Section 38 Education and Training Act: Plain-English Guide for NZ Homeschoolers

When you start researching home education in New Zealand, you will encounter references to "Section 38" fairly quickly. Most Ministry of Education guidance summarises it in one sentence: apply and show you will teach your child at least as regularly and as well as in a registered school. That summary is accurate but incomplete. Understanding what Section 38 actually says — and what it does not say — matters when you are making a significant legal and educational decision.

The Statute: What Section 38 Actually Says

The Education and Training Act 2020 replaced the Education Act 1989. Section 38 is the current provision governing exemptions from the compulsory enrolment requirement. It reads, in relevant part:

The Secretary for Education may exempt a child from the requirement to be enrolled at a registered school if satisfied that the child will be taught at home at least as regularly and as well as in a registered school.

That is the entire substantive test. Four things are worth noting in that sentence:

"May exempt" — The decision is discretionary. The Secretary (in practice, a Ministry of Education regional advisor acting under delegated authority) has discretion to grant or decline. A coherent educational plan supports the Ministry's assessment, but approval is not automatic — it requires an active application and a positive decision.

"Taught at home" — The instruction must occur at home, or at least primarily in a home-based context under parental supervision. The parent (or guardian) is the supervising educator. You are not required to teach every subject personally, but you must be present and responsible. Delegating entirely to a private tutor or online school while you are not present would not satisfy the Act's intent.

"At least as regularly" — Regularity is about consistent educational activity, not a fixed daily schedule or prescribed number of hours. A proposed schedule or description of an average week is evidence that learning will occur regularly; the law does not prescribe a particular timetable.

"As well as in a registered school" — This is the qualitative standard, and it is intentionally undefined. The Act does not specify subjects, hours, assessments, or outcomes. The Ministry's standard is comparable quality, not identical method. A child who reads widely, learns mathematics systematically, explores science through projects, and writes regularly is being educated "as well" as a school-educated peer — even if none of the formats match a classroom.

What Section 38 Does Not Require

Understanding the Act's limits is as important as understanding its requirements.

No prescribed curriculum: There is no legal requirement to follow the New Zealand Curriculum (NZC), the Te Marautanga o Aotearoa (the Māori-medium curriculum), or any other official framework. Many home educators use the NZC as a reference; most use it loosely or not at all.

No minimum daily hours: The Act does not specify hours of instruction per day. A proposed schedule should show how the programme will operate regularly; the Ministry is not looking for a fixed number of school hours replicated at home.

No mandatory subjects: The New Zealand Curriculum and Te Marautanga o Aotearoa are not legally mandated for home educators. The Ministry's application guidance uses eight learning areas as a reference point: English, Mathematics, Science, Technology, Social Sciences, The Arts, Health and Physical Education, and Languages.

No ongoing reporting to the Ministry: Once the exemption is granted, you do not submit routine reports, assessments, or curriculum plans to the Ministry. ERO may review home education when requested; an initial review often occurs about six months after approval and later reviews may be one to three years apart, but reviews are not universally mandatory for every family.

No right of entry without an ERO review: ERO has statutory inspection and inquiry powers, but a review officer must act at a reasonable time with reasonable notice and has no power to enter a dwelling without the owner's or occupier's consent.

The Section 38 Application Process

Applications are submitted to the Ministry of Education, including the relevant regional office. The applicant is the parent or guardian, and all legal guardians must agree to the application. You will be asked to describe:

• The educational programme you intend to deliver
• The learning areas you will cover
• The resources and methods you will use
• Your availability to supervise instruction

There is no prescribed length or format. Some families submit detailed multi-page plans; others submit concise two-page descriptions. What matters is that the application gives the MOE regional advisor sufficient information to assess the "as regularly and as well" standard. Vague or brief applications tend to generate follow-up questions, which extends processing time.

The exemption is per-child. A family with three children aged 8, 10, and 13 submits three separate applications. Each is assessed individually.

Once approved, the Secretary for Education (through the regional office) issues a Certificate of Exemption. This is the document you present to the school to formally withdraw your child from enrolment.

Section 38 and the Compulsory-Enrolment Obligation

Sections 35 and 36 require domestic students aged 6 to 16 to be enrolled in and attend a registered school. Section 38 is the Certificate of Exemption pathway from that requirement; Section 37 concerns specialist education agreements, not the ordinary home-education exemption.

There is no provision in the Act for provisional homeschooling while an application is in progress, for a trial period before formal approval, or for a grace period after a child stops attending school. Until the exemption exists, the compulsory enrolment and attendance requirements continue to apply.

The "As Regularly and As Well" Standard in MOE Practice

How do Ministry advisors apply this standard in practice? Based on how applications are typically assessed:

Programme breadth: Advisors expect the programme to address literacy, numeracy, and a reasonable range of other learning areas. An application that only describes mathematics and reading will likely generate a question about what else the child will be doing.

Regularity: A proposed schedule or narrative of an average academic week should show how learning will occur consistently. The Act does not require a fixed daily schedule or set number of hours.

Coherence: The programme should be internally consistent. An application that lists a classical curriculum approach alongside highly incompatible resources may raise questions.

Supervision: The application should make clear that a responsible adult is present. If your proposed programme relies entirely on your child completing independent work online while no adult is home, this will raise concerns.

Special circumstances: Applications for children with significant learning differences, disabilities, or health conditions are assessed in the same framework, but the programme description should address how the child's specific needs will be met. Many families in this situation find that articulating their child's needs and explaining why a home-based programme meets those needs better than school is both honest and effective.

When the Secretary for Education Can Revoke an Exemption

Section 38 also provides for revocation. The Secretary for Education decides whether to revoke an exemption if no longer satisfied that the child is being taught at home at least as regularly and as well as in a registered school. The Secretary must make reasonable efforts to obtain relevant information and consider a report from the Chief Review Officer before making the decision.

Failing to respond to review requests, missing arranged visits, or being unable to show evidence of learning over an extended period may create revocation concerns. Keeping records of work and progress helps provide evidence if a review occurs; it is not a guarantee against revocation.

Practical Implications for Families

Understanding Section 38 clearly changes how you approach the application. You are not trying to replicate school at home to pass a test. You are making the case that your child will receive consistent, broad, quality instruction under your direct supervision, while retaining flexibility over pedagogy and schedule.

The New Zealand Legal Withdrawal Blueprint covers the full Section 38 application — including how to write a programme description that satisfies the "as regularly and as well" standard without over-engineering it, and how to prepare for the ERO review once the exemption is in place.

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