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Compulsory Schooling Orders under the Education Act 1990

Lawyers are reminded that legal aid is available for compulsory schooling orders initiated in the Children's Court and any resulting criminal proceedings in the Local Court which are commenced by a court attendance notice issued by a person other than a police officer.

These matters may be run as part of the duty scheme at first instance.

Given the types of circumstances that are raised in these matters, many of these applicants will be significantly disadvantaged and are likely require assistance in court. It is important that lawyers are aware that where they are satisfied there are exceptional circumstances, legal aid may be granted.

Aid is available as follows:

Compulsory Schooling Orders

Under section 22D of the Education Act 1990 (NSW) the Children's Court may, on the application of the Director General of the Department of Education and Communities, make a Compulsory Schooling Order in relation to a child who is not receiving compulsory schooling.

Legal aid is available for parents and children who are responding to an application by the Department of Education in the Children's Court in relation to a compulsory schooling order. Family Law Policy: Care and Protection 5.16.19 covers legal aid for parents (subject to the Means Test) and 5.16.20 covers legal aid for children.

This policy applies even if the application is made in the Local Court and duty solicitors may also assist with these matters.

Prosecutions under the Education Act 1990 (NSW)

Where a parent is being prosecuted by the Department of Education for breaching a compulsory schooling order, legal aid is available under Criminal Law Local Court Policy 4.3.2.

Under section 23 of the Education Act 2009 it is an offence if a parent fails to enrol their child at school, or where enrolled, fails to send their child to school. Note: The Department of Education is responsible for prosecuting these offences.

Maximum penalty:

  1. in the case of a first offence - 25 penalty units, or
  2. in the case of a second or subsequent offence - 50 penalty units, or
  3. in the case of a parent subject to a compulsory schooling order - 100 penalty units.

Under the Local Court Criminal Law Policy 4.3.2 Legal aid is available for Local Court criminal law matters where the Court Attendance Notice is issued by a person other than a Police Officer, the applicant satisfies the Means Test, and there is a real possibility of a term of imprisonment or, there are exceptional circumstances.

Criminal Law Guideline 1.13 sets out what may constitute exceptional circumstances under the Policy. Guideline 1.13.5 specifically addresses Education Act matters.

1.13.5 Other circumstances

The list of exceptional circumstances in 1.13 is not intended to be exhaustive. There may be other types of circumstances that Legal Aid NSW may take into consideration in deciding whether there are exceptional circumstances.

Exceptional circumstances may include, for example, where the applicant for aid:

Note: This guideline applies to both duty matters and defended hearings.