reo

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New early learning licensing requirement

The Act introduces additional requirements to be considered for new early learning service applications:

  • the children’s needs
  • the community’s need
  • the applicant’s character and licensing history
  • the organisation’s financial position.

Applicants whose applications are declined can re-apply.

The commencement of these provisions is delayed by up to two years.
Introducing additional licensing requirements for early childhood education services including kōhanga reo

Police vetting

The Act requires that all adults who live in or are present in a home in which children are receiving ECE must be vetted. This only applies where a child receiving ECE is not a resident of the home.

Police vetting is required for all adults who live in a home where home-based early childhood education and care is being provided

Enabling the Education Review Office (ERO) to enter and obtain information from early learning service parent entities

An early learning service provider can be either the organisation providing the service, or a company that is a subsidiary of a parent entity.

The Act enables ERO to enter the premises of and obtain governance and management information from parent entities where it relates to early learning services under their control and obtain governance and management information.

Enabling the Education Review Office (ERO) to obtain information from early learning service parent entities

ERO can enter a home where home-based early learning is being provided

The Act enables ERO to enter homes where early learning is taking place to review and evaluate curriculum delivery and health and safety performance, as part of their wider review of the home-based service provider.

Enabling the Education Review Office (ERO) to enter a home where home-based early learning is being provided

Read more about the changes relating to early childhood education (ECE), including ngā kōhanga reo

Changes for New Zealand schools

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Right to attend school fulltime

The Act explicitly states the right of all enrolled students to attend school whenever the school is open. Some students and their parents and whānau have found that schools only allow them to attend part time.

The Act clarifies that all students, including students with learning support needs and disabilities, have the right to attend school for all of the hours that the school is open for instruction.

The Act also locates the different aspects of the right to a free State education together in Part 3 to make it easier to find and understand these rights. 

Education and Training Act: All students have the right to attend school fulltime

Wellbeing transitional plan to vary attendance hours where in a student’s best interests

The Act enables a student’s parents to request and agree with the principal and the Secretary for Education to vary hours as part of a wellbeing transitional plan where the particular needs of the student require this.

The plan must be considered by all parties involved to be in the child’s best interests. The plan may be renewed once, upon the request of the parents with the agreement of the principal and the Secretary.

Right to attend school fulltime

Transition attendance plan to vary attendance hours where in a student’s best interest

New complaint and dispute resolution panels

There is a lack of a free and accessible complaint and dispute resolution process in the current State compulsory schooling system.

The Act enables the establishment of new local complaint and dispute resolution panels to hear serious disputes where these cannot be resolved at the school level.

The panels will have mediation, recommendation and decision-making functions, and will hear disputes relating to:

  • rights to education (including enrolment and attendance);
  • stand-downs, suspensions, exclusions and expulsions;
  • learning support, racism and other types of discrimination;
  • physical and emotional safety; and
  • physical restraint on a student by a teacher or other authorised employee.

Enabling a new dispute resolution panel to hear complaints about school board decisions

Enabling the Teaching Council to renew practising certificates for  teachers without satisfactory recent teaching experience, if they agree to a refresh process The Act enables the Teaching Council to renew practising certificates for teachers who cannot demonstrate satisfactory teaching experience in the five years prior to their application, if they agree to a refresh process.

The refresh process has to be approved by the Teaching Council to ensure the teacher’s knowledge and practice is up to date.

Allowing teachers without satisfactory recent teaching experience to have their certificates renewed if they agree to a refresh process
Removing the requirement for the Teaching Council to audit teacher performance appraisals

The Government, PPTA and NZEI, along with the NZ School Trustees Association and the Teaching Council, agreed to remove the requirement for teacher performance appraisals. Therefore the requirement for the appraisals to be audited by the Teaching Council is no longer needed and has been removed from the Act.

Removing the requirement for the Teaching Council to audit teacher performance appraisals

Strengthening the Teaching Council’s Governance Arrangements

The Minister for Education can now appoint a deputy chairperson to the Teaching Council.

Appointing a deputy chairperson to the Teaching Council

Renaming “special schools” to be “specialist schools”

Renaming “special schools” as “specialist schools” seeks to more accurately reflect the role and importance of these schools in our education system. This reflects the shift in focus from the school itself to the specialist nature of the services provided to support students with learning support needs and disabilities.

