Christian Community Ministries Ltd v Minister for Education and Early Learning

Christian Community Ministries Ltd (CCM) appealed a decision of the Minister for Education and Early Learning (Minister) to recover past financial assistance provided to a non-government school. The Minister had determined that CCM was non-compliant with the conditions for receiving financial assistance, specifically that the school had operated for profit between 2015 and 2020. This determination led to a decision to recover the financial assistance previously granted. The appeal was heard by Gleeson and Mitchelmore JJA and Griffiths AJA in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal concerned the interpretation of provisions within the *Education Act 1990* (NSW). Specifically, the court had to determine whether the Minister was empowered to make a recovery decision under section 83J of the Act in relation to a period prior to the Minister formally declaring the school non-compliant under section 83F. This question hinged on whether the Minister had reached the requisite state of satisfaction that the school was operating for profit, as required by section 83E of the Act, for the relevant period.

The Court of Appeal reasoned that the Minister's power to recover financial assistance under section 83J was not contingent on making a formal declaration of non-compliance under section 83F prior to the recovery decision. The court found that the Minister's satisfaction that the school had operated for profit, which triggered the recovery power, could be formed at any time and did not require a pre-existing declaration of non-compliance for the period in question. The statutory scheme allowed for the recovery of funds where a school had, in fact, operated for profit, irrespective of when that non-compliance was formally identified or declared.

The appeal was dismissed, and CCM was ordered to pay the costs of the proceedings.