Penalties for publishing school rankings

[Lazarus]

The NSW Government has today passed legislation which imposes penalties on people in NSW who publish rankings or comparisons of particular schools based on school results without the consent of the principals of the schools involved.

There is an exception for the publication of the rankings of the top 10 per cent of schools based on the HSC results of the top achievers published by the Board of Studies.

While it's unclear whether the provision extends to websites, it does seem likely that newspapers will no longer publish full annual school rankings. (This is probably a good thing because most of them weren't statistically valid anyway.)

It is likely that the newspapers will now only publish the ranks of the schools they determine to be in the top 10 per cent based on the numbers or percentages of students scoring in the top bands. This equates to around 90 schools.

The legislation has not yet commenced but will in due course. The amendment containing the penalty provision is reproduced below.

Page 3, Schedule 1 [1], proposed section 18A. Insert after line 26:

(4) A person must not, in a newspaper or other document that is publicly available in this State:

(a) publish any ranking or other comparison of particular schools according to school results, except with the permission of the principals of the schools involved, or

(b) identify a school as being in a percentile of less than 90 per cent in relation to school results, except with the permission of the principal of the school.

Maximum penalty: 50 penalty units in the case of an individual and 500 penalty units in any other case.

(5) Nothing in subsection (4) prohibits:

(a) anything authorised to be done by or under a relevant national agreement, or

(b) the publication of the ranking of the schools in the top 10 per cent in relation to the results of Higher School Certificate examinations and related assessments so long as the information used to determine that ranking is information as to the results of students that may be publicly revealed under subsection (6)(c).

[withoutaface]

The conspiracy theorist in me says that maybe, just maybe, they don't want public education's failures to be highlighted quite so vividly.

[supercalamari]

Behind this there's probably a powerful lobby group comprised of principals from wealthy private schools. Bye bye freedom of information.

[lyounamu]

omg, this is ridiculous.

[Uncle]

I just hope Channel Nine uses the same excuse 'Under the freedom of information act....'

[Brontecat]

sounds like a ploy to get their proposed schools reporting/comparison system up and running

[Riet]

The conspiracy theorist in me says that maybe, just maybe, they don't want public education's failures to be highlighted quite so vividly.

I think more the massive divide between selective schools and the rest, which promotes just as much elitism and social division as private schooling.

Edit: Rest of the public schools, that is.

[babikakez]

It is likely that the newspapers will now only publish the ranks of the schools they determine to be in the top 10 per cent based on the numbers or percentages of students scoring in the top bands. This equates to around 90 schools.

This is sort of how it is in WA - top 40 or so schools based student results, then a separate table for each school naming the number of students achieving 75+ in examinable subjects.

[lala2]

Wow, you serious? 500 penalty units = 110 x 500 = $55,000? So the way I read this law, is newspapers cannot rank schools below the 90th percentile unless the schools involved give express permission, is that right?

[Lazarus]

Yep that's correct.

Obviously they will have to rank all the schools themselves in order to determine who is in the top 10%, but they can only publish the top ranks.

[katie tully]

God, what will ACA do in October every year from now on? No more comparative stories about top 100 schools vs. bottom 1000 schools?!

It should still be safe on BOS to say 'I am in a top 100 school' though, yeah? Although I guess soon nobody will know ...

What lunacy!

[James Cos]

Would it be correct to say: -

1. that publishing complete school rankings on this website, or other websites, would be contrary to law, as a website is a 'document' under the Interpretation Act 1987 (NSW); but

2. that it would not be unlawful for a person outside of NSW to make such information available on this, or another website, that is publicly accessible in NSW?

[jellybelly59]

You gotta thank the coalition and the greens and their part in the amendments

School-reporting policy in league of own as Greens get their clause into it | smh.com.au

[Lazarus]

Would it be correct to say: -

1. that publishing complete school rankings on this website, or other websites, would be contrary to law, as a website is a 'document' under the Interpretation Act 1987 (NSW); but

2. that it would not be unlawful for a person outside of NSW to make such information available on this, or another website, that is publicly accessible in NSW?

James

These are difficult questions to answer, largely because the legislation is unclear and its passage through Parliament was based on some misconceptions.

You have hit the nail on the head in terms of your analysis though. There appears to be some tension between the words used and the intention of the legislature.