Renaming “special schools” as “specialist schools”

Updating the physical restraint framework

Teachers have raised concerns that the existing framework is confusing and makes them feel unable to intervene in potentially harmful situations.

The changes make it clear that physical restraint can be used, as a last resort, to keep people safe from harm. Seclusion remains prohibited.

Updating the physical restraint framework

School principal appointment criteria

The Act enables new eligibility criteria for appointment as a school principal in State and State-integrated schools to be set by the Minister of Education (or delegated authority). The criteria are to be developed in consultation with children, young people and their parents, whānau and communities, and a range of relevant national bodies. The new criteria will assist in ensuring consistency in the skills, competencies, knowledge and expertise of principals.

School principal appointment criteria
Amending school board objectives

The Act revises the objectives for school boards of trustees to:

  • ensure school governance is underpinned by Te Tiriti o Waitangi and relevant student rights, and
  • refocus boards on a wider range of objectives so that educational achievement is no longer the only primary objective. It is instead one of four primary objectives, alongside objectives for schools to ensure the physical and emotional safety of students and staff, that they are inclusive and cater for students with differing needs and that they give effect to Te Tiriti o Waitangi.

These changes are intended to strengthen school governance and refocus schools on what matters most for learners and their whānau.

Amending school board objectives
School boards to give effect to Te Tiriti o Waitangi

One of the primary objectives for boards will be to give effect to Te Tiriti o Waitangi by:

  • working to ensure that their plans, policies and local curriculum reflect local tikanga, mātauranga Māori and te ao Māori;
  • taking all reasonable steps to make instruction available in tikanga and te reo Māori; and
  • achieving equitable outcomes for Māori students.

This objective will take effect on 1 January 2021. This will provide schools with more time to prepare for the changes and give effect to them.

School boards to give effect to Te Tiriti o Waitangi

Code of conduct for school Board of Trustees members

The Act enables the Minister of Education to issue a mandatory national code of conduct for board members. This would set minimum standards of behaviour, address concerns of self-interest and bring boards into line with other education sector governing bodies.

A code of conduct for school Board of Trustees members
Requiring boards to consult on rules/bylaws

The Act provides that boards must consult their students (where appropriate), staff and school communities when making school rules/bylaws. This is to ensure that a school’s rules are appropriate for, and supported by, its community.

Boards to consult on rules/bylaws
Updating school board of trustees elections

The Act provides the Minister of Education with the option of directing the Secretary for Education to appoint a commissioner, when a board of trustee election is declared invalid (to govern the school until a new board takes office). This is in addition to the Minister’s current power to reinstate the previous board in the same circumstances.

It also removes the requirement that casual vacancies be advertised in a local newspaper. Instead, the Act provides that a board must notify its school community and the wider local community of the vacancy in the manner that best meets the needs of the school community and the wider community.

Electing school boards of trustees
Religious instruction to become opt-in

The Actprovides that if the board of a State primary or intermediate school chooses to close their school for religious instruction to take place, they must have students “opt-in” and ensure that the other existing conditions are met.

This change ensures that children are only attending religious instruction with their parent or caregiver’s consent. 

Requiring an “opt-in” process for religious instruction in state primary and intermediate schools
Development and consultation on school enrolment schemes

The Act transfers responsibility for the development of, and consultation on, enrolment schemes from school boards to the Ministry of Education. The Ministry will administer each school’s enrolment scheme from a regional perspective, based on community need.  These changes will commence from 1 January 2021.

The Ministry will be required to consult a school’s board and take reasonable steps to understand the views of the school’s community when developing a proposed enrolment scheme. 

Once a proposed scheme is developed, the Secretary must consult a range of people and organisations, and take all reasonable steps to discover and consider their views before the scheme is finalised.

Development and consultation of school enrolment schemes
Allowing the use of grand-parenting provisions at the discretion of the Secretary for Education

Grand-parenting arrangements provide for the siblings of current students to retain the right to enrol at the school when a new home zone or amendment is implemented, provided they live in the old home zone.

