New South Wales Consolidated Acts

EDUCATION ACT 1990 - SECT 23

23 Offence if parent fails to send child to school

(1) A parent of a child of compulsory school-age is guilty of an offence if the parent fails to cause the child--

(a) to be enrolled at, and to attend, a government school or a registered non-government school, or

(b) to be registered for home schooling under Part 7.

: Maximum penalty--

(a) in the case of a first offence--25 penalty units, or

(b) in the case of a second or subsequent offence--50 penalty units, or

(c) in the case of a parent subject to a compulsory schooling order--100 penalty units.

(2) It is a defence to a prosecution under this section if at the relevant time--

(a) the child was enrolled at, and attended, a school in another State, Territory or country in accordance with the law of that State, Territory or country, or

(b) the child was enrolled at a government or registered non-government school and participating in distance education provided by the school (unless the Secretary or school had previously directed that the child cease distance education because of the failure of the child to perform the required school work), or

(c) the child was participating in an alternative education program approved by the Minister for children unable, for social, cultural or other reasons, to participate effectively in formal school education (unless the Secretary had previously directed that the child resume formal school education because the child was not achieving the education outcomes required of participants in the program), or

(d) the child was participating in a program established by the Minister under section 35 (Discipline in government schools), or

(e) a certificate of exemption was in force under section 25 in respect of the child and any conditions to which the certificate is subject were being complied with, or

(f) the child was attending a school that the parent reasonably believed to be a government school or registered non-government school.

(3) It is also a defence to a prosecution under this section if at the relevant time--

(a1) the child has written permission from the principal of a government school or registered non-government school, and from the director of a TAFE establishment, to enrol in a course referred to in section 21B (5) (b) and is so enrolled, or

(a) the child was prevented from attending school--

(i) because of some medical condition, or

(ii) because of some accident or unforeseen event,

and within 7 days after that condition became apparent, or that accident or event occurred, notice of that fact (together with any medical certificate required by subsection (7)) was given to the school, or

(b) the child had not been absent from school (excluding any absence referred to in paragraph (a)) for more than 3 days during the 3 months during which the school had been open immediately preceding the absence complained of, or

(c) the child was prevented from attending school because of a direction under section 88 of the Public Health Act 2010 , or

(d) a certificate was in force under section 26 exempting the child from attending classes at a government school and the absence complained of was authorised by the certificate, or

(e) the child was suspended from a government school, or

(f) the child could not gain admission to any available government or registered non-government school in the State because of the child's expulsion from a school or otherwise, or

(g) the child's absence from school was--

(i) because of the child's disobedience, or

(ii) a consequence of the failure of a person (other than a parent of the child) to honour an undertaking accepted under this Part,

and was not the parent's fault, or

(h) the child was living independently of his or her parents.

(4) Proceedings for an offence against this section may be commenced only by, or with the written consent of, the Secretary.

(5) Instead of imposing a fine on a person, the court may make a community correction order under section 8 of the Crimes (Sentencing Procedure) Act 1999 that is subject to the standard conditions of a community correction order and to a community service work condition, and may do so as if a reference in that subsection to a sentence of imprisonment were a reference to a fine.

(6) If, in any proceedings for an offence against this section, it is alleged that the child's absence from school is due to a medical condition, the court may (on the application of the Secretary) order that the child submit to a medical examination by a medical practitioner nominated by the Secretary. In that case--

(a) the costs of the medical examination are to be borne by the Secretary, and

(b) the medical practitioner is not subject to any liability arising only because the medical examination was carried out without the consent of the parent or child.

(7) Notice of a medical condition that prevents a child from attending school is required to be accompanied by a certificate from a medical practitioner that states that the child should not attend school because of the condition briefly described in the certificate if the principal of the school has notified a parent of the child that because of the number or duration of past absences a notice must in future be accompanied by such a certificate.