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, show you will teach your child as well as a school would, and you will probably be approved. 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. In practice, approvals are overwhelmingly routine for applications that present a coherent educational plan. But it is not an automatic right — 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 consistency, not rigid hours. Schools operate approximately 190 days per year. Home education does not need to clock exactly that number, but sporadic or unpredictable instruction does not meet the standard. Most MOE advisors are looking for evidence of a structured routine — daily or near-daily learning across core areas.
"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. Home education tends to be considerably more efficient than classroom instruction — without transitions, administration, and the pace set by the lowest-common-denominator student, most home educators complete equivalent learning in 2–4 hours. The Ministry is not looking for a 6-hour school day replicated at home.
No mandatory subjects: The "as regularly and as well" standard implies coverage of core learning areas (literacy, numeracy, science, social understanding), but there is no statutory list of compulsory subjects. The Ministry's application guidance references the key learning areas of the NZC as a reference point, not as a requirement.
No ongoing reporting to the Ministry: Once the exemption is granted, you do not submit reports, assessments, or curriculum plans to the Ministry. Your obligation to demonstrate programme quality arises only at ERO reviews, which occur at intervals determined by ERO's assessment (typically 1–3 years after an initial review at around 6 months post-exemption).
No right of entry without an ERO review: The Ministry cannot conduct random inspections of your home education programme. ERO reviews require prior notice and are conducted by ERO officers, not Ministry officials. If someone purporting to be from the "Ministry" contacts you to conduct an unannounced home visit, they do not have legal authority to do so.
The Section 38 Application Process
Applications are submitted through the Ministry of Education's online portal. The applicant is the parent or guardian. 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.
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Section 38 vs. Section 37: The Enrolment Obligation
Section 38 is the exemption provision. Section 37 is the enrolment obligation it exempts you from. Section 37 requires parents of children aged 6–16 to ensure their child is enrolled at and attending a registered school. The interaction between the two sections is straightforward: Section 38 provides the only legal pathway out of Section 37.
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, Section 37 applies.
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 description of daily or near-daily instruction across the week satisfies this element. Informal descriptions like "we will learn as opportunities arise" without any structure do not.
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 MOE Can Revoke an Exemption
Section 38 also provides for revocation. The Secretary can revoke an exemption if satisfied that the child is no longer being taught at home at least as regularly and as well as in a registered school. In practice, revocations following ERO reviews are uncommon and typically follow a process of written notice and an opportunity to address concerns.
Revocations are more common when families disengage from the ERO review process entirely — not responding to review requests, missing arranged visits, or being unable to show any evidence of learning over an extended period. Families who maintain a basic record of what their child is doing are extremely unlikely to face revocation concerns.
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. The bar is achievable for the overwhelming majority of parents who have genuinely decided to take their child's education seriously.
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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