There are a few issues to be considered:

(a) the meaning of the word "document" is statutorily defined, as you pointed out, to include "anything on which there is writing", and "writing" is defined to include any "mode of representing or reproducing words in visible form" - at first glance a webpage would appear to fall within that definition;

(b) it is unclear whether it is the source code of the webpage (on the servers and possibly outside NSW) or the rendered version of the webpage (on the viewer's computer in NSW) which is the "document", and hence it is unclear whether publication occurs when the material is placed online or when it is actually viewed in NSW (see e.g. the High Court's decision in Dow Jones v Gutnick where the latter was held to be the case in relation to defamatory comments published on a newspaper's website);

(c) in both the Greens' speech introducing the amendment and the Government's speech adopting the amendment it was stated that the law would not extend to websites or to publications in other States, and that the NSW Parliament did not have power to make laws so extending - but the true position is that the power of the NSW Parliament to legislate extraterritorially is beyond question (see s 2(1) of the Australia Act 1986 (Cth) and Union Steamship Company of Australia Pty Ltd v King).

I don't think an Act will be given extraterritorial operation unless there are express words to that effect or it arises by necessary implication - there are no express words here and whilst the implication is open I don't think it is necessary.

So that means publication in other States is OK, and publication on the internet is OK so long as the act of publication is not done in NSW. (If 'publication' occurs at the time of viewing rather than at the time of putting the material online that could pose problems for people interstate though.)

But consider the case of a website located and administered wholly within NSW, so that the act of publication has to be occurring in NSW. I think the law would extend to publication on such a site. There is nothing extraterritorial about that operation, and despite the fact that publication is occuring via a website, a close reading of the speeches seems to indicate that they were concerned only with websites operating in other or multiple jurisdictions rather than wholly within NSW. The plain words of the section also extend to webpages.

The tricky case, interestingly, seems to be the position of a site such as this one. Our servers are located in Texas, but apart from that the site has a very strong nexus with NSW. I am going to refrain from commenting on that though.

Hope that helps.

[Concerti]

James

These are difficult questions to answer, largely because the legislation is unclear and its passage through Parliament was based on some misconceptions.

You have hit the nail on the head in terms of your analysis though. There appears to be some tension between the words used and the intention of the legislature.

There are a few issues to be considered:

(a) the meaning of the word "document" is statutorily defined, as you pointed out, to include "anything on which there is writing", and "writing" is defined to include any "mode of representing or reproducing words in visible form" - at first glance a webpage would appear to fall within that definition;

(b) it is unclear whether it is the source code of the webpage (on the servers and possibly outside NSW) or the rendered version of the webpage (on the viewer's computer in NSW) which is the "document", and hence it is unclear whether publication occurs when the material is placed online or when it is actually viewed in NSW (see e.g. the High Court's decision in Dow Jones v Gutnick where the latter was held to be the case in relation to defamatory comments published on a newspaper's website);

(c) in both the Greens' speech introducing the amendment and the Government's speech adopting the amendment it was stated that the law would not extend to websites or to publications in other States, and that the NSW Parliament did not have power to make laws so extending - but the true position is that the power of the NSW Parliament to legislate extraterritorially is beyond question (see s 2(1) of the Australia Act 1986 (Cth) and Union Steamship Company of Australia Pty Ltd v King).

I don't think an Act will be given extraterritorial operation unless there are express words to that effect or it arises by necessary implication - there are no express words here and whilst the implication is open I don't think it is necessary.

So that means publication in other States is OK, and publication on the internet is OK so long as the act of publication is not done in NSW. (If 'publication' occurs at the time of viewing rather than at the time of putting the material online that could pose problems for people interstate though.)

But consider the case of a website located and administered wholly within NSW, so that the act of publication has to be occurring in NSW. I think the law would extend to publication on such a site. There is nothing extraterritorial about that operation, and despite the fact that publication is occuring via a website, a close reading of the speeches seems to indicate that they were concerned only with websites operating in other or multiple jurisdictions rather than wholly within NSW. The plain words of the section also extend to webpages.

The tricky case, interestingly, seems to be the position of a site such as this one. Our servers are located in Texas, but apart from that the site has a very strong nexus with NSW. I am going to refrain from commenting on that though.

Hope that helps.

I would have to agree because there was a case that was brought before the high court similar to the publication of documents (if I can remember it, I'll post it up)..

so I would believe that the courts would interpret document as website as well..

*off to find that case* :wave:

[youngminii]

Wait so NSW is the ONLY place affected by this?
So in other words..
Information is being censored by the government?
Or our freedom is being restricted..
Either way, doesn't seem very democratic to me

[JJ_Lin]

why there are hundreds of insititues and organisations making ranking for universities in Australia, while it is now illegal to talk about the ranking of high school?


No offence at all, but...
I am speculating and guessing (only) they are trying to cover up the worst school in NSW


Evidence speaks louder than everything

If the government want to say the newspaper ranking, like Daily Telegraph's is inaccurate and misleading, why they don't just release a real inside ranking to the public?

P.S. It does not have to be recent or a complete list. e.g. top 400 in 1999
This really doesn't feel like democratic

Anyone can tell me where I can complain this?