Grand-parenting provisions will be used at the Secretary’s discretion when an enrolment scheme is established or when an existing enrolment scheme’s home zone is amended.

Te Aho o Te Kura Pounamu, the Correspondence School, (Te Kura) Governance Arrangements

The Bill requires the Minister of Education to appoint a staff member to be a representative on the Board of Te Kura.

Strengthening Te Kura’s Governance Arrangements

Tertiary and International education

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Tertiary Education Strategy remains valid until replaced

The Act continues the ability for the Minister to issue a Tertiary Education Strategy (TES) and clarifies that any existing TES remains valid and does not expire until replaced by a new one or withdrawn. This clarification provides more certainty to the tertiary education sector, the Tertiary Education Commission, and New Zealand Qualifications Authority.

Tertiary Education Strategy remains valid until replaced or withdrawn

Workforce Development Council (WDC) endorsement of programmes

The Act provides further information about the WDC endorsement of programmes as the current legislation is not sufficiently clear, which creates uncertainty for the sector and risks for NZQA when determining this matter. The new arrangements will allow providers to seek WDC endorsement of any programme.

The Minister may set parameters for the extent to which WDC endorsement of a programme is, or can be made, a pre-condition of NZQA programme approval.

Workforce Development Council endorsement of programmes

Increased period for laying charges against institutions and private training establishments for certain student loan and allowances offences

The Act extends the limitation period for offences relating to student loan and allowance offences to up to 12 months after MSD becomes aware of offending. This is to ensure consistency with the limitation period for prosecuting other student loans and allowances offences, and to allow sufficient time for offences to be detected, investigated and prosecuted.

These offences relate to the failure, by institutions and private training establishments, to provide information or who are providing false or misleading information in response to requests.

Increased period for laying charges against institutions and private training establishments for certain student loan and allowances offences

Student loan and allowance information

The Act allows MSD to hold social housing information in the same database as student loan and allowances information and social security benefit information. This will allow MSD to efficiently store information and provide better client services.

Allowing student loan and allowance information to be kept with social housing information

Extending the expiry date of the Interim Code of Practice

The Act includes a provision to extend the expiry date of the Interim Code of Practice for the Pastoral Care of Domestic Tertiary Students by one year, until 1 January 2022. This is because the demands of COVID-19 have meant that providers, learners and workers have been unable to contribute to the development of a long-term Code within the original timeframe.

Education and Training Act - updates relating to Tertiary and International education

Cancelling Export Education Levy (EEL) Payment Obligations

In response to COVID-19, the Act cancels the EEL payment obligations for enrolments in the 2020 and 2021 years. This is to reduce the financial burden on education providers affected by the loss of international students. Levies already paid will be refunded.

Education and Training Act - updates relating to Tertiary and International education

Enabling the Minister of Education to vary a tertiary funding determination, without a three-month stand-down period, when there is an epidemic or emergency

The Act allows the Minister to vary a tertiary funding determination immediately following consultation, in circumstances where there is an epidemic notice issued or a national or local state of emergency.

This change will allow tertiary education organisations and the Tertiary Education Commission to quickly respond to, and support the recovery from, epidemics or states of emergency.

The Minister will still be required to consult all organisations that would be affected by the proposed variation and all other persons and organisations that the Minister considers ought to be consulted. 

Education and Training Act - updates relating to Tertiary and International education

Enabling the Minister to establish Private Tertiary Establishment sub-categories

The Act allows the Minister to establish sub-categories of private training establishments (PTEs) by Gazette notice. This clarifies the process for the Minister to recognise sub categories of private training establishments.

Education and Training Act - updates relating to Tertiary and International education

Read more about the updates relating to Tertiary and International Education

Planning and reporting for school boards

The Act also incorporates provisions relating to planning and reporting that were introduced by the Education (Update) Amendment Act 2017. These provisions will come into effect no later than 1 January 2023.

Planning and reporting of school boards

Regulatory Impact Assessments and Supplementary Analysis Report

A number of amendments in the Education and Training Act required a Regulatory Impact Assessment or a Supplementary Analysis Report to be prepared.

Education and Training Act Regulatory Impact Assessments and Supplementary Analysis Report

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