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ajdlinux

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I agree that it sounds like a demand, but the truth is that the Board is not empowered to make demands at large. It only has the powers conferred upon it by the Education Act, such as the power to make rules approved by the Minister with respect to the exercise of the Board's functions (s131).

The introduction to the ACE Manual on p5 shows (in my opinion) that the manual could reasonably be seen as a summary of the relevant rules and regulations made under the Act rather than the manual itself being a rule made under the Act. If that is correct, any matters which are contained in the manual but which are not covered by the rules are advisory only.
I haven't found any information about ACE specifically, but Official Notice BOS 14/08 says in relation to non-government school registration that the relevant manuals constitute the s131 rules under the Act, so it may be similar with ACE. I'll try and find out more.

Curiously, the rule does not appear in the document titled "Rules and Procedures for 2009 Higher School Certificate Candidates", although that document does refer readers to the ACE Manual "for more detailed explanations".
That doesn't surprise me, given that the brochure is designed for students rather than schools.

I suppose I have to accept that it's not really clear what the true position is - I obviously have particular views about these things. If the rule has not in fact been made, I think it is unlikely that the Minister would approve it now given the events that have transpired this year and her unconditional acceptance of the Ombudsman's recommendations. This might reasonably be described as a change in governmental policy.

But even if the Board has made or were to make such a rule, it could not trump other legislation passed by a state or federal parliament and would necessarily be subordinate to that legislation.

For public schools, this likely includes the Privacy & Personal Information Protection Act 1998, and for private schools it probably includes the Privacy Act 1988. Interestingly, applications for access to information under the former Act do not need to be in writing and an oral request made to a teacher by a student for access to their assessment mark might well constitute an application under the Act.
The question to me is whether the Board has implied powers to control the distribution of assessment information under s102(2)(i) of the Act, and to make associated rules under s131, and if so, does the PPIP Act trump the Education Act? Possibly issues of implied repeal etc. here. IANAL, but I think I agree with you.

I think it's OK for schools to transform marks if the purpose of the transformation is to give greater meaning to the marks and is done in a fair and transparent manner - the raw marks are more or less arbitrary anyway.

Everyone who gives advice in these forums knows that the problem about students not understanding what is going on doesn't go away when marks are hidden. The practice of hiding marks just entrenches ignorance.
Definitely.
 

Lazarus

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The question to me is whether the Board has implied powers to control the distribution of assessment information under s102(2)(i) of the Act, and to make associated rules under s131, and if so, does the PPIP Act trump the Education Act? Possibly issues of implied repeal etc. here. IANAL, but I think I agree with you.
I think s 18A (which expressly deals with the publication of results of HSC exams and related assessments) would be relevant to this question, and probably also relevant to the question of whether there is a prohibition on disclosure.

Unfortunately the recent amendments to the education legislation this year were not what one might describe as an exemplar of legislative drafting and as a result s 18A(6)(a) now reads:

School results must not be publicly revealed if the results of an identified student are revealed, except ... to the student or to the student's parents, or to anyone with the student's or parent's consent ...

It's difficult to see how school results could ever be "publicly revealed" to a particular student, but given the ambiguity I think this section would likely be construed in the same way as the previous regulation, i.e.:

Results relating to a particular student may however be revealed as follows:

(a) to the student or to anyone with the student’s consent,
(b) to the student’s parents (or his or her other caregivers) ...

So it would seem that disclosure of a student's results to that student is expressly authorised by the Act. I think this is a sensible conclusion.
 
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I think s 18A (which expressly deals with the publication of results of HSC exams and related assessments) would be relevant to this question, and probably also relevant to the question of whether there is a prohibition on disclosure.

Unfortunately the recent amendments to the education legislation this year were not what one might describe as an exemplar of legislative drafting and as a result s 18A(6)(a) now reads:

School results must not be publicly revealed if the results of an identified student are revealed, except ... to the student or to the student's parents, or to anyone with the student's or parent's consent ...

It's difficult to see how school results could ever be "publicly revealed" to a particular student, but given the ambiguity I think this section would likely be construed in the same way as the previous regulation, i.e.:

Results relating to a particular student may however be revealed as follows:

(a) to the student or to anyone with the student’s consent,
(b) to the student’s parents (or his or her other caregivers) ...

So it would seem that disclosure of a student's results to that student is expressly authorised by the Act. I think this is a sensible conclusion.
This is what I was told at some stage, however many teachers aren't aware of this, infact some still don't even realise they can tell us or marks for assessments, so they just give us a grade :(
But yes I do believe that is an accurate conclusion.
 

ajdlinux

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So it would seem that disclosure of a student's results to that student is expressly authorised by the Act. I think this is a sensible conclusion.
That does seem the most sensible conclusion, but the law is not always sensible. How much weight would be placed on the previous interpretation of subordinate legislation in the interpretation of primary legislation which otherwise points towards the publication of results being prohibited? As you say, quite a poorly drafted amendment.

(I wonder if the Board has ever sought legal advice about this. Too bad we can't get privileged documents under FOI.)
 

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